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 THE TWO 
 
 
 HAGUE CONFERENCES 
 
 AND THEIR CONTRIBUTIONS TO 
 INTERNATIONAL LAW 
 
 BY 
 
 WILLIAM I. HULL, Ph.D. 
 
 PROFESSOR OF HISTORY IN SWARTHMORE COLLEGE, MEMBER OF 
 
 L' ASSOCIATION DES JOURNALISTES DE LA HAYE DE 
 
 LA DEUXIEME CONFERENCE DE LA PAIX 
 
 PUBLISHED FOR THE INTERNATIONAL SCHOOL OF PEACE 
 GINN & COMPANY, BOSTON 
 
 1 90S
 
 Copyright, 1908 
 By WILLIAM I. HULL 
 
 ALL RIGHTS RESERVED 
 
 Cfte atfitnaeum &vte* 
 
 G1NN & COMPANY • PRO- 
 PRIETORS • BOSTON • U.S.A.
 
 TO 
 AMERICA'S FIRST DELEGATE 
 
 TO THE 
 
 SECOND PEACE CONFERENCE 
 
 AT THE HAGUE 
 
 THE HONORABLE JOSEPH HODGES CHOATE 
 
 JURIST, DIPLOMATIST, ORATOR, STATESMAN 
 
 WHOSE LONG CAREER OF SPLENDID SERVICE 
 
 TO HIS COUNTRY 
 
 HAS BEEN CROWNED BY 
 
 A NOBLE AND SUCCESSFUL STRUGGLE 
 
 IN BEHALF OF 
 
 PEACE AND ARBITRATION BETWEEN THE NATIONS
 
 PREFACE 
 
 The National Educational Association, at its forty-fifth 
 annual session in Los Angeles last summer, adopted a 
 report presented by its Committee on Resolutions which 
 contained the following section : — 
 
 "The teachers of the United States of America, assembled in the 
 National Educational Association at Los Angeles, California, view 
 with pleasure and satisfaction the conditions which have brought 
 about the second Hague Conference. We believe that the forces of 
 the world should be organized and operated in the interests of peace 
 and not of war; we believe that the material, commercial, and social 
 interests of the people of the United States and of the whole world 
 demand that the energies of the governments and of the people be 
 relieved of the burdens of providing at enormous expense the arma- 
 ments suggested by the competitive desire for supremacy in war; we 
 further believe that the fear of war and the possibility of war would 
 alike decline if the governments were to rely more upon the sentiment 
 of the people and less upon the strength of their armies and navies. 
 
 "We urge upon our representatives at the second Hague Con- 
 ference to use their influence to widen the scope and increase the 
 power of the Hague tribunal. While disclaiming any desire to sug- 
 gest a programme or to urge specific action, we do urge our represen- 
 tatives to secure the most favorable action possible upon international 
 arbitration, the limitation of armaments, the protection of private 
 property at sea, and the investigation of international disputes by an 
 impartial commission before the declaration of hostilities. 
 
 "We recommend to the teachers that the work of the Hague Con- 
 ferences and of the peace associations be studied carefully, and the 
 results given proper consideration in the work of instruction." 
 
 This message from the ten thousand teachers present 
 at Los Angeles to their more than half million colleagues
 
 VI THE TWO HAGUE CONFERENCES 
 
 in the United States was the culmination of a movement 
 which included, among other noteworthy facts, resolu- 
 tions similar in tenor passed by the American Institute of 
 Instruction at its meeting in Montreal and by the Na- 
 tional Association of School Superintendents at its meeting 
 in Chicago. It was brought to the author's attention 
 while he was in The Hague endeavoring to fulfill the mis- 
 sion of an American journalistic representative at the sec- 
 ond Peace Conference; and so desirable did it seem that 
 the Association's recommendation to its members should be 
 acted upon that this book was written in the hope that 
 it might prove of service to them in carrying it out. 
 
 The arrangement of topics is such that either a consecu- 
 tive account of each conference may be secured, or a com- 
 parative study of the discussion and action upon each topic 
 by the two conferences may be made. 
 
 The participation of the delegations from the United 
 States in the work of each conference has been made espe- 
 cially prominent. But both commendation and condem- 
 nation, in this as in other particulars, have been carefully 
 avoided. For the object sought by the author was to 
 present a true and impartial — a historical — record, and 
 not to enter upon the field of partisan argument or theoreti- 
 cal contention. 
 
 As to the proportionate amount of space devoted to the 
 Various topics, it may be said that some of them which have 
 been presented in some detail, although but little or no 
 important action was taken upon them by the two confer- 
 ences, are none the less prominent in the public thought 
 and are destined to play an important role in future con- 
 ferences. 
 
 The sources of information for the two conferences
 
 PREFACE Vli 
 
 are few in number, but are both official and satisfactory. 
 For the first conference, the official record, entitled " Con- 
 ference Internationale de la Paix," has been published 
 in a large quarto volume of six hundred and twenty pages 
 by the Netherlands minister of foreign affairs. It con- 
 tains the minutes of all the meetings .of the conference, its 
 commissions and subcommissions ; the admirable reports 
 upon the discussions of the subcommissions and commis- 
 sions; and the official text of the conventions, declara- 
 tions, and resolutions adopted by the conference. The 
 "Actes et Documents relatifs au Programme de la Con- 
 ference de la Paix de la Haye 1899," also published by 
 order of the Netherlands government, is a valuable collec- 
 tion of materials upon which the work of the conference 
 was based. "The Peace Conference at The Hague," by 
 F. W. Holls, a member of the United States delegation to 
 the conference, is authoritative and interesting. 
 
 The official record of the second conference, identical 
 in character with that of the first, and of far larger 
 volume, was printed from day to day during the confer- 
 ence, but has not yet been published. Through the 
 courtesy of the Netherlands minister of foreign affairs 
 the author was able to procure a complete set of this 
 record and to base his account of the conference upon it. 
 Almost all of the multitude of documents and comptes- 
 rendus of the conference were published in the Courrier 
 de la Conference, which appeared daily during the sessions 
 of the conference, under the editorship of the able and 
 distinguished journalist, Mr. William T. Stead. In com- 
 mon with all the readers of the Courrier, the author of 
 this book owes a large debt of gratitude to Mr. Stead for 
 the enterprise and public spirit shown by him in inform-
 
 Vlii THE TWO HAGUE CONFERENCES 
 
 ing the public so fully of the work of the conference, and 
 in stimulating and informing the members of the con- 
 ference as well. 
 
 All of the proceedings of the two conferences were con- 
 ducted in the French language, and since the speeches 
 had first to be translated from the speakers' native lan- 
 guages into French and then, for the purpose of this book, 
 into English, it can not be hoped that their original flavor 
 and force have been fully retained. But it is to be hoped 
 that enough has been retained to impress readers with the 
 great and genuine eloquence of many of the speeches, 
 and to illuminate the serious record of these two unique 
 and epoch-making events in the world's history. 
 
