BOUGHT WITH THE INCOME PROM THE SAGE ENDOWMENT FUND THE GIFT OF fienrg W. Sage /\.^1H:>M:- '^ I5;|l?lu 9724 Cornell University Library JX 1918.L42 Internationa! problems an^^ The original of tliis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924005213701 INTERNATIONAL PROBLEMS AND HAGUE CONFERENCES All rights reserved INTERNATIONAL PROBLEMS AND HAGUE CONFERENCES BY T. J. LAWRENCE, M.A.. LL.D. Lecturer in International Law at the Royal Naval War College; Associate of the Institute of International Law; Author of "The Principles of International Law," "War and Neutrality in the Far East," etc. LONDON J. M. DENT & CO. UCUVIII PREFACE The aim of this book is twofold. It attempts to furnish students with an account of the Hague Conferences, considered not as isolated phenomena but as immensely important points in the evolution of international society, and it endeavours to place before thoughtful people who take an interest in the affairs of the world around them sound information about a series of events of which they have read in a desultory fashion in their newspapers, but as to which their knowledge is as a rule both imperfect and confused. The first class of readers require clear outhnes and explanations of important details, but they do not want long and technical discussions, such as would be appropriate to the argu- ments of jurists and the controversies of professional experts. Much of the matter in the book is based on such far-reaching investigations, but an endeavour has been made throughout to present reasoned conclu- sions supported by well-considered arguments, without cumbering the pages with a mass of citations from authorities, and aU the wearisome minuticB so dear to the soul of the legal formalist. It is hoped that what suits the student who has to master a subject rather than argue a point, will also suit the intelligent citizen who wishes to do his duty by his age and country, but vi PREFACE has neither the time nor the taste for adding another set of technicalities to those which he has already learned for the purposes of his own business or profession. He is well aware that every great power is an important member of a society of states, and he wishes his own country to play a prominent part in international affairs. But how they are regulated he knows not ; and this new organisation called the Hague Conference is more of a puzzle to him the more he reads the conflicting views he finds in the periodical press. Is it to be con- demned or approved, supported or opposed? If he turns to the following pages for guidance, he will, I trust, find set forth in intelligible English facts and reasonings which will help him in coming to a wise conclusion. The zealot for war at all price, and the enthusiast for peace at any price, will not be satisfied. But the sober-minded advocates of justice and righteous- ness will discover ample reason for the belief that inter- national society has thrown up in the Hague Conference a most powerful organ, whose possibilities for good need to be developed by the persistent efforts of every lover of his kind. To organised religious and philanthropic bodies and to commercial interests all over the world a special appeal is made. There can be little doubt that the terrible calamities described in the eighth Chapter might happen at any moment if a great naval war were to break out within the next few years. In order that means may be taken to avert them, it is needful that public opinion in all civilised states should be PREFACE vii stirred up with a view to bringing pressure to bear on governments. Self interest and altruistic senti- ment are the only two forces capable of performing this task, and they ought not to delay a moment in getting to work. As a clergyman of the Anglican Communion the writer is sorry to see that no room has been found for a discussion on International Morality in the great Pan-Anglican Congress which is to meet in London next June. The programme deals at length with " The Church and Human Society," but all the headings grouped under this comprehensive title refer to matters which come under national control or ecclesi- astical supervision. The Promoters of the Congress seem to have forgotten the existence of a great Society of Nations, whose organisation and regulation call aloud for the application of Christian principles. My chief authorities have been the official papers of the Hague Conferences, and especially their Conventions. A mass of literature has already grown up around them, with much of which I have made myself famUiar. The substance of parts of my subject-matter has aheady been set forth in a paper read before the Salisbury Diocesan Branch of the Society of Sacred Study, and in lectures given at the University of Cambridge, the Royal United Service Institution, and University College, Bristol. But the greater portion of it now sees the light for the first time, and the rest has been completely recast. Opportunities have not been want- ing for discussion with some of those who have influenced the events I have recorded and taken part in the pro- viii PREFACE ceedings I have described. The views of others whose difficult task it is to assist in shaping the immediate future out of the recent past have been generously placed before me. To aU who have helped I tender my hearty thanks, and especially to Miss E. A. Lippert, who has acted as my secretary throughout the prepara- tion of the book. T. J. LAWRENCE. Upton Lovel Rectory, Wilts., May 28, 1908. CONTENTS CHAPTER I _ ,. PAGE The Nature of the Society of Nations . . . . i CHAPTER II The Rise of the Society of Nations . . . . i6 CHAPTER III The Growth of the Society of Nations . . . -Si CHAPTER IV The Hague Conferences and Peace .... 48 CHAPTER V The Hague Conferences and War on Land ... 83 CHAPTER VI The Last Hague Conference and War at Sea . . 108 CHAPTER VII The Last Hague Conference and the Attempt to set up an International Prize Court ..... 132 ix X CONTENTS CHAPTER VIII PAGE Dangers Ahead ........ i6o CHAPTER IX Remedies .......... i8i CHAPTER X The Duty of Great Britain in the Immediate Future . 202 INDEX . . . .... 207 INTERNATIONAL PROBLEMS AND HAGUE CONFERENCES CHAPTER I THE NATURE OF THE SOCIETY OF NATIONS We often speak of the Society of Nations, but it is doubtful whether we attach any very precise meaning to the phrase. The confession must be made at once that it is not absolutely correct, and the assurance given that modem writers are not responsible for what is amiss with it. They do but use current coin which was minted long before they were bom. But lapse of time cannot remedy the flaws in the minting. Though more than a century has gone by since Jeremy Bentham invented the term International Law, and men began to describe it as the body of rules which governed the Society of Nations, it remains as true now as it was then that states, and not nations, are the units which make up the society we are considering. A state is a large number of himian beings organised pohtically for purposes of canying on internal government, cind external intercourse with other bodies similarly organised. A nation is a large munber of A 2 INTERNATIONAL PROBLEMS human beings united by such ties as blood, speech, reli- gion, common literature, and common history. Some- times a state and a nation are practically one, as is the case with France and the French. Sometimes a state is made up of several nations or parts of nations, as is the case with Austro-Hungary which includes among its peoples Germans, Magyars, Slavs, and Italians. Some- times a nation is divided among several states, as is the case with the Poles, some of whom are under Russian rule, some under Prussian, and some under Austrian. A nation, as such, has no organs whereby it can enter into relations with other nations. But a state has rulers and governors, who deal with the rulers and governors of other states in such matters as the settlement of disputes about territory, the use of the sea as the common high- way of aU mankind, and the rights and duties of neutrals in time of war. These are only examples. The matters, which come up for settlement between the governments of civilised countries are cilmost as numerous as, and often much more important than, those which arise be- tween individuals. But they come up between states, not between nations; and they are settled by states, not by nations. We ought therefore to speak of the Society of States rather than the Society of Nations, and of Interstate Law rather than of International Law. But we do nothing of the kind, and it is too late now to attempt to alter what is consecrated by the usage of the civilised world for about a century. We can, however, make it clear to ourselves and others that we are aware of the " terminological inexactitude " of the AND HAGUE CONFERENCES 3 phrases we use ; just as when we speak of the whale as a fish we quite understand that it does not come under the category of fishes at all, but is a hot-blooded marine animal. The Society of Nations then is that body of states which are sufiftciently alike in civihsation and ideas to enable them to hold constant intercourse with each other through their respective governments. It does not consist of all the separate and independent poUtical organisations on the face of the globe, for some of these are too barbarous to belong to it. This is plain as regards savages. The rulers of Great Britain could no more enter into ordinary diplomatic relations with their chiefs than the ladies of Great Britain could live on visiting terms with their women-folk. The real diffi- culty occurs with states like Morocco or Abyssinia, which have long ago passed out of pure barbarism, but have not attained to any high degree of order and civili- sation. Treaties of a simple kind can be made with them, but they have no part or lot in the constant inter- course of civilised powers. They are states, but not states of International Law. They do not belong to what is graphically described as the Family of Nations. They are like the poor out-at-elbows clergyman and the struggling doctor in a village graced by a ducal abode, who are asked to a garden party by the great man at infi-equent intervals, but must not expect the intimacy accorded to the titled county families. The analogy between the society of individuals and the Society of Nations is in many respects very close. 4 INTERNATIONAL PROBLEMS They grew up in response to impulses and necessities implanted deeply in human nature. They have similar usages as to the admission of new members. In both there are grades and distinctions, avowed and unavowed, reasonable and fooUsh. In both there are open enmities and hidden jealousies. In both a serious rupture of relations sometimes occurs. There are points of differ- ence as weU as points of resemblance, and each kind will become apparent as we proceed further with our com- parison. No society can exist without some rules for the con- duct of the mutucd intercourse of its members. In the society of individuals many of these are imposed from above. The best examples of such rules are the laws of a state, which are made by its legislative authority, and bind its individual citizens. If they do not obey, the whole organised force of the community is directed against them. For different offences different punish- ments are decreed beforehand, and when guilt has been brought home to an offender, the state sees that he does not escape his appointed fate. But the fundamental idea of the Society of Nations as it now exists is that states have no common superior, no coercive authority set over them to make them obey its behests. Are we therefore to conclude that they are lawless? By no means, unless clubs are lawless, and all the voluntary bodies into which men and women organise themselves. We know very well that every club we belong to has its rules, and most of them are rules which the members have agreed to either tacitly, by joining the club, or AND HAGUE CONFERENCES 5 expressly, by voting for them at a general meeting. We also know that every profession has its code of honour, and every social group its etiquette. All these exercise a very real authority over us. No one likes to brave the displeasure of his associates by ignoring usages which seem good to them. This is true in things smaD as well as things great. A man cannot go out to dinner continually in a shooting jacket, or a woman in a hockey skirt. In neither case will the offender be locked up or fined forty shillings and costs. But his or her invita- tions wiU grow small by degrees and beautifully less, tUl at last they cease altogether. As to weightier matters, there is no need to explain what happens to the physi- cian who violates professional confidences, or the matron who elopes with her neighbour's husband. The rules we speak of are not formally made by a supreme authority, but nevertheless they are well known and generally accepted. No definite punishments are decreed before- hand for those who break them ; yet it is almost certain that some person or group of persons wiU sooner or later exact a retribution. Things are precisely alike in the Society of Nations. It began by being very loosely organised, like Society, with a big "S," among us. Yet even then the bulk of its members had definite ideas as to some departments of international conduct, though others were left almost unregulated. If one state per- sistently broke those rules, others were apt to combine against it. Meanwhile ideas fructified in the minds of thinkers, and through their efforts opinion grew. The stronger the opinion the more likely it is to find means 6 INTERNATIONAL PROBLEMS of enforcing obedience to its behests. Though in itself and by itself it has no coercive power, it wiU in time control and set in motion those who have. For instance, if the people of Great Britain and the United States are determined to have a peaceful settlement of the questions arising out of the Newfoundland fisheries, their rulers wiH persevere in their attempts to refer them to the Hague Tribunal, or some other quasi- judicial body. If on the other hand they change their minds and fix them on war, war there will be in time, by the action of their present rulers or others selected instead of them. Opinion has been growing, and international society has been organising for three centuries, amd as a result we have obtained a body of rules which we call International Law. It is constantly becoming wider in scope and more definite in expression. At first it made itself felt in vague and indeterminate ways ; but gradually by the growth of custom, and by the machinery of congresses, conferences, declarations, and far-reaching international treaties, it has become more precise. Some of its rules have been embodied in documents signed by the vast majority of civilised powers, and others are based on general custom. In our own time something not altogether unhke a legis- lature for the Society of Nations has been created. It is to the two Hague Conferences, and more especicilly to the latter, that this description apphes. Their origin will be explained in our third chapter, and in sub- sequent chapters their work will be reviewed and criti- cised. It is not a matter for statesmen and jurists only. AND HAGUE CONFERENCES 7 It concerns men in masses, and individual units also; and it concerns them very nearly. An effort will be made to bring this home to all intelligent readers, and for that purpose legal technicalities wiU be avoided and clearness of statement studied. But before anything of the kind is attempted it will be necessary to explain a few of the fundamental principles and rules of inter- national society as it exists at the present time. With- out some knowledge of them no one can see clearly how they came to be what they are, or appreciate any suggestions for their improvement, and the amelioration of the order based on them. The first thing to be considered is the territorial char- acter of sovereignty. Every state known to Inter- national Law possesses a portion of the earth's surface. Mark, however, the importance of the qualification contained in the words, " known to International Law." For just as a man is a man whether clothed or bare, so a state is a state whether nomadic or settled. But just as no man can be a member of any decent society of individuals unless he possesses at least one suit of clothes, so no state can be a member of the Society of Nations unless it owns some territory, however small. The present rules of International Law presuppose this, and many of them would be either unmeaning or inapplicable without it. We are constantly speaking of a state's frontiers, and using such phrases as the work of boundary commissions, the rights of subjects of one state residing in the dominions of another, the respect due to local sovereignty, and so on. None of these formularies could 8 INTERNATIONAL PROBLEMS have come into being in a world where there was no connection between rule and authority on the one hand, and the possession of a portion of the earth's surface on the other. But this connection is by no means pri- mordial. It developed in the coiurse of ages. Under the old order, as we shall soon see, sovereignty was accounted either tribal or universal. Now it is terri- torial. We must, however, note that the ownership of territory by the state does not exclude the ownership of parts of that territory by private individuals or corpora- tions. They hold under the state and subject to its laws, which prescribe the extent of the powers over landed property which may be exercised by private owners; and often limit them in the interests of the community. As regards landed proprietors among its subjects, the state has paramount rights, but among themselves sovereigns are regarded as absolute owners of the state's territory. When, for instance, Russia ceded part of Sakhalin to Japan in 1905, the transfer was effected by a clause in the Treaty of Portsmouth, and not by separate agreements between the Japanese government and each of the owners of estates in the island. A similar procedure is followed in all cases of the transfer of terri- tory from one state to another, whether it be part of a friendly adjustment or a cession enforced by the victor in a war as an item in the price of peace. The present generation hardly needs to be reminded that when in 1890 Great Britain handed over Heligoland to Germany as part of a great agreement between the two countries for the settlement of colonial questions, it was done as AND HAGUE CONFERENCES 9 an act of state by a clause in a great international docu- ment with which private owners, as such, had no concern. And men not yet old have a Uvely recollection of the Treaty of Frankfort, whereby in 1871 France, under the compulsion of her great defeat, ceded Alsace and part of Lorraine to the conquerors in the struggle she had commenced during the summer of the previous year. If a state borders on the sea it possesses in addition to its land territory what are called territorial waters. A custom so general as to be practically universal makes these extend to a distance of three marine miles from low-water mark along the ordinary coast-line. Narrow bays and estuaries are also deemed to be territorial waters, and in their case the three-mile limit is measured from an imaginary line drawn across the mouth of the bay. The exact limit of size which marks off an inlet which is territorial from an inlet which is not has never been determined by general consent. There can be no doubt that a bay which is not more than six miles wide at its mouth is territorial. The rule of the marine league makes it so. But a practice has sprung up of taking ten nules as the limit. A bay whose opening towards the sea measures more than that distance across is accounted part of the open ocean, while, if the line from point to point is less, all within it is the water of the state which owns the adjacent land. Obvious reasons of protection and self-defence dictate a rule of this kind ; and the vastly increased power of modern artillery rein- forces all the arguments in favour of a wide definition of 10 INTERNATIONAL PROBLEMS territorial waters. When three miles was the utmost range of cannon, states might well be content with power to exclude suspicious foreign warships from inlets that were six miles wide. But now that fifteen miles is the limit, security demands a wider stretch of territorial water, if not for all purposes at any rate for those con- nected with war and neutredity. There is a tendency in this direction. But it is impossible to say that any rule has been fixed by generd agreement. In any given case the six-mile hmit or the ten-mile limit may be set aside by custom, or special convention, or both, in favour of a more generous extension of territorial sove- reignty. The same remarks apply to narrow straits. The ordinary rule of the marine league would make them territorial if they were six miles or less in width. But cases exist of claims to sovereignty over some which are considerably wider, and in a large proportion of such cases the claim is tacitly conceded. For otur present purpose there is no need to go into details concerning the various attempts to exercise the powers of terri- torial sovereignty over large bays and straits of con- siderable width. About some of these there stUl Im-ks a flavour of controversy. Most of them are the last remaining representatives of old and long abandoned claims on the part of the great maritime powers to dominion over vast tracts of open sea. Spain once claimed the Pacific, Portugal the Indian Ocean, and Great Britain the seas around her coasts from Cape Finisterre to the furthest regions of the frozen North. All these attempts to annex aqueous provinces are dead AND HAGUE CONFERENCES ii and buried, and we need not trouble to investigate the pedigree of their few and feeble descendants. Outside marginal waters lie what are called the high seas, and they are free from the territorial sovereignty of any state. This is a most important principle. With the maintenance of it in its integrity is bound up the freedom of international intercourse and the security of peaceful commerce. The high seas of the globe are the common pathway of mankind. In order that they may be enjoyed by all, the exclusive authority of any is repudiated. But in order that they may not become the happy hunting grounds of maritime rascahty, the pubMc ships of aU nations are allowed to capture pirates, and the courts of the captor-state may condemn them to death. Thus the poUce of the ocean is provided for, while it is left free for the use of those whose lawful occasions caJl them upon it. They must, of course, so exercise their right of passage as not to interfere with the corresponding rights of others. With the enormous growth in modem times of over-sea commerce and international travel, there has grown up a system of hghts and signals which is now regulated by inter- national agreement. This attempt to facihtate by mutual forbearance and assistance the enjoyment of common privileges is an additional proof that the Society of Nations is a hving and growing reality, and not a dream-child produced by the union of legal fictions and humanitarian impulses. We must now consider a state's jurisdiction. What does it mean ? Over whom, and how far, does it extend ? 12 INTERNATIONAL' PROBLEMS It is the authority which a state exercises through its courts and officers. By means of it legal rights and duties are determined when doubtful, and crimes are brought home to offenders and visited with adequate punishments. All persons and things within a state's territory are subject to its jurisdiction. This is the general rule, though there are some exceptions, such as a foreign sovereign pajdng an official visit, or the resident diplomatic representative of a foreign power. With regard to ships, though the high seas themselves are free from territorial dominion, both warships and merchantmen on them are under the jurisdiction of the state whose flag they fly. They take its law with them, and its courts can try cases that arise on board. But they are free from foreign interference, unless, indeed, they throw off all authority and become pirates, in which case they are held to have denationalised themselves, and a cruiser of any state can capture them. In foreign ports and waters a state's merchantmen come under the local jurisdiction, to which they must submit if the authorities are prepared to exercise it. But sometimes a country prefers to leave the merchant- men of other states visiting its ports to the operation of their own laws, unless the peace of the port is broken by their proceedings, when it interferes to restore order. Warships, however, are exempt from the local juris- diction when once they have been allowed to enter a foreign port, though for good reasons they may be excluded altogether, or turned out after having been permitted to come in. During their visit they must AND HAGUE CONFERENCES 13 show proper respect for local regulations and refrain from any acts which violate the sovereignty of the state whose hospitality they are enjojdng. These are the fundamental principles of the law of jurisdiction, and they will be sufficient for our present purpose, if we bear in mind that they refer to normal international intercourse in a state of peace. Comphcated questions sometimes arise, and much obscurity exists as to certain disputed points, but there will be no need for us to trouble ourselves about them. Directly war breaks out important changes result. In peace, states respect each other's sovereignty, and recognise each other's jurisdiction. They even negotiate what are called extradition treaties, whereby each signatory power covenants to return to the other, under certain conditions, persons who, having com- mitted a crime in the territory of one, fly therefrom and succeed in reaching the territory of the other. But in war each belligerent does aU in its power to supersede the other's authority by its own, in the districts, or ports, or ships, that it attacks. Even neutral states, who take no part in the war but remain on friendly tenris with both sides, find their position altered for the worse in many matters connected with jurisdiction. Their merchantmen are liable to be stopped on the high seas by beUigerent cruisers and searched. This means that they may be detained and their cargoes overhauled, if the papers they carry, setting forth their nationality, the course, and destina- tion of their voyage, and the nature and ownership of 14 INTERNATIONAL PROBLEMS the goods on board, axe not deemed to be perfectly satisfactory. If the search cannot be conducted in a thorough manner at sea, which will often be the case with the big merchant-steamers of modern times, the vessel may be brought into a port of the beUigerent state and there ransacked from deck to keel. Several days, perhaps even a fortnight or three weeks, may be occupied with these proceedings. If at the end of them nothing objectionable has been discovered, the cargo is replaced and the vessel allowed to resume her voyage. But the delay may well mean a failure of her market, and must in any case entail a very serious loss. If on the other hand it is found that the ship was carrying contraband of war, or attempting to run a blockade, or performing unneutral service, she is captured. The authority of her master is superseded, and a prize crew, under the command of an officer of the vessel which effected the capture, is put on board. Contraband is the name given to goods, such as arms and ammunition, which are so especially useful for warlike purposes that each beUigerent has the right to. intercept and con- fiscate them if it finds them on the high seas in a neutral merchantman on their way to its enemy. A belligerent port is blockaded when a naval force sufficiently strong to cause evident danger in ingress and egress is stationed off it. The blockaders have the right to capture neutral merchantmen who strive to carry goods of any sort in or out of a blockaded port. Unneutral service consists of the performance by a neutral vessel for a beUigerent of acts such as signalling, carrying troops, or showing AND HAGUE CONFERENCES 15 channels, which really amount to a participation in the war. A ship guilty of any of these practices may be captured. Captured vessels should be navigated to a port of the captor's country, where they are tried before a tribunal called a Prize Court, and, if condemned, confiscated. Some beUigerents claim the right to destroy them at sea should it be deemed impossible to bring them in for trial. But Great Britain rightly maintains that it is unlawful to act in this way towards neutral vessels. Not only are neutral merchantmen exposed to the dangers we have just indicated, but neutral states are bound to watch carefully beUigerent vessels visiting their ports, in order to prevent any violations of their neutrality. They are also bound to take precautions against the performance within their territory of certain acts, such as the fitting out of warlike expeditions, or making additions to the fight- ing force of warships in the interests of belligerents. Neutrality, therefore, is by no means a continuance unchanged of a pre-existing state of affairs. On the one hand the neutral state has to submit to interferences with its sea-borne commerce which were unknown dming peace, and on the other it has to undertake measures of watchfulness against dangers which can only arise during war. Quite apart then from humani- tarian considerations, there are strong reasons why states should welcome any arrangements which tend to preserve the peace of the world. CHAPTER II THE RISE OF THE SOCIETY OF NATIONS International society began to exist as soon as bodies of men formed separate state-organisations however rudimentary. One tribe coveted a piece of fertile territory already occupied by another, or a powerful individual of one tribe saw and desired a rich flock or a beautiful woman belonging to a powerful individual of another. In the first case a tribal quarrel came into existence ready made. In the second it rapidly de- veloped frorti the general sense of the duty of kinsfolk to come to the assistance of their relatives ; for kinship was the basis of primitive society, and in early days all tribesmen deemed themselves related to each other by blood. The quarrel was fought out tUl the com- batants were weary of it, and then some agreement was made. Here we have first hostile and then pacific relations. That is to say a rudimentary international society exists. It grows more social with the growth of barter, carried on at first in all probability on a piece of neutral ground. It is cemented by inter -tribal marriages, as soon as these are allowed. And it increases in extent as the development of means of communica- tion brings more and more primitive communities i6 HAGUE CONFERENCES 17 within reach of each other. Song has immortalised the first savage who Made him a boat of a hollow tree, And maa became lord of the awful sea. But the savage who first tamed a horse and rode him has hitherto lacked his bard. Yet he did ahnost as much to increase individual and national intercourse as his fellow, whose dug-out canoe was the forerunner of our modem Lusitanias and Dreadnoughts. Let us acclaim them both as pioneers of International Law. In the ancient world the insistent demands of love and trade struggled hard with the idea, too true in most cases, that men of another tribe were simply the most cruel and crafty of the wild beasts the community had to guard against. The Society of Nations grew very slowly and never attained any considerable develop- ment. The persons of envoys were sacred, and the pubhc faith was pledged to the keeping of treaties entered into by pubhc authority. But beyond this the rules of the incipient society rarely went, unless in the case of states politically separate, but loosely united by racial bonds, hke the city -communities of ancient Greece. These formed a group within the larger group of states who were known to each other and had some rudimentary intercourse; and in their case social amenities were more pronounced. Burial was accorded to the dead who fell in their conflicts, and the hving were held entitled to freedom from molestation when they travelled to and from the chief seats of Hellenic worship. After a time came the dominion of all-con- B i8 INTERNATIONAL PROBLEMS quering Rome. In the days of its greatest power it almost covered the then-known world. Without were chimeeras dire, and naked savages, and dim realms hidden away beyond the Pillars of Hercxiles and in the mysterious recesses of the farthest East. Within were not merely individual subjects, but kingdoms, cities, districts, retaining greater or lesser powers of self- government. Their disputes were referred to Caesar for final decision. He was supreme arbiter in what we may call international affairs, as well as supreme lawgiver over aU the inhabitants of his empire. Hence arose the idea of universal sovereignty, the theory that there was and ought to be a power above all other powers, which should in the last resort control the relations of subordinate rulers. Profoundly modified by Christian influences, this idea smrvived the fall of the old Roman Empire, and appears throughout the Middle Ages in the doctrine of the one great Christendom, governed in temporal matters by the head of the revived or Holy Roman Empire, and in spiritual matters by the Pope, the head of the Church which was at once Cathohc and Roman. As there were two potentates so there were two swords — the temporal wielded by the Emperor, the spiritual by the Pope. Each was granted by God, for the due governance of His people, who formed the great world-state, over which He ruled supreme through His two Ueutenants. In theory they were to act together for the good of His subjects and the enlargement of His realm at the expense of heathendom. But in practice they were generally opposed to each other. Mediaeval AND HAGUE CONFERENCES 19 history is full of the quarrels of Pope and Emperor, mediaeval literature of the controversies of papalist and imperialist writers. Each side claimed supremacy for its chief; but no one for ages ventured to deny that universal sovereignty was somewhere to be found. At last the Reformation challenged papal authority first and foremost, and then incidentally imperial authority also. Its theologians defiantly thrust aside the claim of the Pope to be Christ's Vicar on earth, and its jurists slowly and unwillingly adopted the theory that the Emperor had no sovereign power outside the Umits of his ancestral dominions. In the general break- up of the mediaeval order this theory prevailed. The Reformation and the Renaissance together destroyed the idea of a conunon superior over states. Then for a time the removal of the old restraining influences seemed to do nothing but let loose the worst elements of human nature. Statecraft became more unscrupulous and war more cruel. The tortuous ways of diplomacy at the beginning of the period of upheaval are well illustrated by a quaint diary which has been preserved in a translation, though the original has been lost for the better peirt of a century. It was written by a gentleman named Jaroslaw, who was attached to an Embassy sent in 1464 by the King of Bohemia to Louis XI. of France. It is a most naive document, and carries with it an air of simple truth which is sometimes as amus- ing as it is convincing. The unconscious hiunour of many parts is deUghtful, as, for instance, the matter-of-fact references to a certain Lord Bavor who " lamented that 20 INTERNATIONAL PROBLEMS he had ever married " when he met with ladies more than usually fascinating. The diary informs us that at Strasburg the party were told that whichever way they went into France they could not travel safe, but " would undoubtedly have a fight." It adds that the escort which was given to them by the Strasburgers preserved them from the attacks of a robber count. We axe then told how they roamed in search of the King of France about the north-eastern districts of the country, and how Louis, when at last he was found, appointed Abbe- ville for the place of audience, but broke the appoint- ment. The people, we learn, imagined them to be almost savages, and were greatly surprised when they " conducted themselves so handsomely and properly at meals." We are informed that when at last the mission was admitted to formal audience of the king they were asked to be brief, and, having promised that they would, spoke " long and much " for over three hours. No wonder there were high words between them and some French ecclesiastics about the Pope and heresy. Yet it is amusing to leaxn that all this passed at what was meant to be a private conference, " but we, Ruprecht, Wenceslas Strachota, and Jaroslaw, hstened at a certain window." Louis at last promised friendship to the King of Bohemia; and then there was great disputing and some attempt at knavery about the form of the letters which embodied the friendly assurances on both sides. On its return the embassy passed through Paris and " greatly marvelled " at its size. But in Savoy all pleasurable feelings vanished, for they journeyed all day AND HAGUE CONFERENCES 21 through " superinfemal mountains " till they were weary of their lives. At Geneva " a certain rich and senseless old woman," after receiving them within her inn, drove them out again into the rain as heretics when she heard they were Bohemians. When they were at Constance the priests rang bells all night " to stop the thunder." In Moravia they had to disguise themselves for fear of robbery. At last they found their king at Briinn, where they delivered their letters and completed their Embassy. After reading the recital of their adventures we feel no surprise at the absence, in the infancy of professional diplomacy, of any regulations for compulsory retirement on the score of age ! The story just epitomised teUs of the subterfuges, adventures, and hardships of a special diplomatic mission. But the same Louis XI. who so cleverly evaded the Bohemian Embassy introduced the practice of sending ambassadors to remain at foreign courts, where he ex- pected them to spy upon the proceedings of the poten- tates to whom they were accredited. " If they lie to yoUjJje^stiU more to them " were his succinct insteuc- tions. Other monarchs followed his example, trained as they were in the maxims of statecraft which were put down in black and white and reduced to a regular system by MachiaveUi at the beginning of the next century. Thus diplomacy obtained a reputation for guile which it has not altogether lost after the lapse of four centuries. Let us hope and believe that it has been purged of its original sin; but undoubtedly there are many who stiU regard as a pointed saying the epigram 22 INTERNATIONAL PROBLEMS of Sir Henry Wotton, that " an ambassador is an honest man sent to lie abroad for the good of his country." The diplomatists of the Renaissance by no means enjoyed a monopoly of evil. There was plenty of cal- culated cruelty among rulers, as well as calculated bad- faith. And the licence claimed by MachiaveUi and his disciples for deliberate treachery and scheming perfidy was taken by rough soldiers for the unrestrained indulgence of their most brutal passions. The French invasions of Italy at the end of the fifteenth and the beginning of the sixteenth centuries were undertaken without maga- zines or money. The troops hved on the country, which they ate up like locusts. During the revolt of the United Netherlands at the end of the sixteenth century a place which had resisted, if only by firing a few strag- gling shots from the ramparts, was deliberately given up to slaughter, pillage, and outrage, division after division of the attacking force being moved in to gratify their cupidity and lust, when their predecessors were sated with the infamous orgy. At the beginning of the next century the Thirty Years' War was even more awful still. And the result was such devastation as to reduce the fertile Rhineland to misery for generations. An English ambassador relates in 1635 how he passed through a village " which hath been pillaged twenty- eight times in two years and twice in one day." He saw towns and castles plundered and burnt, and people dead by the wayside with grass in their mouths. So terrible was the famine caused by the excesses of the armies that in some districts bands of wretched creatures AND HAGUE CONFERENCES 23 took to the woods and lived by cannibalism. At the end of the struggle in 1648 whole provinces were depopu- lated, and even at the beginning Hugo Grotius, the great father of modem International Law, was impelled in 1625 to write the oft-quoted words, " I saw prevailing throughout the Christian world a licence in making war of which even barbarous nations would have been ashamed; recourse being had to arms for shght reasons and no reason ; and when arms were once taken up, all reverence for human and divine law was thrown away, just as if men were henceforth authorised to commit all crimes without restraint." But evils so gross drove men to search for a remedy, and by slow degrees a new order rose on the ruins of the old. For the notion of a common superior ruling over one great composite Christian reahn, was substituted the idea of a society of equal and independent states, boimd in reason and justice to treat each other honoiu"- ably and courteously when at peace, and with some approach to humanity when at war. The ill-obeyed behests of an authority which retained the trappings, but not the power, of supreme command were super- seded by rudimentary socicd rules. We cannot attempt here to trace the influences which enabled a httle group of jvuists to lay the foimdations of this new order. They were mostly Protestants, though some of their principles are to be found in the works of Roman Catholic scholars, like the^ Jesuit philosopher Francisco Suarez. The honour must be shared between men of rival faiths ; but it is evident that the new notions could be appHed more 24 INTERNATIONAL PROBLEMS freely and with fewer reservations by a Protestant than by a Romanist, in times when the distinction be- tween church and state, which to us is fundamental, was slowly struggling into hfe. When once it was generally accepted, men of goodwill, whatever their reUgious beliefs, could help in working out the prac- tical results of the principles we have just enunciated. We start again, then, in the first half of the seventeenth century with a Society of Nations, but a society very different from the groups to which we were introduced at first. It was a society permeated through and through with Christian influences, a society endowed with a great heritage of Greek philosophy and Roman law, a society which, though rough and in some respects stUl barbarous, had been for centuries accustomed to the idea that order and government were normal inci- deiits of human life. Moreover, it was a very complex society. It consisted of about two thousand separate sovereignties of all sizes and all degrees of power. The imperial dignity had been shorn of real authority, while it had become virtually hereditary in the Hapsbmrg line. But its holder, as ruler of the dominions of the House of Austria, was one of the two most powerful princes in Christendom, the other being the King of France. Be- neath these two in strength and influence, but yet not very far beneath, came the monarchs of Spain, England, and Sweden. Then followed a crowd of potentates, lay and ecclesiastical, kings, electors, princes, dukes, mar- graves, bishops, landreves, free-towns, and what not, some of them so insignificant that it was said their terri- AND HAGUE CONFERENCES 25 tones could be traversed even then at the rate of half-a- dozen a day, and so feeble that a sarcastic tale is told of one whose contingent to the army of the Empire was reckoned at two foot-soldiers and half an hussar. Most of these microscopic states were to be found in central Europe, and owed a shadowy allegiance to the Emperor and the Imperial Diet ; but in practice they went their own way, and a very curious way it often was . There were combinations and counter-combinations, alliances with France against Austria, alliances between the free-towns and the Emperor for protection against some neighbour- ing state a little stronger than themselves, long and per- sistent struggles for advanced dignity, in the course of which, among other changes, the electorate of Branden- bm-g grew into the kingdom of Prussia. Territorial rights were as compUcated as political arrangements. From the Vistula on the east to the Rhone and the Meuse on the west, Europe was a mosaic of enclaves, or detached districts belonging to one power but surrounded by the territory of another power or powers. To annex the intervening country was, of course, the ambition of aU capable rulers. Every international complication and every geographical advantage was utihsed to the uttermost for this purpose. The history of the growth of Prussia is largely a history of the absorption of en- claves ; while the history of the orientation of Austria is largely a history of the shedding of enclaves. It is impossible to speak of any one of these matters at length. We must be content to sketch the general characteristics of oiu: Society or Family of Nations. 