 Villa Bosch Hoek 
 The Hague
 
 CONTENTS 
 
 I. ORIGIN page 
 
 a. The Conference of 1899 1 
 
 b. The Conference of 1907 3 
 
 II. PLACE OF MEETING 
 
 a. The Conference of 1899 6 
 
 b. The Conference of 1907 8 
 
 III. MEMBERS 
 
 a. The Conference of 1899 ...... 10 
 
 b. The Conference of 1907 . . . . „ .13 
 
 IV. FESTIVITIES AND CEREMONIES 
 
 a. The Conference of 1899 17 
 
 b. The Conference of 1907 18 
 
 V. ORGANIZED PUBLIC OPINION 
 
 a. The Conference of 1899 21 
 
 b. The Conference of 1907 24 
 
 VI. ORGANIZATION 
 
 a. The Conference of 1899 28 
 
 b. The Conference of 1907 31 
 
 VII. MEETINGS 
 
 a. The Conference of 1899 ...... 35 
 
 b. The Conference of 1907 40 
 
 VIII. PROGRAMME 
 
 a. The Conference of 1899 45 
 
 b. The Conference of 1907 47 
 
 IX. ARMAMENTS 
 
 a. The Conference of 1899 52 
 
 b. The Conference of 1907 69 
 
 ix
 
 X THE TWO HAGUE CONFERENCES 
 
 PAGE 
 
 X. WARFARE IN THE AIR 
 
 a. The Conference of 1899 76 
 
 b. The Conference of 1907 79 
 
 XI. WARFARE ON THE SEA 
 
 A. New Arms and Methods 
 
 a. The Conference of 1899 83 
 
 1. Marine Cannon 85 
 
 2. Explosives and Asphyxiating Gases . 87 
 
 3. Torpedo Boats and Rams . . .91 
 
 b. The Conference of 1907 93 
 
 1. Submarine Mines 93 
 
 2. Naval Bombardment 100 
 
 3. Merchant Ships transformed into 
 
 Cruisers 104 
 
 B. The Geneva Convention 
 
 1. Hospital Ships 
 
 a. The Conference of 1899 .... 109 
 
 b. The Conference of 1907 . . . .116 
 
 2. The Personnel of Captured Ships 
 
 a. The Conference of 1899 . . . .118 
 
 b. The Conference of 1907 .... 124 
 
 C. The Private Property of Belligerents 
 
 a. The Conference of 1899 126 
 
 b. The Conference of 1907 
 
 1. Merchant Ships and Cargoes . . .133 
 
 2. Delay of Favor to Merchant Ships . 141 
 ^ The Treatment of Captured Merchant 
 
 Crews 144 
 
 4. The Exemption of Certain Ships . . 144 
 
 5. The Exemption of Mail .... 146 
 The Rights and Duties of Neutrals 
 
 a. The Conference of 1899 146 
 
 b. The Conference of 1907 148 
 
 1. Belligerents in Neutral Waters . . 149 
 
 2. Blockade 157 
 
 3. Contraband of War 160 
 
 4. Destruction of Neutral Prizes . . 163 
 
 <t
 
 CONTENTS 
 
 XI 
 
 E. The Laws and Customs of Naval Warfare 
 
 a. The Conference of 1899 
 
 b. The Conference of 1907 
 
 XII. WARFARE ON LAND 
 
 A. New Arms and Methods 
 
 a. The Conference of 1899 
 
 1. Explosives . . 
 
 2. Field Guns 
 
 3. Muskets 
 
 4. Bullets 
 
 b, The Conference of 1907 
 
 Bullets 
 
 B. The Geneva Convention 
 
 a. The Conference of 1899 
 
 l>. The Revision of 1906 
 
 C. The Rights and Duties of Neutrals 
 
 a. The Conference of 1899 
 
 l>. The Conference of 1907 
 
 1. The Rights and Duties of Neutral 
 
 States 
 
 2. Neutrals within Belligerent Territory 
 
 L<t). The Laws and Customs of Warfare on Land 
 
 1. Belligerents 
 
 a. The Conference of 1899 . 
 
 b. The Conference of 1907 . 
 
 2. Prisoners of War 
 
 a. The Conference of 1899 . 
 
 b. The Conference of 1907 . 
 
 3. Means of injuring the Enemy 
 
 a. The Conference of 1899 . 
 
 b. The Conference of 1907 . 
 
 4. Spies, Flags of Truce, Armistice, Capitula- 
 
 tions 
 
 a. The Conference of 1899 . 
 
 b. The Conference of 1907 . 
 
 5. Occupation of Hostile Territory 
 
 a. The Conference of 1899 . 
 
 b. The Conference of 1907 . 
 
 166 
 166 
 
 169 
 170 
 171 
 172 
 181 
 
 187 
 
 190 
 
 193 
 
 199 
 201 
 
 202 
 206 
 
 213 
 
 215 
 220 
 
 222 
 
 228 
 
 232 
 235 
 
 238 
 
 243 
 
 243 
 256
 
 Xll 
 
 THE TWO HAGUE CONFERENCES 
 
 XIII. 
 
 6. The Opening of Hostilities 
 The Conference of 1907 
 
 ARBITRATION 
 
 A. Good Offices and Mediation 
 
 a. The Conference of 1899 . 
 
 b. The Conference of 1907 . 
 
 B. International Commissions of Inquiry 
 
 a. The Conference of 1899 . 
 
 b. The Conference of 1907 . 
 
 C. Obligatory Arbitration 
 
 1. Arbitration in General 
 
 a. The Conference of 1899 . 
 
 b. The Conference of 1907 . 
 
 2. Specific Cases 
 
 a. The Conference of 1899 • 
 
 b. The Conference of 1907 . 
 
 3. The Forcible Collection of Debts 
 
 a. The Conference of 1899 . 
 
 b. The Conference of 1907 . 
 
 D. International Courts 
 
 1. The Permanent Court of Arbitration 
 
 a. The Conference of 1899 . 
 
 b. The Conference of 1907 . 
 Arbitral Procedure 
 
 a. The Conference of 1899 . 
 
 b. The Conference of 1907 . 
 -3: The Court of Arbitral Justice 
 
 The Conference of 1907 
 
 4. The International Prize Court 
 The Conference of 1907 
 
 2. 
 
 
 PAGE 
 262 
 
 267 
 
 2 75 
 
 277 
 288 
 
 297 
 3" 
 
 326 
 33i 
 
 349 
 35° 
 
 37° 
 
 387 
 
 390 
 402 
 
 410 
 
 427 
 
 XIV. 
 
 A SUMMARY OF RESULTS AND THEIR HISTORI- 
 CAL IMPORTANCE 
 
 A. Attempts 449 
 
 a. The Conference of 1899 
 
 I. Armaments 449 
 
 II. Warfare on the Sea . . . . 451
 
 CONTENTS xiii 
 
 i. Marine Cannon 
 
 2. Torpedo Boats and Rams 
 
 3. The Private Property of Bel- 
 
 ligerents 
 
 4. Neutral Rights and Duties 
 
 5. Laws and Customs of Warfare 
 
 III. Warfare on Land 453 
 
 1. New Arms and Methods 
 
 2. Neutral Rights and Duties 
 
 IV. Arbitration . . . . 454 
 
 1. Obligatory Arbitration 
 
 2. The Forcible Collection of Debts 
 b. The Conference of 1907 
 
 I. Armaments 456 
 
 II. Warfare on the Sea .... 458 
 
 1. The Private Property of Bel- 
 
 ligerents 
 
 2. Blockade 
 
 3. Contraband of War 
 
 4. Destruction of Neutral Prizes 
 
 5. Laws and Customs of Warfare 
 
 III. Arbitration 461 
 
 1. International Commissions of In- 
 
 qui RY 
 
 2. Obligatory Arbitration 
 
 B. Achievements 463 
 
 a. The Conference of 1899 
 
 I. Warfare in the Air .... 465 
 II. Warfare on the Sea .... 465 
 
 1. Asphyxiating Gases 
 
 2. The Geneva Convention 
 
 III. Warfare on Land 467 
 
 1. Bullets 
 
 2. The Geneva Convention 
 
 3. Laws and Customs of Warfare 
 
 IV. Arbitration 470 
 
 1. Good Offices and Mediation 
 
 2. International Commissions of In- 
 
 quiry
 
 XIV THE TWO HAGUE CONFERENCES 
 
 3. The Permanent Court of Arbi- 
 tration 
 
 b. The Conference of 1907 477 
 
 I. Warfare in the Air .... 478 
 II. Warfare on the Sea .... 479 
 
 1. Submarine Mines 
 
 2. Naval Bombardment 
 
 3. Merchant Ships transformed 
 
 into Cruisers 
 
 4. Restrictions on the Right of 
 
 Capture 
 
 5. Belligerents in Neutral Waters 
 
 III. Warfare on Land .... 487 
 
 1. Neutral Rights and Duties 
 
 2. Laws and Customs of Warfare 
 
 IV. Arbitration 490 
 
 1. The Forcible Collectk in of Debts 
 
 2. Arbitral Procedure 
 
 3. The Court of Arbitral Justice 
 
 4. The International Prize Court 
 
 C. Indirect Results 496 
 
 I. The Federation of the World . . . 497 
 II. The Third Peace Conference . . . 500 
 
 INDEX 5°5
 
 THE TWO HAGUE CONFERENCES 
 
 I. ORIGIN 
 a. THE CONFERENCE OF 1899 
 
 The beginning of the Nineteenth Century found Europe 
 struggling in the throes of the great Napoleonic Wars; its 
 end saw the meeting of the first Peace Conference at The 
 Hague. Our own country was drawn into the Napoleonic 
 struggle and fought the War of 1 812. At the end of that 
 war, when the civilized world lay breathless and ashamed 
 of its quarter century of fighting, the first peace society 
 was organized in New York City. Other peace societies 
 were slowly formed, and the next generation held a series 
 of international peace congresses in the capitals of Europe. 1 
 But then ensued another generation of warfare, and it was 
 not till 1889 that the international peace congresses again 
 assembled. Sixteen of these congresses have since that 
 time been held in the large cities of both the Old World 
 and the New, 2 and have done a very great deal to prepare 
 Ihe way for the conferences at the Hague. 
 
 The marvelous growth of commerce in the Nineteenth 
 
 1 In London, 1S43; Brussels, 1848; Paris, 1849; Frankfort, 1850; London, 
 1851. 
 
 2 Paris, London, Rome, Berne, Chicago (in 1893), Antwerp, Buda-Pesth, 
 Hamburg, Paris, Glasgow, Monaco, Rouen, Boston (in 1904), Lucerne, 
 Milan, and Munich. 
 