26 INTERNATIONAL PROBLEMS Unlike other families it began by being very numerous. The Peace of WestphaUa of 1648 put an end to the out- worn and impossible mediaeval order, and established the system of modern Europe on the basis of the new doc- trines of the independence and legal equality of all sove- reign states. At that time, as we have already seen, there were something like two thousand sovereignties in Europe — a large society, and one as cliquey as it was unwieldy. The big states looked down on the little states. The states which possessed " royal honours," that is, the right of sending diplomatic ministers of the first rank, looked down on those which did not possess them. The monarchies looked down on republics, espe- cially on those which had just struggled into being. When in 1603 the States-General of the United Nether- lands sent commissioners to congratulate our King James I. on his accession, they could scarce gain admis- sion to his presence; and in 1609 the British Solomon advised the Sultan not to accord to the Dutch envoy the honours granted to the representatives of other European states. But the naval and commercial pre-eminence of the Netherlands Repubhc, and the prowess of its land forces, rapidly secured for it such a position that in less than a generation its eight representatives at the Con- gress of Miinster could insist on the same equality with the plenipotentiaries of crowned heads as was possessed by the ancient republic of Venice. When a state which had been monarchical changed its constitution and became republican, it was held to have descended in the scale of rank. Though England under Cromwell was AND HAGUE CONFERENCES 27 infinitely more influential in Europe than England under Charles I., it required all the masterful firmness of the great Protector to secure for the Commonwealth the ceremonial honours which had been given to the Monarchy. Disputes arose about the slightest thing. The title of " His Excellency " was assumed at first by the ambassadors of France and Spain. Immediately all other ambassadors wanted it for themselves, and tried hard to prevent it from being conferred on others. The Venetian envoy at the Congress of Miinster went wild with joy when, after much negotiation, he obtained the honour of being conducted to his coach instead of to the bottom of the staircase when he visited the French ambassador. At the marriage festivities of the Elector Palatine and Elizabeth, daughter of our James I., the French ambassador demanded a chair instead of a stool, though the former luxury was reserved for the bride and bridegroom. The shape of a table was of great import- ance at congresses. As no agreement could be reached about the order of sitting at an ordinary long rectangular piece of furniture, round tables were resorted to, till some genius discovered that the place of honour at them was opposite the door. After that it was necessary for the plenipotentiaries to stand, or do without a table and sit round in a circle. What happened in the Congress of Ryswick in 1697 has been described by a master-hand. Macaulay in the twenty-second chapter of his History tells us that " several meetings were spent in settling how many carriages, how many horses, how many lacqueys, how 28 INTERNATIONAL PROBLEMS many pages each minister should be entitled to bring to Ryswick; whether the serving men should carry canes; whether they should wear swords; whether they should have pistols in their holsters ; who should take the upper hand in the pubUc walks, and whose carriage should break the way in the streets. It soon appeared that the mediator would have to mediate, "not only between the Coalition and the French, but also between the different members of the Coalition. The Imperial ambassadors claimed a right to sit at the head of the table. The Spanish ambassador would not .admit this pretension, and tried to thrust himself in between two of them. The Imperial ambassadors re- fused to call the ambassadors of electors and common- wealths by the title of excellency. ' If I am not caUed excellency,' said the minister of the Elector of Branden- burg, ' my master will withdraw his troops from Hungary.' The Imperial ambassadors insisted on having a room to themselves in the building, and on having a special place assigned to their carriages in the court. All the other. ministers of the confederacy pronounced the demand altogether inadmissible; and a whole sitting was wasted in this childish dispute. It may easily be supposed that allies who were so punctilious in their dealings with each other were not likely to be very easy in their intercourse with the common enemy. The chief business of Harley and Kaunitz was to watch each other's legs. Neither of them thought it consistent with the dignity of the crown which he served to advance towards the other AND HAGUE CONFERENCES 29 faster than the other advanced towards him. If, therefore, one of them perceived that he had inad- vertently stepped forward too quick, he went back to the door, and the stately minuet began again. The ministers of Louis drew up a paper in their own language. The German statesmen protested against this, innova- tion, this insult to the dignity of the Holy Roman Empire, this encroachment on the rights of independent nations, and would not know anything about the paper till it had been translated from good French into bad Latin." No wonder that negotiations took a long time in those old da37s. We have just examined a good example of how not to do it ; but the palm for delay must be con- ceded to the first of the great gatherings of the Society of Nations, the Congress of Miinster, which brought about the epoch-making Peace of Westphalia. The terrible Thirty Years' War had broken out in 1618. In 1636 Pope Urban VI. induced the beUigerents to consent to treat. They began in 1637 to discuss the form of the safe-conducts to be granted to the envoys, who were to come together for negotiation at some city of the Empire. This matter, and other preliminaries, took six years to settie. It was finally agreed in 1643 that there were to be two centres of the congress, one at Miinster and the other at Osnabriick, eighteen miles distant. It took nearly a year for the plenipotentiaries to assemble. It then took seven months to settle difiiculties about the wording and production of their full powers, or formal authorisations to treat. The 30 INTERNATIONAL PROBLEMS exchange of propositions of peace did not begin tiU June II, 1645. Discussion on them occupied three years and five months. The signature of the treaty was fixed for October 24, 1648. Even then a question of etiquette intervened and took several hours to settle, while the assembled diplomatists waited and worried. At last the great Peace was signed twelve years after the commencement of the negotiations which led to it ! We were apt in our modem impatience to think that the Hague Conference of last year spent an inordinately long time over its work. But what are its four months in comparison with the three times fom: years of its predecessor? We must needs grant that the methods of international intercourse are by no means perfect to-day; but at any rate they are vastly superior to those of two centuries and a half ago. And in security also there is a marked improvement. At the Hague aJl was order and decency ; but in Miinster the servants of the envoys fought with one another and the local authorities in the streets of the town. Robberies were common up to the very gates, and indeed the country outside was rarely safe. Couriers were specially marked down for capture, and often one side obtained in- formation of the designs of the other by the plunder of despatches. At the present time diplomatic corre- spondence is safe, whatever may be done in some countries to private correspondence. CHAPTER III THE GROWTH OF THE SOCIETY OF NATIONS Great changes have taken place in international affairs since the uncouth beginnings of a true Society of Nations. Instead of the two thousand sovereignties of the Europe of three hundred years ago we have now twenty, if we leave out mere pigmies, hke Monaco and San Marino, and also the separate states of the German Empire, which have little or no foreign policy apart from it. And these twenty include Russia, which has grown into a powerful realm and entered the European orbit since the Peace of WestphaUa, and Turkey, which has ceased since then to be the scourge of Christendom, and has tried instead, though without any conspicuous success, to adapt herself to the manners and customs of an international society composed in the main of Christian states. But side by side with the process of simplifica- tion another and a very different tendency has mani- fested itself. Europe has got rid of a vast crowd of powerless, but troublesome, international atoms by their absorption in larger realms. But at the same time the Society of Nations has been enlarging its borders by taking into itself non-European states. It has been amplified from without while it has been simplified from within. No one dreamed in 1648 that 31 32 INTERNATIONAL PROBLEMS the colonies of Spain in the New World would become independent states in less than two centuries. A few years before that date Maryland had been founded by an English peer, and named after the queen of Charles I. But neither Charles nor his opponents ever imsigined that it, along with twelve other colonies, some of which were not in existence then, would before the end of the next century throw off the dominion of the English crown and become, as a federal republic, a new and most influential factor in international relations. Yet these and other equally strange things have happened. The United States of America held an important position in the Society of Nations from the moment when they obtained their independence. But the Latin-American states, which followed their example after a short interval, though not absolutely excluded, played but a small part tUl last year. Mexico was the only one of them represented at the first Hague Conference in 1899. Brazil was invited, but did not put in an appearance. Yet in 1907, if we count island states, no less than eighteen accepted the invitations that were sent to them, and some of their delegates took a very prominent part in the discussions. The New World drew its civilisa- tion from the Old. It therefore had no difficulty in assimilating rules of international intercourse which grew up among the Christian populations of Europe. But the modem Society of Nations has received into membership some of the non-Christian powers. Civilisa- tion has been the test rather than religion. Whenever a state has been found sufficiently amenable to the AND HAGUE CONFERENCES 33 ideas current in Europe to shape its international action on European models, and mould its institutions accord- ing to European examples, that state has been received among the old-established members with a welcome corresponding in warmth to the nearness of the approxi- mation of ideas and arrangements. There are degrees of intimacy in the Society of Nations as well as in the society of individuals. We call on a reputable stranger newly come into our neighbourhood and obviously belonging to our own social grade. And we do so the more readily if he is a young member of some family we have long known, who has just set up a household of his own. If we like him and discover that his opinions and pursuits closely coincide with oiu: own, we receive him into our family circle, and hold intercourse with him in matters affecting the daily life of both of us. If, on the other hand, we find each other mutually repellent, our intercomrse does not go beyond formal calls and the interchange of ordinary politeness at big social functions. It is much the same with states. The new-comer receives admission into the august circle of the Society of Nations, and if he is an offshoot of one or more of the old-estabhshed members the admission is full and free. This was the case with Italy when she was formed by the consohdation into one great kingdom of a nimaber of small and powerless realms, or of the United States of America when she separated herself from the British Empire and started on an independent career. On the other hand, Turkey received a grudging welcome, and to this day is not on a complete equality c 34 INTERNATIONAL PROBLEMS with the original members, because they very properly decline to allow their subjects resideUt within her borders to be tried by Mohammedan law, and sentenced to barbarous punishments by judges generally corrupt. Such occidental residents are, by treaty stipulations entered into on their behalf, tried in Turkey by con- sular courts of their own nationality, according to the standards of justice famihar to European nations and their offshoots in the New World. This system prevails in most oriental countries; but it was abolished in Japan, Great Britain leading the way in its abandon- ment, in the last decade of the last century, after the Japanese had given ample evidence that they were prepared to administer justice according to Western practice in their own tribunals. Turkey, Persia, Siam, China, and Japan are non-Christian members of the Society of Nations; but Japan is the only one, of them all who enjoys the fullest rights of membership, since she alone is trusted to exercise jiurisdiction in her own courts over the subjects of European and American states who may be resident in her territory. For other purposes the remaining four have equal rights with their Western colleagues. Let us see what the world has now arrived at. All its states with any pretensions to advanced civUisation are united in one great family or society. This society arose at first among the Christian nations of Europe. It developed internally by simplification, till it became a small and fairly well organised body of international units. And at the same time it developed externally AND HAGUE CONFERENCES 35 by amplification, till it embraced all the independent states of North and South America and most of the independent states of Asia. In reality it covers the greater part of the land -area of the globe, for the states possessed of colonies and dependencies, pro- tectorates and spheres of influence, speak for them in international assemblies. At the recent Hague Con- ference, for instance, the voice of Great Britain was really the voice of the whole British Empire, including India and the self-governing colonies, and the voice of France was really the voice of aU the French possessions, including Algeria in Africa and Indo-China in Asia. This vast society has its grades hke other social bodies. We wiU not stop to speak of the differences between sovereign and semi-sovereign, neutralised and non-neutrahsed states. They are too technical for our present purpose, and are mentioned merely to show that they have not been forgotten. Other gradations have been hinted at in the course of the preceding remarks; but there is one, hitherto unnoticed, which is so important that it cannot be passed over. What we refer to is the distinction between the Great Powers and the other members of the Family of Nations. It is l a distinction based on differences of power and influence, not on differences of legal rights. The Great Powers are those which by reason of their strength and extent have preponderant voices in international affairs. If they are agreed, the other states find it dif&cult to say them nay. The leadership of the society is tacitly conceded to them, and they admit others into their 36 INTERNATIONAL PROBLEMS body from time to time by a sort of common impulse springing from a regard to obvious facts. The system arose in Europe, but has recently transcended its bounds. The number of Great Powers has varied from time to time. During the middle part of the last century there were five, who were called the Five Great Powers of Europe — Great Britain, France, Prussia, Austria, and Russia. The consolidation of Italy into one state introduced a new element into the European equili- brium, and note was taken of the fact when in 1867 the five Great Powers invited a representative of the Italian kingdom to join them at the Conference of London, which settled the dangerous Luxembtug question by neutralising the grand duchy. This invitation raised Italy to the rank of a Great Power, and from that time onward there were six. By and by the growing power of the United States, and the commercial and humani- tarian interests which forced it, almost against its will, to take part in international affairs outside the limits of the two Americas, caused it to be regarded as a Great Power. An American representative attended the Congo Conference of 1884-85, and signed its Final Act; and American plenipotentiaries took a prominent and beneficial part in both the Hague Conferences. As the Society of Nations extended over the world, its inner circle of Great Powers was recruited from beyond the limits of Europe. We have already seen how the United States entered their ranks as by no means the least important among them. Asia has now its representative in the person of J apan. When | AND HAGUE CONFERENCES 37 the Hague Conference of 1907 was engaged in the attempt to create an International Prize Court of Appeal, it decided that eight states should always have a repre- sentative judge on the bench of fifteen which were to form the court, the other seven judges being assigned to the remaining thirty-six states by rota. The eight states thus singled out from the rest were Great Britain, France, Austria, Germany, Italy, Russia, the United States, and Japan, which last was thus raised to the rank of a Great Power. These are now therefore eight in number. In future others will no doubt be added, and possibly some may drop out, as did Sweden and Spain in the interval between the Peace of Westphalia of 1648 and the Peace of Vienna of 1815. Social leader- ship is not compatible with social weakness, whether in the Society of Nations or in the society of individuals. States become members of the Society of Nations by what is called recognition, and recognition takes place when some power or group of powers already belonging to the society formally declares that the new-comer is recognised, or does towards it certain acts, such as the sending and receiving of permanent diplomatic agents, which are done only between members of the society. Recognition by one power does not bind others ; but it is obvious that recognition by the Great Powers renders it practically incumbent on the rest to follow the lead they have given. Intercourse within the society is, as we have seen, carried on by diplomatic agents, and by Conferences and Congresses. With the growth of international relations 38 INTERNATIONAL PROBLEMS diplomacy, instead of being the occasional emplojmient of a ruler or general, has become the regular work of a recognised profession. At first diplomatists were sent on occasional missions, and returned home when the special business which took them to a foreign court was transacted. Louis XL conceived the idea of emplojdng I them as a sort of chartered spies, and instructed his representatives to remain as long as possible at the courts to which they were accredited. The new plan met with much opposition at first, but it gradually won its way, owing to the vast increase of the volume of business to be transacted between the leading powers of the rejuvenated Europe which arose out of the storms of the Reformation and the Renaissance. The struggle between the old method and the new was not without interesting incidents. Our Henry VII. is praised by Bacon because he would not suffer foreign ambassadors to remain at his court after their immediate business was finished. The diplomatists who succeeded in main- taining constant residence at foreign capitals were called legiers because they lay there permanently. Quaint old Thomas Fuller says, in a sermon preached at the Chapel Royal of the Savoy in London in 1642, that the Plague " formerly used to be an extraordinary am- bassador in this citie of London to denounce God's anger against it, but is of late grown a constant legier, and for these many years hath never been constantly removed from us." As late as i66o the Polish Diet threatened to execute the ambassadors of France if they did not return home immediately. But Poland was a back- AND HAGUE CONFERENCES 39 ward state. By that time the new system had become general, and it has continued ever since. At first there was great dif&culty about the rank and precedence of the various members of the diplomatic body; but in 1818 the Congress of Aix-la-Chapelle removed the last troubles, and matters have worked smoothly since. A Congress has been defined by the late Professor Montague Bernard in his Lectures on Diplomacy as " an assemblage of representatives of several independent states, met to treat or to consult on matters of common interest." He goes on to say that the word Conference had lately come into use " as more flexible and unosten- tatious, to designate meetings which would formerly have been called Congresses." This was written in 1868, and he then predicted that in future the word Congress would probably be reserved for " assemblages extra- ordinarily numerous or extraordinarily important." This reads strangely in the Ught of recent events. The two greatest and most important meetings of an inter- national character the world has ever seen are the gatherings at the Hague in 1899 and 1907, and they were called Conferences, and not Congresses. The latter term seems to be dying out. There is little, if any, difference of signification between it and the newer designation. The first of the two Hague Conferences was called together in consequence of the initiative of the present Emperor of Russia, who in August 1898 proposed an international assembly for the purpose of concerting " the most effectual means for securing to all peoples the 40 INTERNATIONAL PROBLEMS benefits of a real and durable peace, and above all putting an end to the progressive development of the I ■ III I II Ml" " "' *"' 'I-- fcJ~—— >...«-■■ 9AM». •"" I' I I I nil II in I present armaments." To these objects were afterwards "t'Iii . Ill Hill "I I'T """" "~ in" 'I in~ >L. added a variety of questions connected with the ameliora- tion of the laws and customs of warfare. Their inclu- sion in the programme modified the objections of those who had looked coldly on the humanitarian enthusiasm of the young Tsar, and regarded his original proposals as impracticable. Public opinion was touched by his evident sincerity ; and there were not wanting statesmen of experience, Mke the late Lord Pauncefote, who felt that the evils so forcibly pointed out by the Russian Rescript were capable of abatement, if not of removal. In the end the proposal of Nicholas II. was accepted by twenty-six of the civilised states of the world, including all who can be ranked among the leading powers. It cannot be denied that many of the delegates who assembled at the Hague on May i8, 1899, were inclined to regard the Conference as doomed to futility from its birth, and expected to take part in nothing more serious than the formulation of pious hopes and benevolent aspirations. But, as Lord Pauncefote and Sir Henry Howard, the British plenipotentiaries, put it in their concluding despatch to the late Lord Salisbury, then oxa Foreign Secretary and Prime Minister, " before they had been at work a fortnight a remarkable change came over the spirit of the Conference . . . and in the brief space of two months a great intemationed work has been accompUshed, fraught with the highest promise for the advancement of civiUsation and the good of mankind." AND HAGUE CONFERENCES 41 The laws of wax on land were codified. Red-cross work at sea was protected and regulated. A " Convention for the Pacific Settlement of International Disputes " was negotiated. This great instrument dealt first with good offices and mediation. It then went on to provide for the institution of International Commissions of Inquiry when matters of fact were in dispufe,' and we sTiould never forget_that^it_was such a Commission that saved us frorn war with Russia in the autumn of 1904. Finally it set up a Permanent Court of Arbitration, or rather it provided a panel of arbitrators, from among whom the parties to a dispute which could not be settled by diplo- matic means might select the members of an arbitral tribunal, to whose decision they left their case. More- over the work of the Conference was not confined to the negotiation of Conventions. It expressed in three separate wishes its desire that certain important ques- tions might be considered by a subsequent Conference in the near future. And it did not speak to deaf ears. A general impression remained on the minds of both rulers and peoples that another great international conclave ought to assemble before long. More than two years ago the vigorous initiative of Theodore Roosevelt, Presi- dent of the United States, brought matters to a head. The United States soon surrendered the lead to Russia in consideration of the part played by Nicholas II. on the first occasion. Delays were caused by the Russo- Japanese War, and afterwards by the Pan-American Conference of 1906. But at last in the early June of 1907 the second Peace Conference met. It consisted of 42 INTERNATIONAL PROBLEMS delegates from no less than forty-four states as against twenty-six in 1899. Nearly the whole of civilised humanity was represented, and something like a parha - m§nt of niaiJdnd came together for the first time. And this assembly in its tiun made what provision it could for the summoning of a successor. It urged the powers to make proper preparation for a third Conference, by the appointment of a committee to arrange the pro- gramme beforehand and draw up rules of organisation and procedure. It even went further, and named the laws of sea- warfare as the most pressing subject for discussion. Of course these suggestions are suggestions only. They have no binding force; but already people are talking of what will be done at the next Conference, and how best to set about doing it. Unless the views of the leading rulers and nations of the world undergo a sudden and complete change, not only wiU a third Hague Con- ference be held after the lapse of a few years, but a series of such Conferences may be expected with reason- able confidence. The importance of such a consumma- tion can hardly be overestimated. It provides for a development of international society which will be gradual and natural, and therefore far more hkely to be permanent than if it had been due to force or the master- ful activity of one imperious will. I n all probabih ty we have obta ined_at le ngth a_legislative or quasi-leg islative (^an,^of^the great S ociety of Nations. From it are developing judicial organs in the shape of C ourtsTof Arbi- tration and an International Prize Court. There are AND HAGUE CONFERENCES 43 even some rudiments of an executive organ in the Inter- national Bureau at the Hague. When we remember how persistently it has been asserted that there can be no law between states but the law of the strongest, we begin to realise what a vast step in advance has been taken by the mere creation of such a recurring conclave as we have been describing. Let us think for a moment of the greatness of the achievement. It goes far to realise aspirations which have hitherto been regarded as impossible dreams. Henry IV. of France had his scheme for a great European confederation, to be brought about, if necessary, by the sword. Two centuries afterwards James MUl, the disciple of Bentham, advocated the establishment of an international tribunsd, and as a preliminary insisted on general disarmament and abandonment by European powers of their colonial possessions. Between these two, so like in their ideals and so unlike in their methods, came a host of thinkers — the Enghsh Penn, the French Rousseau, the German Kant, and many others. All were voices crying in the wilderness. All committed the capital error of seeking to regenerate society at one boimd and by one elaborate piece of machinery. Con- sequently all failed, except in so far as they kept ahve the idecd of universal peace. This was a great achieve- ment, but we are witnesses of one far greater. They dreamed dreams. We are confronted by a reality. They, or most of them, thought only of Europe. We see civilised mankind brought together in grave and earnest consultation for the common good. They 44 INTERNATIONAL PROBLEMS ignored the great law of human progress — develop- ment, growth, slow advance, " precept upon precept, line upon hne, here a little and there a Uttle." We find all this reckoned with. There is no attempt to reach the millennium in a moment. A few steps forward are taken, and then there is a pause. The direction of fresh efforts is indicated, and public opinion is given time to ponder over them till breath is gained for a new advance. No doubt we shall be met here by the stock cavils and objections, which are constantly reproduced with airs of superior wisdom as if they were the personal discoveries of each caviller and objector. The Peace Conferences have not secured peace. They have not even reduced armaments. They have failed to perform some of the lesser tasks which were expected of them by sober-minded onlookers. Their procedure has been cumbrous and involved, their programmes overloaded and uncertain, their voting-power often divorced from actual strength and experience, and their votes fre- quently delusive. National self-interest, reed or supposed, has thwarted many projects demanded by justice and humanity. Even personal rivalries have sometimes impeded the path of progress. The Englishmen of the early part of the fourteenth century might have listened to similar speech from C5mics who had no beUef in representative institutions, or enthusiasts who had expected a representative ParUament to find immediate remedies for all the woes of the state. The king, it might have been said, caUed AND HAGUE CONFERENCES 45 together a great assembly of estates in 1295, on the avowed principle ut qiwd omnes tangit ab omnibus approbeiur, that what touches all shall be approved by all. Since then hardly a single act of government had secured general approbation. Kings and ParUa- ments had constantly quarrelled. Edward I. had flouted the estates in the matter of taxation. The estates had taken an active part in the deposition of Edward II. The people hated representation. Boroughs endeavoiured to evade the obligation to send up members. Shiremoots shuddered as the king's writ was read; and knights of the shire, when elected, sometimes had to be arrested and kept in custody to secure their attendance. And when the national assembly did succeed in getting together it was a formless and divided body. The nobles despised the burghers, and the ecclesiastics outwitted both. The rights of each separate estate were ill-defined, and no one knew where the boundary ran between the powers of Parliament and the powers of the Crown. The whole thing was a ridiculous fiasco. Would it not be better to end the strain, and call no more Parhaments ? Fortunately for England and the world such advice, if tendered, was never taken. And it will be fortunate for England and the world now if the similar advice to have no more Hague Conferences is similarly dis- regarded. The root idea in the case of both ParHament and Conference is the same — ut qttod omnes tangit ab omnibus approbeiur. The ultimate object is also the same — the common welfare. And the same means is 46 INTERNATIONAL PROBLEMS relied on to attain it — full and free discussion among men, each of whom is determined that in the general betterment the legitimate interests of his own particular locality shall not be neglected. New institutions have to correct their early defects and adapt themselves to their environment. This they wiU do, as did the British Parhament, if, hke it, they have in them the spirit of life. I doubt whether it is possible to find anjAvhere a stronger and more life-giving spirit than that which inspires the movement of which the Peace Conferences are the result. It is the spirit of reason and justice, the spirit which would substitute law for force as the arbiter of human affairs, the spirit which has created all enduring civilisations, the spirit which strives to turn the society of individuals from a warfare of interests and passions into a co-operative brotherhood, and is now beginning to attempt the same good office for the Society of Nations. We cannot expect the enormous task to be accomplished at once or soon. Neither should we fall into the common error of suppos- ing that any individual or body which tries to apply new remedies to admitted evils must be in itself im- maculate. No doubt the discussions in the recent Conference did sometimes tend to become political. No doubt national jealousies played a large part in many of the decisions. The desire, for instance, of a group of powers to deprive Great Britain, when at wax, of the fuU advantages due to her naval force and the geo- graphical distribution of her possessions, brought about AND HAGUE CONFERENCES 47 a strange laxness in the rules laid down concerning the rights and duties of neutral states; just as the self- importance of the Latin-American Republics wrecked every scheme for the constitution of a new and more efficient arbitral tribunal. But while we admit and even insist upon aU this, we are entitled to ask whether the defects we deplore are not common to all legislative and consultative bodies. We may have observed in our own Parliament from time to time self-regarding purposes and unholy aUiances. A Church Congress has before now been tiurned into a bear-garden. One has even known the holy calm of a mothers' meeting disturbed by a display of temper. If things like these sometimes happen in assemblies where a specially high standard of conduct is recognised, can we be surprised when an international gathering, new to its work, without traditions, and composed of people of diverse training, varjdng interests, and different degrees of civilisation, turns out to be far from perfect ? Instead of pouring on it denunciation and contempt, we ought to agitate for the application of remedies to its defects. The more magnificent its possibilities, the more it is incumbent on us to preserve and improve it for future use. After centuries of effort civilised mankind has at last been placed on the road which leads to the remote goal of international peace. Those who would drive it off to wander again in the wilderness incur a terrible responsibihty. CHAPTER IV THE HAGUE CONFERENCES AND PEACE The first of the Hague Conferences called itself in its Final Act, dated July 19, 1899, The International Peace Conference {La Conference Internationale de la Paix), and the appellation was repeated with the addition of the epithet, second, in the Final Act of the Conference of 1907. We may, therefore, assume that further gatherings wiQ be officially described as Peace Con- ferences, and each wUl be distinguised from the others by its number in the series. This will give us a con- venient nomenclature ; but it may perhaps be permissible to suggest that the phrase Hague Conferences would have been better than Peace Conferences, seeing that other matters than those directly connected with the preservation of peace have been discussed at them in the past, and wOl most assuredly be discussed in the future. Yet peace, undoubtedly, comes first, both in importance and in the intent of the great majority of the rulers of the civilised world. It is, therefore, right that we should deal with the efforts made at the Hague Con- ferences to render war less frequent before we discuss the attempt to make it less horrible. In this connection far too much stress has been laid on disarmament, whether total, or partial, or in the 48 HAGUE CONFERENCES 49 modified form of an agreement not to carry armaments to a higher pitch than they have aheady reached. Something of the kind was to be expected seeing that in the rescript of the Tsar which initiated the conference movement the idea was put forward with great promin- ence and remarkable persistency. In the first sentence " a possible reduction of the excessive armaments which weigh upon all nations " was linked with the " mainten- ance of the general peace " as the object " towards which the endeavours of aU governments should be directed." A httle further on we read of " putting^ an end to the progressive development of the present armaments." Their disastrous effects on the moral, mental, and economic progress of the nations are then graphically described, and it is asserted that " thesupreme duty which is^ to-day imposed on all states " is " to put an end to these incessant_armaments, and to seek the means of warding off the calamities which are threaten- ing the whole world." No wonder then that the popular imagination seized upon disarmament as the one great means of abolishing the evils that spring from the tendency of mankind to quarrel in masses as well as individually. It came to be regarded as a short cut to universal peace. Now there is an old saying that a short cut is often the longest way round. But in this particular case I doubt whether the goal would be reached at all if the path in question were the only way to. it. Pugnacious schoolboys contrive to fight with their fists, though they are not allowed to carry revolvers. Pugnacious states, deprived of armies and navies by D 50 INTERNATIONAL PROBLEMS international regulation, would, when their passions were thoroughly aroused, arm their populations as best they could on the spur of the moment, and hurl them- selves on one another. The mere fact that there had been no long preparation for war in time of peace would not quench their ardour. They would at any rate start on an equahty as far as absence of equipment went. If we want to stop war we must remove the causes of war, and among these armaments are not the most potent. It is indeed constantly argued that they are instead the best guarantees of peace. What friend of international concord is there who has not had dinned into his ears in season and out of season the Latin tag, si vis paceffi, para bellum, if you wish for peace, prepare for war. Yet, instead of being the first and last word of international wisdom, this statement is at best but a half-truth. Undoubtedly strong defensive prepara- tions do tend to make others hesitate before they pick a quarrel. Obvious danger in attack does encourage moderation in making and pressing claims. But it is also indubitable that the possession of enormous power, ready to be used on the spur of the moment, stimulates the desire to use it, and may turn quiet and peaceable states into overbearing buUies. Armaments may be in themselves a security for peace, or a danger to it, according to the disposition of those who use them. They are a sjmiptom rather than a cause. As was finely said in the French Senate on November 14, 1907, by M. L^on Bourgeois, who had represented France with distinction at both the Hague Conferences, " Le AND HAGUE CONFERENCES 51 desarmement, d nos yeux, est une consequence et n'est pas une preparation." Character is the all-important thing, more important aniong states than among individuals. The most pacific among us gladly pays a police-rate, because he knows that there are a few among his neigh- bours who do not share his law-abiding disposition, and must be coerced into good behaviour by force or the threat of force. But in the Society of Nations there is, as we have seen, no common superior, and no inter- national poUce-force. Its members must therefore defend themselves, and, moreover, must continue to do so till either some central authority is created with power to adjust disputes and compel obedience to its decisions, or some great moral advance renders each incapable of acting wrongfully towards the others. In the absence of a central authority this disposition must be universal if it is to be effective. Should but a few states remain anti-social and unscrupulous, the only effect of disarming the rest would be to turn the ill- disposed into arbiters of the world's destiny, a con- summation which would mean a general and rapid relapse into barbarism. It would be foolish to suppose for a moment that the powers can be induced, in the present state of inter- national morality, to disband their armies and make scrap-heaps of their warships. Their mutual jealousies and unsatisfied ambitions would join with their passion- ate longing for security to prohibit anything of the kind. Partial disarmament, or restraint of further increase of armaments, seems at first sight much more feasible. 