 I
 
 2 THE TWO HAGUE CONFERENCES 
 
 Century, made possible by steam navigation and the electric 
 telegraph and cable ; the great increase of travel and emi- 
 gration from one country to another ; the steady growth of 
 education, the steady decline of what Robert Burns called 
 "the inhumanity of man," and the steady improvement in 
 the methods and aims of governments, — have all aided 
 greatly in the growth of genuine peace sentiment, in the 
 organization of peace societies, and in the holding of 
 national and international peace congresses. 
 
 But the immediate cause of the holding of the first Hague 
 Conference was the action of Nicholas II, Czar of Russia. 
 It has seemed very remarkable to the rest of the world, 
 and even to many Russians themselves, that such an im- 
 pulse towards international peace should have come from 
 the world's largest military power, the one, too, which can 
 increase its military strength unrestricted by constitutional 
 and parliamentary checks. But at many times in history 
 "good things have come out of Nazareth"; and there is 
 no sufficient reason to doubt that the present Czar is en- 
 tirely sincere in his desire to promote the world's peace, 
 and to diminish the burden of taxation for military and 
 naval expenditures which presses down with enormously 
 increasing weight upon the shoulders of the people. 
 
 This desire of the Czar found practical expression when 
 General Kuropatkin of the Russian army, M. Witte, Rus- 
 sia's finance minister, and Count Mouravieffy the Russian 
 minister of foreign affairs, were endeavoring in the sum- 
 mer of 1898 to avoid the necessity of replacing an anti- 
 quated kind of artillery by a new and expensive one. The 
 discussion of this question gave rise to the discussion of 
 armaments in general, and by the Czar's orders Count 
 Mouravieff prepared the famous "Rescript" of August 24
 
 ORIGIN 3 
 
 (Russian style, August 12), 1898. This was a written 
 statement as to the great increase in armaments in recent 
 years, their evil results, and the desirability of checking 
 their further growth ; and it proposed that the governments 
 should send representatives to a conference which should 
 "occupy itself with this grave problem."! 
 
 A copy of this statement and proposal was presented by 
 Count MouraviefT to each of the ambassadors and ministers 
 from other countries to Russia at their weekly reception at 
 the Foreign Office in St. Petersburg, and was by them sent 
 to their various governments. Some of these governments, 
 among them that of the United States, promptly accepted 
 the Czar's proposal, but others were indifferent to its ob- 
 ject or skeptical as to its result, and it was not until October 
 24, 1898, that the last acceptance was received. Two 
 months more elapsed, during which time "war and ru- 
 mors of war" almost discouraged the Russian government 
 in its task ; but the sympathy of the public in every Western 
 country had been aroused, and on January n, 1899 (Rus- 
 sian style, December 30, 1898), Count Mouravieff issued a 
 second rescript or circular, suggesting a programme of 
 subjects to be discussed by the conference ; [and, finally, 
 after more correspondence between the governments, an 
 invitation was sent out on April 7 for the conference to 
 assemble May 18 at The Hague. \ 
 
 b. THE CONFERENCE OF 1907 
 
 The first conference in 1899 had met with such great 
 success that it seemed most desirable that another confer- 
 ence should speedily be held to accomplish the work which 
 the first one had left undone. But two terrible wars, the
 
 4 THE TWO HAGUE CONFERENCES 
 
 Anglo-Boer and the Russo-Japanese, burst upon the world 
 and shattered for a time all hope of another Peace Confer- 
 ence between the nations. The first conference, how- 
 ever, had shown what could be done, and peace men every- 
 where were determined that another should be called at the 
 first opportunity. In September, 1904, when the Russo- 
 Japanese War was running its course, the Interparlia- 
 mentary Union was holding its annual meeting in the city 
 of St. Louis, Missouri. This Union is a very influential 
 association, its members being the delegates elected by the 
 people to represent them in the Congress of the United 
 States, the Parliament of Great Britain and Ireland, in all 
 the congresses of the American Republics and (with two 
 exceptions) in all the parliaments of Europe. Its object 
 is to promote the spirit of peace and friendliness among all 
 the lawmakers of the world, and, by holding its meetings 
 in each of the countries in turn, to arouse among the peo- 
 ples themselves a genuine love of international peace. The 
 meeting which it held in 1896 in Buda-Pesth, Hungary, so 
 greatly impressed one of the Czar's ministers, M. Basily, 
 that he at once began to advocate in Russia the reduction 
 of armaments. In this and in various other ways, the 
 Interparliamentary Union helped greatly, though indirectly, 
 to bring about the meeting of the first conference at The 
 Hague. The calling together of the second conference 
 was due directly to its initiative. At its session in St. 
 Louis, in 1904, Mr. Richard Bartholdt, Member of Con- 
 gress from Missouri and founder of the American Group 
 of the Interparliamentary Union, proposed a resolution 
 requesting the governments of all the world to send dele- 
 gates to a second international conference. The Union 
 adopted this resolution unanimously, and sent a deputation
 
 ORIGIN 5 
 
 of two hundred of its members to Washington to request 
 President Roosevelt to convoke the conference. 
 
 The President received the deputation most cordially 
 and promised to comply with their request. In October 
 of 1904, Secretary of State John Hay, by the President's 
 orders, published a circular discussing the work of the pro- 
 posed conference and suggesting The Hague as its place of 
 meeting. But the Russo-Japanese War was still raging, and 
 the great powers did not think that the right time for hold- 
 ing the conference had arrived. When the war had been 
 ended by the Treaty of Portsmouth, New Hampshire, in 
 September, 1905, — a treaty concluded largely through 
 President Roosevelt's aid, — the Czar instructed his am- 
 bassador in Washington to communicate to the President 
 the Czar's desire to convoke a second conference at The 
 Hague, and to inquire if the President would be willing to 
 relinquish the honor of calling the second one to the Czar, 
 who had summoned the first. President Roosevelt ex- 
 pressed himself as delighted with this arrangement, and 
 after the necessary diplomatic correspondence the Russian 
 government issued its invitation to the nations and its 
 programme of topics. This was in April, 1906 ; but as the 
 American Republics had decided to hold the third of their 
 Pan-American Conferences at Rio Janeiro in that year, 
 the Hague Conference was postponed until 1907. In the 
 spring of this year, the Russian government renewed its 
 invitation, and it was finally decided that the conference 
 should assemble on the fifteenth of June at The Hague.
 
 II. PLACE OF MEETING 
 a. THE CONFERENCE OF 1899 
 
 In Count Mouravieff's second circular of January n, 
 1899 (Russian style, December 30, 1898), it was stated that 
 the Czar considered it "advisable that the conference should 
 not sit in the capital of one of the Great Powers, where so 
 many political interests are centered, as this might impede 
 the progress of a work in which all the countries of the uni- 
 verse are equally interested." One month later the invited 
 governments were informed that the Queen of the Nether- 
 lands had expressed her assent to the conference being held 
 in her residence city, The Hague. 1 And it was, accord- 
 ingly, the Netherlands minister of foreign affairs who, 
 accepting Russia's list of invited guests, extended on 
 April 7, 1899, a formal invitation to the governments to 
 send their delegates to meet at The Hague. 
 
 For several reasons, the choice of this city as the meet- 
 ing place of the conference was a happy one. On the 
 eastern coast of the Atlantic Ocean, it was readily acces- 
 sible to the twenty European countries represented in the 
 conference ; while it could be reached from the four Asiatic 
 and two American countries without the necessity of long 
 land journeys being taken after the ocean voyages were 
 
 1 The Hague, strictly speaking, is not the capital of the Kingdom of the 
 Netherlands, although it is the seat of the national legislature, judiciary and 
 executive; but as the Queen resides here during most of the year, it is called 
 the residence city, "De Residentie." 
 
 6
 
 PLACE OF MEETING 7 
 
 accomplished. As its country is one of the smallest, in 
 population and area, it was free from the political objec- 
 tions referred to in the Russian circular ; while its many 
 comforts and conveniences of daily life, its cleanliness, 
 good government, and great beauty made it peculiarly fitted 
 for the accommodation of strangers from many lands. 
 The people of the Netherlands have rightly judged, as 
 their minister of foreign affairs said in his closing speech 
 to the conference, that its sessions will remain forever 
 a bright spot in the history of their country, because they 
 are firmly convinced that it opened a new era in the history 
 of international relations between civilized peoples. 
 