52 INTERNATIONAL PROBLEMS But the more it is examined the bigger loom the practical dif&culties. Enthusiasts cry out that the powers have only to call a halt at the point they have already reached in their preparations for war, or agree that each shall in the future spend no more yearly on its forces than it spent on an average for some few years in the past, and the thing is done. Can we feel sure of it? Is it so absolutely certain that no power wUl attempt to charge what is really mihtary expenditure upon its civil esti- mates, or that, whether it did or not, no other power would think it did, and cry out against it accordingly? Might not mutual espionage go on among states to an intolerable degree, and mutual suspicion rise to such a pitch as to become a danger to peace ? But let us waive aU question of security for the faithful execution of agreements in restraint of warlike preparations, and see how they would work in a concrete case. Suppose the plan proposed for adoption to be that of keeping national forces on their present footing without liberty of increase, then the Russian navy would be condemned for ever, or for a term of years, to its present condition of impotence. Or again, suppose the plan of limiting expenditure on armaments to the average of the past three or foiur years is the one that finds favour, then, if at the time of the next Hague Conference Russia is found to have been indulging in exceptional expenditure on her fleet in order to bring it up to its former strength, she would be allowed to continue this rate for a further period during which other powers would be restricted to what they had been spending under normal condi- AND HAGUE CONFERENCES 53 tions. In the first case Russia would be treated unfairly ; in the second she would gain an unfair advantage. And such cases would not stand alone. The question bristles with diERculties. We need not declare they are insuperable. They ought to be examined and discussed, and it is possible that in time they may be overcome. But for the moment they hold the field. The First Hague Conference resolved " that the restriction of military budgets, which are at present a heavy burden on the world, is extremely desirable for the increase of the material and moral welfare of mankind." And the Second Hague Conference could do no more than con- firm the resolution adopted in 1899, with the addition that, " inasmuch as mihtary expenditure has consider- ably increased in almost every country since that time, the Conference declares that it is eminently desirable that the governments should resume the serious exami- nation of this question." This was passed unani- mously on the motion of Sir Edward Fry, the first plenipotentiary of Great Britain. It rests with public opinion, here and in other states, to see that the govern- ments of the civilised world act on it. But there are other roads towards general peace besides the popular short cut which has at present brought us up against a rock. Armed conflicts between states arise from two main causes. On some occasions unreason and passion inflame one another to such a pitch that aU the barriers of prudence give way and all the restraints of morality are set at naught. On others some part of the existing order of international society 54 INTERNATIONAL PROBLEMS becomes intolerable in itself or is made so by the conduct of in overbearing neighbour. The remedy for the first is a greater measure of national self-control and a higher sense of national duty. The remedy for the second is modification of unrighteous conditions by just and timely changes. It has been finely said by Professor Goldwin Sihith that " a people cannot be expected to love and reverence oppressioh because it is consigned to the statute-book and called law." What is true of internal government is true also of external relations. The more ethically intolerable the international position the more ceirtain the international disturbance. Thte condition of Italy between 1815 and i860 is a case in point. Its unification and deUverance firom foreign rule was the aim of an ever-increasilig number of high- soiiied and devoted patriots. As long as the political cotiditions under which they hved gave them a bitter sense of national and pohtical degradation, there could be, and there was, no peace, annoying and even dangei:- ous to other states as were the constant disturbances. But as soon as an order was established which satisfied patriotic aspirations the unrest subsided. To establish peace on earth there is needed in the fiirst place oppor- tunities for reason and justice to assert themselves instead of passion and bias, and in the second some accejitable means for the settlement of international difficulties by righteous judginents and mutual con- cessions. It is the glory of the Hague Conferencfes to have seen this, and to have acted with dfccision and skill on the AND HAGUE CONFERENCES 55 conviction they acquired. The first of them magnified the office of Mediator as a means of " reconciling the opposing claims and appeasing the feelings of resentment which may have arisen between the states at variance." It declared in its Convention for the Pacific Settlement of International Disputes that the ofEer of mediation by a third power could " never be regarded by either of the parties in conflict as an unfriendly act." Moreover it recommended the use of what it called " special media- tion " whenever possible. This is described in Article VIII. of the Convention, and turns out to be a highly- developed variant of the old mediation, which consisted of the tender of good advice by the mediating power. Under the new plan each of the states at variance is to choose a friendly power, and these two powers are to enter into communication with each other for the space of thirty days, with the object of preventing the rupture of pacific relations between their principals. During the thirty da3rs there are to be no direct commuiucatibns between the parties to the quarrel. The matter in dis- pute is to be regarded " as referred exclusively to the m ediating powe rs, which must use their best efforts to settle it." This scheme, together with all the provisions which relate to mediation, is re-enacted in the corre- sponding Convention negotiated at the Second Con- ference in 1907. It would be hard to find better means for giving angry passions time to cool, and obtaining for both sides the benefit of dispassionate and friendly advice. But experience shows that many of the disputes which 56 INTERNATIONAL PROBLEMS lead to war turn on distorted views as to matters of fact. It has been said that there are more false facts in the world than false theories. Unfortunately the world is fuU of both, and we need not stop to settle which is the more numerous. But it is certain that from false facts spring a plentiful crop of false theories, especially when passions are roused and men can neither see straight nor reason clearly. This is particularly the case in the period of strain and nervous tension which precedes wax. Oh ! who can think on darkness and on death, The silence and the coldness of the grave, The nameless anguish of life's ebbing breath, When the loud trumpet flattereth the brave ? While Faith is strong, and Fancy yoimg, And Glory lifts the heart like wine, j O God, the knell of nations may be rung > In notes that are divine! In the spring of 1898 it was an article of faith in the United States that the battleship Maine had been treacherously blown up by the Spaniards in the harbovu: of Havana ; and this behef on a matter of fact was one of the most potent causes of the war which soon after- wards broke out between the great American Republic and Spain. The question is still doubtful, though it was examined by two committees of experts. They, how- ever, reported in diametrically opposite senses, the explanation being that one was appointed by the Ameri- can government and the other by the Spanish authorities, and thus the elements of passion and bias were not ehminated. In the autumn of 1904 the Russians be- lieved with passionate conviction that their Baltic Fleet AND HAGUE CONFERENCES 57 was attacked on the Dogger Bank by Japanese torpedo- boats on the night of October 21. We held with equal certainty that no such attack was delivered. On this occasion the dispute did not end in war, though for three days the two countries were within measurable distance of it. The great reason for the pacific termination of what was, while it lasted, a very ugly quarrel, was that the Hague Conference of 1899 had laid down in its Convention for the Pacific Settlement of International Disputes that, when the parties to a controversy on a matter of fact failed to come to an agreement by diplo- macy it was expedient and desirable that they should institute an " I nternat ional Co mmis sion of Inquiry " to elucidate the facts " by means of an impartial and con- scientious investigation." The Convention went on to indicate a method for constituting such a Commission, if it was not formed by special agreement between the powers concerned. In the Dogger Bank case such an agreement was negotiated, mainly through the influence of France, and the question of fact was investigated by a Commission of five admirals, nominated respectively by Great Britain, Russia, France, the United States, and Austria. The evidence was overwhelmingly in favoiu- of the English contention. We were able not only to prove that no Japanese torpedo-boat was within thou- sands of miles of the Russian warships on that October night, but also to show how the error of Admiral Roshest- venski originated in the misconduct of one of his own ofl&cers late in the afternoon of the 21st, and grew, owing to a strange combination of circumstances, till it culmi- 58 INTERNATIONAL PROBLEMS nated in the terrible midnight fusilade against harmless British iishing boats. It should in fairness be added that, though the Russians had no justification for firing, still less for contiiltiing their fire for the lehgth of tiriie they did, their suspicion that they might be attacked was not altogether gratuitous. That is to say, they possessed information of the piresence not far away of hostile craft; and it did hot all come from tainted sources, though in the end it turned out to be false. Oui: case was so oveirwhelining that it may well be doubted whether at the present moment a single res- ponsible huinan being who has examined the evidence beUeves that any attack on the Baltic Fleet was delivered in the North Sea on the night in question. By the time the award was given passion had cooled ; and, while at the end of October, 1904, the whole nation would have applauded hostile operatioiis against the Baltic Fleet, at the end of December no voice was raised for war. All felt that we had been sufficiently vindi- cated by the careful inquiry of third parties, and though the reparation given inight with advantage have been more complete, we were content with the solemn deci- sion in favour of the justice of our cause, and the in- demnities paid to the injvured and the near relatives of the dead. But we are bound to note that something else was vindicated besides a British cbntetation. The wisdom of thb First HagueConference was demonstrated in a most striking manner. Within little more them five jrears of its sitting, a small and somewhat obscure part of its work led to the peaceful settlement of a dispute AND HAGUE CONFERENCES 5^ which, but for it, would in all human probability havfe resulted in a terrible war. The Second Haguie Conference has amplifiied and iin- proved_the scheme of International Commissions of Inqu iry s o well originated by its predecessor. It has retained the recommendation that the parties should, if possible, constitute their own Commissiofa by special agreement, and it has re-enacted the provisibris Which laid down that, if no such agreement is arrived at, each party shall choose two arbitrators, and these togetheir shall choose an umpire. But it adds that one only of the two arbitrators appointed by each psirty " can be its national or chosen from among the persons selected by it as members of the Permanent Court " (see pp. 63-65), and it makes a number of new rulies to deal with details, or meet di£5culties which were not foreseen when the original plan was drawn up. For instance, it provides for the fining of vacancies on the Commission, the appointment of Assessors, and the use of the ofi&ces and staff of the International Bureau at the Hague (See p. 63). Fiulher, it gives power to prosecute inquiries in placfes other than the seat of the Commission, permission having first been obtained from the state in whose territory it is proposed to hold the inquiry; and it pledges the governments of the signatory powers to give every facility cillowed by their laws for the collection of evi- dence and the summoning of witnesses. No doubt further experience wiU suggest fresh provisions, but the rules laid down at the Hague in the summer of 1907 seem to deal with almost all combinations of circum- 6o INTERNATIONAL PROBLEMS stances that can arise. Like other regulations which have no coercive force at their back, they depend for their effectiveness on the goodwill of the society which adopts them. Let us hope that other powers wiU, as occasion offers, follow the example set by Great Britain and Russia in the autumn of 1904. We have spoken of the Hague Conferences as having originated the idea of appointing a Commission to give a finding as to the facts of an international dispute, and doubtless the plan was new to all or nearly all their members. But quite recently historical research has discovered a precedent. From the Creighton Memorial Lecture, delivered by Dr, T. Hodgkin before the Uni- versity of London on October 4, 1907, we learn that one of the methods adopted in the sixteenth century for the redress of wrongs done on the border between England and Scotland was the periodical observance of what was called a Day of Trewes. On these days the Enghsh Warden of the Marches met the Scottish Warden of the Marches at an appointed place. Each side gave assur- ance to the other of a cessation for twenty-four homrs of feuds and bloodshed. Then the English Warden nomi- nated six Scots and the Scottish Warden six Englishmen, and the group of fourteen thus created examined the " BiUs of Complaint " which had been sent in by those of either nationahty who had suffered from the maraud- ing or violence of the other. Inquiry was made, and if the case was proved the bill was marked " foul." If no wrong was brought home to the accused the bill was marked " clear." When a man was " found culpable in AND HAGUE CONFERENCES 6i bills," he was condemned to pay compensation according to a fixed scale for the animals he had driven off, and his Warden was bound to see that he was " present at the next following Day of Trewes " to be delivered over to the opposite Warden for punishment, if necessary. This was a duty which it was often difficult or even impossible to perform. In fact border anarchy waxed stronger and stronger, till a better state of things began with the accession of James VI. of Scotland to the Enghsh throne as James I. in 1603. But leaving these records of a vanished past, we must note that in the hving present the human race retains a capacity for quarreUing which extends far beyond mere matters of fact. States frequently disagree about the interpretation of treaties, the drawing of boundaries, the treatment of one another's subjects, the rules of capture at sea, territorial expansion, the extension of power and influence, djmastic arrangements, commercial interests, or indeed any of the thousand and one matters which are constantly arising in the course of their social life. The vast extent and complexity of intercourse between peoples in modem times, while on the one hand it makes for goodwill by teaching them to know each other better and fusing their interests into a common whole, affords on the other hand additional subject- matter for disputes and disagreements. From time to time some of these will become serious, and then danger of war arises. It is necessary, therefore, if peace is to be preserved as the normal, if not the permanent, con- dition of the units which make up the Family of Nations, 62 INTERNATIONAL PROBLEMS that some means should be provided for the settlement of as many of these disputes as possible by a strong and impartial tribunal. A true court or system of courts it j? impossible to have until international society has developed a code, and a coercive authority to compel unwilling states to litigate and enforce the decision arrived at in the htigation. Rudiments of both exist. International Law, though not up to the present em- bodied in an authoritative statute book, is so much of a concrete reality that we can write books on it and rnake it into a subject for examinations. Coercive authority has yet to be created. Germs of it may even now be discovered by diligent investigators ; but a long process of development is necessary before it can becorne thoroughly effective and dominate in its proper sphere the Society of Nations. We are therefore thrown back on the less formal pro- cess of arbitration as practically the only alternative to war when things have come to a deadlock, when Com- missions of Inquiry are inapplicable, and when quarrel- ling states will not listen to mediators. Of course this is no new discovery. There have been arbitrations almost as far back as there have been quarrels. Various methods have been employed, from the ipse dixit of a friendly sovereign to whom the dispute was referred, to the reasoned decision of a board of statesmen, or jurists, or both. The last century developed a healthy tendency to multiply arbitrations, and make them judicial rather than political. But up to the year 1899, the parties had to construct their own tribunal on each occasion, and AND HAGUE CONFERENCES 63 also to settie for themselves aU details as to procedijre. And this task was thrown on them just when their minds were inflamed against each other by a period of more or less acute diplomatic controversy. In such circum- stances failure was not an unnatural or infrequent result. There were, for instance, two abortive attempts at nego- tiation between Great Britain and the United States of America for the settlement of the Alabama claims before a tribunal satisfactory to both parties was created by the Treaty of Washington of 1871. In this case a peace- ful settlement was reached at last ; but in others failure to arrange for arbitration was but the prelude to war. Thoughtful statesmen were convinced that the existence of a standing tribunal ready at any time to take cog- nisance of cases referred to it would greatly improve the prospects of the maintenance of peace. If the First Hague Conference had done nothing more than create such a tribunal it would have estabhshed a strong claim on the gratitude of mankind. It did this tentatively, but effectively, as subsequent events have shown. The method it adopted had, of course, to be carefully elabor- ated so as to offend the susceptibihties of none of the powers, and to avoid trenching on the real or supposed sovereign rights of any. Thej3oaferencejesjablished what was called The^Permanent Court of Arbitration, and made it competent for all arbitratiqn cases, unless the parties agreed to institute aspecial tribunal, which they were, and are, fuUy at liberty to do. It also estab- ; lished an International Bureau at the Hague to serve as record oflice and secretariat, and " to act under the con- 64 INTERNATIONAL PROBLEMS trol of a Permanent Administrative Council " composed of the diplomatic representatives of the signatory powers accredited to the Ha^e and of the Netherlands Minister for Foreign Affairs, who was to be President. To create the Permanent Court of Arbitration each signato ry power was to select " four persons at the mos t." who were to be " of known competency in questions of inter- national law " and " of the highest moral reputation." T hey were appointed for six years , and their appoint- ment might be renewed. Out of the long Hst of possible judges thus brought into existence the parties to a dis- pute might select the members of a tribunal to decide their difference. If they failed to^agreeon this matter, theii_ea^j.,,Ea£ty. was to appoint two arbitrators and these four were to appoint an umpire, all five being chosen from the panel of judges already referred to. We see from the foregoing provisions how careful the Conference was to emphasise the judicial elements in arbitration, and how strenuously it endeavoured to eliminate the poUtical elements. In proportion as this is done effectively will states feel that confidence in the justice and impartiality of the tribunals which is neces- sary in order that cases may be referred to them almost as a matter of course. When the civiUsed world has learnt to hve up to the statement of the First Hague Conference that " International Arbitration h as for its object the settleme nt of differ enc es betw eenstates by judges of their own choice, and on the basis of respect for law," it will be in a condition to accept without reserve the addition thrown into the same article by the AND HAGUE CONFERENCES 65 Second Conference that " recourse to arbitration implies an obligation to submit in good faith to the award." At first there seemed no marked disposition to take advantage of the tribunal called into existence at the Hague in 1899. BiitJnj[9Q2JJ[ia^Ujiited,Stete^^ Mexico submitted _tpj.t what Jias_ since Jjgen known as the, Pious Fund_case. It was concerned with a long- standing dispute as to the proper disposition of certain funds set apart by Mexico for religious and charitable purposes in California, before the conquest of that terri- tory and its cession to the United States in 1848. The decision was in favour of the American contention ; and the results of the arbitral process as exemplified in the case gave such general satisfaction that, when once a beginning had been made, power after power resorted to the Hague Tribunal. In 1903 no less than eleven states referred to the Permanent Court of Arbitration the question whether, in the distribution of the revenue Venezuela had agreed to set aside for the satisfaction of various claims against her, preference should or should not be given to the subjects of the powers who had blockaded her ports in the previous winter in order to compel her to come to terms. The court gave judgment in favour of the three blockading states. Great Britain, Germany, and Italy. The Venezuela Indemnities case was foUowed in 1904 by the Japanese Perpetual Leases case. Here Japan on the one hand, and Great Britain, France, and Germany on the other, were in dispute whether Japan had a right to levy her house-tax on buildings situated within the area of her old concessions E 66 INTERNATIONAL PROBLEMS to the foreign powers who were the other parties in the litigation. The Award, which was given in 1905, was based on the terms of the treaties, and went against the Japanese contentions. In August of the same year, another Hague Tribimal gave an elaborate and highly technical judgment in what is caUed the Muscat Dhows case. This was concerned with the legality of the grant 'to certain subjects of the Sultan of Muscat of the right to fly the French flag, and the nature and extent of the immunities to be enjoyed under the grant, if lawful. Large numbers of Muscat dhows had received the privi- lege of the flag, and the rights conferred thereby had been construed so widely as to free their possessors from the jurisdiction of their own sovereign, and exempt the Vessels from British visit and search for the purpose of putting down the slave trade. To this we demurred. The case was referred to arbitration in August, 1904, and the decision given nearly a year after was in our favour. None of the matters dealt with in these arbitrations were in themselves of vast importance. The first of them had lain dormant for years, and very Ukely would never have been heard of again had it not been revived by President Roosevelt of the United States for the express purpose of being sent to the Hague Tribunal. But the Venezuelan controversy was only part of a much larger question, which had caused a good deal of feeling on both sides of the Atlantic Ocean, and might at any moment have become dangerous to the peace of the Old and the New World. The good accord between the most AND HAGUE CONFERENCES 67 progressive state of Asia and three of the leading powers of Europe would have been threatened by a continuance of the irritating house-tax. The trouble over the Muscat dhows, though hardly heard of in Europe, bulked big on the spot, and, but for the care taken by the statesmen immediately concerned, might have raised in France an outcry in defence of the flag, and in England a popular agitation against its use as a cloak for the slave trade. The reference of the dispute to the Permanent Court of Arbitration probably saved the infant entente cordials from being strangled in its cradle. When we add to these considerations the fact that the parties to the arbitrations referred to above included all the Great Powers except Russia, and many of the secondary states, we shall probably come to the conclusion that the arbitral scheme of the Fi rst Hague C onference was no f ailure, b ut on the c ontrary a jpron ounced success. And this view will be confirmed when we remember that the recommendations of the Conference to the powers to negotiate among themsdyes separate conventions for the reference to arbitration of di spute s, especially those concerned'^th the intometation of treaties, h as bee n followed^ in someth ing like fifty case s. We must now pass on to a brief discussion of the improvements made by the Second Hague Conference in the work done by the First with regard to the subject imder consideration. The experience gained in the cases we have just described suggested important changes. How carefully all possible circumstances were considered and provided for wiU appear from Article XLV. of the 68 INTERNATIONAL PROBLEMS Convention of 1907 for the Pacific Settlement of Inter- national Disputes. It deals with the constitution of the Hague Tribunal when the parties do not enter into a direct agreement with regard to its composition. The provisions of 1899 as to the nomination of a panel of arbitral judges by the signatory powers are retained, and it is laid down that, when the Utigants have made no arrangements of their own for the selection of those who are to try their case, " each party appoints two arbitrators, of. whom one only can be its national or chosen from among the persons selectedby it as members of the Permanent Court. These arbitrators together choose"an tmipire. If the votes are equally divided, the choice of the umpire' 5 "ehtrus^eBTTS^ third power, selected^'by the parties by common accor3. If an agreement is not arrived at on this subject, each party selects a different power, and the choice of the umpire is made in concert by the powers thus selected. If within two months' time these two powers cannot come to an agreement, each of them presents two candidates taken from the Ust of members of the Permanent Court, exclusive of the members selected by the parties, and not being nationals of either of them. Drawdng lots determines— which of the candidates thus jiresented shaU be umpire." Here ''are a numbeT of provisions which an mtelligent reader can understand without any legal training. They have been quoted at length in order to show the care with which contingencies of all kinds have been provided for by the Conference. No one can read the Convention of 1907 for the Pacific AND HAGUE CONFERENCES 69 Settlement of International Disputes without acknow- ledging that it is a very thorough piece of work. It regulates procedure most carefully, and on the im- portant matter of the " Compromis " it is particularly full. The " Compromis " is described in the Blue Book containing tfie' Convention as " The preliminary agree- ment in an intemglional arbitration, defining the points at issue, an^.arranging the procedure to be followed." It is the most important document in the case. The result may well turn upon it. If possible the parties are to draw it up in mutual agreement. But the Permanent Court is competent to settle it, if asked by them to do so. And in certain cases, " when all attempts to reach an understanding through the diplo- matic channel have failed," the Court may draw it up, " even if the request is only made by one of the parties." These cases occur when the dispute falls within a general Treaty of Arbitration concluded by the powers concerned, and when it arises from contract debts as to which an offer of arbitration has been accepted. Here we have something very like the simimoning of an unwilling party before a tribunal. It is not quite the same as such a proceeding between individuals, for a recalcitrant state can avoid a trial in a dispute of the first kind by alleging that it deems the case unfit for arbitration, and in a dispute of the second kind by refusing the offer made to it. But it is a step in the direction of com- pulsion, and as such is very significant. It will be noted that the rudimentary compulsion mentioned above is applied to make an unwilling party 70 INTERNATIONAL PROBLEMS go on with a case which it had in the beginning con- sented in a more or less general way to refer to arbitra- tion. But in another of its Conventions the Second Hague Conference did in effect provide for the appUca- tion of very real coercion in order to drive into arbitration an unwilling state. When it came to deal with the ' ' Limitation of the Emplo}Tnent of Force for the Recovery of Contract Debts," the signatory powers agreed not to resort to arms for the recovery of such debts " claimed from the government of one country by the government of another country as being due to its nationals." But to this self-denying ordinance they made some excep- tions. They expressly retai ned the right.JLQ_ useJfOTce w hen Jhe debtor state re f used arbitration , or, after arbjlration. failed to subn4t^„|o the..-Sward. Wha^ is this but the employment of coercion, or the threat of coercion, to compel the submission of certain classes of cases to a legal tribunal, and to enforce obedience to its decision ? The provisions just referred to constitute the nearest approach to the famous^ Drago Doctrine which the Conference was prepared to sanction. This doctrine derives its name from M. Luis Drago, at one time Minister for Foreign Affairs of the Argentine Repubhc, and one of its plenipotentiaries at the Hague last year. He maintained, with some reservations too long and technical to be set forth here, that force should never be used by one government to obtain from another government the payment of contractual debts, whether they were pubUc loans, or pajmients due in respect of goods furnished and work done. Financial interven- AND HAGUE CONFERENCES 71 tions are certainly objectionable on many grounds, and cases have, no doubt, occurred when they have been made into instnunents of extortion for the benefit of cosmopolitan financiers. They should be discouraged as much as possible; but it is doubtful whether they can be whoUy prevented. The middle course adopted at the Hague in 1907 has many merits, not the least of them being the high position given in it to arbitral processes, and the sacrosanct character assigned to arbitral awards. These indications, though small in themselves, show that the Society of Nations is developing in the direction of real courts and coercive jurisdiction. It is easy to say that they are not ideal. Of course they are not, any more than the young colt is the beautiful race- horse, or the young plant the fruitful tree. Few institu- tions come into being complete in all their parts and fully capable of doing their perfect work. Our earliest national courts had little coercive power! Pnvate v engean ce was a recognised alternative, and kings and rulers attempted at first to regulate rather than abolish it. Then, as the justice of impartial tribunals and passionless law contrasted every day more favourably with the violence of enraged combatants and the triumph of brute force, public feehng rallied to the support of authority. The central power grew stronger and stronger, and was able in time to abohsh famUy feuds and private war. Though the struggle was long and fierce, and though towards the end of it the executive itself had to be brought into accord with the nation by 72 INTERNATIONAL PROBLEMS processes not unaccompanied by violence, authority in the end prevailed. In the foremost states of the world we see now highly organised courts whose decisions are never disputed, partly because obedience commends itself to the good sense of the people, and partly because resistance to them would be ridiculous, since they are backed up by the whole organised force of the com- munity. In the development of international society we have reached a point where there exist side by side as means of settling disputes war and arbitral tribunals. While we are endeavouring to impose restraints on the former, we are perfecting the organisation of the latter and arming them with some small modicum of authority. If in the course of generations the Hague Conference, with its International Bureau and Permanent Adminis- trative Council, grows into a legislative body with an executive dependent on it, we may be sure that the Courts it creates will find themselves armed with coercive jurisdiction in some form. There can be no doubt that the pubhc opinion of the civiUsed world wiU be strong enough in the long run to find means of enforcing obedience to the decisions of tribunals it has been strong enough to call into existence. But it is time we returned to the work of the Second Hague Conference on the subject of arbitration. It made provisions too interesting to be omitted for sum- mary procedure in the case of disputes about matters of secondary importance. For the trial of these a new piece of judicial machinery is provided, neither so elaborate nor so expensive as the tribuncds preyiously considered, AND HAGUE CONFERENCES 73 but constituted on the same lines. Each of the parties appoints jin arbitrator, and these two choose an, umpire. If they cannot agree each proposes two candidates from the hst of the members of the Permanent Court, not being nationals of either of the parties, and from these four the umpire is chosen by lot. The tribunal thus formed tries the case. Normally the proceedings are in writing, but witnesses and experts may be called if the Court deems their examination necessary. Each party is represented by an agent, and oral explanations may be demanded from him at the discretion of the tribunal. We must not pass over the attempt to establish a Court of Arbitral Justice, or Judicial Arbitration Court as the Blue Book of January igo8 translates the phrase " Court de Justice Arbitrate," though unfortunately it did not meet with the success it deserved. The Confer- ence agreed with practical unanimity on the desirability of creating a court which should bear a close resemblance to the highest courts of civilised states, and should be strong enough both in the learning, ability, and character of its members, and in the exalted position they occupied, " to insure continuity in the jurisprudence of arbitra- tion." The judges were to " enjoy diplomatic privileges and immunities in the exercise of their functions outside their own country." They were to be appointed for twelve years. They were to be solemnly sworn in. They were to receive an annual salary. They were to meet in session at the Hague once a year, and might be summoned for an extraordinary session when necessary. 74 INTERNATIONAL PROBLEMS They were to have deputy-judges as understudies, and were to appoint a special delegation of three of their number every year. This delegation was to perform various executive functions, and was competent to decide certain less important cases, and to settle the " Com- promis " with the consent of the parties, or in some cases even if the request was made by one party only. The Court we have des cribed was not to supersede the I III _ , ill>ii> ■ H I III ■ m il ■■! I pa II I I m* \ I , B Permanent Court of Arbi trati on established bvtheFjrst .. ...■■■I., I. ■■ ■ii -^ "^' ^' ■ r- ,^, ,1 III I II Hague Conference and i giprove d by the Secon d. The two were to exist side by side, and states who wished to refer disputes to arbitration were free to^ choose between them. There seemed to be a general idea that theSttest would survive, and which was the fittest time alone could show. But it is evident from the superior status assigned to the Court of Arbitral Justice, and the greater things expected of it, that the majority of the members of the Conference hoped that in the end it would prevail, and become the Supreme Court of the Society of Nations. But alas ! beneficent as its career may be, it has yet to achieve birth. The obstacle which hindered its entrance into the world waslEKe set puroose of the smaller states, and especially the South American Republics, to assert in its fullest sense uJi^^Slcta^leofthe equality of. all sovereign states. They construed this mto much more than equality before the law, equaUty of rights and obligations. In their view it meant equaUty of influ- ence, equality in council, equality therefore on the judi- cial bench. A Court composed of forty-four judges would have been an absufdity. Fifteen was the highest AND HAGUE CONFERENCES 75 number that could be assigned to it; and no proposal for giving the nomination of one judge to each of the bigger states, and grouping the smaller for the election of the remainder, was able to find favour. A plan like that adopted for the constitution of the International Prize Court, which is described in Chapter VII., was not entertained. Week after week passed, and project after project was rejected. It beccune evident that no agree- ment on the question at issue could be hoped for. At last Sir Edward Fry, on behalf of the British Delegation, suggested that a set of articles, embodying the results of the labour of the Conference on all points except the fatal difference, should be included among the annexes to the Final Act, under the title of a " Draft Convention Relative to the Creation of a Judicial Arbitration Comrt," and that in the Final Act should be inserted a wish {vasu) to the effect that it was advisable to bring the draft convention into force " as soon as an agreement has been reached respecting the selection of the judges and the constitution of the coinrt." This was done, and the matter was thus left open for further negotiation, which we must hope wiU be successful in overcoming the exag- gerated self-importance of some of the smaller states. They must learn that in the Society of Nations, as well as in the society of individuals, equahty before the law is quite compatible with very real differences of position and influence. It is worthy of remark that the same difficulty occurred in ancient Greece with regard to the Amphictyonic Council, which was reorganised on a rough system of proportional representation by Augustus 76 INTERNATIONAL PROBLEMS Caesar. We have not the resource of an appeal to a common superior to deal in the same way with the central court of the Society of Nations. The attempt to establish what was called " compul- sory arbitration," but which was in reality nothing more than an agreement among the powers that they would sdways send to an arbitral tribunal certain classes of cases strictly defined in the agreement itself, met with a worse fate than the attempt to set up a Court of Arbi- tral Justice. No list of subjects of any importance could be passed which met with general acceptance. All the Conference could do was to declare in its Final Act that it admitted the principle of compulsory arbitration, and that " certain disputes, in particular those relating fto the interpret|,tion and application of the provisions of international agreements, may be submitted to com- pulsory arbitration without any restriction." It is quite possible that this somewhat platonic sentiment may be turned into ardent affection at the next Hague Conference, if in the meanwhile arbitral tribunals are frequently resorted to, and their decisions are such as to convince pubhc opinion that no righteous interest or just claim will suffer by being submitted to them. Many powers are leading the way to a general agree- ' ment by concluding separate agreements between them- selves. Among them are to be found states which opposed most of the so-called " obligatory " proposals at the Second Hague Conference. It is not difficult to understand their position. In the present moral and political condition of the world, a state may be willing AND HAGUE CONFERENCES ^^ to covenant with another state that it would always arbitrate in certain classes of cases where that other was concerned, and yet unwUling to make a similar agreement with every government represented at the Hague conclave. It is by no means certain that better progress in the submission of disputes to arbitration may not be made at present by a series of special agree- ments than by attempts to negotiate one great general treaty signed by all or nearly all the members of the Society of Nations. That we may hope and believe will come in time. But the otliers_may be a step towards it. They are being made in great abunSance, ■ and with almost every variety of stipulation. Recentj arbitration treaties may be likened to a set of experi- ments in an international laboratory. By a careful examination of their results we may soon be able to find the process best suited for general adoption. It is impossible to speak with certainty as to their number. The instances cover the area of the civilised world, and are added to almost from week to week. There can hardly be less than fifty of them, and many more could be added by counting in such matters as the reference of boundary disputes to mixed commissions charged with the duty of delimiting a frontier on the spot. Numerous as they undoubtedly are, they would have been much more so, but for the action of the Senate of '. the United States in declining to ratify many such inter- national instruments negotiated by President Roose- velt, because they did not provide that every agreement to arbitrate under them should be concurred in by two- 78 INTERNATIONAL PROBLEMS thirds of the Senate, as if it were a new treaty. We are now informed that this domestic difference has been settled. In fact an Arbitration Treaty with Great Britain was ratified on April 22, 1908, and similar proceedings followed in other cases. Some of the recent treaties adopt the plan of a cove- nant to refer to arbitration aU differences which cannot be settled by diplomatic means. Denmark, for instance, negotiated in 1904 an agreement of this kind with Holland, and another with Italy; but the signature of a Great Power to such a comprehensive scheme of refer- ence is a rarity. The parties are generally secondary states, who in this respect, as in others, have more than justified their existence by the services they have ren- dered to humanity. On the other hand the agreements entered into by the stronger powers make reservations. - A typical instance is to be found in the Anglo-French I Treaty of 1903, which stipulated for the reference to the Permanent Court of Arbitration of differences of a judicial order and differences relating to the interpreta- tion of existing treaties between the contracting parties ; but added the condition that " neither the vi tcd interes ts nor the independence or honour of the two c ontract ing states, nor the interests of any state other than the two contra.cting states,,, are involved." It is easy to see what a big loophole of escape is opened out by these excep- tions. The ghr ^e " vital interests ".has H Q_clear and definite^meaning. That interest is ^1 vital " which a state chooses to consider such. About some there can be no manner of doubt. With regard to others opinions AND HAGUE CONFERENCES 79 may differ at the time or change afterwards. Lord Palmerston considered it vi tal to British interests to preven t the cutting o f the Suez Canal. Not long after his death it was opened with our acquiescence ; and we have since acquired a preponderant interest in it to our own great satisfaction. Then with regard to national "honour" there is no fixed criterion, any more than there is with regard to personal honour. One man is touchy in the extreme, while another is very slow to take offence. One man glories in conduct which another thinks disgraceful. It is much the same with states. They have different standards, and often the passion of the moment is their sole guide. Yet we cannot help feeling that there is a limit set to the arbitral process, if not in the domain of pure reason, at any rate in the imperfect condition of the present international society. It is difficult to formulate re- servations in unexceptionable words; but nevertheless reservations there must be for the present, until nations trust each other better, and the Courts of Arbitration established or suggested by the Hague Conferences have proved their competence and impartiality by a series of notable decisions on important cases. And meanwhile we should do well to take to heart the wise remark of Sir Thomas Barclay, in his recent Memorandum on Con- troverted Questions of International Practice, that " it will always be better to escape from a treaty through its own provisions than by violating its provisions." To Sweden and Norway belongs the honour of turning the flank of this difficulty by a most ingenious plan. In the Treaty 8o INTERNATIONAL PROBLEMS of Karlstad of 1905, which arranged for the peaceful separation of the two kingdoms and gave the latter an independent existence, it was provided that all disputes between them which diplomacy could not settle should be referred to the Permanent Court of Arbitration estab- lished by the First Hague Conference. Then came a reservation of matters affecting the vital interests of either country; but it was followed by a stipulation that the coiurt itself should decide whether any question did affect such interests in cases where the two powers could not agree on the point. This left beyond the pale of judicial proceedings only those questions which both parties were determined to regard as so fimdamental that they could not entrust them to the decision of im- partial outsiders. We may hope that they will become fewer and fewer as time goes on, and at last cease alto- gether. The conditions precedent are the estabhshment of strong courts, and the growth of an international jurisprudence based largely on their decisions. If the civilised world could obtain that High Court of Arbitral Justice of which the self-assertion of Latin- America deprived it in 1907, the outlook for the future would be perceptibly brightened. But it is only fair to add that a stimulus to arbitration came from the same quarter. At the instance of Peru and Chili it was agreed that one of the parties to a quarrel could always inform the International Bureau at the Hague that it was ready to submit the disptite to arbitration. When this was done it became the duty of the Bureau to inform the other party. The public opinion of the civilised world AND HAGUE CONFERENCES 8i would make it difficult to begin a war in the teeth of such a declaration. The obstacles in the way of the advance of inter- national arbitration are very real. But we need not regard them as lions in the path. They wUl gradually vanish if they are boldly faced. When thus treated what looks the most formidable of them aU — a veritable lion — ^has turned out to be a very harmless creature. People constantly say, how are you going to get states to carry out arbitral awards they strongly dislike, seeing that the tribunals dispose of no force to compel obedience to their decisions ? Solvitity ambulando. The important Alabama case went against Great Britain in 1871, and the Behring Sea case against the United Statesini894. On each occasion public opmion in the losing country was dissatisfied with the result, and challenged the jus- tice of the tribunal. But nevertheless both awards were loyally executed. There have been many more arbi- trations in the last hundred years than in any previous i period of human history. In only one instance wasi there non-compliance with the decision, and then the( reason given, and given with truth, was that the arbi- trator had gone beyond the powers conferred on him by the instrument of reference. This happened in 1831 in connection with the settlement of the north-eastern boundary between the United States on one side and Novia Scotia and New Brunswick on the other. The question was referred to the King of the Netherlands, who was asked to decide on the proper interpretation of the provisions of the treaty of 1783 which related to the matter. Instead he declared that they were inapplic- F 82 INTERNATIONAL PROBLEMS able, and recommended a different boundary. The United States protested and declined to accept his ruling. The dispute was not finally settled till 1842, when the Ashburton Treaty dealt with, it successfully. These facts are very remarkable. They show that civilised nations, like reputable individuals, have feel- ings of honour and shrink from breaking their plighted word. Self-respect and a regard for their standing in the society to which they belong combine to make them submit to awards which are sometimes very unpalatable. And prudence points in the same direction; for surely the most unsuccessful arbitration is a smaller calamity than the most successful war. Those who continually sneer at all efforts to lift international society out of its present barbarous condition, and substitute the cult of justice for the cult of force, should bear in mind that what they are pleased to call the logic of facts must take accoimt of all relevant events. It will not do to point triumphantly to whatever makes for contempt of law and bases itself on violence and bad faith, and ignore all instances of self-restraint and submission to the com- mands of morality. An arbitration is as much a fact as a war, a submission to an award as a denial of right. We need not ask the disbelievers in international righteousness to be altruistic. It is enough if they are scientific. Any theory of the Society of Nations which is deduced from observation of what does really happen among them must describe arbitration as a method of settling disputes which is daily gaining adherents, and rapidly increasing in strength of appeal cind coherence of method. CHAPTER V THE HAGUE CONFERENCES AND WAR ON LAND The great conclaves at the Hague spent much of their time in endeavouring to improve and codify large por- tions of those rules which are conveniently spoken of as the laws of war. Their activity in this respect proved most beneficuil. The taunt that being summoned as Peace Conferences they turned themselves into War Con- ferences is silly to the last degree. Anything that tends to banish from hostile operations unnecessary cruelty to combatants, anything that diminishes the hardships of non-combatants and protects innocent neutrals from interference, is not only a gain in itself, but also a step forward in the evolution of peace. Moreover, what has been done in this direction is in strict accord with the suggestions made by Count Mouravieff, then the Russian Minister for Foreign Affairs, in his circular of January ii, 1899. In this document he gave the outlines of a pro- gramme which included the regulation of Red-Cross work at sea, the prohibition or restriction of various means of destruction, and the revision of the laws and customs of warfare on land. The powers consented to send repre- sentatives to a meeting convened for these purposes, and when on April 7, 1899, the formal invitations to the Conference were sent out by the Netherlands Govern- 83 84 INTERNATIONAL PROBLEMS ment, the object of the assembly was stated to be " to discuss the questions indicated in the second Russian Circular." This was done; and the_F£stJHague^n- ference drew upamost important set of " Reg ^ations Respecting theLaws anH~Customs^ of jVar_onJ^d.'' Tfiey~were annexed to the second of its Conventions, and the High Contracting Powers covenanted to issue to their land forces instructions in conformity with them. The Second Conference improved them and inserted in the ConveMion which' adopted them provisioHS that a belligerent was responsible " f or aH acts committed by persons forming part of its armed forces," and was liable to pay compensation for violation of the regulations. The laws of war at' sea were discussed to a very limited extent at the First Conference. All it succeeded in doing was to apply to maritime warfare the principles of the Geneva Convention of "1864, which had exempted from liostile operations persons and things connected with the care of the sick and wounded in war on land. Out of the six wishes expressed in the Final Act, five took cognisance in a greater or less degree of war at sea, and two were exclusively concerned with it. Four relegated the matters they dealt with to a future Hague Conference for consideration. It is not therefore to be wondered at that noleg^han eight of the thirteen Con- vention§.^egotiated at thg^cond Conference were con- cerned with riava,l jnatters. And yet so mucE^was left undone, andf so much of what was done was incomplete or unsatisfactory, that " the preparation of regulations relative to the laws and customs of naval war " was set AND HAGUE CONFERENCES 85 forth by the plenipotentiaries as one of the subjects which " should figure in the programme of the next Con- ference." The contrast between the success of the attempt to draw up a code for warfare on land and the difficulties and disagreements connected with the pro- duction of a similar code for warfare at sea is easily accounted for. The Conference of 1899 ^^^ been pre- ceded in 1874 by an international assembly at Brussels which discussed the laws of war on land at great length. It agreed upon a set of regulations which unfortunately did not receive ratification from the powers represented at the gathering. But its labours helped to clarify opinion; and the delegates assembled at the Hague twenty-five years afterwards took the Brussels Code as the basis of their deliberations. The Conference of 1907 had no such assistance when it came to discuss the rules of maritime capture. In dealing with them it left behind a record of mingled success and failure. This we shall discuss in the next chapter. At present we wiU confine ourselves to hostilities waged on land, and to one matter common to hostilities of aU kinds. Let us take this latter first. It is concerned with the commencement of hostilities, a subject on which a vast amount of hopeless nonsense has been spoken and written. We all recollect the accusation of treachery made by Russia against Japan because her torpedo-boats attacked the Russian warships at Port Arthur before any formal declaration of war had been made by either side. The charge was amply refuted by a reference to the facts of the case. On February 6, 1904, the Japanese 86 INTERNATIONAL PROBLEMS Minister at St. Petersburg handed in a Note which not only broke off diplomatic intercourse between the two powers, but also stated in express terms that Japan reserved to herself the right to take such independent action as she deemed best fitted to protect her rights and defend her menaced interests. That day Admiral Togo's fleet left Sasebo. On the next the Russian Government issued an order to place Port Arthur in a state of war, and on the next, which was February 8, the Japanese attack was delivered. There could be no treachery when ample notice had been given, and taken also. There might, however, have been a breach of International Law, if it had required that hostilities should not be commenced without a formal declaration. But it is quite clear that the practice of states had created no authoritative custom to that effect, the great majority of modem cases being instances to the con- trary. Moreover, no rule had been laid down by express agreement among the powers. A reference to the great writers on International Law, whose books have much the same authority in cases between nations as the works of Bracton, Coke, Blackstone, and others have among us in cases between individuals, shows a bewildering medley of differences instead of a consistent doctrine. Some say that a declaration must be issued, but allow the simidtaneous commencement of the war. Others hold that the enemy ought not to be attacked tiU some time after the issue of the declaration. Yet another, while insisting on declarations before actual fighting begins, allows them to be delayed tiU the enemy's terri- AND HAGUE CONFERENCES 87 tories have been entered and an advantageous position seized. A great authority confines declarations to offensive wars ; while several others deny that they are necessary at all, and show a preponderant weight of practice in favour of their view. In the old days when states at war were either principals or accessories, and an accessory could take part by sending limited succour to one side without being deemed an enemy of the other except in so far as its contingents were engaged, it sometimes happened that a power which had begun as an accessory was drawn into the conflict completely and became a principal. When this occurred we often find that a declaration of war was issued after actual hostilities had been going on for months or years. The same thing frequently came about when the war had commenced in a distant colony. And curiously enough there are modified instances of it in modem times, though the distinction between principals and accessories has long been obsolete. In the recent struggle between Russia and Japan, which we have just been discussing in connection with the question of treachery, both parties did in the end declare war in a formal docimient. But the Russian declaration was issued on February 9, 1904, three days after the first act of hostility, which seems to have been the capture of the Russian steamer Rossia by Admiral Togo's fleet, while the Japanese declaration was not made till February 10. Scores of instances and authorities might easUy be added to those already given. But they would only prove what is sufOiciently obvious without them, confu- 88 INTERNATIONAL PROBLEMS sion in thought and diversity in action. The Second Hague Conference apphed a Httle sober sense to the question, and in a Convention on " The Opening of Hostilities " enacted the wholesome rule that fighting between states " must not commence without previous and explicit warning, in the form either of a reasoned declaration of wax or of an ultimatum with conditional declaration of war." This was proposed by the French Delegation and met with general acceptance. Holland suggested that twenty-four hotirs should elapse between a declaration and the corfimencement of hostilities under it. But the more powerful states declined to be bound by a hard and fast limit. They were quite will- ing to agree that they would not make war without notice, but they would not undertake to stay their hands when once notice was given. As the German official memorandum points out, the wording of the Convention forbids a complete siurprise, provides for a clear indica- tion of the date when a state of war supersedes a state of peace, and secures that reasons for the war shall be given formally and officially. It is difficult to see what more is needed. Justice and honour forbid anything in the nature of a treacherous attack — a bolt out of the blue launched by a power which has not previously stated its grievances and intimated that it wUl use force if they are not redressed. This the Convention provides against. There must be a quarrel, and there must be an attempt to settle it by negotiation, which attempt must be brought to an end by a formal notice before any hostile operations can lawfully be commenced. It AND HAGUE CONFERENCES 89 is quite true that an ambitious and unscrupulous state could suddenly formulate an outrageous demand, foUow its rejection by a declaration of war, and follow the declaration by an attack the moment news of its recep- tion arrived. It would be the act of a bandit, and no one would perpetrate it who shrank from the reputation of a bandit, which, to put it as mildly as possible, is a very bad international asset. But under the old law, or rather absence of law, the freebooter disguised as ruler could move his troops into a neighbouring country and seize it without having made any demand or issued any declaration. Such a flagrant disregard of all moral con- siderations was barely possible, just as it will be barely possible under the new order to crowd into a day or two provocation, declaration, and onslaught. And just as there were very few instances of the former, so there will be very few instances of the latter. Neither states nor individuals can afford to stand before the world as open and unabashed villains. They assume a virtue if they have it not ; and in the particular matter now before us the assumption of virtue means clothing unreasonable demands in diplomatic language and going through some sort of discussion upon them, that is to say the very notice to the other side of its danger which it is the object of the Hague regulation to secure. In addition to the declaration of war or conditional ultimatum addressed to the enemy the Convention requires that notice be given immediately to neutral powers, and they are not held bound by the obhgations of neutrality until they receive such notice or are otherwise aware of 90 INTERNATIONAL PROBLEMS the existence of a state of war. Their interests are thus safeguarded. For the powers at war and their subjects, the rights and duties of belligerency supersede those of peace from the moment of the reception of the declara- tion of war. For neutral powers and their subjects, the rights and duties of peace are qualified by those of neutrality from the moment when their govenunents become aware of the outbreak of war. As to belli- gerents themselves, it is quite clear that the regulations do not deprive a well-prepared army or navy of the advantage of striking the first blow. Notice to your adversary that you are tired of negotiating and mean to fight is by no means the same thing as notice that you will attack at a given place, on a given day, and at a given time. We must now pass on from the formalities connected with the commencement of war to the methods used in the prosecution of war. Any attempt to consider them in detail is out of the question. It would require a volume, whereas we have but part of a chapter at our disposal. All we can do is to take a few important matters and show how the Hague Conferences have dealt with them. The First Conference had, as we have already seen, the advantage of familiarity with the code drawn up at Brussels in 1874 for the regulation of war- fare on land. But the Brussels Conference was not quite in the position of a pioneer. Eleven years before it sat the administration at Washington in the midst of the great American Civil War had issued " Instruc- tions for the Government of Armies of the United States AND HAGUE CONFERENCES 91 in the Field." These instructions had been drawn up by Dr. Francis Lieber?^They consisted of a hundred and fifty-seven artfcles,'"most of them long and all more or less rhetoricd . But theydeserve the greatest credit, bothjortheir humane tone an^,,fortiieircompleteness. As a first attempt to select from a vast number of customary rules those which are at once the most just and the best fitted to meet the needs of modem warfare, they are a monument of industry and ability. And their author showed a power of arrangement equal to his power of selection, by the successful way in which he placed the material he had collected under appro- priate headings. His work may still be studied with advantage, though here and there the reader might find it difi&cult to say whether he was examining a code or a moral treatise. In the years immediately succeeding 1863 the example of the United States was followed by a few other powers, but their military manuals were generally kept secret. In order that a uniform code might be agreed upon, the Emperor Alexander II. of Russia procured a meeting in 1874 of representatives of all the states of Europe, and the results of their delibera- tions were those Brussels regulations of which we have spoken more than once already. They were not ratified at the time, but they had a great influence on the dis- cussions and decisions of the Institute of International Law when it adopted its regulations for war on land at Oxford in 1880. Thus the Hague Conference of 1899 had but to reap the harvest prepared for it by jurists and statesmen whose labours had preceded its own. 92 INTERNATIONAL PROBLEMS Not only did it do so in a workmanlike and satisfactory way, but in some corners of the field it gathered other fruits fostered and tendered by itself. A few details will prove conclusively the truth of these propositions, and show further that there has been a great advance in humanity within the last century. In 1813 the Duke of Wellington wrote : " It has fallen to my lot to take many towns by storm, and I am concerned to add that I never saw or heard of one so taken by any troops that it was not plundered." Another statement made by him is significant of the current military morality of his time. In the second series of his des- patches we find the words, " I believe it has always been understood that the defenders of a fortress stormed have no right to quarter." It is, however, due to his memory to state that his own practice was far more merciful than the terrible rule he enunciated. He accepted as prisoners of war all who offered to surrender. But he could not prevent the sack of fortresses after the awful struggle at the breach had awoke in the victorious assailants the primitive savagery which lurks in the breasts of most of us. This is what Napier, the historian of the Peninsular War, says of the three storms which occurred in the course of it, and which, considered merely as heroic feats of arms, wiU ever adorn the records of the British Army. " At Cuidad Rodrigo mtoxication and plunder had been the principal object; at Badajos lust and murder were joined to rapine and drunkenness ; but at San Sebastian the direst, the most revolting cruelty was added to the catalogue of crimes." And, be it remem- AND HAGUE CONFERENCES 93 bered, the soldiers of Wellington's army were at least as well behaved as the legions of Napoleon. We see what capture and assault meant in theory and practice just a hundred years ago. Let us now turn to the Brussels Code, and there we read, " A town taken by storm shall not be given up to the victorious troops to plunder." Among the means of injuring the enemy' which are strictly forbidden is placed " The declaration ' that no quarter wiU be given." And when the relations between military power and private individuals came up for discussion, it was agreed to declare that " PiUage is expressly forbidden," and that " The honour and rights of the family, the life and property of individuals, as well as their religious convictions and the exercise of their religion, should be respected." This was in 1874, and in 1822^ the First Hag ue Conference placed every one of thesgrestraints in its Regulations Respecting the Laws and Customs of War on Land in almosTthe same words, the differences being in the_^direction of more precision and gr^er strength. It is good to be able to add that the contrast in these matters between the beginning and end of the nineteenth century is not confined to words. It is quite as marked in deeds. No doubt the changes in methods of fortification and defence, due to the immensely increased range and power of artillery, have had much to do with the absence from modem warfare of the old horrors of the storm and the sack. A town is now untenable when some outlying position at a long distance from its houses has been carried by the besieging force ; and there is nothing left 94 INTERNATIONAL PROBLEMS for the besiegers but to surrender on the best terms they can get. An inrush of maddened troops is thus gener- ally avoided. But even when a place has been carried at the point of the bayonet, the storming party and those who follow them have been kept under discipline. The ^only exception in recent times is the conduct of the Japanese when they captured Port Arthur in their war with China in 1894. But the slaughter perpetrated on that occasion was caused by the loss of self-control on the part of the advancing troops when they saw by the wayside the quivering bodies of their compatriots tor- tured to death by the retiring Chinese. In 1905 the soldiers of Japan showed: at Port Arthur, and all through their war with Russia, that both officers and men were determined to carry out in the field the humane rules which their statesmen and jurists had helped to shape in the council chamber. Before we leave the subject of besieged places some- thing must be said with regard to bombardments. In 1810 Marshcdl Suchet at Lerida deliberately drove the women and children from the captured town into the untaken citadel, in order that its commander might surrender to avoid their slaughter by the French guns. The First Hague Conference laid down that the com- mander of an attacking force was to warn the local authorities before commencing a bombardment, so as to give them an opportunity for finding places of refuge for non-combatants. Further it provided that, instead of indiscriminate destruction, " edifices devoted to religion, art, science, charity, hospitals, and places where the sick AND HAGUE CONFERENCES 95 and wounded are collected " should be spared as far as possible, and placed on the besieged the duty of indi- cating them by visible signs and abstaining from any use of them for miUtary purposes. Any place held against an enemy might be bombarded by him subject to these conditions ; but " the attack or bombardment of towns, villages, habitations, or buUdings which are not defended is prohibited." These rules are not mere counsels of perfection. They are generalised from the best modem practice, and, instead of going beyond it, in some respects fall short of it. During the siege of Strasburg in 1870 the Germans allowed non-combatants to pass through their lines to a place of safety on two occasions, and at Ladysmith in the early part of the Boer War we were permitted by General Joubert to establish what was called the Intombi Camp, where the sick, and the women and children, could remain out of reach of the shells. The launching of projectiles and explosives from balloons is so closely connected with bombardments that it wiU be convenient to refer to it here. The First Hague Conference prohibited it for five years by a formal declaration, which the Second renewed " f or a period extending to the close of the Third Peace Conference." Germany has recorded her dissent, but Great Britain, who stood out in 1899, signified her acceptance on the present occasion. The lot of prisoners is an illustration of the truth that civilisation means restraint. In savage warfare no check is put on the worst of human passions. Rather is it regarded as an opportunity for gratifying them to 96 INTERNATIONAL PROBLEMS the full. And accordingly prisoners are tortured, offered in sacrifice to the gods of the victors, and some- times eaten. Then as the progressive nations slowly emerge from barbarism, we find several stages of advance — slavery, ransom, exchange — and mingled with them occasionally acts of ferocious cruelty or callous neglect. It is interesting to note that up to the latter end of the eighteenth century each belligerent was expected to support its own soldiers and sailors who were prisoners in the custody of the enemy. A hundred years ago the obligation of maintenance was acknowledged to rest on the captors; but the terrible history of the prison- camps and prison-hulks in England and France during the Napoleonic wars shows how lightly it was esteemed, and what dens of iniquity places for the custody of prisoners were allowed to become. If we turn now to the regulations agreed on at the Brussels Conference in 1874 we shall see how enormous was the advance made in sixty years. Prisoners of war " were to be treated as regards food and clothing on the same footing as the troops of the government who made them prisoners." They might be " employed on certain public works which have no immediate connection with the operations on the theatre of war," provided that account was taken in assigning their tasks of their rank and social position. The pay they received was to go towards amehorating their position or to be placed to their credit at the time of their release. In the latter case the cost of their maintenance might be deducted from it. A prisoner might be shot or cut down while AND HAGUE CONFERENCES 97 attempting to escape, if he disregarded a summons to surrender. But if he got away and was again made prisoner, he was not to be subjected to punishment for his previous escape. At thejiague in iSgp these jegulatigns were adopted in essentia]^, and the changes made were all in the direction of further humanity and mcreased personal consideration. It "was stipulated, for instance, that the work done by prisoners for the state should " be paid according to the tariffs in force for soldiers of the national army employed on similar tasks," and the ameUoration of their position was made the first charge on their pay. Provision was made for the exercise of their religion, " including attendance at their own church services." Their officers were to receive " if necessary " the full amount allowed in their country's regulations, such sums to be repaid by their govern- ment. In addition to all this a number of entirely new Articles were introduced. They provided for the establishment of an Information Bureau in each of the contending states, and for the regularisation of relief societies, who were to receive from the belligerents every facility for the distribution of supplies to the prisoners. It was made the duty of each Information Bureau to answer inquiries about prisoners, to collect and transmit to those interested all valuables and objects of personal use found on battlefields, or left by prisoners who died in hospitals or ambulances. In order that it might perform its humane tasks with effi- ciency it was to be furnished by the various services G 98 INTERNATIONAL PROBLEMS with all necessary infoimation, and was to have the privilege of free postage and freedom from duty for gifts and relief in kind sent for the benefit of its clients. It must, of course, be understood that the stern neces- sities of warfare may at any time qualify these benefits. A general who was obhged to put his own soldiers on half-rations could not be expected to maintain his prisoners in comfort; nor would it be deemed a breach of International Law if a commander of a besieged fortress took away the military clerks of the Information Bureau to man a work he could not otherwise defend. But in recent wars the rules of the First Hague Con- vention have been honourably observed in the normal course of hostilities. Indeed some powers have gone beyond them. Generous as they are to captives taken in war, Japan was more generous still to her Russian prisoners in 1904 and 1905. Special cooks were brought from abroad to prepare European food for them, games and sports were organised to keep them in health, and schools were provided for their instruction. With the exception of the preparation of a different kind of food, which was not necessary, the same may be said of our treatment of Boer prisoners in Ceylon and St. Helena. It is impossible to dwell on other departments of the laws of war on land. AU that can be said in passing is that, through the efforts which were summed up and placed on a quasi-legislative footing by the Hague Conference of 1899, the patriotic citizens of an invaded country who take up arms in order to resist the invaders are to be treated as lawful combatants as long as they AND HAGUE CONFERENCES 99 comply with a few simple conditions, the chief of which is that in their own operations they should observe the laws and customs of civilised warfare. The use of treacherous or unnecessarily cruel methods of destruction is forbidden, the principle adopted being that the measmre of the stress to be put upon the enemy is its sufficiency to destroy his powers of resistance and induce him to sue for terms, anything beyond this being unnecessary and therefore unlawful. And the treatment of the inhabitants of territory under the control of the enemy's forces is so provided for that they are protected from pUlage and rapine, and from any attempt to make them renounce their edlegiance or " take part in mUitary operations against their own country," and also from forced contributions of money to fill the general exchequer of the foe, while at the same time they are liable to pay their ordinary taxes to the enemy's miUtary chest, to the exaction of contributions in kind and certain personal services for the necessities of the occupying army, and to the seizure and use during the war of such private property as may serve for military operations. These are some of the regulations of the First Hague Conference divested as far as possible of technicalities, and chosen partly for their importance and partly in order to illustrate the progress which has been made within the last few generations. Even if it had been possible to give the whole code, our readers would have found that some of the circumstances and conditions which occur in practice had been left unprovided for. For instance, it was impossible to reach a general agreement as to the 100 INTERNATIONAL PROBLEMS treatment of populations of occupied territory who, rise in arms against the enemy, and endeavour to cut off his resources or overthrow the troops left to maintain communications and control the people. Bearing in mind this and other divergences, the plenipotentiaries placed on record in the preamble of their " Convention with Respect to the Laws and Customs of War on Land " the following expression of opinion which was repeated word for word in the preamble of the similar Convention adopted by the Second Hague Conference in 1907. " It has not, however, been possible to agree forthwith on provisions embracing all the circumstances which occur in practice. " On the other hand, it could not be intended by the High Contracting Parties that the cases not provided for should, for want of a written provision, be left to the arbitrary judgment of the military commanders. Until a more com- plete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of international law, as they result from the usages estab- lished between civilised nations, from the laws of humanity, and the requirements of the public conscience." These somewhat verbose and grandiloquent sentences are remarkable both for what they assert and for what they leave out. The mere ipse dixit of a general hard pressed by the exigencies of the moment is not to be the rule of decision. He must base himself on the best usages of the best peoples, and the sentiments of humanity and justice. These qualify the harsh plead- ings of military necessity. But how, and to what AND HAGUE CONFERENCES loi extent, the Conference found it impossible to say. Hence will arise a plentiful crop of controversies in future wars. It is, however, an advance to have a solemn international judgment in favour of the pre- ponderance of mercy. That the opiniojj of civilised mankind is tending in this direction as far as land warfare is concerned the record of the Second Hague Conference shows. It took the military regulations of its predecessor and practically passed them as they stood. The few additions and alterations it made were aU directed towards a general' respect for patriotic sentiments, and greater security for private property. A belligerent was forbidden to compel subjects of the enemy state to take part in war- hke operations directed against their own country, even if they were in his service before the commencement of the war. Moreover, the inhabitants of territory occupied by the invader were no longer to be forced to furnish information about the military forces or means of defence of their own side. Russia and Montenegro were unwilling to part with this severity, and entered reservations against the Article which forbade it. But it holds good for ail the other signatory powers in their wars with one another. As to property, the list of those things which, if seized and used by invaders, must be restored with compensation at the end of the war was considerably enlarged by the use of general terms instead of descriptive names ; and it was further provided that " submarine cables cormecting an occupied territory with a neutral territory shall not be seized or destroyed 102 INTERNATIONAL PROBLEMS except in the case of absolute necessity." At the con- clusion of peace they too were to be restored and com- pensation paid for injury done to them. These variations from the Regulations of 1899 were undoubtedly changes for the better; but the great improvement made in 1907 is tg be foun4, not^in the rules themselves, but m the Convention>JSiii£li_ad^ts tt^em. That of meRrst Conference merely bound the Contracting Powers to issue instructions to their armies in accordance with the code annexed to it. That of the Second Conference repeated this provision, but went further, and declared that a belligerent which violated any of the Articles of the code was responsible for the wrongful acts done by its armed force, and was hable to pay compensation if the case demanded it. Thus the whole mass of regula- tions were taken out of the category of counsels and made imperative as far as consent can do so. ** One other change cannot be passed over without notice. In the Brussels Code and the first Hague Code there were included a few Articles referring to the care of the wounded in neutral countries, and the means to be adopted by neutral governments for dealing with belligerent troops which for any reason entered their territories. These were taken out of the second Hague Code, and made into the nucleus of a " Convention Respecting the Rights and Duties of Neutral Powers and Persons in War on Land." The new Convention covers much more ground than the corresponding section of the old code. It forbids belUgerents to move troops or convoys across the territory of a neutral power, but AND HAGUE CONFERENCES 103 allows such a power to " authorise the passage into its territory of the sick and wounded belonging to the beUigerent armies, on condition that the trains bringing them shall carry neither personnel nor war material," and with the further proviso that their sick and wounded passengers must not again take part in the military operations. When once within neutral territory their treatment is regulated by the Geneva Convention. Should troops of either army cross a neutral frontier, they are to be interned, that is to say, kept in honourable detention by the neutral government, so that they do not return to the theatre of war and engage in hostilities during the rest of the conflict. At its conclusion they are to be sent home, and their own state must reimburse the neutral state what it has spent on them. Other provisions laid on neutral governments the duties of preventing the formation of corps of combatants or the establishment of recruiting agencies in their territories, and gave them the right of resisting, even by force, attempts to violate their neutraUty. The erection by a beUigerent on the territory of a neutral power of wireless telegraphy stations " or other appeiratus for the purpose of communicating with belligerent forces on land or sea" is strictly forbidden; but the use of the ordinary telegraph or telephone cables, or wireless 1 telegraphy apparatus, is not prohibited by the Con- vention, though it is recognised that neutral govern- ments may prevent it entirely or restrict it, if they feel disposed, provided only that they treat both parties alike. This is a very insufficient and unsatisfactory 104 INTERNATIONAL PROBLEMS arrangement. We may venture perhaps to hope that before long a quickened sense of the duty of neutrals to prevent any use of their territory for directly war- Uke purposes wiU cause some future Hague Conference to enact prohibition as a definite rule. To make a given spot of neutral land into an information station may be much more serviceable