 The Queen, to mark her appreciation of the honor con- 
 ferred upon her country and of the historic significance of 
 the conference, placed at its disposal the most beautiful 
 historical building in the land. This was the far-famed 
 House in the Woods ("Huis ten Bosch") formerly the 
 summer residence of the royal family, situated about one 
 mile from the city in the midst of a park whose noble trees 
 and vistas have no superior in Europe. Here the confer- 
 ence held its sessions in the ballroom, known as the 
 Oranje Zaal, and decorated with mural paintings by some 
 of Holland's best artists. One of these paintings was 
 considered — like the rising sun painted behind George 
 Washington's chair in Independence Hall when the 
 United States Constitution was adopted — to be of good 
 omen ; it was an allegorical representation of the Peace of 
 Westphalia, which put an end to the terrible Thirty Years' 
 War, and pictured Peace entering the Oranje Zaal for the 
 purpose of closing the doors of the Temple of Janus, 
 whence issue, according to the old Roman legend, the 
 "dogs of war."
 
 8 THE TWO HAGUE CONFERENCES 
 
 Some rooms adjoining the Oranje Zaal were also thrown 
 open for the use of the conference committees, and in one 
 of them the Netherlands government served lunch daily 
 for the members. The members lived, of course, in hotels 
 in The Hague and went out to the House in the Woods 
 by carriage, by tram, or on foot. 
 
 b. THE CONFERENCE OF 1907 
 
 When Secretary Hay published President Roosevelt's 
 call for a second conference, in October, 1904, he spoke of 
 the President's desire that the conference should meet at 
 The Hague, and of his "desire and hope that remembrances 
 of The Hague as the cradle of the beneficent work com- 
 menced in 1899 may be revived by the fact that a new con- 
 ference will meet in that historic city." Thus, not only 
 for the sake of The Hague, or of the conference and its 
 members, but in order to strengthen the work of the first 
 conference, it seemed natural and right that the second 
 should meet in the same city. The Czar shared this 
 opinion, and the Queen and people of the Netherlands 
 were more than willing to be the hosts of the conference 
 again. 
 
 But as the delegates to the second conference were to be 
 more than twice as many as attended the first, the Oranje 
 Zaal in the House in the Woods would be too small for 
 their meetings, and it might become inconvenient for so 
 many to make the journey to it. For these reasons the 
 Netherlands government had fitted up for the use of the 
 second conference an old historic building in the heart of 
 the city. This was the Hall of the Knights ("De Ridder- 
 zaal"), a thirteenth century castle, built for the Counts of
 
 PLACE OF MEETING g 
 
 Holland, who used it chiefly during their hunting expedi- 
 tions to the North Sea marshes. Its great banqueting 
 room, where the counts made merry with their knights, 
 was restored in 1900, and has been used annually since 
 1902 for the joint meetings of the Upper and Lower Houses 
 which form the States General of the Netherlands. The. 
 conference used this room for its large meetings, and its 
 various committees found smaller rooms near by. The 
 Hall stands in the "Binnenhof," the old fortress of the 
 city, and in and around it have occurred many historic 
 events in connection with the County of Holland and the 
 Republic and Kingdom of the Netherlands.
 
 III. MEMBERS 
 a. THE CONFERENCE OF 1899 
 
 The question as to which governments should be invited 
 to send representatives to the conference of the nations had 
 considerable political importance in several cases, for in 
 answering it there was danger that an invitation to some 
 small powers which claimed complete sovereignty for 
 themselves would irreparably offend the great powers 
 which claimed rights of sovereignty over them. 
 
 The Russian government answered this delicate question 
 by determining to invite only those governments that were 
 represented by diplomatic agents at St. Petersburg. This 
 general rule was not observed, however, in some notable 
 instances, both in extending the invitation to some powers 
 not represented at the Russian Court (for example, Luxem- 
 burg, Montenegro, and Siam), and in withholding it from 
 some others which were so represented (for example, the 
 South African Republic). The Russian government did 
 not offer any official statement of the reasons for its inclu- 
 sions and exclusions; but it is generally admitted that it 
 exercised its discretion in extending the invitations in a wise 
 and clever manner. 
 
 Twenty-six of the world's fifty-nine governments claim- 
 ing independent sovereignty were represented at the con- 
 ference ; twenty of these were European, four were Asiatic, 
 and two were American. The three European powers
 
 MEMBERS 1 1 
 
 not represented, or invited, were Monaco (a principality, 
 with eight square miles of territory and about 15,000 in- 
 habitants), the Republic of San Marino (with thirty-eight 
 square miles of territory and 11,000 inhabitants), and the 
 Roman Papacy. The Queen of the Netherlands informed 
 the Pope of the proposed conference, and asked for it his 
 sympathy and moral support; and Pope Leo XIII re- 
 plied, expressing his "keen sympathy for its eminently 
 moral and beneficent object." The independent Princi- 
 pality of Montenegro, although invited to send delegates 
 of its own, requested the representatives of Russia to act for 
 it. The Principality of Bulgaria, although it is tributary 
 to the Sultan of Turkey, received Turkey's sanction to send 
 delegates of its own ; but these delegates were required to 
 sit behind the Sultan's delegates and inscribe their names 
 in all official documents after the names of his delegates. 
 
 Of Asia's nine powers claiming independent sovereignty, 
 China, Japan, Persia, and Siam were represented ; the 
 other five, as well as the great populations under the 
 domination of some other power, were not invited. 
 
 Africa sent no representatives from her six powers claim- 
 ing sovereignty, since, for various reasons, none of them 
 were invited to do so. This omission was widely com- 
 mented upon in the case of the South African Republic 
 and the Orange Free State, both of which have since been 
 incorporated in the British Empire. 
 
 Of America's twenty-one republics, only two, the United 
 States and Mexico, sent representatives. Two of the 
 others were invited to do so ; but Brazil replied that it had 
 no permanent army worth mentioning; and it was not 
 publicly stated which of the other republics was invited, 
 or why it declined to be represented.
 
 12 THE TWO HAGUE CONFERENCES 
 
 Although less than half of the world's governments sent 
 delegates to the conference, those that did so controlled the 
 resources and presided over the political destinies of three 
 fourths of the human race. Hence it was rightly called the 
 nearest approach in the world's history to the Parliament 
 of Man, the Federation of the World. 
 
 The delegates numbered just one hundred, some of these 
 being technical or scientific experts, while the majority were 
 diplomatists, statesmen, and publicists. From one to eight 
 delegates were sent by each government, but each delega- 
 tion, large or small, and representing a weak or a strong 
 power, had only one vote. This recognition of the au- 
 tonomy and equality of states is an interesting illustration 
 of state sovereignty and international democracy^ 
 
 As in all international assemblies, however, in spite of 
 the theory of international equality, the influence of the 
 great powers and of great personalities was a striking fact. 
 In arranging the seats of the delegates, the alphabetical 
 list of the countries, according to their names in the French 
 language, was followed ; and this arrangement brought all 
 of the great powers to the front, — the Russians, as initia- 
 tors of the conference, being seated around the president, 
 who was also a Russian. The French name for the United 
 States {Etats Unis d'Amerique) would have placed its rep- 
 resentatives seventh on the list; but either because this 
 arrangement would have seated its delegates next to those 
 of Spain (Espagne), with whom it had recently been at war, 
 or because of its commanding position in the New World, 
 it was classed as Amerique, second on the list, and just 
 after Germany (Allemagne). The United States and Great 
 Britain did a great deal of work together in the conference ; 
 and the dual alliance of France and Russia, and the triple
 
 MEMBERS 
 
 13 
 
 alliance of Germany, Austria, and Italy, also made their 
 influence felt in various phases of its work. 
 
 Among the individuals who were most prominent and 
 influential in the conference may be mentioned : Andrew 
 D. White and Frederick W. Holls, of the United States; 
 Sir Julian Pauncefote, of Great Britain ; Leon Bourgeois 
 and Baron d'Estournelles de Constant, of France ; Count 
 Miinster and Professor Zorn, of Germany; Auguste 
 Beernaert and Chevalier Descamps, of Belgium; Count 
 Nigra, of Italy ; Professor de Martens and Baron de Staal, 
 of Russia; A. P. C. van Karnebeek and T. M. C. Asser, 
 of the Netherlands; and M. Eyschen, of Luxemburg. 
 It may seem invidious to mention these fifteen individuals 
 in a.body of one hundred, so many more of whom were men 
 of remarkable abilities; but circumstances, as well as 
 abilities, united to give to these men the opportunity of 
 exerting a definite and powerful influence on the confer- 
 ence, as may be seen from the account of its work. 
 
 b. THE CONFERENCE OF 1907 
 
 The absence, from the first conference, of delegates from 
 the republics of South and Central America was regretted 
 for various reasons by the United States and Mexico, upon 
 whom devolved the duty of defending the peculiar interests 
 of the New World ; while the Latin Republics themselves 
 soon found that questions in which they were gravely inter- 
 ested had been discussed at the first conference, and 
 were to be discussed at the second. Partly because of 
 these facts, and partly in recognition of President Roose- 
 velt's aid in convoking the second conference, as well as 
 because of the desirability that all independent nations
 
 14 
 
 THE TWO HAGUE CONFERENCES 
 
 should subscribe to the work of 1899 and participate in the 
 discussions of 1907, it was decided that to this conference 
 all of the Latin Republics should be invited. This in- 
 creased the American governments at the conference from 
 two to nineteen. The other two, Honduras and Costa 
 Rica, were also invited, and they appointed delegates who 
 came to The Hague but did not take their seats. Two 
 seats were reserved for the delegates from Honduras, but 
 apparently because of the difficulty of deciding at the time 
 that the appointees represented a de facto government, its 
 delegates were not seated ; while Costa Rica was not named 
 on the official list of the countries represented, and no seat 
 was reserved for its delegate. 
 