to a beUigerent in his war theui the planting thereon of cannon and the bombardment by their means of passing vessels of the enemy. Yet if a neutral power allowed the latter it would be de- nounced universally as a law-breaker, and at once called to account by the other beUigerent, whereas as things now stand it could permit the former with perfect impunity. With regard to the generd treatment of sick and wounded, it is declared in the regulations aimexed to the Convention of the Second Hague Confer- ence on the laws of war on land that the obligations of belligerents with regard to them are governed by the Geneva Convention. This refers, of course, to the Geneva Convention as revised in 1906. It would be useless to give a detailed account of it here. All that need be said is that it exempts from hostile attack, and as far as possible from the other severities of warfare, not only the sick and the wounded themselves, but also the persons and things employed in their service. Enough has been said to show that war on land is carried on now with far greater humanity than it was a century ago. It is clear in addition that the rights of neutrals are more scrupulously observed, and their duties more effectively performed, though in both AND HAGUE CONFERENCES 105 respects there is room for considerable improvement. In all war the object of the belligerents should be to strike as hard as possible at the enemy, while interfering as little as possible with the ordinary avocations and daily life of neutrals. Similarly, neutrals should aim at absolute impartiaUty, and absolute abstention from anything which is directly concerned with belligerent operations. This apphes to war at sea as well as war on land. It is an ideal which civihsed men have not reached even in the latter, and in the former they are very far from it, as we shall see in the next few chapters. Meanwhile it may be advisable to point out that the humanity of land warfare may easily be overrated by those who are content to dwell on such excellent rules as " Private property cannot be confiscated," " Pillage is formally prohibited," " Private property must be respected." They are all in the code, and they are all accepted and acted on by properly disciplined armies. But side by side with them are other rules which allow articles needed for the daily wants of an invading army to be requisitioned, that is to say demanded from the inhabitants and taken by force if withheld by them. Moreover, money contributions may be levied for the use of the troops or for the support of the civil adminis- tration set up in the invaded territory, though not for the enrichment of the invaders or their government. Hostile soldiers may be billeted on peaceful populations, whose horses, vehicles, and means of communication generally, may be seized and used for the purposes of their foes. The receipts which should be given for io6 INTERNATIONAL PROBLEMS requisitions and confaibutions do not imply that pay- ment win be made for what is taken. Sometimes and by some armies it is given, at other times and by other armies it is withheld. A whole province may be im- poverished and its poorer inhabitants reduced to terrible straits by the best behaved soldiery in the world, without a single act of pillage, outrage, or murder having been perpetrated in it. Add to this that the sternest severity is, and indeed must be, used to put down any attempt on the part of patriotic non-com- batants to help their own side or rise against the enemy, and it becomes apparent that war on land has by no means been deprived of its terrors, because it is no longer lawful to let loose swarms of men in uniform to prey on defenceless populations, and gratify their worst passions without restraint. It is necessary to remember these things when we meet with the very common assertion that the lawfulness of the capture of some forms of private property at sea degrades maritime warfare below the moral level of warfare on land. The capture of an enemy's merchantman is an operation as regular as the levy of a requisition for beef on a country village. There are undoubtedly strong reasons which point towards the aboUtion of the right to make war on innocuous sea-borne conmierce; but among them we must not rank the plea that by so doing navies woiild be made to conform to the standard of humanity already reached in mihtary operations. The arguments for and against the proposed exemption cannot be stated here. A great weight of opinion exists on either side, AND HAGUE CONFERENCES 107 the views of most British experts being against change. But this we"'may~state with perfect conviction, that barbarous as war is, it would be still more barbarous if disciplined forces were deprived of the power of strik- ing hard blows at the warlike resources of their enemies. There would be in it no more of mercy or humanity than at present, and it would last longer. The formula of advance is, Protect scrupulously persons and things not immediately useful for warlike purposes, and seize or destroy all who are. CHAPTER VI THE LAST HAGUE CONFERENCE AND WAR AT SEA Among the differences between war on land and war at sea there are two which have a most important bearing on the questions discussed in this volume. In the first place the moral dangers which arise when aiTinvading army takes possession of a territory inhabited largely by women and children are absent in a great naval struggle. When men have overcome men in a sea- fight they do not immediately become arbiters of the destiny of thousands of the other sex. And when a cruiser captures a merchantman there is little chance that her crew will find a woman on board their prize. There might be many on the rare occasions when a great passenger-steamer is seized ; but the discipline on board a man-of-war is so perfect, and the area over which supervision has to be exercised by her officers is so small, that there is no fear of outrage, even if we leave out of account the proverbial chivalry of sailors, and the practical certainty that detection and severe retribution would immediately follow the sUghtest attempt. In this respect, therefore, navies can claim superiority over armies as instruments of warfare. The second distinction points, however, in the other direction. Operations at sea involve the interests of neutrals to a loS HAGUE CONFERENCES 109 much greater extent than operations on land. Here and there a citizen of a neutral state may be found among the inhabitants of an invaded territory ; but as a rule a country is peopled almost exclusively by its own subjects, those residents who were born aliens having thrown in their lot with it by naturaUsation. At sea beUigerent subjects and neutral subjects are constantly found together in the same vessel, and their property and proprietary interests are often inextricably mingled. The vastness of the ocean-carried commerce of the world causes endless complications. Neutrals lade their goods on belligerent merchantmen, and belligerents on board neutral merchantmen. The cargoes of the huge modem steamers which are rapidly taking the place of sailing vessels and small craft of their own kind, are frequently made up of consignments belonging to owners of different nationahties, some of whom may be belligerent and some neutral. Thus in time of war there often arises strong opposition between the two sets of interests. Questions of blockade, contra- band, and unneutral service (see pp. 14, 15) add to the difficulty and complicate matters still further. Those departments of International Law which deal with the rules of capture at sea are full of compromises between the demands of belligerents and the claims of neutrals. Why, say the former, must we hold our hands and allow you to feed the resources of the enemy by your com- mercial deaUngs with him ? Why, say the latter, must we have our trade with a friend harried and hampered because you and he have chosen to fight? These no INTERNATIONAL PROBLEMS coiltentions are absolutely irreconcilable. AJl^that can be done is to give authority to a series of compromises based on the idea that neutral^ commerce should not be interfered with unless it is of direct and immediate benefit to an enemy in his war. But since neutra ls are n ot responsible for breaking the peace of the world, a nd desire nothiiig better than the continuance of previous II III "llll ■■■■II UIMI . 11'""' " ^'^ II ~"' W ^ ■» ,j lllll* conghoi^ it seems right that doubtful points shou ld be resolved in t heir favou r. This is a dictate of justice, and in the case of important commercial powers it is also a dictate of self-interest, since such states are neutral much oftener than they are belligerent. A short review of the Conventions negotiated at the last Hague Conference with regard to various matters connected with maritime warfare will show how far the views we have just enunciated have found expression in the most recent and authoritative documents. We will begin by considering the position of enemy merchantmen at the outbreak of hostihties. When maritime states come to blows the ports of each of them are almost certain to contain private vessels of the other ; and the question at once arises whether the departure of such ships is to be permitted, or whether they are to be seized. About the right to seize them there can be no doubt. Indeed it used to be the custom to endeavour to arrange matters so that war might commence when a harbour was fuU of rich merchantmen belonging to the enemy state, or even to lay an embargo on them in time of peace in order that they might be ready for con- fiscation in case the two countries resorted to arms. But AND HAGUE CONFERENCES iii for more than fifty years the interests of commerce have qualified the severities of warfare, and at the commence- ment of hostilities belligerents have granted, as an act of grace, a period during which enemy merchantmen might leave their ports in safety, if already in them, or, if on their way to them, might enter and leave. The extent of the- grant has varied from time to time, as regards both the length of the period of grace and the completeness of the protection accorded to ship and cargo. The United States gave thirty days at the com- mencement of their war with Spain in 1898, and their 1 Supreme Court construed it to cover ibe case of Spanish ships which had sailed from American ports before the * outbreak of hostUities. The President's Proclamation also allowed enemy merchantmen who had sailed before the war began from any foreign port to any American port, to enter it, discharge cargo, and depart without molestation, within the period of grace. These rules are very liberal. In the next war that affected sea- borne commerce the pendulum swung in the other direction. In 1904, Russia gave to Japanese vessels but forty-eight hours from the issue of her Proclamation. Japan granted eight days from the outbreak of hostihties. Such grants have always been regarded as a favour, and not a right, and conditions have been attached to them, the most general being that no contraband of war should be carried by departing vessels. At the Second Hague Conference a proposal was made to render the concession obligatory. Great Britain, however, main- tdned that it should remain on its old footing, and her 112 INTERNATIONAL PROBLEMS view prevailed. But while states in the future will retain their Uberty of action according to varying circum- stances, the first Article of the Convention on the subject strengthens the force of existing custom by insisting strongly on its desirability. The other Articles lay down rules which destroy the old right of confiscation. They give instead a right to detain to the end of the war without compensation, or to requisition with compensation. This apphes to merchant ships of the enemy found in a state's ports at the outbreak of hos- tilities, if they are not allowed to depart unmolested, and also to enemy ships who have left their last port before the commencement of the war, and are seized on the high seas while still ignorant of it. These latter vessels may, on payment of compensation, be not only requisitioned, but even destroyed; but as a matter of course this last permission does not include the persons on board, whose safety must be provided for by their captors. Enemy cargo on board the enemy ships mentioned above may be sequestrated till the end of the war, in which case no compensation need be paid at its restoration, or it may be requisitioned on payment of compensation. The Convention very properly adds that these provisions do not apply to " merchant ships whose build shows that they are intended for conversion into warships." It would be an act of supreme folly to allow such vessels to escape and reach the enemy, and in their case the old right of capture is retained in fuU vigour. Other and wider exemptions were made which pro- AND HAGUE CONFERENCES 113 tected, not from confiscafion only, but from capture as well. The Convention which granted them referred to inshore fishing boats and small craft employed as local market boats, or for ferrying and pleasure purposes {les bateaux exclusivement affectes d, la peche cotiere ou a des services de petite navigation locale). With them were joined " vessels charged with religious, scientific, or philanthropic missions." All these with their appUances and cargoes were entirely exempted from capture, but only on condition that they took no part in hostilities. Belligerent rights remain unimpaired in the case of deep-sea fishing boats. The immunities we have described existed in germ long ago. But they have been made more complete by the Conference, and turned from customs it was discourteous to break into obhgations it is lawless to disregard. The Convention which establishes them takes care to bind the contract- ing parties not to use the vessels to which they apply " for mihtary purposes while preserving their peaceful appearance." But we cannot be certain from the wording whether the Conference meant in such a case to take away the immunity from the offenders only, or from all boats of a Uke kind and the same nationality. It went on in the same Convention to improve the position of the crews of merchant ships captured from the enemy in time of war. Hitherto they have been held as prisoners on the ground that if allowed to go free they might enter the hostUe navy. The vaUdity of this plea is less now than it used to be in a not very distant past ; for the warships of to-day are such masses 114 INTERNATIONAL PROBLEMS of complicated machinery that an ordinary seaman requires long and careful training before he is an effective combatant. Bearing this in mind the Conference was able to free the crews of enemy merchantmen from the prisoners' lot on condition that they undertook, when subjects of the enemy state, not to engage while the war lasted in any hostile service. Neutral subjects are simply set at liberty, if common sailors. If officers, they must first promise in writing not to serve again on an enemy's ship before the conclusion of peace. The names of the persons who make these promises are to be notified by the captor state to the other belligerent, who is forbidden to employ them again during the same war. If merchantmen take part in actual hostiUties as store ships, repair ships, hired transports, or in any other way, their crews retain the old liability, and may be made prisoners of war, if captured. We come now to the immunities which are the most important of all from a humanitarian point of view. The First Peace Conference produced a Convention on the extension to sea-warfare of the principles of the Geneva Convention. The work of 1899 was. revised and improved in 1907, the^result feeing an excellent set of regulations which now supersedes its predecessor. It divides hospital ships into two classes — those provided by the belligerent state, and those provided by private persons or recognised rehef societies whether of belligerent or neutral nationality. But ships equipped by neutrals are to be placed under the control of one of the belliger- ents, just as neutral ambulances on land are so placed AND HAGUE CONFERENCES 115 by the revised Geneva Convention of igo6. The names of the hospital ships attached to each side are to be notified by it to the enemy. All are to be indicated by distinctive flags and special painting. None are to be used for any military purpose. The belligerents have the right of control over them, even to the extent of detaining them, ordering them off, putting a com- missioner on board them, or making them take a certain course ; but they are not to be captured as long as they observe the conditions imposed on them, and the presence of wireless telegraphy apparatus on board " is not a sufficient reason for withdrawing protection." A breach of the conditions, or the use of the ship for any warlike purpose, causes it to forfeit its immunities, as was the case on May 27, 1905, when the Japanese seized the Russian hospital ship Orel, because she had been used not long before for the accommodation of the crew of a captured merchantman. If neutral merchantmen, yachts, or boats rescue sick, wounded, or shipwrecked men, they cannot be captured for having such persons on board, though they remain liable to seizure for ordinary violations of neutrality. A belligerent man-of-war may take these persons out of any hospital ship, or any neutral yacht or merchantman, which has rescued them, but not out of a neutral man- of-war. Those who have found asylum on board a vessel of the latter kind must be prevented from taking part again in the operations of war, which will generally mean in practice that they are interned in the neutral country. Internment might with advantage have been ii6 INTERNATIONAL PROBLEMS decreed for all who axe rescued by neutrals. Under the Convention, those of them who are succoured by private vessels will, if they are taken from the custody of their rescuers by a warship of their own side, be put back into the fighting line when fit for service ; while on the other hand, if the vessel which demands them is an enenly, they will be made prisoners of war. Each fate seems inconsistent with the fundamental principle that no proceedings of neutrals should assist either side in a war. The British representatives at the Conference opposed the action of Germany and France in pressing forward the solution we have ventured to criticise, but gave way at last to ensure unanimity. The difficulty of restraining a victorious officer from seizing a beaten admiral found on board a neutral vessel, and the .possi- bUity that a neutral ship laden with rescued men might not obtain permission to land them in the port of another neutral, were the great arguments used in defence of the provisions of the Convention as they stand. When one belligerent has seized and held as prisoners any of the shipwrecked, wounded, or sick of the other, he may " send them to a port of his own country, to a neutral port, or to an enemy port." In the last case they must not serve again while the war lasts. The second course cannot be followed until the local authorities of the neutral port give their consent, and should they do so, internment is to take place, " unless an arrangement is made to the contrary between the neutral state and the belligerent states." Whenever members of a belli- gerent's fighting forces are interned and cared for in a AND HAGUE CONFERENCES 117 neutral country, the expenses incurred thereby are to be a charge on the state to which they belong. In the case of a fight on board a warship, the sick-wards are to be respected and spared as far as possible. The religious, medical, and hospital staff of captured ships cannot be made prisoners of war, neither on the other hand can they leave at their pleasure. They must continue to perform their services as long as there is need of them ; and when their task is finished they cannot depart without permission from the commander-in-chief. The signatory powers bind themselves to bring the Conven- tion to the knowledge of their naval forces, and to pro- pose to their legislatures any laws that may be necessary to secure the observance of its pro-visions and punish breaches of them. The duty of seeing that they are properly carried out is laid upon the commanders-in- chief of belligerent fleets. It is thus made clear thati the signatory powers have no desire to be content with fine sentiments and a mere paper devotion to considera- tions of humanity. The Convention was made to be( observed. It and its sister instrument, the Geneva Convention, are proof that the Society of Nations is advancing in civilisation. It is solicitous to provide for the care of the sick and wounded on land and sea. If it has not outgrown war, it has at least produced workable plans for ameliorating the condition of the most helpless and sorely-stricken among the victims of war. In addition to the immunities already described the Conference secured favourable treatment for postal correspondence carried across the ocean. For nearly ii8 INTERNATIONAL PROBLEMS three-quarters oj^^cent ury a 4gsire to layhan ds on the enemy's despatches has^steuggjedjn ti^minds of beUi- eerente wjth a growing^^onssJojjgjQegg^ that^tjie dom and coijunercial intercourse of thejworld^ughtnotto be I interfered with because some of its maritime powers hagpen to be at war. The result has been a number of concessions whereby the more enhghtened states strove to mitigate the severity of the right to search aU mail- bags and seize aU noxious communications. But as a condition of these grants they demanded guarantees against the carriage of hostile despatches. Sometimes the guarantees were so stringent that the concessions were worth very little. Sometimes the immunities were great and the guarantees futUe. Neutrals were never secure, for what was granted to them varied from time to time and from beUigerent to belligerent. Moreover, it was matter of grace and favour, and could be revoked at any moment by the power which had given it. And all the whUe the growth of international commerce, and the extension of travel and social intercourse, was every day adding to the bulk of sea-borne correspondence, and making its interruption more intolerable. At last, I in recent years, came submarine cables and wireless telegraphy, and the advent of these things sealed the doom of the old severity by making it no longer neces- sary. Belligerents made httle use of posts or steamers, but instead sent their warhke messages under the sea or through the air. The civilised world was then ripe for a declaration of the inviolability of sea-borne corres- pondence, whether neutral or belligerent, whether AND HAGUE CONFERENCES 119 official or private, whether on board a neutral or enemy ship. This was the rule advocated in^the instructions of the British Delegation,"and adopted by the Second Hague Conference on the ^oposal of Germany. It wiU be noticed that it confers inviolability on mail-bags, not on the mail-boats which carry them. These latter, however, are not to be searched except when absolutely necessary, and if the ship is detained the correspondence must be forwarded by the captor with the least possible delay. The plan thus adopted in 1907 by the common consent of the representatives of civilised mankind is an extension of the concessions granted by the United States in the midst of the great American Civil War. In 1862, at the instigation and request of Great Britain, the government of Washington exempted from search the pubhc mails of any neutral power if they were duly authenticated as such, and further conceded that if a neutral mail-boat was seized for some offence against neutraHty, the bags should be forwarded unopened to their destination at the earliest opportunity. The need of the elevation of the best practice into a general rule is shown by the fact that in the recent wsir in the Far East Russia granted no immunity of any kind to sea- borne postal correspondence, while Japan imposed an almost impossible condition on the official in charge of the mail-bags. We will complete our account of the improvements which must be placed to the credit of the Conference of 1907 in its dealings with naval warfare by a^^brief statement of what it did withjegard to bombardments 120 INTERNATIONAL PROBLEMS from the sea. This was one of the questions passed on to a future assembly in 1899. But what the First Hague Conference failed to settle the Second dealt with in a most satisfactory manner — a fact which might well be borne in mind by writers who taunt these Conferences with futUity because the last was unable to accomplish the whole of its somewhat ambitious programme. Coast warfare retained an unenviable reputation for barbarity long after other naval operations had been affected by the growing sentiment that private vengeance and per- sonal ferocity ought to be eliminated from what is a solemn national appeal to force. Now its turn has come, and it has been subjected to regulation by the common consent of all the civilised nations of the world. " Un- defended ports, towns, villages, dwellings, or buildings " may not be bombarded by naval forces ; and a hostile squadron is specially forbidden to use such means in order to compel the pajmient of money contributions. The right to requisition provisions and supplies is limited to what bears a reeisonable proportion to the local resources, and is " necessary for the immediate use of the naval force before the place." And that force may not bombard until its demand has been refused by the local authorities, and then, as a rule, only after " due notice." The prohibitions against bombardment do not extend, however, to warships in the harbour, or to stores, works, establishments, and plant, " which could be utUised for the needs of the hostile fleet or army." These may be cannonaded if the local authorities do not destroy them on demand, and if all other means of AND HAGUE CONFERENCES 121 desttuction are impossible. When bombardments do take place " sacred edifices, buildings used for artistic, scienti&c, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected," must be spared as far as possible. But they lose theit immunity if use is made of them for military purposes, and they axe to be indicated by conspicuous signs consisting sfjlfefiifiv ^^^^' rectangular panels, divided diagonally into two coloured triangular portions, the upper porUon black, the lower portion white." ^e entire Convenfio n on " Bombardments by Naval Forc es in lime of War"^ deserves the highest pra ise for sk ilful d rafting and carefu l consideration of the subject in all i ts bearu igs. It combines, in a most happy manner, h umanity t.^ | ia ,pnlgs non-combatants, with f reedom to strike hardja tows.at ^e military resources of the ene my. .Its one defect is to belound in the provision that a portj is notTSoe regarded as defended, and therefore subject to bombardment, " solely because automatic submarine contact mines are anchored off the harbour." Great Britain, France, Germany, and Japan entered reserva- tions against this curious rule. It is now necessary to pass from the triumphs of hxmianity to one of the saddest and most conspicuo us of it s failu res. Unfortunately this is to be found in the proceedings of the Second Hague Conference with regard to submarine mines. In discussions about them it is often forgotten that mines which operate beneath the surface of the sea are of three kinds. There are observa- — -■ tion mines, which are connected by wire with an electric 122 INTERNATIONAL PROBLEMS station on shore, and fired by pressing a button when the person in charge of the station sees that an enemy's ship is within the field of the explosion. These are not mentioned in the rules agreed on at the Hagae. No restriction on their use has been proposed. Properly managed they are not a source of danger to neutral vessels, and they afford a cheap maritime defence to weak and poor states. In addition to them there are contact mine s, whose pecuharity is that they explode automatically directly they receive a blow from any sub- stance sufficiently heavy to strike them with considerable force. Of these mines there are two varieties — those which are ajichore d and those which are allowed to dri ft. The recent Hague Conference discussed them both, and after long controversy drew up regulations for their use. These were simplicity itself. Anchored contact mines were forbidden unless they were so constructed as to become harmless as soon as they broke loose from their moorings. Drifting contact mines were forbidden tmless they were so constructed as to become harmless one hour at most after they ceased to be under the control of the person who laid them. Contact mines of either kind were fpibiddgn when the intention was to lay them " off the coasts and ports of the_ enemy with t hesole object of intercep ting com mercial, shipping. ' ' Here we have a code which possesses the great advan- tage of being short, terse, and free from legal techni- caUties. But unfortunately the first two articles are greatly diminished in force by a subsequent provision, and the third is useless. He must indeed be a curiously AND HAGUE CONFERENCES 123 simple-minded naval commander who cannot think of some other reason for lajdng a cordon of mines o£E an enemy's port than that of intercepting commercial ship- ping. Even if there be no gunboat, however aged and rotten, reposing on the mud of some interior creek, or no naval store, however ill-furnished and depleted, hidden in some remote corner, there always remains the resource of alleging that the enemy's warships must be prevented from gaining the shelter of the harbour. Germany saw this and made a reservation against the regulation on the ground that " the belligerent has only to assert a different object in order to make it illusory." One would have thought her next step would be to suggest that it be tinmed into a reality. But she obj ected to a British proposal to prohibit outright the use of con- tact mines for closing against commerce ports that were not being attacked from the sea, and her opposition was backed by France and Russia. The result is that, so far as the Conference is concerned, no restraint has been put on the activity of belligerents in this direction, though there is good reason for the assertion that it would be absolutely contrary to existing International Law. As to the first two prohibitions, they were largely nullified by a later Article, which exempted " at present " from their operation the powers which are unprovided with anchored mines that become harmless when re- leased from their moorings, and drifting mines that cease to be operative after an hour's freedom from con- trol. The powers in question undertake " to convert the materiel of their mines as soon as possible," but no 124 INTERNATIONAL PROBLEMS time is fixed within which they must make the cheinge. T he Conyention, therefore, gives httle immediate secur ity against .wl i£Jjg§aJg„_d^te uction of neutral shippmg in crowded waterways, and the eventual security is by no means adequate. It was highly desirable in the interests of humanity that the original British proposal to make aU automatic contact mines illegal should have been accepted by the Conference. Failing that, our second set of suggestions might have been adopted. Put briefly, they forbade drifting mines altogether, and allowed only such anchored mines as became harmless the moment they broke loose. Even these latter were to be prohibited except in the attack and defence of fortified naval ports. But the absolute veto on the use of drifting mines was distasteful to some powers, and others did not care to have the area within which they might use anchored mines so severely restricted. A strong opposition arose, led by Germany, but supported as to a greater or less number of points by Austria, France, Russia, and the United States. In the midst of the discussions we accepted on September 17 a German pro- posal to prohibit the use of drifting mines ciltogether for a period of five years ; but it failed to obtain the neces- sary majority. In the end the omissions of the Conven- tion became more significant than its prohibitions. As far as its Articles arej:oncemed, a beUigerent has /uD* liberty to sow the seas with hidden terrOTs7"aiiar can esi^pe aH responsibility to neutrals for the d^truction they may cause by jauntily alleging that it has not'yet had tinie"to make its mines conform to the j-eguirements AND HAGUE CONFERENCES 125 of the Conference. Taking the Convention as it stands, we must pronounce it a most disappointing and inade- quate document. In Chapter VIII. wUl be found a further exposure of its sins of commission and omission, and a description of the dangers which are hkely to arise in consequence to innocent hves and harmless property. The next subject which arises for consideration is not so much a matter of humanity as of a just and reasonable application of admitted principles to new and doubtful cases. The Conference of 1907 laid down a number of excellent rules on the subject of the conversion of mer- chantmen into men-of-war; and the only criticism we can venture to pass on its proceedings in connection therewith is that it left a most important question stUl open. No exception can be taken to the provisions that the converted ship must be placed under the direct authority and immediate control of the power whose flag she fUes, and must bear the external signs of a warship of her nationality. It is equally right and reasonable that her commander must be a duly commissioned officer in the service of the state, her crew subject to military discipline, and her operations conformable to the laws and customs of civilised warfare. On all these matters the powers were able to agree ; but so marked a difference arose between Great Britain on the one hcmd, and Germany and Russia on the other, as to whether the conversion should be allowed to take place in the waters of the converting state only, or on the high seas as well, that the preamble of the Convention had to 126 INTERNATIONAL PROBLEMS contain the confession that " the question of the place where such conversion is effected remains outside the scope of this Agreement." When we come to examine this question it seems clear that so high an act of sovereignty as the turning of a vessel of trade into a vessel of war should be per- formed only within the geographical limits of a state's dominions ; and these end at the boundary of its terri- torial waters. The Japanese proposal to add ports under the mihtary occupation of a belligerent might possibly be reconciled with sound principle, since the authority exercised by a state over parts of the enemy's territory in the firm possession of its forces includes many matters of government, and is little restricted in affairs connected with the conduct of war. But when i it comes to giving fuU liberty of conversion in the open seas of the whole world, principle seems to have receded to vanishing point, and nothing but expediency is left. .Just as in land warfare a man cannot be at one moment a peaceful peasant working in his field, and at the next an armed defender of his country shooting at an invader from behind a hedge, so ought to be impossible at sea for a vessel to be at one moment a harmless merchant- man, and at the next an armed cruiser prejdng on the commerce of the enemy. Indeed the reasoning is stronger in the latter case, because neutrals are involved as well as belligerents, since their private vessels are liable to search in any case, and in many cases to cap- ture also, when they meet on the open ocean a duly commissioned warship of either side. They ought to AND HAGUE CONFERENCES 127 know what to expect, and be free from the danger of being overhauled and seized by a vessel which had just received the hospitaUty of one of their ports as a peace- ful merchantman. The only rule that is consistent with sound principle and just aU round is that no vessel should be changed from a merchantman to a man-of- war or from a man-of-war to a merchantman or from ' a vessel of one belligerent to a fighting vessel of the other, except in a port of its own or its captor's country, or in a port in the military occupation of its country's forces. It might perhaps be right to add that conversion could be effected in the port of an aUy in the war, if consent was given by the sovereign of the allied state. Such a rule would go beyond the position taken up by Great Britain at the Con- ference. She wished to retain the right of setting forth at once as men-of-war vessels captured from the enemy on the high seas. The principles we have just enunciated would deprive her of the power to do this, while they carried out in practice her contention that merchantmen caimot be converted into warships except in ports under the lawful control of the sovereign by whose authority the conversion is effected. The prin- ciple is so good that it should be made general in its application. We will conclude our review of the work done by the Second Hague Conference in matters connected with maritime affairs by an account, necessarily condensed, of its Convention Respecting the Rights and Duties of Neutral Powers in Naval War. Belligerents are forbidden 128 INTERNATIONAL PROBLEMS to perform any act of hostility in neutral ports and waters, or to use them as a base of naval operations against their adversaries, special mention being made of the erection of " wireless telegraphy stations, or any apparatus for the purpose of communicating with the belligerent forces on land or sea." The supply by a neutral power to a beUigerent power of warships, ammunition, or war material of any kind is forbidden, as is also the fitting out or arming within neutral juris- diction of any vessel that the neutral goverrunent has reason to believe is intended to cruise or engage in hostile operations against a friendly power. Such government is also bound to use the means at its dis- posal " to prevent the departure from its jurisdiction of any vessel intended to cruise, or engage in hostile opera- tions, which has been adapted entirely or partly within the said jurisdiction for use in war." When a violation of neutrality has taken place by the capture of a prize in neutral waters, it is said to be the duty of the neutral power to release her if she is stiU within its jurisdiction. But by a strange omission no duty of demanding release J'is laid on it if the vessel has been taken out of its jtiris- ' diction. All that is prescribed is that, should the demand be made, the captor government " must hberate the prize with its officers and crew." Similar weakness is shown when neutral powers are told that they are " entitled " to detain and intern any belligerent warship which declines to leave one of their ports when ordered out for good reason, but are not placed under any obligation to do so. AND HAGUE CONFERENCES 129 These examples do not stand alone. The imperative and the indicative are mingled throughout the Conven- tion. For instance, the fullest freedom is reserved to neutral powers to allow belligerent men-of-war to remain in their ports and waters for an unlimited time and in unlimited numbers. The general custom of permitting a stay of twenty-four hours and no more is indeed pre- scribed as a rule; but it is to come into force only " in the absence of special provisions to the contrary in the legislation of a neutral power," and even with this loop- hole it is so distasteful to Germany that she has made a reservation against the Articles which embody it. Simi- larly the ordinary rules about the exclusion of prizes from neutral ports are laid down, and then a means of nuUifying them is set forth in the provision that prizes may be admitted without stint or limit when they are brought in to await the decision of a Prize Court. The rules about fuel are little better. No notice is taken of what may be the immediate purpose of the vessel which demands the supply. The cruiser which is laying in wait for an unsuspecting enemy, the fleet which is on its way to a battle, is put on the same footing with the ship which requires coal for the ordinary purposes of naviga- tion. The restrictions as to the amount and frequency of supphes, which were first imposed by Great Britain in her Neutrality Regulations of 1862, are adopted in Articles XIX. and XX. By these it is provided that belligerent warships may take at any one time in a neutral port enough fuel " to enable them to reach the nearest port of their own country," and may not receive I 130 INTERNATIONAL PROBLEMS a fresh supply within three months in a port of the same neutral. But instead of embodying in the Convention any of the further restrictions we have since introduced, such, for instance, as that of 1904, which enables us to name some neutral destination nearer than the nearest port of the visiting vessel's own country, and grant no more fuel than is sufficient for reaching it, the Confer- ence weakened the effect of its own limitation by adding the proviso that neutrals may, if they please, allow belligerent men-of-war " to fill up their bunkers built to carry coal." Even so the regulations were not suffi- ciently elastic to satisfy Germany, who carried her dis- like of the three-months' rule to the point of making a reservation against the Article which embodies it. Taking the Convention as a whole, its rules hardly come up to the standard of the best and strictest previous custom, and they make no attempt at any advance. Indeed some of them are decidedly retrograde. We have now been through the chief heads of this part of our subject. It has been impossible to do so without being struck by the dihgence of the Conference. It produced a great quantity of work, and, though the quality varied, a large ]^t of it wasypjy good. Neutral sailors, non-combatants, merchants, fishermen, sick, wounded, and shipwrecked will have cause to bless it; whUe all whose interests or affections are deeply en- gaged in foreign lands will find in the security conferred on ocean -borne correspondence an enormous boon. There is another side of the story of its performances and that will be told in Chapter VIII. But it is neces- AND HAGUE CONFERENCES 131 sary to state here that what appears in the Conventions we have just summarised is but a portion of the work done in the sphere of maritime affairs, which itself com- prised but one department of the manifold activities of the Conference. Much of its labour failed to produce any results which can be laid before the public with advan- tage. It is known to the world at large that no rules dealing with the great subjects of blockade andcomra- bancTgained acceptance sufficiently general to be em- bodied in Conventions. But it is not known how long and serious