 The large addition to the American ranks had veryjm- 
 portant consequences, as will be seen, to the work of the 
 second conference ; and at its second session the delegates 
 of the Latin Republics of the New World gave in their ad- 
 hesion to the acts of the Conference of 1899. 
 
 Africa remained unrepresented, as before ; while two of 
 its governments, claiming independent sovereignty in 1899, 
 had been replaced by that of Great Britain. 
 
 Asia was represented by the four governments of 1899; 
 and a determined but unsuccessful effort for admission 
 on the part of Corea was followed by its practical absorp- 
 tion by Japan. 
 
 The twenty governments of Europe were represented as 
 before, with the addition of Norway, which had recently 
 separated wholly from Sweden. Montenegro followed its 
 precedent of 1899 by requesting Russia's representatives 
 to act for it ; but Bulgaria, again permitted by Turkey to 
 send delegates, was ranked in seats and signatures inde- 
 pendently of her suzerain.
 
 MEMBERS 15 
 
 It is seen, then, that of the world's fifty-seven powers 
 claiming sovereignty in 1907, forty-four sent delegates to 
 the conference; and that a still larger proportion of its 
 peoples and resources were represented in it. Thus it 
 was believed to mark another long stride towards the "Par- 
 liament of Man" dreamed of by the poets and prophesied 
 by the seers. 
 
 With the number of countries represented nearly doubled, 
 the number of delegates was more than doubled, being in 
 the second conference two hundred and fifty-six. The 
 number sent by each country varied from one to fifteen, 
 but as before each delegation had only one vote. The seats 
 were again arranged in alphabetical order according to 
 the French names of the countries, and the United States 
 was again ranked as Amerique. The grouping of the seats 
 was different in several of the plenary sessions, but each 
 time the alphabet favored the large powers by bringing 
 their delegates to the front. And it was observed with in- 
 terest that at the first and second plenary sessions the 
 Americans and Spaniards, and the Russians and Japanese, 
 sat side by side with only a narrow aisle between. At the 
 third session the Americans and Germans sat on either side 
 of the president, facing the other delegates; and at the 
 later sessions the Germans, Americans, and British occu- 
 pied the first rows of seats, — still in alphabetical order. 
 
 Among the leaders of the conference should be men- 
 tioned first Joseph H. Choate and General Horace Porter, 
 of the United States; Baron Marschall von Bieberstein, of 
 Germany; Sir Edward Fry and Captain C. L. Ottley, of 
 Great Britain; Dr. Drago, of Argentina; M. Beernaert, 
 of Belgium; Ruy Barbosa, of Brazil; Leon Bourgeois, 
 Baron d'Estournelles de Constant and Professor Renault,
 
 1 6 THE TWO HAGUE CONFERENCES 
 
 of France; Count Torniclli, of Italy; Francis Hagerup, 
 of Norway ; General den Beer Poortugael, of Holland ; 
 Marquis de Soveral, of Portugal ; and Professor de Mar- 
 tens and M. Nelidow, of Russia. 1 
 
 1 These names are mentioned, not in order of importance, but in the alpha- 
 betical order of the countries represented.
 
 IV. FESTIVITIES AND CEREMONIES 
 a. THE CONFERENCE OF 1899 
 
 The importance of hospitality in private and public life 
 is a matter of common observation and of historic record. 
 It played its part, too, in the conferences at The Hague. 
 One of the delegates to the first conference remarked : 
 
 "Do you want to know a secret by means of which we triumphed 
 over many difficulties during this conference? In our delegation, 
 when we foresaw some cloud on the horizon, we invited to dinner those 
 whom we thought most likely to be opposed to what we considered the 
 best solution of the problem, and, in friendly talks around the table, 
 difficulties were smoothed away which would have been insurmount- 
 able if their disposition had been left to a committee or a commis- 
 sion." 
 
 This secret was shared by most of the delegations, and 
 dinners and lunches were given and received, not only for 
 the purpose of smoothing away the difficulties of the con- 
 ference itself, but to create or to strengthen the diplomatic 
 ties of international alliances. 
 
 The official society of The Hague vied with the visiting 
 strangers' hospitality in giving receptions, balls, and ban- 
 quets. The city of The Hague gave a concert ; Haarlem, 
 a great floral and equestrian fete ; Schevcningen, a concert 
 and ball ; the government of the Netherlands, besides serv- 
 ing a daily luncheon to the delegates at the House in the 
 Woods, gave in their honor a musical and artistic festival, 
 
 *7
 
 18 THE TWO HAGUE CONFERENCES 
 
 the climax of which was a series of national dances illus- 
 trating the costumes of the various provinces ; the Queen 
 and Queen Mother gave a soiree at the Palace in The Hague 
 and a state dinner at the Palace in Amsterdam. 
 
 The most interesting, historically, of the unofhcfal cere- 
 monies of the conference was the celebration of the Fourth 
 of July by the American delegates, who invited the members 
 of the conference to be their guests on that occasion at 
 Delft. Here, in the Great Church, Ambassador White, in 
 the name of the United States, placed a silver wreath upon 
 the tomb of Hugo Grotius, the founder of International 
 Law, and made a noteworthy address. Other short but 
 impressive addresses were made by Seth Low, of New 
 York, and by eminent jurists of the Netherlands ; and the 
 ceremonies in the church were followed by a luncheon 
 given by the American delegates to their three hundred and 
 thirty guests in the Town Hall. 
 
 b. THE CONFERENCE OF 1907 
 
 The second conference attached quite as much impor- 
 tance as the first to social amenities. The South American 
 delegations, in particular, vied with each other, and with cer- 
 tain delegations of the Old World, in proffering hospitality. 
 One of the most magnificent and largest of all the recep- 
 tions was given by the American minister and delegate, 
 Dr. David J. Hill, in the Hotel des Indes, on the Fourth of 
 July. The Netherlands government, although it did not 
 attempt to invite the many delegates to a daily luncheon 
 as in 1899, did all that it could to promote the comfort and 
 pleasure of its guests during their prolonged stay through- 
 out an exceptionally cool summer.
 
 FESTIVITIES AND CEREMONIES 19 
 
 The Queen received all the delegates at the Palace in 
 The Hague, and gave a state dinner to the delegates in 
 chief at the Palace in Amsterdam. The city of The Hague 
 gave a musical and artistic festival, whose chief feature was 
 the national dances in provincial costumes. The Nether- 
 lands government gave an excursion on the New Waterway, 
 the new and superb entrance from the North Sea to Rot- 
 terdam ; in the course of this excursion the small towns along 
 the way were decorated with the flags of all nations and re- 
 ceived the guests with speeches from their burgomasters, the 
 music of orchestras, and the singing of national songs by 
 hundreds of school children ; an international yacht race 
 was held on the Maas River as the excursion boats steamed 
 along ; all the many large ship canals of Rotterdam were 
 traversed ; and a garden party was given at the end of the 
 trip in the park in Rotterdam. 
 
 The most imposing and important public ceremony of 
 the second conference was the laying of the "first stone" 
 of the Palace of Peace. This occurred on the afternoon of 
 July 30, in the presence of all the delegates and many other 
 invited guests. Andrew Carnegie, a distinguished citizen 
 of the United States, had presented to the Netherlands 
 government the sum of one million and a quarter of dollars 
 for the erection of a building suitable for the sessions and for 
 the library of the International Court of Arbitration created 
 by the first conference ; and to this building popular fancy 
 and the logic of events have already affixed the name of the 
 Palace of Peace. The Netherlands government provided 
 a fine site for the building at the point where The Hague 
 is entered by the great tree-lined avenue known as the Old 
 Scheveningen Way; and the eminent Netherlands stales- 
 man, Jonkheer van Karnebeek, chairman of the building
 
 20 THE TWO HAGUE CONFERENCES 
 
 committee, delivered the chief address when the "first 
 stone" was laid. The president of the conference, M. 
 Nelidow, of Russia, performed the ceremony of laying the 
 stone and also delivered a significant address. At one of 
 the last plenary sessions of the conference, Baron d'Es- 
 tournelles, of France, offered a resolution expressive of the 
 desire "that each government represented at The Hague 
 should contribute to the erection of the Peace Palace by 
 sending, after consultation with the architect, materials 
 of construction and ornamentation, representing the 
 purest example of its national production, so that this 
 Palace, an expression of universal good will and hope, 
 may be built of the very substance of all countries." 
 The Baron presented this resolution in a short but elo- 
 quent speech, which was greeted with great applause, 
 and the resolution was adopted by acclamation.
 
 V. ORGANIZED PUBLIC OPINION 
 a. THE CONFERENCE OF 1899 
 
 A programme of topics for discussion had been agreed 
 upon by the governments before the conference met, and 
 each delegation, of course, had its specific instructions from 
 its own government. But, although a strenuous effort 
 was made at first to keep all reports of the debates secret 
 from the public, it was inevitable that enterprising journal- 
 ists should discover what was being said and done and 
 should publish the facts broadcast in the daily and weekly 
 newspapers of the world; and it was equally inevitable 
 that the great, incalculable force of the world's public opin- 
 ion should beat upon the conferences and their members, 
 and make its influence directly and indirectly felt. 
 
 The first conference, at its first session, passed a reso- 
 lution declaring all meetings of the conference and its 
 committees to be absolutely secret ; and so far was this 
 carried that a very few invited guests were admitted as 
 spectators only on the opening and closing days, while 
 during all the other sessions of both conference and com- 
 mittees all outsiders of every kind were excluded, and visi- 
 tors were not even permitted to inspect the Palace. Not 
 only were outsiders thus debarred from securing and pub- 
 lishing any account of the proceedings, but the conference 
 itself made inadequate provision for recording its transac- 
 tions. There was not a single stenographer among its
 
 22 THE TWO HAGUE CONFERENCES 
 
 secretaries, and the minutes of each meeting were not ver- 
 batim reports, nor were any copies of them, nor any docu- 
 ments connected with the proceedings, permitted to be pub- 
 lished. This secrecy was defended by some of the leaders 
 of the conference on the ground that only thus could com- 
 plete freedom of speech and deliberation be secured. On 
 the other hand, the journalists denounced it as an absurd 
 superstition, as an anachronism dating from the time 
 when the only international conferences were gatherings 
 of royal conspirators plotting the theft of their neighbors' 
 lands; and they urged England's and America's example 
 to show that only where complete publicity accompanies 
 public action can genuine freedom of speech or responsi- 
 bility exist. Acting on this belief, the journalists present 
 at The Hague brought every possible pressure to bear upon 
 individual delegates and procured in this way information 
 that was meager, half true, or wholly false. One of them 
 caricatured so unmercifully an alleged speech of Dr. Zorn, 
 one of the German delegates, that the German govern- 
 ment, following Bismarck's precedent at the Congress of 
 Berlin in 1878, made a formal demand that some official 
 account of the proceedings should be given to the press. 
 Accordingly, at its second session, May 20, the conference 
 decided, in the words of its president, "to take into con- 
 sideration the legitimate curiosity of the public attentive 
 to our labors," and authorized the president to communi- 
 cate through the secretaries to the press a summary of the 
 proceedings of each session. These brief summaries were 
 largely supplemented by voluntary statements from indi- 
 vidual delegates, most of whom came to see that secrecy 
 was impossible and publicity desirable. Indeed, the 
 majority of the delegates themselves — and this was true
 
 ORGANIZED PUBLIC OPINION 23 
 
 especially of the second conference — learned of the work 
 of the small committees only from the information se- 
 cured through secret channels by two or three enter- 
 prising journalists. And the great world outside would 
 have known but little and probably cared far less than it 
 did for the work of the conference, if it had succeeded in 
 hiding its light under a bushel in the way in which it at 
 first tried to do. While the conference itself would very 
 probably have failed in its most important work, the pro- 
 motion of arbitration, had it not been fortified at a critical 
 time by the power of public opinion. 
 
 The agencies through which this power of public opinion 
 was organized and brought to bear upon the conferences 
 were memorials and deputations in large numbers and of 
 many kinds. Cablegrams, letters, addresses, even pam- 
 phlets and books, were showered upon the conference, or 
 upon one or other of its delegations, by individuals, socie- 
 ties and churches. These contained sympathy, advice, 
 exhortation, command ; and a few of them outlined definite 
 plans for an arbitration tribunal which were of great service 
 to the committee in charge of that subject. The chief value 
 of these multitudinous communications, however, was to 
 convince the conference that the peoples of the civilized 
 world hoped and demanded that the conference should 
 accomplish something definite and fruitful for the preser- 
 vation of the world's peace. 
 
 The governments behind the conference came to share 
 this conviction, and it is related by Ambassador White that 
 the German Chancellor, Von Hohenlohe, was largely in- 
 fluenced by evidences ' of the popular demand for an 
 
 1 Dr. White mentions particularly the call of the Protestant Episcopal 
 Bishop of Texas for prayers throughout the State in its behalf.
 
 24 
 
 THE TWO HAGUE CONFERENCES 
 
 arbitration court to change the German delegation's in- 
 structions in regard to it from opposition to support. 
 
 In addition to "the written word" came many "living 
 epistles" in the form of delegates or deputations who 
 sought to address the conference or its various delegations 
 on a great variety of subjects. Especially prominent and 
 persistent among these were the representatives of the 
 world's weaker nationalities, such as the Poles, Finns, 
 Armenians, Macedonians, and Young Turks, who appealed 
 to the conference to aid them in realizing their aspirations 
 towards independence or to alleviate the miseries of their 
 daily life. The argument which they brought to the Peace 
 Conference was that permanent peace could be secured for 
 the world only after justice had been procured for them. 
 But however much the delegates to the conference might 
 sympathize with such aspirations and miseries, the con- 
 ference itself rightly decided that it had no jurisdiction over 
 such matters. Hence, these deputations, disappointed and 
 embittered, returned to their countries, there to spread the 
 belief that the conference was a mockery and a farce, and 
 to proceed with increased vigor to further the gospel of revo- 
 lution and violence as the only hope of their salvation. 
 
 b. THE CONFERENCE OF 1907 
 
 Baroness von Suttner, the author of " Lay down your 
 Arms," who was present at The Hague during the sessions 
 of both conferences, engaged in writing of them for the 
 public press, said of the members of the second conference : 
 
 "That which impresses me most is their respectful obedience to the 
 desires of public opinion. If they oppose a reform, it is only because 
 they are persuaded that public opinion is indifferent to it. If public
 
 ORGANIZED PUBLIC OPINION 25 
 
 opinion should express itself with appropriate vigor, there is 
 nothing the conference would not try to do. The fact is that the 
 delegates are only the hands on a watch; their movements are gov- 
 erned by a great invisible spring. This spring is public opinion : not 
 the private opinion of individuals ; but public opinion — opinion ex- 
 pressed, organized, made palpable and even disagreeable to those who 
 oppose it. That is the master, and even the god, of the confer- 
 ence." 
 
 Within the conference, too, this thought was expressed 
 many times, perhaps most impressively by M. Beernaert, of 
 Belgium, one of the most influential leaders in both con- 
 ferences. In one of his addresses, M. Beernaert reminded 
 his colleagues of their responsibility to public opinion, 
 "that redoubtable sovereign," and said: "Public opinion 
 is listening to and watching us; and to-day there is no 
 assembly which must not sit with windows opened, lis- 
 tening to the voices from outside." 
 
 Animated by this belief, the second conference made but 
 feeble and unsuccessful efforts to keep its proceedings 
 secret. From one to two hundred invited guests were 
 present at all of the plenary sessions; and although the 
 meetings of its commissions were attended by none but 
 members, the conference at its second session authorized 
 the president and secretariat to publish information as to 
 their work. This was accordingly done by the general 
 secretary of the editing committee after every meeting of a 
 commission or subcommission ; and as at the first con- 
 ference, no sooner were documents printed and in the 
 hands of the delegates than they found their way to the 
 daily press. At one of the plenary sessions, about one 
 month after the conference commenced, the president said 
 that a great power had complained of the publication of 
 certain documents, and urged the delegates to keep these
 
 26 THE TWO HAGUE CONFERENCES 
 
 secret ; but the delegates did not respond completely to the 
 president's plea and continued to give the documents to 
 newspaper men as before. 
 
 The journalists at The Hague, proudly calling themselves 
 "the ambassadors of the peoples" and "the fourth estate 
 of the conference," did their best to learn the facts and to 
 publish them truthfully as well as fully. But it must be 
 confessed that many of the newspapers unrepresented at 
 The Hague treated the second conference with even more 
 ridicule and misrepresentation than they had done the 
 first. The great majority of the newspapers and journals, 
 however, as well as the world of public opinion were pro- 
 foundly interested in and hopeful of the conference, and 
 did their best to help it to arrive at beneficial results. Thou- 
 sands of addresses and dozens of deputations evinced this 
 interest and sought to realize the hopes which they ex- 
 pressed. 
 