wefe'^the discussions on these subjects in the preparatory committees, and how nearly they ap- proached to a solution of some of the worst difficulties. But all these things remain on record, to be utilised in the near future. If during the next few years civilised mankind finds itself in possession of a code for the regu- lation of naval warfare, it will owe so great a benefit largely to the persistent endeavours and exacting toil of the Second Hague Conference. CHAPTER VII THE LAST HAGUE CONFERENCE AND THE ATTEMPT TO SET UP AN INTERNATIONAL PRIZE COURT It may be affirmed with confidence that one of the most beneficent acts of the Second Hague Conference was its attempt to create an International Prize Court. Indeed those who look forward, and measure institutions more by their possibilities of favourable development than by their present performances, wUl be incUned to affirm that nothing it did dtiring its four months' sittings is deserving of more praise than the Convention which deals with this subject. But before we can appreciate anything of the kind we must consider the nature and procedure of Prize Courts, and discover for ourselves the deficiencies inherent in them. We shaU then be able to see why it was necessary to supplement them by another tribunal, international in its character and so constituted as to deserve the confidence of the civUised world. When war breaks out between two maritime powers the cruisers of each endeavour to capture the merchant- men of the other, and also such private vessels of neutral nationality as are reasonably suspected of being engaged in enterprises regarded by International Law as offences against the belligerent who suffers from them. Thus a neutral vessel endeavouring to run a blockade may be 132 HAGUE CONFERENCES 133 seized by the warships of the blockading power, and contraband goods in course of carriage by the same means to an enemy destination may be captured and confiscated, though the latter penalty would not always fall on the ship as well. Its fate would depend on a variety of circumstances too numerous for discussion here. But we cannot emphasise too carefully that whatever befell it, or any other property cap- tured at sea, would in normal circumstances depend on the decision of a court, and not on the will of the captors. The courts which decide upon these matters are called Prize Courts. It has been held for ages to be the duty of beUigerents to establish such courts in a sufficient number of their ports at the outbreak of a war wholly or partly maritime. It is also the duty of captors to bring or send their prizes to one of these courts for adjudication. They are national courts, sitting, hke other courts, under the authority of the sovereign who creates them, but bound to administer International Law unless the proper legislative authority of the state to which they belong lays down rules for their guidance inconsistent with it. In such a case they have no alternative but to follow the directions they receive, since disobedience would amount to defiance and rebellion. But their country would be looked on by other states as an offender, and would be liable to remonstrances and reprisals from those powers whose subjects suffered because of its high-handed action. The existence of Prize Courts is a proof that the Society of Nations is a redity, and a standing testimony to the 134 INTERNATIONAL PROBLEMS falsity of the oft-quoted maxim Inter arma silent leges. The notion of a society involves that of rules, however rudimentary, for the conduct of its members, and an institution created in order to apply such rules in the midst of warfare shows conclusively that those who live under them do not hold that all legal restraints vanish with the first roar of the cannon. But we must be care- ful not to press unduly our inferences from these truths. Every conclusion we draw requires to be tested by reference to international conduct. As between enemies a capture at sea is regarded as lawful when the force of one has overcome the force of the other and the cap- tured property is held in firm possession by the captors. Belligerents cannot dispute the validity of such a transfer in one another's courts. It may, however, come into question when a neutral state puts in the plea that the capture was made in violation of its neutrality. If in such circumstances the court decides that the vessel must be released, it restores as a matter of justice and equity what was seized under conditions which should have precluded the use of force. But when there are no complications caused by the infringement of neutral sovereignty, the decision of a Prize Court in favour of the captors does but affirm and ratify a right already in existence. No doubt it also adjusts rights and rewards among the captors themselves, and between them and their own government. But this is a purely domestic matter. In its international aspect the judg- ment is a proclamation to all whom it may concern that the deed was done rightly in the estimation of the belli- AND HAGUE CONFERENCES 133 gerent whose agents did it. From henceforth he takes the responsibility for it before the world. But when a capture is made of a neutral vessel, or indeed of any kind of property afloat in which neutral interests are involved, a different set of considerations apply. Be- tween neutrals and belligerents there is no question of superior force. Law, and law alone, rules. A Prize Court, therefore, has not merely to register a fact and declare that it came to be a fact by lawful process. Not tiU it has decided that the seizure was legitimate are the neutral owners divested of their proprietary rights, and the captors clothed with them. If its judgment is in favour of the neutral claimant, it gives back something which was indeed in the possession of the armed forces of its country, but which they had no legal right to hold. It must be apparent to all who consider the matter with any care that national Prize Courts are imperfect instruments for the adjustment of the dehcate questions which must continually arise between belligerents and neutrcds in maritime warfare. Their existence is an eloquent testimony to the strength of the desire for legal adjustments instead of constant recriminations, while the general acknowledgment of their defects is a pathetic admission of the want of organs properly fitted to supply the crying needs of international society. The mere fact that they are national is suificient to con- demn them, not indeed as courts of first instance, but as tribunals of final judgment. We cannot expect deci- sions which will command universal respect from judges whose patriotic instincts and national habits of thought 136 INTERNATIONAL PROBLEMS are enlisted strongly on one side. There is no need to impute conscious partiality, which is indeed as a rule conspicuous by its absence from the Prize Courts of countries where such tribunals are regarded as judicial bodies, and not as administrative commissions. But unconscious bias there can hardly faU to be, when we consider the differences in legal education and professional customs in different countries. PubHc justice in Eng- land and the United States varies very much in organi- sation and method from public justice among the peoples of Continental Europe and Latin America. History, too, helps to fix the moulds into which judicial ability runs ; and the history of an island realm and a maritime people must of necessity differ from that of an inland territory and a population whose thoughts and habits have been formed far away from salt breezes and swift-running tides. These influences would be amply sufficient of them- selves to account for the divergencies of decisions be- tween Prize Courts of different states, but we have to add to them another which exceeds all the rest in power to cause division. There is no code of naval warfare accepted by all civiUsed states. On many points we find complete harmony. No power dreams of denying that belligerents must not fight in neutral waters or neutral governments supply belligerents with arms and ammunition. On other questions there is partial agree- ment. Every one holds that there is a right of blockade, and that contraband of war may be confiscated; but there is much difference of opinion as to the circum- AND HAGUE CONFERENCES 137 stances in which a vessel may be captured for breach of blockade, and the kind of goods which may be regarded as contraband. With regard to another set of cases there is absolute discord. States differ emphatically as to whether it is lawful to destroy neutral vessels at sea when they cannot be brought to a Prize Court for adjudi- cation, and whether neutral merchantmen are exempt from belligerent search and detention when escorted by neutral men-of-war. These are only examples. Under each head many more instances might be given. But those we have set down are enough to show how wide is the area of disagreement. Within it the views of states are largely determined by their geographical position and predominant interests. Great Britain, being an island, must base her strength on sea-power, if she is to play a great part among the nations. She is therefore bound to develop a strong navy, and to support theories of capture at sea which will enable her to use it to the full for offensive as weU as defensive pvuposes. Conti- nentcil states, on the other hand, rely more on armies than on navies, and were till lately disposed to restrict within narrow bounds the opportunities of beUigerents for striking at the commerce of their foes. Jurists do not escape the influences which operate on the minds of their countrymen. They find legal argiunents in favour of the common views, believing them to be right and just, while their colleagues in another land champion opposing ideas with equal sincerity. But the hope of reconcihation has never been entirely absent, and in recent years two powerful influences 138 INTERNATIONAL PROBLEMS have combined to give it strength. The first is the growth of the idea that the civilised states of the world form among themselves a great Society or Family, the members of which should live together in peace and amity. The second rests on self interest rather than on moral principle. It springs from a clear perception of the fact that the vast development of sea-borne trade during the last half century has so increased the interests liable to be injured in a great maritime struggle that the power of injuring them needs to be carefully defined and restricted. The famous statement of Kaiser WUhelm II. that " the future of Germany is on the ocean " is true in a greater or less degree of aU other states which possess a seaboard. They have no desire to find their maritime commerce ruined while they are doing their best to keep out of a struggle. And they have become more conscious every year that some theories of the rights of belligerents would go far to destroy it, while such a generally accepted rule as that which gives a right of searching neutral merchantmen to all lawfully commissioned cruisers of a power at war would cripple it severely. They are not consoled by the thought that, should they be belligerent, they will be armed with all these rights. There is always the other belligerent to be reckoned with, and it is possible that he may succeed in inflicting on them iax more harm than they can do to him, even at the expense of keenly resented interference with neutral traffic. Conciliation is therefo re i n the air . It is felt that somehow the right of beUigerents to strike hard at sea as well as on land must be reconciled with AND HAGUE CONFERENCES 139 the right of neutrals to Ccirry on their trading avocations as little disturbed as possible by a war in which they have no concern. This must be done by making new rules or adapting old ones, or by both processes going on simultaneously. The former is a legislative or quasi-legislative function. It has been resorted to in modern times at first tenta- tively, and then on a large scale. In 1856, after the Crimean War, a group of powers assembled in Confer- ence for the purpose of drawing up the terms of peace took advantage of the opportunity to lay down four rules concerning war at sea. These they embodied in the four Articles of the Declaration of Paris; and because they designed them to be universal and not partial, lasting and not temporary, they invited the adhesion of the other states of the civilised world. This has been received, the signatures coming in at irregular intervals, the only one of importance still wanting being that of the United States of America. But that power, and all other non-signatory powers, have since 1856 acted as though they had signed. In their own wars they have observed every Article of the Declaration, and when neutral they have gladly received from belUgerents the treatment they could have demanded had they been among the signatories. Thus partly^^^express consent, and partly by tacit observance, Jthe Declaration has becS]n(ie~the law of the civilised world. It rests for its authority to some extent on its resemblance to a legis- lative act, and to some extent on the custom of obeying its rules which has sprung up since they were formulated. I40 INTERNATIONAL PROBLEMS The Geneva Convention of 1864 is another instance of the making of new rules in a quasi-legislative way, only in its case they apphed to land warfare. But they have since been adapted to war at sea, and a Convention embodying their principles was negotiated at the First Hague Conference and improved at the Second (see pp. 114-117). We have endeavoured to show in Chapter III. that these Conferences are rudimentary legislative organs. The Second was far more complete than the First ; though much has still to be done in the way of development and organisation before they can be re- garded as satisfactory; and their authority is still so nebulous that no state can be bound by their decisions without its own consent, given in the most formal way by the diplomatic process of signature ajid ratification. Still they are a great advance on the assembhes of repre- sentatives from more or less limited groups of states which formed the previous Congresses and Conferences. This is felt in all quarters, whether it is asserted or not ; and one indication that it is true may be found in what we may call the legislative output. The First Confer- ence did far more in this way than any previous legisla- tive assembly. Its three Conventions were the modest beginnings of an international Statute Book. The Second Conference added thirteen to the first three, and did the preliminary work for many more. Obviously it felt its feet, and acted with more confidence than its predecessor. Most of its work dealt with naval matters, as we have already seen, and was distinctly legislative AND HAGUE CONFERENCES 141 in character. But it recognised that law develops by judicial decisions as well as by legislative enactments; and therefore, in order that the old customary rules of maritime warfare and the rules of its own Conventions on the same subject might in the process of administra- tion be explained, harmonised, and adapted to new needs, it provided for the creation of an International ' Prize Court to act as a Court of Appeal from the judg- ments of those National Prize Courts whose advantages and imperfections we have just discussed. If this court can be brought into existence and is found to work in a satisfactory manner, the Society of Nations will possess in future what we have seen to be so necessary for the reform and development of the laws of war at sea, a judicial organ to administer and adapt existing rules, as well as a legislative organ to make new rules when the need for them arises. At the Hague in 1907 both Great Britain and Germany produced plans for the constitution of an International Prize Court. After a good deal of discussion they were amicably combined. The coxui: is to consist of fifteen judges nominated for six years by the powers represented at the Conference, and ehgible for reappointment from time to time. Those appointed by Germany, the United States, Austria- Htmgary, France, Great Britain, Italy, Japan, and Russia are always to sit; while the nominees of the other contracting parties sit by rota, their turns being distributed over a period of six years according to a table annexed to the Convention. There are to be 142 INTERNATIONAL PROBLEMS deputy-judges as well as judges ; and if one of the latter is absent or prevented from sitting his place is to be taken by that one of the former who was appointed as his substitute. Nine judges form a quorum. In all cases arising out of a war the judges appointed by the belligerent states may take part on request being made by their governments. In that case a corresponding number of judges entitled to sit according to the rota have to withdraw, and lots are to be drawn to determine which of them shall retire. Further, both the captor state and any neutral power or powers interested in the proceedings may appoint a naval officer of high rank to sit with the court as assessor, but with no voice in the decision. Thus at any sitting of the court there may be as many as fifteen judges and two assessors, or as few as nine judges with no assessor. In practice, no doubt, the numbers will vary between these two limits. Article X. of the Convention provides that the judges are to be " jurists of known proficiency in questions of inter- national maritime law, and of the highest moral reputa- tion " ; and by Article XIII. before they take their seats they are to swear or make a solemn promise to discharge their duties impartially and conscientiously. Their position is one of great honour and dignity. They are to enjoy diplomatic privileges in the performance of their duties and when outside their own country. They are to sit at the Hague, and all the permanent official machinery of the Conferences — the Administrative Coun- cil, the International Bureau, the Secretary General and his staff — is to be at their disposal for the due perform- AND HAGUE CONFERENCES 143 ance and proper recording of their work. The govern- ments of all the signatory powers are to assist them in such matters as the serving of notices, the summoning of witnesses, and securing the attendance of experts. If they are divided in opinion as to their decision, the majority prevails. They will receive adequate remuneration, but it is expressly provided that it is not to come from " their own government or that of any other power." Payment is to be made through the International Bureau at the Hague, which wUl obtain the funds from the contracting parties in proportion to their share in the composition of the court. It wiU be noticed that the eight Great Powers have the preponderant influence to which\their position entities' them, Jand an examination of the rota shows that the share of each of the other states has been carefully assigned in proportion to its present strength and his- torical importance. Yet due weight has been given to the fact that changes are constantly taking place in these particulars. All history shows that nations wax and wane; and observation of what is going on in the world around us brings home the conviction that the process instead of tending towards a final and permanent adjustment is continuing with accelerated rapidity. The Convention takes note of this, and provides in its . last Article for a periodical revision of the constitution of the court on the demand of any power which deems its position therein inadequate. Those who are aware of the length to which certain of the delegates to the last Conference pushed the doctrine of the equality of aU 144 INTERNATIONAL PROBLEMS states (see pp. 74, 75, 148) will be loudest in their admiration of the diplomatic skiU and conciliatory spirit which produced general agreement on the plan we have just described. And those who see in the Judicial Arbitration Court which the Conference en- deavoured in vain to create (see pp. 73-76) an instru- ment calculated to advance most powerfully the cause of peace all over the world will earnestly hope that some plan for a periodical adjustment of the claims of states to influence and authority will overcome the opposition of those fervent patriots who desire to obtain for their countries in the present the position to which they may become entitled in the not-distant future. We have described the International Prize Court ; let us now consider its functions and jurisdiction. The Convention contemplates that in the future, as in the past, questions of maritime capture should go in the first instance before the courts of the captor state. If by its law there is an appeal from the court of first instance to a higher court, such appeal may be made; but the case cannot be heard more than twice in the National Courts.' Any further decision that is wanted must be sought from the International Court; and " if the National Courts fail to give final judgment within two years from the date of capture, the case may be carried direct to the International Court." But it foUows from what has been said before with regard to the conclusiveness of force between opposing beUigerents that as a general rule there can be no appeal from a AND HAGUE CONFERENCES 145 National Court tojthe International Prize Court when enemy ipfopSty is concerned. The only exceptions occur where neutral as well as belligerent intejrests are involved, or where the question at issue depends on the interpretation of treaties or unilateral documents dealing with other than purely domestic affairs. On the other hand, appeals are allowed in all cases when the iudement of the National Court affects_the property of a neutral state or a^ neutral individual. The same distinction appears again in the regulations with regard to the parties by whom appeals may be brought. The beUi- gerent powers are ruled out altogether, and belligerent subjects also unless the judgment affects their property seized on board a neutral ship, or taken in alleged viola- tion of a Convention between the belligerent states or of an enactment issued by the beUigerent captor. Neutral powers, however, may appeal whenever they deem the judgment injurious to their property and that of their subjects, or if the capture of an enemy vessel is cdleged to have taken place in their territorial waters. Neutral individuals, too, have the right to appeal in protection of their property if their governments do not move; and the International Court will hear them unless they are forbidden by their own state to carry on the case. AU these carefully drawn regulations proceed on the principle that neutrals are entitled to legal decisions in cases between themselves and belligerents. In them superior force has no effect on title, though it may settle the question of immediate possession. The important thing is to secure an impartial judgment on the points K 146 INTERNATIONAL PROBLEMS of law involved; and this the institution of an Inter- national Prize Court is intended to do. We now come to the crucial question of the law which the International Prize Court is to administer. No one doubts that it must decide in the first place according to the terms of any treaty apphcable to the case and in force between the captor state and the state which is the other party in the proceedings, or whose subject is in this position. Nor would it be seriously disputed that in the absence of such a treaty the accepted rules of International Law must be apphed as far as they bear on the matter in dispute. But what if no generally recognised rules exist, either because two or more schools of thought are in dispute over the matter, or because the points raised are so new that neither custom nor express agreement have had time to deal with them? Both contingencies are probable. Indeed, we may assimie with confidence that a very large proportion of the cases which reach the International Court of Appeal wiU come under one head or the other. How cire they to be decided? In answer to this question the Convention declares that " the court shall give judgment in accordance with the general principles of justice and equity." This direction has been a stum- bhng block to many. Its very boldness overthrows the balance of the timid ; and those who have been content that we should lumber along as best we could in the old ruts stand aghast at the audacity which would press forward in a new direction. The head and front of the offence of the clause we have just quoted is that it does AND HAGUE CONFERENCES 147 undoubtedly give the court th e pow er " to make the law'^in&eEsF'resort. This was plainly^stated 1by ] M. Louis Renault, the great French jurist, in the wise and statesmanlike report which accompanied the draft of the Convention. He justified the innovation on the ground that it would ameUorate the practice of Inter- national Law, and maintained that the eminent magis- trates who would compose the court might be trusted to rise to the height of their mission, and supply the deficiencies of existing rules till they had been codified by the action of governments. We may add that even then their extension by analogy would be required to meet the needs of a hving and growing society, which on the morrow of the adoption of a Code would proceed to throw up cases not provided for therein. The court contemplated by the briUiant plenipotentiary of France would therefore be necessary after, as well as before, the codification of the law of nations. If ever it comes into existence, we may regard it as a permanent insti- tution. But ought it to come into existence ? The Convention is no exception to the rule which requires signature and ratification before the powers who negotiated it are held bound by it. For these observances a period ending with June 30, 1908, is assigned in the case of the other Conventions negotiated at the Hague in 1907; but for that which estabhshed an International Prize Court a year longer has been allowed. Moreover, the Con- vention itself contemplates the possibihty of a Umited number of signatures, and provides that the court 148 INTERNATIONAL PROBLEMS shall not come into existence unless there are enough signatory powers to furnish nine judges and nine deputy judges. It also makes arrangements for the revision of the hst of judges entitled to sit, if the consent of any of the eight Great Powers or of any of the states mentioned in the rota should be lacking. In case the total number of judges should be less than eleven, seven are to form a quorum. But it is clear that a court established by httle more than half the powers would fail altogether to attain the great object of harmonising and completing the maritime International Law of the civilised world, while its decisions would be sadly lacking in moral authority if the minority included some of the most powerful of maritime states. The creation of the court is one of those things which it is worth untold trouble to do well, but not worth any trouble at all to do ill or incompletely. Evidently the powers are hesitating. The Convention we are con- sidering has obtained fewer signatures up to the present time than any other, and more than a third of them are accompanied by reservations on the question of the constitution of the court. The fetish of absolute equahty forbids its worshippers to accept any plan for the grading of states in the matter of the appointment of judges. But the devotees of this particular cult are not of much importemce in maritime affairs. If the worst came to the worst and they declined to ratify the Convention, the rest of the world would get on very weU without them, and they would in time ask to sheire in the benefits it conferred. But what are we to say AND HAGUE CONFERENCES 149 with regard to the states which are quite willing to accept the constitution of the court as it stsinds, but feel difficulty in agreeing to a right of appeal from their National Courts to an International Tribunal which has power in the last resort to develop the accepted principles of justice and equity into laws binding upon the litigants before it? This difficulty appears to be felt more keenly in England than elsewhere. We will therefore attempt to deal with it from an English point of view. There are among us a niunber of intensely patriotic persons, whose love of their own country is combined with a deep distrust of others, and a profound belief that all foreigners are eagerly awaiting the first oppor- tunity of falling upon us, and despoiling us of trade, wealth, and empire. They feel, they do not argue. But they express their feelings loudly and mistake the expression for argument. They are convinced that the proposed International Prize Court is nothing better than a wicked device of the malevolent foreigner to obtain by guile what he has hitherto faUed to effect by force, the downfall and ruin of England. The court will be, packed with tools of alien govenunents, who will outnumber the just and noble-minded Briton by fourteen to one, and not only secure decisions against us on every occasion, but manipulate rules to our permanent disadvantage. Thus our navy will be deprived of the power to strike effective blows ; and the British Samson, lulled to sleep in the arms of the International Delilah, will fall a prey to the alien Philistines who are waiting 150 INTERNATIONAL PROBLEMS to bind and enslave him. The picture is lurid, but it cannot be taken seriously. It substitutes a den of thieves for a Society of Nations. It assmnes that Great Britain alone is virtuous, while all other powers are villainous. If it were correct it would necessitate the dissolution of International Society and the destruction of International Law. Unconsciously the beUevers in it are going back to undiluted barbarism. For what is barbarism but the rule of force; and what do they constantly assert but that Great Britain, being the strongest of states at sea, should dictate from the quarter- deck the rules of maritime warfare that suit her at the moment, and enforce them from the mouths of her cannon ? Thus the innocent victim of the International Prize Court is turned into the tyrant of the high seas, and we are bidden to applaud the transformation! As a matter of fact the first portrait is as fanciful as the second is loathsome. We are neither the Simple Simon nor the buUy of the nations. The picked jurists of the civilised world will be zealous for the honour of their craft, and are no more hkely to degrade the law they administer into an instrument for the humihation of any state than is an Enghsh judge to turn an English statute into a means of gratifying his private vengeance. They will come from countries which, like our own, are sometimes beUigerents but generally neutrals. When we are at war and oinr captures come before the court, there wiU be plenty of judges to remember that their own countries may one day be fighting on the ocean and wiU not want to be bound by any rules which AND HAGUE CONFERENCES 151 unduly restrict the right of belligerents to strike hard blows at the enemy. When we are neutral and our rights as neutrals are challenged by a belligerent, the court will be full of judges whose countries are in the same predicament, and they will see to it that our trade is not subjected to depredations which would cripple their trade also. After all nations do form a society in spite of declamations to the contrary, and there is a good deal of solidarity among its members. The only thing which would combine all the rest against us is the very policy which our extremists advocate. If we disregard the reasonable claims of other powers, and seek to domineer over them in all matters of right and duty at sea, we shall be regarded as outlaws and treated accordingly. If on the other hand we recognise that the undoubted fact of our naval supremacy increases our social obligations and binds us to strive unceasingly for the common good, we are likely to find our sentiments reciprocated, and meet with a due acknowledgment of the truth that, since the first duty of a state is to continue and develop its national life, it cannot surrender the essentials of its own existence out of deference to altruistic sentiments. When we turn from honest but perverted patriotism to thoughtful and reasoned opinion, we find two views which need most respectful consideration. Some of our leading authorities argue that, before we can agree to be bound by the decisions of an International Court on which we shall have but one judge, an International Maritime Code to which we can give our assent must 152 INTERNATIONAL PROBLEMS be drawn up, and the court must be bound to administer it. Others declare that we may accept the court if the powers will agree to substitute the law of the captor's country for " the general principles of justice and equity " as the final rule of decision. There are strong reasons for differing from both these statements. If we wait for a court until we obtain a code, the present xmsatisfactory state of affairs may last for generations. The next Hague Conference wiU probably give us more Conventions dealing with special subjects, cind it is quite possible that in the near future we may see an agreement on several points among the maritime states. But a complete code cannot be drawn up until a vast quantity of preliminary work has been done in the way of fragmentary legislation; and even then the result will be far better if the experts who draft the Articles have before them the decisions of an International Court in addition to the statutes of an International Legislature. On the other hand the appUcation of the captor's law in the last resort would stereotype existing disagreements. Neutrals would not know what to expect any better than they do at present. For instance. Great Britain and France difier widely as to the kind of notice required in order to bring home to neutral merchantmen the offence of breaking blockade. Our courts condemn if diplomatic notification has been given to the government of the offender's country, or if the blockade has become notorious all over the commercial world. The French courts require the notice to have been given on or near the spot to the master of the AND HAGUE CONFERENCES 153 incriminated vessel. Here are two rules, and in the event of war between England and France neutrals must know and observe both of them. They would very much prefer one, especially if it combined the good points of each, as a rule laid down by the International Prize Court might well do. But that court would be debarred from making a rule if it were bound to ad- minister the law of the captor's country. The old divergence between the doctrines of two powerful maritime states would go on unchecked, and the court would be nothing better than an instrument for doing over again the work of National Courts. It is hardly worth while to create such an elaborate piece of machinery for so smeill a result. It might check misrepresentations and distortions of their own law by municipal tribunals, but it would not give us the simplifications and im- provements of International Law which we need. It is one of the functions of Coiirts of Ultimate Appeal to modify and extend the laws they administer. If the International Prize Court is prevented from doing anything of the kind, it will be deprived of the most important part of its sphere of usefulness. At present our argument has given us but negative results. We cannot hope for a code for some time to come. We do not see the use of a court which sits to register diversity rather than create uniformity. Are we therefore to refuse to sign the Convention and so let the matter drop? Or can we not find some way of carrying to a good end the work already done? Our active opposition would destroy it, and our mere 154 INTERNATIONAL PROBLEMS abstention would render it comparatively worthless. While on the other hand our whole-hearted support and assistance would have a great effect on other powers, and help to bring into the line of advance many among them who are now hesitating. We have no moral right to deprive humanity of the enormous benefit that seems within its reach, unless our acceptance of the propcsed court would compromise our national security, or im- f)eril interests absolutely essential to the health and growth of our national hfe. These are points which are vital, and these we must secure. If they are granted we may cheerfully leave other matters to the decision of such a body of learned and high-minded jurists as the Convention contemplates. It goes without saying that the more questions we can settle beforehand by negotiation the better. But if our vital interests are safeguarded, we need not be too exacting over non- essentials. In aU ordinary matters we may trust our- selves to the decisions of a court on which will be represented not only British common sense and judicial impartiality, but German learning, American fearlessness, Austrian sobriety, French lucidity, ItaUan liberality, Japanese enterprise, and Russian conservatism, together with other qualities brought from states which at present take a second rank in power, but not necessarily in thought and culture. It comes to this that we must first determine what are the questions we cannot afford to leave open, and then approach other powers with a view to their satisfactory settlement before June 30, 1909, the final date fixed for the ratification of the AND HAGUE CONFERENCES 1^5 Convention in ordinary circumstances. The best means of reaching a settlement will be discussed in the ninth chapter. Here we must be content to indicate briefly what are the points on which Great Britain should insist. On cdl of them the interests of most states coincide with her own, and on none of them will she be asking anything inconsistent with justice and humanity. First and fore most among the essentials we cannot barter for any concession on other matters stands the rule that food can never be a bsolutely contraband. By this is meant that no belligerent power can, without violating openly and shamelessly a plain precept of International Law, stop food supplies carried in neutral vessels to open trading ports of its enemy. The case of such articles on their way to hostile armies or navies, magazines or besieged places, is on a different footing. They may be intercepted and confiscated, along with similar cargoes, or indeed any cargoes, bound for a blockaded port. But unless a port is effectively closed by an enemy's squadron, or is used for purposes of naval or mihtary equipment, food proceeding to it in a neutral ship is no more liable to capture than if it were a cargo of children's toys or ladies' dresses. This is the rule which has been accepted on aU hands for more than a century. The few attempts made to disregard it have generally ended in a striking vindica- tion of its authority. The last is an excellent example. Russia at the commencement of her recent war with Japan placed rice and provisions on her list of contra- band of war, and explained that every article therein 156 INTERNATIONAL PROBLEMS was absolutely contraband, that is to say liable to con- fiscation if captured on its voyage to any kind of enemy destination. Great Britain and the United States remonstrated in the strongest terms consistent with diplomatic courtesy. After some months of acute controversy they prevailed, and in the autumn of 1904 Russia consented to leave the articles in question free, if they were destined for the use of the civihan popula- tion. This was a great triumph for what we may call the orthodox view. But we should be very foolish if we were to infer that it will not again be challenged. It is supported by much modem usage and a preponderance of modem authority. But a certain amount of usage, most of it not very modem, and a certain amount of authority too, could be brought to bear against it, and would undoubtedly be cited if strong self-interest urged a powerful state to seize food-stuffs destined for the non-combatant population of its adversary. What is needed is the formal approved and express consent of all civilised powers, or at least all that really count in maritime affairs. There could then be no doubt as to the rule. It might be observed, or it might be broken. But the power which broke it would stand forth as openly lawless, and few states care to place themselves in such an invidious position. We depend on suppUes from abroad for the food of oiu: people. The Royal Commission on the subject reported in 1905 that in the case of the most important article of aU, v^ieat, " some four-fi fths of our totsil requirements are imported from over-sea." They AND HAGUE CONFERENCES 157 found in addition that little more than half our meat was produced^at home, anJTess^SajR^lmlfjjf pur butter, eggs, and cheese. It is obvious that no conceivable alteration in our fiscal system will enable us to be self- contained in these matters, unless our population, instead of increasing, diminishes, and that enormously. The reply that, if the country cannot be made self- supporting in the matter of food the empire can, is irrelevant from our present point of view. What we need is to secure that neutral supplies in neutral ships shall have free access to our harboiurs in time of war. Colonial suppUes in colonial ships would be enemy property in enemy vessels as far as our adversary was concerned, and he would be free to confiscate them as such, without troubling to decide whether they were con- traband or not. It follows that we cannot be satisfied with less than a quasi-legislative enactment of freedom for food-stuffs when brought in time of war to belligerent ports in neutral vessels. The exceptions mentioned at the beginning of the previous paragraph would, of course, be provided for; though it may be noticed that our Foreign Secretary, Sir Edward Grey, narrowed them down to provisions destined for beleaguered fortresses in his instructions to our plenipotentiaries at the last Hague Conference. We hold the rule we advocate to be already law by custom. But if we are to assist in the creation of an International Prize Court we must first j make sure that it has no opportunity of deciding in a contrary sense. And the only way to do this with absolute certainty is to see that the right rule is clearly 158 INTERNATIONAL PROBLEMS set forth in the authoritative international documents on which the court must base its decisions. We cannot be satisfied with less than a formal acknowledgment of the correctness of our view. It would be involved necessarily in a general assent to the abolition of con- traband altogether. It might come as part of a revised law of contraband. Or it might stand alone as the solitary article in an international agreement. When once we had obtained it our position would be enormously strengthened. It is possible we might have to fight a foe who broke it, but in that case his captures would be pronounced invalid by the International Prize Court, neutrals who suffered from them would bring the utmost pressure to bear on him, and we could brand him before the world as a shameless breaker of a law to which he had given his solemn assent. There are, at least, two other points on which it would be wise for us to insist, though neither of them have the capital importance of the question of food as contraband. It ought to be a recognised rule of Inter- natiqjial Law tfiSFneMfalmifSantmen should not be destooyed_at sea hj belligerent captors. If they cannot be brought in for adjudication before a Prize Court they should be released. Extreme necessity which excuses, if it does not justify, violations of ordinary law, might be pleaded in extenuation if this rule were broken under stress of a great and rare emergency. In such a case explanation and reparation should be tendered immediately. Our country is the greatest of all trading powers, and has more at stake in this AND HAGUE CONFERENCES 159 matter than any of the others, since she is generally neutral. But in championing her own cause she would also be acting as the guardian of neutral rights all over the world, and would receive a corresponding measure of support. The same may be said of such modifications' of the right of search as would remove from neutral vessels the danger of being taken hundreds of miles out of their course to a belligerent harbour, and detained' there for weeks whUe their cargo was overhauled from deck to keel. Both these questions will be considered in the next two chapters. At present it is enough to say that their satisfactory settlement should be a condition precedent to the giving of British help in the establishment of an International Prize Court. CHAPTER VIII DANGERS AHEAD There can be little doubt that in many ways warfare is now carried on with more humanity than it was a hundred, or even fifty, years ago. This is especicilly the case with regard to the care of the sick and wounded. Land warfare gives evidence of it in the treatment accorded to the population of territory which has passed under the military occupation of an invader, and indeed in all matters relating to non-combatants. The military code adopted bvthe First Hague Confer- ence, and improved by the Second, has deprived war of haliits terrors for the peaceful civilian population on laiid, and also fof'"prisoners taken in the''''cotn:se of hostihties. TheiPHetention by their captors bears far more resemblance now to a pleasant stay in a foreign land than to the miseries of the prison camps and prison hulks with Which literature not yet old has made us famihar. Yet he who bases on all this a Ccireless con- fidence that commerce, and neutral commerce more especially, would be fairly safe in any future maritime struggle falls into a most grievous error. At sea the means of destruction have completely outgrown the means of defence; and in many influential quarters there is a strong disposition to use against enemies i6o HAGUE CONFERENCES i6i weapons which must incidentally injiire neutrals to an almost incredible degree. The officers and blue- jackets of modem navies are no whit behind their military brethren in humanity. But on land army fights with army in the territory of one or the other of the belligerents ; while at sea navies not only engage each other, but also attack the commerce of their foes, which, as we have seen, is inextricably bound up with the commerce of neutrals. Moreover, the operations take place in what is the common highway of nations, and often in the most frequented parts of it; because where a belligerent finds the sea-borne trade of his enemy, there he cJso finds the sea-borne trade of states which take no part in the conflict. There is a great difference between letting off fireworks in your own garden and in a public square surrounded on all sides by valuable and inflammable warehouses, and it represents pretty fairly one of the distinctions between land and sea war- fare. The same care may be exercised in both cases, but the results of any mishap will be widely dissimilar. In aU countries there is a school of thought which would use without stint modem means of destruction no matter what harm they may work on neutrals and non-com- batants. Merchants and shippers are living in a fool's paradise, if they imagine that the improved humanity of modem warfare as regards suffering deemed unnecessary for the attainment of military ends is going to protect their trade afloat, unless they bestir themselves and see that its interests are safeguarded by careful inter- national regulation. Instead it is in greater danger i62 INTERNATIONAL PROBLEMS thaojever, owing to the terrible efficiency rfmodem weapons and the Vcistly increased power of_^nLodem warships. And the loss will not fall on property alone. Human hfe wiU sirSer — the life of non-combatants rather than combatants, of women and children as well as men. These are strong statements, but they are true. They are alarming, and they are made in order to alarm. It is useless to speak in whispers when a sleeper is in danger of destruction. The only thing to do is to shout aloud, if perchance he may be awakened and induced to take measures for his defence before the evil faUs on him. Let us begin our detailed proof by dealing first with the case of submarine contact mines. We saw in Chapter VI. that the very imperfect Convention on the subject negotiated at the Second Hague Conference for- bade the lajring of such mines " off the coasts and ports of the enemy with the sole object of intercepting com- mercial shipping." We also saw (pp. 122, 123) that it would be very easy for a naval commander to allege some other object. The restraint is illusory. Yet Great Britain failed in her attempt to obtain a definite prohibition of the substitution of automatic contact mines for blockading vessels as a means of closing to commerce ports which were not being attacked from the sea. The Convention, therefore, contains no real check on such a proceeding as the sending out of ships to lay chciins of mines quickly and secretly, under cover of night or fog, across the approaches to the great commer- cial ports of an enemy, as the first act of hostility, to be AND HAGUE CONFERENCES 163 commenced immediately after the declaration of war has been delivered, and to be followed by the with- drawal of the mine-laying vessels as sepretly as they came. The provision that notice of the danger must be given " as soon as military exigencies permit " is no safeguard at all. They would not be allowed to permit until all possible damage had been done by the mines. Yet unless civilised mankind is prepared to adopt the pernicious principle that whatever is not expressly pro- hibited is allowed, such conduct as we have described is absolutely illegal, because it is clean contrary to the accepted principles of the law of blockade. Hitherto if •a power which was strong at sea wished to close the ports of its enemy against all communication with the outside world there was only one way by which it could do so. It must station outside the ports in question a number of warships sufficient to make ingress or egress extremely dangerous. This was called an effective blockade, and a rule of International Law proclaimed that blockades must be effective in order to be binding on neutrals. When once this evident danger had been created, a belligerent was at Uberty to capture neutral vessels attempting to run the blockade, and neutral governments were bound to acquiesce in the loss of them. But if there was no such danger neutral governments might refuse to recognise the legality of the confiscation of their merchantmen, and claim compensation for the losses sustained by their subjects. In canying on a blockade, land batteries, booms, and other means of destruction might be used to close a channel and assist i64 INTERNATIONAL PROBLEMS the operations of the blockading vessels. But it was always deemed essential that there should be vessels on the spot to act as the main agents in the blockade, and to be by their very presence a warning to all comers that belligerent operations were going on. They constituted the blockade; they hailed approaching vessels; they chased ; they captured ; and, if necessary, they fought. Now it is suggested that a beUigerent has only to send at night a few properly equipped vessels to lay mines in the channels of access to some port of his enemy, and then go away and leave them. It is assumed that he has thus lawfully closed the port against all who may attempt to enter or come out. Anchored mines would be used, and they are hidden some distance below the sur- face. No change in the appearance of the water would mark their presence. Everything would look as usued, till in a moment a sudden explosion shattered some approaching vessel. Mines are no respecters of persons, and they would do their awful work on the first ship which touched them. She might be a great neutral Uner, laden with a precious cargo and full of passengers of various nationalities. All these would be destroyed without warning; and the ship, together with the pro- perty it carried, would perish with them. The existing law not only secures warning of the existence of a blockade, but forbids even the holding of the crew of a captured blockade-runner as prisoners of war. By it the penalty for breach of blockade does not go beyond confiscation of the ship and cargo. By the new plan of closing an enemy's commercial ports with a cordon of AND HAGUE CONFERENCES 165 mines, the necessity of warning is dispensed with, and the ^eath penalty is prgnpuncgd against all on, board any ship whi^ a.ppcQgcljesJn absolytg. ignorance of the dangers awaiting, her. Can anything more abominable be imagined? Has there been in the whole history of mankind a more complete and sudden relapse into bar- barism? No doubt the magnitude of the catastrophe would cause it to ring through the civilised world, and be, as it were, its own notice to all concerned. But several such horrors might occur almost at the same time, if a considerable number of ports were thus closed as the first operation of a war. And be it remembered that the idea of commencing a struggle in this way is favourably entertained in some Ministries of Marine. But surely the project is utterly vile, against whomsoever it may be put into operation. It proceeds upon the < whoUy false view that you may injure neutrals to any' extent in order to strike at enemies. It is not a develop- ment of the law of blockade, but a travesty of it, and an outrage on humanity. Does the civilised world early in the twentieth century mean to tolerate a warfare in some respects worse than that of savages? They slaughter the women and children of their adversaries when the blood-lust is on them. We are invited to slaughter in cold blood, though certainly without torture, the women and children of friends as weU as foes. The danger is no figment of the imagination. Nowhere is it more seriously considered than in the minds of respon- sible officials. Hitherto we have spoken almost exclusively of ports i66 INTERNATIONAL PROBLEMS and their approaches. But unless_^f3r..greater resteic- tions than those of the last Hague„ConfCTence^re put upon the use of submarine contact ^giines most tembK dangers wiU anse m narrow straits and m the openseas. Imagine a war between two great European powers and the channels of the Mediterranean mined. Imagine a war between France and Germany with belligerent operations, including mining and countermining, going on along the Straits of Dover. Or imagine a war be- tween ourselves and a Baltic power with the approaches to the Sound and the Belts ndned on either side by the belligerents, while the passages themselves are mined by Denmark to protect its neutrality. It is true that by the Convention both belligerents and neutrals undertake to give notice when they lay anchored automatic con- tact mines; but the obligation comes into existence only when the mines " cease to be under surveillance," and not even then unless " military exigencies permit." What value can be placed on such vague securities! And what destruction ihight not be wrought on neutral shipping before, even with the best intentions, any notice could be given! The provision with regard to drifting mines that they " must become harmless one hour at most after the person who laid them ceases to control them," looks at first sight more effective. But in practice it might prove useless. Everything depends upon the interpretation of the phrase " ceases to control them " ; and when we know that it is already contem- plated to fasten scores of these mines to a cable of great length and let it be towed up and down by a destroyer AND HAGUE CONFERENCES 167 or some other small craft, we see how elastic the words are. A vessel some miles away on the horizon could neither warn neutral ships nor prevent the floating mines at the end of her cable from striking them. And yet it would be maintained that these mines were con- trolled by " the persons who laid them," because such persons had them in tow, and could, in favourable cir- cumstances and when given plenty of time, to some small extent shift their position. Anchored contact mines are safeguarded by a form of words which does not so easily lend itself to distortion. They are not to be employed unless they " become harmless as soon as they have broken loose from their moorings." It would be hard to find a land or sea lawyer who could evade the force of these words. But the Conference, in its tender consideration for belUgerent states whose tech- nical equipment is in a backward condition, seems to have forgotten mercy towards harmless and innocent non-combatants. For it placed such powers under no restrictions as to the employment of their crude and unsafe stock, and merely bound them to convert the materiel of their mines as soon as possible, so as to bring it into conformity with the foregoing rules. A fixed period might have been insisted on, if it was too much to exact immediate conformity with the principles of hmnanity and justice. But nothing of the kind was done. Instead the Conference drifted into utter confu- sion, as attempt after attempt was made in vain to carry some scheme of regulation which would satisfy all the conflicting interests concerned. In the end the i68 INTERNATIONAL PROBLEMS British Delegation made, by the mouth of Sir E. Satow, a carefully worded protest at the plenary sitting of October g, 1907. It is too long for reproduction here, but the following sentences may be quoted as embody- ing the essence of it. " The British Delegation desires to declare that it cannot regard this arrangement {i.e., the plan of regulation adopted at the Conference) as fvumish- ing a final solution of the question, but only as marking a stage in international legislation on the subject. It does not consider that adequate account has been taken ■ in the Convention of the rights of neutrals to protec- ' tion, nor of humanitarian sentiments which cannot be neglected. . . . Accordingly it will not be permissible to presume the legitimacy of an action for the mere reason that this Convention has not prohibited it. This is a principle which we desire to affirm and which it will be impossible for any state to ignore, whatever its power." Probably no member of the Conference is satisfied with its work in this connection. The state in which it left the question is a disgrace to civilisation and a danger to humanity. What it failed to do collectively may be done by separate agreements between states or groups of states ; and it is high time that commercial interests and humanitarian sentiments combined to demand im- mediate and effective action. Means and methods will , be pointed out in the next chapter. But the changed conditions of modem commerce and modem warfare have evolved new dangers quite apart from those which spring from the use of submarine con- tact mines. There is a mle of International Law to the AND HAGUE CONFERENCES 169 effect that a captor, when he has seized a vessel, is bound to put on board it a prize crew from his own ship, and send it to the nearest port of his own country where there is a Prize Court. Before this court the legahty of the capture is tried, and the vessel is condemned or released according to the decision arrived at. This procedure affords neutrals a most valuable safeguard. They cannot be stripped of their property afloat, unless a court comes to the decision that it is justly forfeited according to the laws of war. But now there is growing up a strong tendency to deprive them of this security. A modem warship has very few men to spare, even in the most favourable circumstances. Her crew is only just sufficient to work and fight the ship. After she has manned a prize or two her commander dare not part with more men, especially if he expects soon to meet an enemy. What is he to do if he makes another prize? He is tempted to bum or sink her, after providing in some rough and ready fashion for the safety of her crew. If she is an enemy vessel and carries an enemy cargo, this does not much matter. Just because the vessel is an enemy, she must abide by the decision of arms. But if she is a neutral, she is deprived of all legal safe- guards against unjust capture. Great Britain orders her officers to release the neutral vessel in such circum- stancesT^But many other countries have no such just provision in their prize regulations, and some make no distinction between enemy and neutral vessels when enumerating the reasons which justify destraction of prizes at sea. The case of the Knight Commander in the 170 INTERNATIONAL PROBLEMS recent war between Russia and Japan has not yet been forgotten. She was a British vessel captured by a Russian squadron off Yokohama in a heavy sea. Her cargo was said by the Russian Admiral Jessen to be contraband of war, and it is quite possible he was right. But the matter was never properly tried, for he removed the crew and sank the vessel because of the difficulty of taking her to Vladivostock. We dis- puted his right to destroy her, and claimed damages from the Russian Government. They declined to pay, and have lately rejected our proposal to refer the matter to the Permanent Court of Arbitration. Had Russia's power at sea been equal to her will to wound neutrals, this instance might have been multiplied by scores, if not by hundreds. As things stood there were but few similar cases. Yet undoubtedly the memory of them accounted for the strong opposition of Russia to the British proposal at the Second Hague Conference that the destruction of a neutral prize by her captors should be prohibited in the Convention on the Rights and Duties of Neutral Powers in Naval War. The dis- cussions were complicated by the question of the intro- duction of prizes into neutral ports. Many of the powers who were in favour of our proposal coupled with it the free admission of prizes, when they entered the neutral harbour to await the decision of a Prize Court. To this conjunction we were by no means prepared to assent. A good deal of cross voting resulted when a sort of pre- liminary trial was made in what, following Professor Westlake, we may call the drafting sub-committees AND HAGUE CONFERENCES 171 {comitis d'examen). It seemed clear that nothing could be done, and consequently the matter was quietly withdrawn from further discussion. Each state is , therefore free to go its own way, and the chances are that in practice this will result in the constant destruc- ■ tion of neutral vessels whenever a maritime struggle is 1 fierce and at all evenly balanced. Great Britain would > begin by acting on her own rule, and probably several powers would follow her example. But it may be doubted how long such virtue would last under stress of the contrary practice on the part of an enemy. Neutral cargo, too, laden on board belligerent mer- chantmen, is likely to fare very ill. The Declaration of Paris declares that such goods are free from capture unless they are contraband of war. But what if the captors come to the conclusion that they must sink the vehicle which carries them? They cannot destroy it and save the neutral cargo, unless it is very small in bulk. If they spare it, they must spare the ship. If they sink or bum the ship, they must in effect punish neutrals for doing what an important international instrument, accepted by the civilised world, declares they have a perfect right to do. One would think that in such cir- cumstances it would be neutral right that would prevail. But in the only two cases which have come before a court a French Tribunal decided that the destruction was an unfortunate incident of the exercise by a belli- gerent of his undoubted right, and that the neutral sufferers were entitled to no compensation or redress. This amounted to Uttle less than the repeal of the third 172 INTERNATIONAL PROBLEMS article of the Declaration of Paris of 1856, which runs thus: "Neutral goods, with the exception of contra- band of war, are not Uable to capture under the enemy's flag." If instead they are Uable to destruction, the neutral shipper is no better off than he was before. Indeed his position is worse in some respects, for he is given no opportunity of taking the decision of a Prize Court on his case. Unfortunately the question first arose during the Franco-Prussian War, when the pubHc mind of Europe was exercised about matters of the highest military and political consequence, and the final decision was given in the French Court of Appeal in 1872 before things had settled down into their normal coturse. Little attention was therefore attracted to it at the time. But since then it has become highly import- ant, though we may well doubt whether even now its fuU effect has been sufficiently realised. The develop- ment of the big modem cargo-boats tends to accumulate under one flag goods belonging to many shippers of different nationalities, some of whom are sure to be neutral in any great conflict at sea. Let us suppose one of the belligerents to be Great Britain, who does more than half of the world's canying trade, and the other to be a power which is able for a time to keep up a brisk attack on British commerce. By the simple expedient of destrojdng its prizes it will not only do its proper work of injuring us, but also dislocate and go far to ruin the sea-borne commerce of neutral states. Again, it must be borne in mind that naval officers, having much more terrible means of destruction than of AND HAGUE CONFERENCES 173 old, wtII use them with far greater effect. A gun that can destroy at a range of ten miles may give an un- pleasant surprise to a blockade-runner when trained on her at less than half that distance. The commander of a torpedo-boat or destroyer will be apt to make prize of a big liner by threatening to sink her if she does not obey signals and obediently follow in his wake to safe custody. It is held that the crew of a captured vessel cannot be compelled to navigate their ship to a belli- gerent port. It follows that the crew of a vessel which is only threatened, and not actually captured, ought not to be compelled by menace of destruction to steam according to the orders of those who threaten it. But torpedo-boats are swift, and can easily overhaul any ordinary ship, though they cannot spare a man to go on board her permanently, still less a prize crew. It is to be feared that no nice distinctions will be allowed to interfere with their use as commerce-destroyers when opportunity offers. We may add that under present conditions search wiU be a far more serious affair than in the days when, given moderate weather, it could be accomplished in a few hours. A big modern cargo-boat cannot be searched at sea, and cannot be searched at all under a period of at least a week. She must be taken to a beUigerent port where there is sufficient dock or wharf accommoda- tion to berth her. There gangs of men must be em- ployed to dig down into her hold. We were nine days at the end of 1900 and the beginning of 1901 in search- ing the Bundesrath in the harbour of Durban. A little 174 INTERNATIONAL PROBLEMS while after we shifted 1200 tons of cargo in searching the General. Meanwhile Germany was sifleime ; and the loss caused by the delay was so great that the late Lord Salisbury agreed to pay an indemnity of £20,000 for the injurious exercise of an undoubted right. The right of search in its present form will not survive a great mari- time war. It is much more onerous than of old. We should neither stand it ourselves when neutral, nor be able when belligerent to impose it on neutrals. The attempt to do so would probably involve us in war with a great league of commercial powers. Let us try to realise the cumulative effect on commerce of the new dangers we have been endeavouring to de- scribe. Threatened interests generally cry out long before they are hurt. But in this matter merchants and shipowners are strangely quiet, whether from insensibility to danger or from a blind trust in their power to avert it. In reality they have now more cause for apprehension than at any time since the close of the Napoleonic wars. Should a great maritime conflict break out in the near future they would experience a terrible awakening, unless the belligerent powers were visited with a sudden cind unexpected access of con- sideration for non-combatants and generosity towards neutrals. Wherever a fleet anchored chains of anchored mines would belief t. 'Origmally they wpuld^ha^e^been laid to protect it; but they would remain, lo;^ aftei^it wasgOTie. Soon the lughways and byways of the ocean would be infested witii unseen terrors. In the neigh- bourhood of every engcigement drifting mines would AND HAGUE CONFERENCES 175 lurk, and on every shqal and bank anchored mines might befgjHjid. Straits would be rendered impassable, and every chaniigLnot too deep for the purpose would be strewn with hidden death. As the coast of a belligerent was approached matters would become worse. His own mines would be present in abundance, carefully laid for defence, and his enemy's mines would be there also, secretly and carelessly laid for the purpose of making all navigation dangerous. Even when every risk had been safely run, and a prosperous voyage was well-nigh ended, death and destruction might lie concealed in the approaches to an open commercial port. And the short answer to complaints would be, " We feel confident that it was our enemy's mines, and not our own, which did the damage; and in any case we are not responsible, for we have not yet been able to adapt our mines to the requirements of the Hague Convention." Off neutral shores there might be some shght improvement. Un- doubtedljL.weak st^es_would hasten to protect their ne utrality by means of the; cheap defence of the mine- field. They are, however, bound to inform shipowners in advance where automatic contact mines have been laid. But these mines have a terrible habit of moving, and neutral governments are no more bound than others to use none but the kinds which obey the rule that they must becomte harmless when adrift. There is no escape from the conclusion that in any war which covered a considerable portion of the world's seas, and was fought out to a finish by powerful navies, there would be whole- sale slaughter of non-combatants, the majority of whom 176 INTERNATIONAL PROBLEMS would probably be neutra l. As for property, it would be destroyed right and left, in spite of all the immunities which have been secured for neutral trade within the last century. What happened in the war of 1904-5 between Russia and Japan shows that these are real dangers. In addition to the damage done by the beUigerents to I each other, a considerable number of neutral vessels were totally destroyed while going about their lawful business, and not attempting to break blockade or carry contraband. The Chinese Delegation presented to the Second Hague Conference a declaration on this subject which was pathetic in its simplicity and directness. It asserted that the government of China had furnished its coasting vessels with special instruments for catching and destroying mines. But in spite of all its precau- tions a considerable number of junks and fishing boats had been lost. It calculated Jhat^between fiye^i^^six hundrejJ,Qfits^sub|ects had met with a cruel death from drifting mines while following thek peaceful avocations. We know that others besides Chinese suffered in the same way, though not to the same extent, and that the destruction of life and property went on for, more than a year after the concli^oij^ of peace. If these are the sad results of allowing mines to drift in warfare waged far away from any of the great ocean highways, we may be sure that vastly greater horrors would accompany a hard-fought struggle in European or North American waters. Commerce would suffer incalculably, and what escaped the sudden destruction of the mine would AND HAGUE CONFERENCES 177 be liable to furthur hazards from other agencies. Ships might be sent to the bottom by scores because their captors could not spare prize crews to navigate them. Neutral cargoes might be burnt or sunk along with enemy vessels. Neutral merchants might lose their markets completely whUe their innocent ships and goods were detained for weeks in beUigerent harbours in order to search them thoroughly. And insult might be added to injury by the compulsion of the crew to navigate their own vessel under the orders of their captors on pain of being sunk by a torpedo if they refused. These are no figments of a riotous imagination. The picture they form is lurid, but it has not been drawn without knowledge. Every detail in it has already been enacted on a smcdl scale, or is at present being planned and pre- pared by important navies. We ha^ reached a point at which we must go either forw^jd or backward. To remain as we are means a Iqn^tep towards barbarism, as soon as the combatants warm to their work in the next great struggle on the sea. Modem weapons and modem methods are so terribly efficient, and there is in some quarters such a remorseless determination to use them to the full, even if neutrals are badly hurt in the attempt to cripple enemies, that, in spite of a general advance in humanity, naval warfare will be waged with more destructive energy and more general ruin than has been known for ages. We must set limits to these ten- dencies or submit to see civilisation grievously injured by means she herself has devised. We have spoken in general terms of dangers to non- 178 INTERNATIONAL PROBLEMS combatants and neutrals, but it is impossible to leave the subject without giving it a special application. If ever the apprehensions we have expressed are realised, Great Britain stands to lose more than any other power. She can repel attacks on her fleet and her sea-borne commerce by the might of her navy and the devotion of her sailors; and if her guard is broken through and a disaster happens, she has enough of courage and endur- ance to bear her misfortune bravely and repair it quickly. But we are neutral six times for every single t ime^w e are aFweu: ; and when neutral we cannot use our fleet for the defence of a sea-borne commerce which is more than double that of our strongest competitor, and a mercantile marine about five times as great as any that sails under another flag. The toU of neutral lives will fall most heavily on us. Our merchantmen, just be- cause there are so many of them, will be destroyed more frequently than those of any other power. More of our goods will be burnt or sunk at sea, and more of our vessels will be detained for search in foreign harbours. The prospect is not entrancing. Indeed it is much too serious even for the grim humour of the pessimist. The way whereby we may escape the fate that seems in store for us is also the way of safety for the rest of the world. We must champion the cause of neutrals, and throw all the weight of our influence, and if need be of our strength, into their scale. It is simply monstrous that in the "beginning of the twentieth century belligerents should claim the right to inflict incidentally more injury on neutral trade than it endured directly in the old days AND HAGUE CONFERENCES 179 when they sometimes forbade all neutral commerce wL with their enemies. Then confiscation was the penalty; now it is destruction and slaughter. For her own sake, and for the sake of civilisation and humanity, Great Britain should declare that the infamy of striking at foes through the sides of friends must disappear from the international code. It could be made to do so without depriving belligerents of the power to reduce their adversaries to submission within a reasonable time. And while we are taking the lead in a much needed reformation, it would be well to add another tenet to that of respect for neutral interests. The doctrine that the application of just and righteous principles should not be denied or delayed because in any given case it will give advantage to some particular state, needs assertion as much as the doctrine that war does not justify the immolation of those who are not engaged in it. It is universally admitted that belligerent states must carry on their conflicts with their own resources, and cannot be allowed to take advantage for warlike purposes of the territory or the naval and military strength of neutrals. The rights of neutral states are based on these principles, and corresponding duties are laid upon them. Yet in the Convention concerning the Rights and Duties of Neutral Powers in Naval War they were allowed to permit by domestic legislation the stay of belHgerent warships in their ports for an indefinite time, and to admit belligerent prizes without stint or limit when brought in to await the decision of a Prize Court. Moreover, the rules laid down as to supplies of i8o INTERNATIONAL PROBLEMS fuel were much more elastic than is warranted by the accepted view that only what is required for navigation should be allowed. The scarcely concealed reason for this laxity was to deprive Great Britdn of some of the advantages which she gains from the possession of ports and coaling stations all over the world. The powers who are without them were to be allowed to find what they lack in neutral harbours, and thus a rough equahty of opportunity would be brought about. The same tendency was shown in other matters, and we cannot be expected to approve it. We must be taken as we are, Uke our neighbours who are strong on land, but do not on that account find the mihtary code distorted to their detriment. What gives us advantages in some respects is disadvantageous in others, for scattered possessions invite attack, and a commerce which covers every sea can be raided more easily than if it were confined to a few routes. The business of International Law is to apply the principles of justice and humanity to the intercourse of states without regard to their geographi- cal situation or facihties for attack and defence. CHAPTER IX REMEDIES The King's Speech at the opening of Parliament on January 2g, 1908, contained the important announce- ment that the British Government was considering the question of inviting representatives of the leading mari- time nations to attend a Conference in London, with a view of coming to an understanding on certain import- ant points of International Law for the guidance of the International Court of Appeal which it was hoped would be estabUshed to deal with cases of prize. In the debate which followed, the pohcy of caUing such a Conference was not challenged by the leaders of the Opposition, though they were inclined to argue that httle good would come of it. But Mr. Asquith, the present Prime Minister, himself a distinguished lawyer and also a man of cautious temperament, put his expectations consider- ably higher, when he said that he and his colleagues hoped " to arrive at something like a general agreement on the important general principles — the innumerable matters of subsidiary detail you may safely leave to a tribunal of this kind — of maritime and international law which in the altered conditions which now prevail ought to be generally accepted by civihsed nations." He added the significant sentence, " In our view this is 181 i82 INTERNATIONAL PROBLEMS a condition precedent to the establishment and working of such a court," from which we may conclude that Great Britain wiQ withhold her signature and ratifica- tion from the Prize Court Convention, unless before June 30, 1909, some satisfactory agreement is reached with regard to the main points of difference between the powers in the matter of Prize Law. It is greatly to be desired that the proposed Conference of Naval Powers may meet in the autumn of 1908. From indications in the public press we may conclude that the arrangements for holding it are in a fairly advanced condition, and that the chief maritime powers will be represented at it. It wiU afford an admirable opportunity for the discussion of the important questions referred to in the last Chapter, or at any rate some of them. Let us try to find out what ground it may fairly be expected to cover in its deUberations, bearing in mind on the one hand the extreme urgency of many of the matters to which our attention has been directed, and on the other the fact that it will not be a Third Hague Conference, however numerous and influential may be the states whose plenipotentiaries compose it. The statement that the Conference will be summoned in order to lay down rules for the guidance of the Inter- national Prize Court of Appeal gives us the first of the indications we are in search of, and the further statement that it is expected to lay down important general principles, leaving details to be worked out by the tribunal itself, adds another landmark which we cannot neglect. Clearly the powers who wish to co- AND HAGUE CONFERENCES 183 operate for the formation of the court are the powers who are invited to meet together by their chosen re- presentatives. And when they have assembled their discussions will be limited to questions which can be brought before a Prize Court. This rules out at once nearly the whole of the law of state neutrality, while it rules in nearly the whole of the law of blockade, con- traband, and unneutral service. Yet the Conference wiU not be expected to draw up a complete code on any of these subjects. It is to lay down principles, to work out a few fundamental rules, to indicate the broad road along which the court must travel. Details are to be elaborated as occasions arise, and by the tribunal itself in the judgments it will deliver from time to time. It must not, however, be supposed that nothing has been done already. Some powers have treaties providing for particular points in connection with one or more of the subjects we have mentioned. These the court is bidden by Article VII. of the Convention to apply in the first place. Then there are generally accepted rules, and, failing treaty stipulations, judgments must be based on them. It is only when both are non-existent that " the general principles of justice and equity " are invoked for the guidance of the judges. The proposed Conference cannot, of course, modify treaties ; but it may clear up ambiguities in existing rules, and make others on points where hitherto there have been divergencies of view. Thus the court would receive guidance as to the fundamental principles and broad outlines of the regulations it was to administer. More- i84 INTERNATIONAL PROBLEMS over states would know in a general way to what they committed themselves by accepting the Convention; and they would then be able, without apprehension for the safety of some of their most cherished interests, to leave details to be worked out according to the principles of justice and equity entertained by the distinguished jurists who would compose the court. If we concentrate our attention on Prize Law, and then keep our eyes fixed on the points in it as to which differences exist between what we may call Anglo- American practice on the one hand and Continental practice on the other, we shall not go far astray. And if further we add to these latter, matters connected with the main subject which are regarded by general consent as unsatisfactory in their present form and ripe for fresh regulation, we shall forecast the mandate of the plenipotentiaries. The Conference will be a Conference assembled to consider that portion of International Law which is concerned with prizes taken at sea in time of war, and its Programme will consist of the law of contraband with incidental references to unneutral service; the law of blockade, with a possible reference to the use of mines in closing an enemy's ports ; the law of search and detention, including an attempt to settle such questions as convoy, and the destruction of neutral property at sea instead of bringing it to a Prize Court, for adjudication; and the law of the conversion of private vessels into warships. Let us now compare this Programme with the list of points set forth at the end of the seventh Chapter as AND HAGUE CONFERENCES 185 being of such vital importance to our own country that she must insist on their recognition as an essential condition of her own acceptance of an International Prize Court of Appeal. First and most important among them we ranked the elevation into an express and undoubted rule of International Law of the proposition we hold to be already sufficiently established by general custom, that food can never be regarded as contraband of war -^,„ i-. .J II- -I I III! -i—: III ^' - i'~'ntfiinnTrn»nMi(mii_iiji—ii»«""'*^'°"'''T* iiiin^»iiiiiiiiaiiini'»'»i*'>ili' m m«' n'u *.. when it is d estined for the supply of the civilly popula- tion of the ^enemy. We agree that cargoes of food which are enemy property, and are imported into a country in enemy vessels, may be captured on the voyage like other enemy property in enemy bottoms. We are forward to assert that cargoes of food in neutral vessels may be captured, like all other cargoes similarly carried, when they are attempting to violate a lawful blockade of the enemy's ports. But we absolutely deny the legality of captures of provEions brought by neutrSr merchantmen to unblockaded ports of a beHigerent, unless they are imported for the use of liis armed forces and their auxihary services. There is room for negotiation as to what are to be the evidences of warlike use. Consignment to a beUiger- ent government or its agents would be a good test, unless that government was undertaking the tcisk of feeding its civilian population. Another might be found in the predominant character of the port