 Among the most significant deputations and addresses 
 may be mentioned those from : the International Council 
 of Women, bearing the signatures of two million women 
 living in twenty different countries; the Universal Alli- 
 ance of Women for Peace by Education, representing nearly 
 five million women of all civilized lands; English, Ameri- 
 can, and European churches, bearing the signatures of sixty 
 archbishops and bishops and more than a hundred official 
 representatives of non-episcopal churches; the Inter- 
 national Federation of Students; the students of the 
 Netherlands, — a branch of "Corda Fratres"; twenty- 
 three colleges in the Central West of the United States, 
 representing twenty-seven thousand professors and stu- 
 dents ; a petition for arbitration bearing two and a quarter 
 million signatures, collected through the efforts of a single
 
 ORGANIZED PUBLIC OPINION 27 
 
 Boston teacher and presented by her to the president of 
 the conference on the Fourth of July; two thousand 
 students of the Summer School at Knoxville, Tennessee, 
 who also cabled their address to the conference on the 
 Fourth of July; fifteen thousand citizens of Sweden, meet- 
 ing separately in their various localities ; the International 
 Bureau of Peace, with its headquarters in Berne; many 
 peace societies of the United States, Great Britain, France, 
 Portugal, San Marino, and Japan; and two very note- 
 worthy peace congresses, — that of April, 1907, in New 
 York City, and that of September, in Munich, Germany. 
 
 The Interparliamentary Union was an effective factor in 
 the second conference as in the first, through the presence 
 and influence of presidents and members of its various 
 Groups, and especially through the plan of obligatory arbi- 
 tration which it prepared, which the Marquis de Soveral. 
 of Portugal, presented to the conference, and which became 
 the basis of the agreement adopted by the conference for 
 obligatory arbitration. 
 
 The "oppressed nationalities" of the world made their 
 voices heard at the second conference also, and with the 
 same result as at the first, a reply, namely, that the con- 
 ference had no jurisdiction over the internal affairs of 
 the various governments. Among these deputations and 
 addresses were those from the Albanians, Armenians, Bos- 
 nians, Coreans, Georgians, and Herzegovinians ; and indi- 
 vidual appeals were received from Boers, Egyptians, and 
 Irishmen. The Zionists', Socialists', and Anarchists' inter- 
 national congresses also met in or near The Hague, dur- 
 ing the sessions of the conference, and each of these had 
 its word of appeal, reproach, or denunciation for the work 
 of the Conference of Peace.
 
 VI. ORGANIZATION 
 a. THE CONFERENCE OF 1899 
 
 Although the president of the conference, Baron de Staal, 
 of Russia, was entirely inexperienced in parliamentary 
 government and law, the leading delegates from Western 
 Europe, Great Britain, and the United States were remark- 
 ably well versed in their principles and practice ; and under 
 their guidance an excellent organization was effected. 
 The first delegates from the various governments formed a 
 kind of "cabinet" of advisers to the president, and within 
 this cabinet there existed a kind of "steering committee," 
 composed of the first delegates from the seven "great 
 powers" ; to these were added later the other leading spirits 
 of the conference, and although they acted entirely un- 
 officially their influence was real and effective. 
 
 In their first conclave on the day before the conference 
 formally opened — and the conference ratified their deci- 
 sions the next day — it was decided that on the basis of 
 the three main topics proposed for discussion in the Rus- 
 sian Programme the conference should be divided into 
 three main "commissions." These were: I Commission, 
 in charge of the question of armaments and the use of 
 new kinds of implements of warfare ; ! II Commission, 
 in charge of the laws and customs of warfare ; 2 III Com- 
 
 1 Articles i to 4 of the Russian Programme ; see later, page 45. 
 
 2 Articles 5 to 7 of the Russian Programme. 
 
 28
 
 ORGANIZATION 29 
 
 mission, in charge of arbitration and other means of pre- 
 venting warfare between nations. 1 
 
 The I and II Commissions were each subdivided into 
 two subcommissions dealing with military and with naval 
 matters respectively; and the III Commission appointed 
 a single "committee of examination," to report upon the 
 various plans of arbitration submitted to it. Thus, the 
 various organs of the conference were as follows : the Con- 
 ference itself, which gave formal ratification to the pro- 
 posals adopted by the commissions; the I, II, and III 
 Commissions, which considered the reports of their sub- 
 commissions; and the five subcommissions, which did 
 the difficult, constructive work of the conference. In 
 addition to these bodies there were also the Commission 
 on Petitions, in charge of the various memorials sent to 
 the conference, and the Commission on Editing, appointed 
 near the end of the conference to edit the "conventions," 
 or treaties agreed upon. 
 
 The various subdivisions of the conference having been 
 determined, the method of procedure was very simple. In 
 each subcommission 'the Russian members would explain 
 the proposal of their government on the point in question ; 
 the subcommission, in its subsequent meetings, would 
 reject, accept, or amend these proposals; a "reporter" 
 appointed at the first session of the subcommission would 
 then present his report of the decisions made by the sub- 
 commission, which would accept or amend his report; 
 this amended report would then be discussed in a reunion 
 of the commission concerned ; and the commission's final 
 report would be presented in a plenary session of the con- 
 ference itself which would order its incorporation in the 
 
 1 Article 8 of the Russian Programme.
 
 30 THE TWO HAGUE CONFERENCES 
 
 definitive agreements. But even after having run the 
 gauntlet of the subcommission, commission, and confer- 
 ence, some of the delegations would not accept in their 
 governments' names some of the proposals agreed upon ; 
 and some of the proposals recommended by delegations 
 to their governments have not yet been adopted by 
 them. 1 
 
 Each state had the right of being represented on each of 
 the commissions, and it was left to the delegations, or the 
 first delegates, to decide which of their members should be- 
 come members of the various commissions ; but in the com- 
 missions, as in the conference, each state had only one vote. 
 The membership of the first three commissions was 50, 
 67, and 59, respectively; and the countries were repre- 
 sented on them by from one to six members each, Russia 
 having, in all three cases, the largest number. The Com- 
 mission on Petitions numbered fifteen members, and that 
 on Editing four. 
 
 The distribution of the offices was both an important and 
 a delicate task; but the choice of the really important offi- 
 cials proved to have been most wise and successful, while 
 the creation of a number of honorary offices prevented in- 
 ternational jealousies. The important offices were those 
 of the president of the conference, and the three presi- 
 dents of the first three commissions. The honorary offices 
 were those of the honorary president and vice president 
 of the conference, the two adjunct and seven honorary 
 presidents of the commissions, and the sixteen vice presi- 
 dents 2 of the subcommissions. 
 
 1 This fact will be adverted to again in the XIV section of this book, 
 entitled, "A Summary of Results." 
 
 2 Six of these were really vice presidents of the III Commission, which 
 did not divide into subcommissions.
 
 ORGANIZATION 3 1 
 
 The initiator of the conference having been Russia, its 
 first delegate, Baron de Staal, was made president of the 
 conference; and three eminent European statesmen and 
 jurists, Beernaert of Belgium, De Martens of Russia, and 
 Bourgeois of France, were made presidents of the first 
 three commissions. Upon these four men and the ten 
 secretaries 1 devolved the administrative work of the con- 
 ference ; but in all important matters they were advised by 
 the "cabinet" and the "steering committee" mentioned 
 above. 
 
 The twenty-seven honorary offices were distributed 
 among thirteen of the twenty-six countries represented. 
 The Netherlands, as the host of the conference, was given 
 the first two honorary offices, its minister of foreign affairs 
 being appointed honorary president, and its first delegate 
 vice president, of the conference. The Netherlands re- 
 ceived two more of the honorary offices, as did also Austria 
 and Turkey; Germany received four; Great Britain, 
 France, and Italy, three each; six other countries 2 received 
 one each. 
 
 b. THE CONFERENCE OF 1907 
 
 The second conference followed very closely the wise 
 precedents set by the first in regard to organization. 
 A "cabinet" of first delegates was not again necessary, 
 and, with forty-four governments represented, such a cabi- 
 net would have proved unwieldy. But an "inner circle," 
 or "steering committee," of a comparatively few leading 
 
 1 The secretaries were not delegates to the conference, but were appointed 
 from four different countries: six from the Netherlands, two from France, one 
 from Russia, and one from Belgium. 
 
 2 The United States, Spain, Portugal, Sweden and Norway, Denmark, 
 and Switzerland.
 
 32 THE TWO HAGUE CONFERENCES 
 
 spirits, chiefly delegates from the " great powers," made 
 their preponderating influence felt at critical times. 
 