of destination. If it were used chiefly for purposes of naval and military equipment, and if the food was such as was commonly consumed by the enemy's fighting i86 INTERNATIONAL PROBLEMS forces, the evidence that it would find its way to their mess-tables might well be deemed conclusive. In any case food destined for a besieged place would be liable to capture, whether or not it was technically termed contraband ; for it is an offence for a neutral to attempt to penetrate, with or without goods, through the lines drawn by land or sea round a beleaguered fortress. Subsidiary points such as these might be left without reserve to the Conference, or the IntemationEil Court, if once the principle were accepted th at food was never to be_£egarded_as contraband of war^uidess jt was on its way to the mouths of the enemy's warriors. The vital importance°ofTliematter to (jreat" Britain has been shown before (see pp. 156, 157), and we need not repeat the demonstration here. The instinct of self-preservation makes it incumbent on us to declare openly that without the fullest assurances on this point we cannot move a step further. It is quite true that the chances are over- whelmingly against a decision opposed to our view by an International Prize Court of Appeal constituted in the way provided for by the Convention. But the mere fact that any power of importance held out against giving us the guarantee we ask for would show that it cherished a hope of the happening of the improbable. Nothing but the enactment of an unmistakable rule, and its formal enrolment among the regulations which are to bind the court, can hedge us about with absolute security ; and with nothing less than absolute security ought we to be satisfied. The sweeping away of the whole law of contraband, as AND HAGUE CONFERENCES 187 proposed by Great Britain at the Second Hague Con- ference, would give us what we want. If nothing is to be contraband any more, clearly food is exempt from capture. But the adoption of such an heroic proposal in order to free it savours somewhat of the fabled method of producing roast pig by burning down cottages and farm-buildings. There is much to be said for the new British view considered on its own merits ; and, if one may be forgiven the truism, there is much to be said against it. Another volume would be re- quired to discuss fully the problems of contraband likely to come before the proposed maritime Conference. Here all we have to do is to indicate the minimum with which our country can rest content. And our con- clusion is that Great Britain can get on very well with a revised law of contraband which contains a clear statement that food is free, though she might possibly get on better with no law of contraband at all. At the Hague in 1907 no less than twenty-six powers were in favour of entire abolition. The United States after some hesitation fell back on the abolition of conditional contraband, that is to say, the principle that goods useful for both warlike and peaceful purposes are con- traband or not according to circumstances. France, Germany, and Brazil brought forward elaborate regula- tions, of which we may say briefly that they all allowed the capture of what we call conditional contraband in certain circumstances, and under certain conditions, the complexity of which preclude further discussion here. Out of all these proposals something of a satis- i88 INTERNATIONAL PROBLEMS factory nature might surely be evolved by the new Conference of maritime powers interested in bringing into being the proposed International Court. The abohtion of conditional contraband with aU the com- phcations it involves would make not only for simpUcity in law but for security to neutral trade. It would thus benefit us as neutrals, while the loss of the right of capturing such goods when we are belhgerent would mean but httle, since we are the great exporters of them, and the enemy, just because he is an enemy and not at all in consequence of the law of contraband, could not obtain them from us. If he were a continental power he might receive them from other continental powers across his land frontiers, and that we could not prevent in any case, contraband or no contraband. We doubt whether the abohtion of absolute as well as relative or conditional contraband is desirable on general grounds, or likely to be especially beneficial to this country. If it is just and right that beUigerents should have power to capture any articles of neutral commerce while on their way to the enemy over the common highway of aU nations, surely arms and mtmitions of war are those articles. Moreover, a state victorious at sea might be enabled by the interception of such supphes to deprive its adversary of the means of continuing the war, in cases where their purchase in an adjoining country and transport over a land frontier were not practicable. As long as we retain our naval strength and our manufactur- ing predominance we are not likely to want external supphes to any considerable extent, or to be unable AND HAGUE CONFERENCES 189 to obtain any of which we may happen to stand in need. Without presuming to dogmatise in a difficult and evenly - balanced question, we may venture to hazard the opinion that entire abolition of conditional contraband, and the definition of absolute contraband on the lines of the French proposals at the Second Hague Conference, would be found the best solution. It is, however, necessary to add that in any interna- tional agreement framed on these lines there should be a provision for revision from time to time of the list of articles absolutely contraband. By an agree- ment such as this our food supplies would be safe- guarded, which is for us the all-important matter. The rest, including many things we have not mentioned here, could be settled on the principle of give and take. Just as a consideration of the law of contraband in Conference must lead to discussion on the carriage of food stuffs in neutral vessels to unblockaded belligerent ports, so it will be impossible to deal with the law of blockade without encountering the question of h.o]jt. a lawful_.blQckade^ is. constituted. For generations past there has been one common element in all the answers that have been given. Without exception they have asserted or assumed that the closure of the blockaded port must be effected by ships. There have been con- troversies as to the number of ships to be employed, the necessity of a cross fire being brought to bear from them on any vessel attempting to enter, the manifest nature of the danger threatened by them, and the question whether they must be stationed on the spot or may be igo INTERNATIONAL PROBLEMS allowed to cruise within reach of it. B ut no state has ever claimed the right to institute a blockade without placing some of_its men-of-w ar in close^ roximity to tEe place blockaded. Yet at the last Hague Conference such a claim was made, not indeed directly, but by implication. The rejection of the British proposal to limit the use of anchored contact mines to the attack and defence of fortified naval ports involved a beUef in the right to use them for closing against commerce ports which were not being attacked from the sea. A prohibition against laying them " off the coasts and ports of the enemy with the sole object of intercepting commercial shipping " was indeed inserted in the Con- vention on the subject, but we have already (see pp. I23, 123) exposed its futUity. On this point the proceedings of the Conference were reactionary in the highest degree. Whereas in the past the only way of closing an enemy's port against all neutral commerce was to blockade it, and the only way to blockade it was to station a ship or ships in such a position as to create evident danger to all vessels attempting ingress or egress, for the future it will suffice, in the judgment of many powers, to lay a cordon of anchored contact mines across the approaches. Neutrals must indeed have lost all virUity if they wUl quietly submit to this. It will not mean the compara- tive triviality of having their ships and goods confiscated by a belUgerent Prize Court. They will be destroyed instead; and all on board will be sent to their doom. Probably the apologists of the government which per- petrates this enormity will declare that no blockade AND HAGUE CONFERENCES 191 was intended, and therefore no right to capture the vessels existed. No doubt .such a logical and considerate legal argument will give great comfort to the relatives of the dead. But what a mockery it will all be. Either these abominable proceedings are a form of blockade, in which case their flagrant illegality is apparent to till the world, or they are a new method of warfare which is so unjust, so detrimental to neutral interests, and so atrociously cruel, that it ought to be banned at once by the common consent of civilised mankind. An opportunity will arise at the proposed Conference of maritime powers. Though it will have no mandate to deal with the whole subject of mines, it must concern itself with the Taw of blockaJEe. ~ It might frame its first regulation thereon in something like the following words: "Belligerents are strictly forbidden to close an enemy's ports against neutral trade except by blockade. Blockades must be main- ta ined by sh ips, and no other^means of creating danger to navigatipn .must , be used unless the^ passages so obstructed are wajtgbed by a force of ships sufficient to show that a blockade exists." Here" is a formula of Prize Law. It does not mention mines, but neverthe- less it will effectively prevent their use in blockades except as ancUlary to ships, in which case the gravest of the dangers connected with them wUl disappear. If neutral mariners will prowl about the vicinity of a port they know to be under blockade, they have only themselves to blame if they and their vessels come to a violent end. Of course it would be far better if sub- 192 INTERNATIONAL PROBLEMS marine contact mines were prohibited altogether; but such a drastic measure wUl be outside the competence of the coming Conference, though possibly some other means may be found of attempting it. Meanwhile we shall have secured much if by means of the Conference we can frustrate the horrible attempt to use cordons of mines, secretly laid and left unwatched, as a means of preventing access to an apparently open port. Other matters connected with blockade ,will require careful handling, especially the differences between the two streams of theory and practice which we may name British and French respectively after the protagonists on both sides. It wiU be sufficient to say here that there are welcome signs of an approach to agree- ment. The chief difficulties might be removed by fixing a zone of so many hundred miles from the blockaded port, and allowing within it, but not outside, aU the operations of a blockade, including the capture of ap- proaching vessels whose masters have a real knowledge of its existence. The next set of questions to be considered are those connected with the law of search and detention. In the previous Chapter we pointed out the extreme in- convenience and loss which wiU be caused to neutrals by the application of the old rights to modem conditions. How can these difficulties be overcome without depriv- ing a belligerent of reasonable security against fraud and falsehood? He enjoyed it in former days through the evidence of his own senses. In a rough and ready way he looked through suspected cargoes at sea, and AND HAGUE CONFERENCES 193 satisfied himself in a few hours as to the guilt or innocence of the goods contained in them. Now, as we ha:ve just seen, this is impracticable in the case of large vessels ; and its modem equivalent, detention for weeks whUe the contents of the ship are overhauled by gangs of men in a belligerent port, is too onerous for neutrals to endure. In the instructions given to the British plenipotentiaries at the last Hague Conference it was stated that our government would be glad to see the right of search limited, . and " the adoption jof . j, system of consular certificates " was mentioned as a practicable plan. Varibus ways have been proposed of carrying into effect the root idea contained in this suggestion. That which seems least .JafellL.lQ. objectipn involves the empIo5anent by each belligerent of its consuls in neutral commercial ports as agents who should, on request of neutral shippers, supervise^]^e_ loading of cargo on board neutral vessels. Every facUity for examination must be given to them; and at the end of the pro- ceedings they would sign in duplicate a certificate to the effect that the description of the passengers, if any, and cargo in the ship's official papers coincided exactly with the persons and things on board. One copy of this certificate would be kept by the belligerent consul who gave it, and the other would remain in the custody of the master of the ship along with her usual papers. This process would be repeated in any port where additional cargo was taken. If the ship was stopped and visited by a cruiser, the certificate of the consul of N 194 INTERNATIONAL PROBLEMS the power whose naval officer was conducting the search would be shown along with the papers. If the searching officer held that all the goods and individuals on board were such as the ship might lawfully carry to her destination, he would let her go at once. If he believed that any of the goods were contraband, or any of the persons were unlawful passengers, or the destina- tion was illegal, he would at once effect a capture. There would be no delay, and the question of the justice or injustice of the seizure would have to be fought out before a Prize Court. If the laws of contraband and unneutral service are allowed to remain in their present unsatisfactory condition, and nothing is done to simpUfy the law of blockade, there will be many cases of capture. But if the reforms we have been discussing are carried out, there wiU be few under such a system of consular certificates as has been outlined. Large fees would have to be charged to neutral merchants and shipowners; for the services rendered by the consul and his staff would be onerous. Moreover it would be necessary for their own country to pay them weU in order to avoid the risk of bribery by the other side, which would not, however, be so great as it seems, because every feeling of patriotism would revolt against the issue of a false certificate for the benefit of the enemy. The plan seems practicable, and it does not involve the complete surrender of belligerent rights contained in the exemption from search of all vessels on defined routes, or even of passenger and mail steamers only. It would undoubtedly be too expensive for small AND HAGUE CONFERENCES 195 craft ; but they could be searched at sea in the old way, and would therefore not require it. Another question of immense importance to us ought to come up for consideration at the proposed Confer- ence in connection with search and detention. There is universal agreement on the point that when a vessel is detained she ought in normal circumstances to be taken for adjudication to the nearest port of the captor's country where there is a Prize Court. But all states admit that this course must sometimes be rendered impossible by special difficulties and emergencies, and we saw ample cause in the seventh and eighth Chapters for believing that these cases would be much more frequent in the future. When they arise enemy ships are destroyed at sea, after the safety of their crews hcis been provided for. On the other hand neutral ships have been released by Great Britain and several other powers. That this is the only course consistent with sound principle there can be no doubt (see pp. 168-171) ; but a group of states have arrayed themselves against it, and claim the right to destroy neutral ships as well as enemy ships, and that too without compensation. If this is allowed at all it is certain to become very frequent in a great naval war. Neutral interests would suffer enormously, and it behoves them to bestir themselves against it. Great Britain will want all the backing she can obtain in view of the discussions in the autumn. Her practice in this respect ought to be made law for the guidance of the International Prize Court; and power should be given to the court to assess damages N2 196 INTERNATIONAL PROBLEMS in cases where it accepts the belligerent's plea of an extreme necessity justifying destruction. The parallel difficulty of the destruction of innocent neutral cargo laden on board an enemy vessel which it is necessary to sink or bum, might be met by allowing the belligerent captor and the enemy shipmaster to arrange for the ransom of the vessel, and, if they failed to do so, giving the court the right to decree damages for the benefit of the neutral owners of the cargo against whichever side it deemed responsible for the failure. As to con- voy, the British position seems untenable. Whatever may be said on its merits for our claim of the right to sejirch neutral vessels escorted by men-of-war of their own country, we cannot maiintain it against all the rest of the world, especially at a time when search in ordinary circumstances is a burden against which neutrals are more and more disposed to revolt. We judiciously said nothing about it during the Boer War, and the best thing we can do now is to surrender it gracefully in return for a concession on some of the other matters under discussion. On the conversion of merchantmen into warships at sea there is little to be said in addition to what has been set forth already (see pp. 125-127). To allow vessels to rove the seas, peaceful traders at one moment, and at the next belligerent men-of-war with a right to search and capture their unsuspecting consorts of an hour before, would be felt on all hands to be intolerable, were traders ahve to their own interests in these matters. Besides, if a change may be made on the ocean from a AND HAGUE CONFERENCES 197 vessel of commerce to a vessel of war, what is there to prevent a change from a vessel of war to a vessel of commerce ? A monstrous race of maritime hermaphro- dites could not be let loose without dire results to neutral trade. Here again Great Britain needs all the support she can obtain for her contention that changes of character in vessels should be made only in the ports of their own countries. The powers who oppose her in this matter would be better advised if instead they extended her own principles a little further, and accepted the rule she proposes on condition that she agreed to extend its prohibition to the immediate setting forth of a prize as a warship by the commander of the captur- ing vessel. In discussing possible remedies for the evils exposed in the previous chapter we have hitherto confined our- selves to propositions which are within the scope of Prize Law, and could therefore be brought forward at any Conference of maritime powers which assembles to discuss rules for the guidance of the proposed Inter- national Court of Appeal in Prize cases. But outside these he important questions connected with state neutraUty, and also the bulk of the troubles arising from the promiscuous use of submarine contact mines. They ought to be dealt with in some way; and it is clear they cannot be handled at the Conference without such an enlargement of its programme as few powers would be willing to accept. Moreover, there is another difficulty connected with them. After aU that has happened in the last nine years no Conference but the 198 INTERNATIONAL PROBLEMS Hague Conference can claim any kind of legislative authority over civilised states ; and even in its case the authority is rather moral than legal, because none of the powers represented therein is bound by any decisions unless it formally accepts and ratifies them by its own sovereign authority. The conclusion seems obvious that, if an57thing is to be done in these matters before the next Hague Conference, we must look to other means than smaller and less inclusive Conferences to do it. And fortunately such means exist in the right of making agreements by treaty which is inherent in sovereign states. As regards neutrahty, the best course to take would be for our government to decline to sign the Convention Respecting the Rights and Duties of Naval Powers in Time of War. Most of what is good in it we hold ourselves already bound to obey by customary law. As regards the rest, our standard is higher than that of the Hague Conference, and we should be free to press for it in negotiations on any cases which might arise, and embody it in special agree- ments with other powers. In this way we might intro- duce better rules in such matters as the limits of the hospitahty to be accorded to belligerent warships in neutral ports, and the amount of fuel they might be allowed to receive therein. The question of mines is more pressing, and here our role should be much more active. We must, of course, accept the Hague Con- vention on the subject because it does impose some restraints; but we should seek opportunities to go further. At the Hague Conference of 1907 several of AND HAGUE CONFERENCES 199 the powers agreed with us entirely, and many more were prepared to accept some of the rules which we proposed. What is there to prevent the negotiation during the next year or two of a number of Conventions of varying degrees of strictness? Some states would probably be wiUing, if approached by us, to renounce altogether the use of automatic contact mines. Others would go no further than to discard unanchored contact mines. A third group might restrict the use of mines to territorial waters, or perhaps even to their own territorial waters, a plan which would give to small states the cheap defence of their coasts they ardently desire, while it would secure that the mines were carefuUy laid, since no state would wish to drive away neutral commerce from its ports, whereas it would not feel the same scruples about its adversary. A great variety of arrangements are possible and each would be an im- provement on the present dangerous and disgraceful state of affairs. If, for instance, the use of mines in an enemy's waters could be limited to attacks on his important naval ports, which should be named in the Convention, what an enormous gain to commerce and humanity would be achieved thereby. Or again, if a power which was determined to secure the right to mine certain important passages, shoals, and anchorages, which were off its coasts though not within its terri- torial waters, could be induced to specify them in a Con- vention which, surrendered in general terms the use of mines on the high seas, how greatly would it increase the security of peaceful vessels, while at the same time 200 INTERNATIONAL PROBLEMS it attained its object of keeping at a distance the warships of an enemy. Two provisions ought to be included in any Convention negotiated by Great Britcdn on the subject of submarine warfare. We should substitute for the vague Hague rule that unanchored contact mines should become harmless an hour after they cease to be controlled, the definite one that they must lose their explosive quality an homr, or any other period that may be agreed on, after they are dropped into the water. We should also provide that this rule came into operation immediately, and with it the correspond- ing rule that anchored mines should not be used unless they are so constituted as to become harmless the moment they break adrift. No days of grace should be allowed for other and more dangerous varieties. It goes without sa3dng that each Convention would contain a clause to the effect that no signatory power would be bound by it in a war with a power which had not signed it. If the course of policy just indicated were followed with £iny degree of success, the worst of the dangers now threatening neutrals and non-combatants would be removed; and the next Hague Conference could complete the process by making just and merciful rules of world-wide application. The Second Conference evidently contemplated a drastic revision of its work. For it provided that after a period of about seven years from the ratification of the present Convention on the subject, the contracting powers should re-open the question, unless it had been settled previously by the Third Conference. These arrangements refer to general AND HAGUE CONFERENCES 201 assemblies of civilised states. There is nothing in them to prevent preparation for such gatherings by negotiations between units or groups. But neither Great Britain nor any other power can help seafaring folk, and merchants who live by inter- national commerce, if they sit supine and do nothing to help themselves. What is wanted at the present moment is a world-wide agitation. Trading interests and humanitarian organisations should speak with one voice. We are threatened with maritime warfare far more destructive of innocent human life, and far more dangerous to neutral property, than anything of the kind since the dark ages. If Chambers of Commerce all over the world would combine to put pressure on their respective governments, and religious and progressive forces in every land would expose and denounce the impending evils, we should soon find that the resom-ces of diplomacy were equal to the task of averting them. CHAPTER X THE DUTY OF GREAT BRITAIN IN THE IMMEDIATE FUTURE All Englishmen admit that their country has a great part to play in international affairs, and some of them are given to proclaiming it with more than suf&cient emphasis. There is no need for us to flaunt our im- portance in the face of the world. Other states are perfectly well aware that we are not a negligible quantity in any matter, and that in maritime affairs we hold a position of pre-eminence. As are our power and influence, so also are our duties. If there is any truth in the idea of a Society of Nations which has been inculcated throughout this book, we owe it to ourselves and to other powers to use our great position for the benefit of the whole family of civilised states. And this duty is all the more incumbent on us in times like the present, when the chief questions at issue are concerned with those naval matters in which we are admittedly first. There is no need here to speak of the part we may have to play in future ages. We must be content with a few words on what it is England's duty to do in the immediate future. Hints and intimations have been scattered about the previous chapters as HAGUE CONFERENCES 203 occasion demanded. We will endeavour to summarise them in a few conbluding words. I n th e first pla ce we shouldstaixe, wi.A_§|I pur might to foster what may be called The Hague Conference Movement, in which is included the development of International Arbitration and a ceaseless endeavour to find some meansof reducing irig^nijarroaQlgllts. A very imperfect legislature for the international concerns of civilised mankind is infinitely better than no legislature at aU. Dissatisfaction with some of its performances is an excellent reason for endeavouring to improve it, but a very bad one for trying to destroy it. Most of us think ill from time to time of some of the measures passed by our own ParUament. But we do not in con- sequence agitate for its abohtion. We simply strive to remove defects in its constitution and procedure, and to make the next one more representative of our views. This is what Great Britain has to do with regard to the Third Hague Conference. And she made a good begin- ning ^ieiLat the clrae of thela^ CoSference, her dele- gates succeeded in convincing their colleagues that the t^kj5jE_^egaring the programmes of future Assemblies must not be left to one Great Power, but should be confided instead to a committee appointed two years beforehand, which should also 'Be" entrusted with the ta^ of proposing a system of organisation and procedure. Passing now from the Hague Conference itself to the matters with which it has to deal, we venture to repeat that the immediate and pressing duty of this country is to champion neutral interests. No greater disservice 204 INTERNATIONAL PROBLEMS could be rendered to the attempt to make wars less fre- quent, with a view to their ultimate abolition, than to deprive a belligerent of the power to injure the enemy state so severely that it would soon sue for terms. But it is quite possible, whUe preserving this power to an extent amply sufficient for the attainment of its proper purpose, to diminish very greatly the rights possessed or claimed by states at war to harm their neighbours who remain at peace, as an incident in the process of putting pressure on their foes. This claim is particularly apparent in the case of maritime conflicts, and, as we have shown again and again, it is more in evidence now than it has been for centuries. Great Britain ought to use her utmost endeavours to defeat it, and in all prob- ability she can succeed if she is supported by a strong humanitarian and conunercial agitation. The objects to be aimed at have been set forth in the preceding pages. They are all practicable, and they all deal with the affairs of to-day and to-morrow. In striving for them we shall doubtless be met by the insinuation that we are looking after our own interests. There need be no hesitation in admitting the truth of this statement, and no shame either, for the state which does not pro- vide for the security and development of its national life is neglecting its first duty. But it must not seek its own ends by means which injure the whole community of nations to which it belongs. Instead of doing any- thing of the kind we are shielding all neutrals and pro- tecting all defenceless folk at sea. Doubtless we could make a more terribly effective use of the new weapons AND HAGUE CONFERENCES 205 and the new methods than any of our possible rivals. We could hold our own by might, but we prefer to secure it by law. And in thus protecting ourselves against terrible suffering we protect the rest of the world also. There is no need to justify such a policy. It is its own best vindication. The suggestions we have made can be supported irre- spective of opinions that may be held about wider schemes which cannot be adopted without much more discussion than they have already received. For instance, it is quite clear that the proposed exemption of private property from capture at sea in time of war cannot be carried out without the support of our own country. And if it be true, as was argued by Sir Edward Grey in his instructions to our plenipotentiaries at the Second Hague Conference, that the abolition of the right of comniercial blockade is bound up with it, those who have hitherto advocated the proposal in the interests of British trade and British sea -power may well pause to re-examine their position. The arguments on both sides are very strong, and no attempt can be made here to state them, much less to formulate a definite conclu- sion. By the time when the next Hague Conference is held the matter may be ripe for settlement. It cer- tainly is not at the present moment. The same may be said of another proposal which we venture to put for- ward for discussion. Why should not naval warfare be forbidden on what is the common highway of aU nations, just as rioting is forbidden in the streets of every well- governed town? On land hostilities cease when the 2o6 INTERNATIONAL PROBLEMS frontier of a state at peace is crossed. On the high seas there are no frontiers, because there are no territorial rights ; but the whole wide area is dedicated to the use of ships of all countries going about their lawful avoca- tions. Hitherto war has been deemed a lawful avoca- tion. But since experience shows that it cannot be conducted at sea without grave interference with inno- cent and peaceful transit, and such interference tends to become more serious and deadly with the growth of modem methods and the increased power of modem weapons, might not civilised mankind solve the diffi- culty by prohibiting warfare altogether outside terri- . torial waters, which for such a purpose could be increased to the extreme range of modern cannon, say a distance of fifteen miles from the shore ? If this were done other amehorations of the laws of war would stUl apply. A great restriction of the area of hostilities might go hand in hand with a great improvement in their methods. At any rate the conjunction of the two things is worth dis- cussing; and it might take place if there was a strong rally of opinion to it in all civilised states. INDEX Abyssinia, 3 Aix-la-Chapelle, Congress of, 39 Alabama daims, 63, 81 Alexander II., Emperor of Russia, 91 Amphictyonic Council, 75 Arbitration, international, 62, 63, 76-81; " compulsory," 76; ex- cepted cases in agreements for, 78-80; difficulties in way of, 81, 82 Armaments, proposed reduction or stay of, 48-53 Ashburton Treaty, 82 Austro-Hungary, a state made up of various peoples, 2 Barclay, Sir Thomas, 79 Behring Sea Case, 81 Bentham, Jeremy, i Bernard, Professor M., attempts to distinguish between a Con- gress and a Conference, 39 Blockade, its meaning, r4; law of, 152, 153, 163-165, 189-192 Bohemia, embassy of, T9-21 Bombardments, 94, 95, 119-12T Bourgeois, M. Leon, on dis- armament, 51 Brazil, invited to Hague Confer- ence of 1899, 32 Brussels Code, for land warfare, 85, 90, 91 ; rules as to pillage, etc., 93 ; rules as to prisoners of war, 96; rules as to neutral countries, T02 Bundesrath, The, r73 Capture by storm, 93, 94 Chambers of Commerce, their duty, 201, 204 Charles I., King of England, 27, 32 Chili, 80 China, its membership of Society of Nations incomplete, 34 Commerce, new and terrible dangers to maritime, 174-177 Compromis, 69, 74 Contraband of war, its meaning, 14; law of, 155-158, i84-r89 Convoy, 196 Cromwell, OUver, 26, 27 Days of Grace, T10-112 Declaration of Paris, 139 Declaration of war, 85-90 Destruction, of prizes at sea, 15, 158, 159, i69-r7i, 195; of neutral cargo on enemy mer- chantmen, 171, 172, r96 Dogger Bank Case, 57-59 Drago Doctrine, The, 70, 71 Equality of states, doctrine of, 23, 74, 143, 144. 148 Enclaves, 25 Family of Nations, 3 France, state and nation one, 2; cedes Alsace, 9; its am- bassadors assume title of " Excellency," 27; objects to internment of shipwrecked mariners when rescued by neutrals, 116; differs from Great Britain as to law of blockade, 152, 153, 192; pro- poses description of absolute contraband, 189 Frankfort, Treaty of, 9 Fry, Sir Edward, on disarma- ment, 53; on the proposed Court of Arbitral Justice, 75 Fuel, for warships, 129, 130 Fuller, Thomas, 38 General, The, 174 Geneva Convention, regulates care of sick and wounded, 103, 104, T40; proof of advance in civilisation, 117 207 208 INTERNATIONAL PROBLEMS Germany, acquires Heligoland, 8 ; dissent from Hague declaration as to balloons, 95; proposes inmiunity of m^-bags, 119; opposes British proposals as to mines, stay in neutral ports, and fuel, 124, IZ9, 130; its plan of International Prize Court of Appeal combined with British 141 Great Britain, cedes Heligoland, 8; claimed adjacent seas, 10; objects to destruction of neutral vessels at sea, 15, 169-171, 178; the attempt to minimise certain of her advantages, 46, 47, 179, 180; makes Arbitration Treaty with United States, 78 ; accepts Hague declaration as to bal- loons, 95; her good treatment of Boer prisoners, 98; favours internment of shipwrecked men rescued by neutrals, 115, 116; her proposals as to submarine contact mines, 123, 124, 198- 201 ; differs from Germany and Russia as to conversion of mer- chantmen into men-of-war, 125, 197; produces plan of Inter- national Prize Court of Appeal, 141 ; holds that food can never be absolutely contraband, 155- 158; special dangers to her maritime commerce, 177-179; proposes abolition of law of contraband, 187; her duty to champion neutral interests, 203-205 Great Powers, their number and position, 36, 37 Grey, Sir Edward, his views on food as contraband and on exemption from private pro- perty from capture at sea, 157, 205 Hague Conference of 1899, its in- ception, 39, 4Q ; its good work, 40, 41; its resolution on dis- armament, 53; provides for special mediation, 55; provides for International Commissions of Inquiry, 57; establishes Permanent Court of Arbitra- tion, 63-65; attempts to es- tablish Court of Arbitral Justice, 73-76; its regulations for war on land, 84, 85, 91-ior; ex- tends principles of Geneva Convention to war at sea, 114 Hague Conference of 1907, its length, 30; its incejjtion, 41; its inclusiveness, 42 ; its resolu- tion on disarmament, 53; provides for International Com- missions of Inquiry, 59, 60; improves Permanent Court of Arbitration, 67-73; its Con- vention on the opening of hostilities, 88-90; improves regulations for war on land, 101-104; makes rules as to days of grace, in, 112; frees from capture fishing boats, etc., 113, 114; regulates Red-Cross work at sea, 114-117; gives immunities to postal corres- pondence, 117-119; regulates bombardments from sea, 119- 121; fails to deal satisfactorily with submarine mines, 121- 125; discusses conversion of merchantmen into men-of-war, 125-127; produces Convention on Rights and Duties of Neutral Powers in Naval War, 127-130; much of its work unknown, 131; attempts to create an International Prize Court of Appeal, 132, 141-149 Hague Conferences, as legisla- tures, 6, 42, 140, 141; their importance, 39; a series may be expected, 42; objections against them answered, 44, 47, 120 ; official designation of, 48; their attempts to improve the laws of war, 83, 84; prohibit launching of projectiles from balloons, 95; arrangements for future meetings to be entrusted to a committee, 203 Henry IV., King of France, 43 Henry VII., King of England, 38 High Seas, their extent, 11 ; their freedom, 11, 205, 206 Holy Roman Empire, 18, 19 Howard, Sir Henry, 40 INDEX 209 Humanity of land aud sea war- fare compared, 105-110, 160-162 Information Bureau, as to prison- ers of war, 97, 98 Institute of International Law, its code for war on land, 91 International Bureau at the Hague, 163 International Commissions of In- quiry, 57-61 International Law, what it is, I, 6; inaccuracy of phrase, 2; states of, 3, 7 ; a reality, though imperfect, 62; should be ad- mioistered by Prize Courts, 133. 146 International Prize Court of Appeal, position of Great Powers with regard to, 37, 141- 144; its functions and juris- diction, 144-149, 182-197; objections to it, 149-153; con- ditions on which Great Britain could accept it, r53-i59, 181, 182 Italy, formed into one kingdom, 33) 54; became a Great Power, 36 James I., King of England, 26, 27, 61 Japan, acquires Sakhalin, 8; consular courts abolished in, 34; became a Great Power, 37 ; her generosity to Russian prisoners, 98; gives days of grace in 1904, in Japanese Perpetual Leases Case, 65-67 Joubert, General, 95 Jurisdiction of State, its meaning and extent, 11-13; effect of war on it, 13 Kant, E., 43 Karlstad, Treaty of, 79, 80 Knight Commander, The, 169, 170 Ladysmith, 95 Latin-American States, played a small part at First Hague Con- ference, 32; opposed schemes for creation of a Court of Arbitral Justice, 47, 74-76, 80 Lieber, Dr. F., his war code, 90- 92 Louis XL, King of France, 19-21, 38 Machiavelli, 21, 22 Maine, The, blown up in Havana harbour, 56 Maritime Conference, in London, 181, 182; its programme, 182- 184; British policy with regard to it, 184-201 Maryland, 32 Mediation, 55 Military occupation, rights of, 98-102 Mill, James, 43 Mines, submarine contact, 119- 125, 162-168; their djuiger to neutrals and non-combatants, 164-167, 176, 190-192; mode of prohibiting their use instead of ships for purposes of block- ade, 191; possibility of special agreements with regard to them, 199-201 Monaco, 31 Morocco, 3 Mouraviefi, Count, circular of, 83 Miinster, Congress of, 26, 27, 29, 30 Muscat Dhows Case, 66, 67 Nation, what it is, i, 2; differs from state, 2, 3 Neutrals, duties of, 15, 102-105, 127-130, 179, 180 Nicholas II., Emperor of Russia, summons first two Hague Con- ferences, 39-41; puts forward idea of disarmament, 49 Norway, 79 Orel, The, 115 Palmerston, Lord, 79 Pan-American Conference, 41 Parliament, origin of the British, 44-46 Pauncefote, Lord, 40 Permanent Administrative Coun- cil at the Hague, 64 Permanent Court of Arbitration, establishment of, 63; its con- stitution, 64 210 INTERNATIONAL PROBLEMS Persia, membership of Society of Nations incomplete, 34. Peru, 80 Pious Fund Case, 65, 66 Port Arthur, 85, 86, 94 Portsmouth, Treaty of, 8 Portugal, claimed Indian Ocean, ID Prisoners of war, 95-98 Prize Courts, what they are, 15, 133-1351 169; their deficien- cies, 135-137; influences at work to provide remedies, 137, 141 Prussia, growth of, 25 Reformation, r9 Renaissance, r9, 22 Renault, Professor L., his views as to the International Prize Court, 147 Roman Empire, iS Roosevelt, Theodore, 41, 77 Roshestvenski, Admiral, 57 Xossia, The, 87 Rousseau, 43 Russia, cedes Sakhalin, 8; enters Family of Nations, 31; op- poses Great Britain on subject of conversion of merchantmen into men-of-war, 125; attempts to make food absolutely con- traband, 155, 156; claims right to sink neutral prizes at sea, 169-171 Ryswick, Congress of, 27-29 Salisbury, Lord, 40, 174 San Marino, 31 Satow, Sir E., his protest on the subject of mines, 168 Search, right of, 13, 14, 159, 173, 174; possible modifications, 192-195 Sjam, membership of Society of Nations incomplete, 34 Society of Nations, meaning of phrase, 1-3; meaning of thing, 3-7; its reality, 11, 133; its rise, 16, 17; its modern form, 23-25, 31-37; its characteris- tics, 25-30, 51; how recruited, 36; how social intercourse carried on, 38, 39; germs of real courts and coercive juris- diction in, 71, 72 Sovereignty, its territorial char- acter, 7-11 Spain, claimed Pacific, 10; its ambassadors assumed title of " Excellency," 27; indepen- dence of its colonies, 32 Special mediation, 55 State, what it is, 1 ; differs from nation, 2 Suarez, Francisco, 23 Suchet, Marshall, 94 Suez Canal, 79 Sweden, 79 Territorial waters, their limits, 9-11 Thirty Years' War, its horrors, 22, 23; its beginning, 29; its end, 30 Togo, Admiral, leaves Sasebo and attacks Port Arthur, 86, 87 Trewes, Day of, 60, 61 Turkey, enters Society of Nations, 31, 33. 34 United States, becomes Inde- pendent and enters Society of Nations, 32, 33; makes Arbi- tration Treaty with Great Britain, 78 ; north-eastern boundary of, 81, 82; gives days of grace in 1898, iii; grants concessions to postal correspondence, 119 Unneutral service, its meaning, 14, 15 Urban VI., Pope, 29 Venezuela Indemnities Case, 65, 66 Venice, Republic of, 26, 27 Vienna, Peace of, 37 ■ Wellington, Duke of, 92, 93 Westphalia, Peace of, 26, 29-31, 37 Wilhehn II., Kaiser, 138 Wireless telegraphy, 103, 104, 128 Wotten, Sir Henry, 22 LETCHWORTH THE TEMPLE PRESS PRINTERS