 This conference, too, was divided into commissions, 
 subcommissions, and committees of examination. The 
 commissions were six in number, namely: Commissions 
 I, II, III, and IV, the Commission on Petitions, and the 
 Commission on Editing. The I Commission, usually called 
 the Arbitration Commission, was divided into two sub- 
 commissions : the first, with 103 members, having to con- 
 sider the various plans of arbitration and prevention of 
 warfare; the second, with 89 members, having to do with 
 maritime prizes. 
 
 The II Commission, usually called the Commission of 
 War on Land, was divided into two subcommissions : the 
 first, with 79 members, dealing with the laws and customs 
 of war on land ; the second, with 82 members, having to 
 consider the rights and duties of neutrals on land and 
 the declaration of war. 
 
 The III Commission, usually called the Commission of 
 War on Sea, was divided into two subcommissions: the 
 first, with 73 members, having to consider the bombard- 
 ment of ports and the use of submarine mines and torpe- 
 does; the second, with 82 members, having to do with the 
 conduct of belligerent ships in neutral ports, and with the 
 application of the Geneva Convention to maritime warfare. 
 
 The IV Commission, usually called the Commission on 
 Maritime Law, was not subdivided, but its 114 members 
 discussed together a number of questions concerning mari- 
 time warfare which did not come within the province of 
 the III Commission. 
 
 The Commission on Petitions, composed of five members, 
 was appointed at the second plenary session of the confer-
 
 ORGANIZATION 33 
 
 ence, on the 19th of June, and presented two reports, one 
 on the 20th of July, and one on the 17th of October. 
 
 The Commission on Editing, composed of twenty-nine 
 members, was not appointed until the 20th of July, and 
 its single report was presented to the conference at the 
 ninth and tenth plenary sessions. 
 
 The procedure was the same in the second conference as 
 in the first. The Russian propositions would be presented, 
 explained, and discussed in a subcommission ; sometimes 
 a special "committee of examination" would be appointed 
 by a subcommission to scrutinize and report upon proposi- 
 tions submitted by various delegations ; then the commit- 
 tee's report, or the report of the subcommission's " reporter," 
 would be discussed and amended; the commission would 
 next pass upon its subcommission's decisions; and finally 
 the conference would formally approve the recommenda- 
 tions of the commission. In this procedure the commis- 
 sions' presidents, reporters, and committees of examination 
 fulfilled an important service in crystallizing the long dis- 
 cussions of the subcommissions and commissions, and in 
 formulating results for final action. 
 
 In the distribution of offices, Russia was again given 
 the presidency of the conference, her first delegate, M. 
 Nelidow, being chosen for this honor. The Netherlands 
 minister of foreign affairs and its first delegate were again 
 made honorary president and vice president of the confer- 
 ence. The presidencies of the first four commissions went 
 to Bourgeois, 1 of France; Beernaert, 2 of Belgium; Tor- 
 
 1 M. Bourgeois had been the president of the first conference's III Com- 
 mission, that on arbitration, which had become the I Commission of the 
 second conference. 
 
 2 M. Beernaert had been the president of the first conference's I Com- 
 mission, that on armaments, which topic was not assigned to a separate 
 commission by the second conference.
 
 34. THE TWO HAGUE CONFERENCES 
 
 nielli, of Italy; and Martens, 1 of Russia. In addition to 
 these four presidents of commissions, all of whom presided 
 over one or two subcommissions, there were two other 
 men, Asser of the Netherlands and Hagerup of Norway, 
 who presided over two subcommissions. 
 
 Upon the seven active presidents and the twenty-four 
 secretaries 2 devolved the administrative labors of the con- 
 ference, but as in the first conference they were advised in 
 all important matters by the "inner circle" of leading 
 delegates. 
 
 In addition to the honorary offices of honorary presi- 
 dent and vice president of the conference, which went to 
 the Netherlands, there were twenty-nine honorary, ad- 
 junct, and vice presidencies, which were distributed 
 among twenty-three of the forty-four countries represented. 
 Of the eleven honorary and two adjunct presidencies, the 
 United States and Austria received two each, and nine 
 other countries 3 one each. Of the sixteen vice presiden- 
 cies, four went to four of the above-named countries, 4 
 and the rest to twelve others. 5 
 
 1 M. de Martens had been president of the first conference's II Commis- 
 sion, that on the laws and customs of warfare, which topic was assigned by 
 the second conference to its II, III, and IV Commissions. 
 
 2 The secretaries were not members of the conference, but were appointed 
 from different countries: ten from the Netherlands, four from Russia, three 
 from France, two from Belgium, and one each from Roumania, the United 
 States, Spain, Great Britain, and Panama. 
 
 3 These nine were: Great Britain, Germany, Italy, Spain, Portugal, 
 Japan, China, Turkey, and Brazil. 
 
 4 Great Britain, Germany, Italy, and Austria. 
 
 5 France, Denmark, Sweden, Norway, Switzerland, Greece, Roumania, 
 Servia, Persia, Mexico, Argentina, and Chili.
 
 * 
 
 VII. MEETINGS 
 I 
 
 a. THE CONFERENCE OF 1899 
 
 The meetings were of three kinds, corresponding to the 
 three kinds of assemblies. The conference held "plenary 
 sessions," the commissions held "reunions," and the sub- 
 commissions and committees held "meetings." 
 
 The plenary sessions of the first conference were ten in 
 number, and were held on the following dates: May 18, 
 20, and 23; June 20; July 5, 21, 25, 27, 28, and 29. Seven 
 of these were of a chiefly formal character and may be 
 briefly alluded to; the first, second, and tenth sessions 
 require a somewhat fuller treatment. 
 
 At the third session, the members of the first three com- 
 missions were announced, the conference having approved 
 of creating these commissions at its second session on the 
 20th of May, and the members having been assigned 
 to them during the two subsequent days. At the fourth 
 session, the report of the II Commission on the extension 
 of the Geneva Convention to naval warfare was adopted, 
 and the Commission on Editing was appointed. At the 
 fifth session, the report of the II Commission on the 
 laws and customs of war was adopted, and the Ameri- 
 can delegation's propositions concerning the immunity of 
 private property on the high seas in time of war were re- 
 ferred to a future conference. At the sixth session, the 
 report of the I Commission on armaments and on the 
 
 35
 
 36 THE TWO HAGUE CONFERENCES 
 
 employment of novel instruments of warfare was adopted. 
 At the seventh session, the report of the III Commission 
 on the peaceful adjustment of international differences was 
 adopted, subject to the declaration of the United States 
 in regard to the Monroe Doctrine. The eighth and ninth 
 sessions were devoted to a discussion of the Final Act, and 
 to the placing upon record of various formal declarations. 
 
 The first session was held upon the Czar's birthday, 
 May 1 8, in the afternoon. In the morning of that day, the 
 Russian delegates attended high mass in honor of their em- 
 peror's birthday. This was the only religious ceremony 
 even remotely connected with either conference ; and even 
 it was criticised as being out of place in connection with 
 an assembly whose members were devotees of so many 
 different religions. 
 
 At two o'clock in the afternoon, in the Orange Hall of 
 the House in the Woods, the conference was called to order 
 by the Netherlands minister of foreign affairs, M. de Beau- 
 fort. In the course of his address, M. de Beaufort made 
 this noteworthy prediction : " The day of the meeting of 
 this conference will be, without contradiction, one of the 
 days which will mark the history of the century about to 
 close." After welcoming the conference in the name of the 
 Queen of the Netherlands, and commending the Czar for 
 convoking an assembly with "the mission of seeking the 
 means of putting a limit upon increasing armaments and of 
 preventing calamities which threaten the whole world," 
 M. de Beaufort proposed that a telegram of congratulations 
 be sent to the Czar, and that Russia's first delegate be 
 elected president of the conference. Both of these pro- 
 posals were unanimously accepted, and M. de Staal made 
 a short address of thanks for the honor conferred upon him,
 
 MEETINGS 
 
 37 
 
 and of appreciation of " the historic soil of the Netherlands," 
 "the cradle of the science of international law," in which, 
 through the hospitality of the Queen, they had come to- 
 gether. At the suggestion of M. de Staal, a telegram of 
 greeting was then sent to the Queen; the two honorary 
 officers and the secretaries of the conference were ap- 
 pointed ; a motion for secret sessions was passed ; and the 
 first meeting of the historic assembly came to an end, after 
 a duration of one half hour. 
 
 At the second plenary session, May 20, two telegrams 
 of thanks and good wishes from the Queen and the Czar 
 were read, the creation of the first three commissions was 
 approved, and M. de Staal made his formal presidential 
 address. Stating the principal aim of the conference to 
 be that of seeking "the most effective means of assuring to 
 all nations the benefits of a real and durable peace," M. 
 de Staal noted the fact that " the instinct of the peoples, 
 anticipating the decision taken on this point by the gov- 
 ernments, has given to our assembly the name of Peace 
 Conference." "The Peace Conference," he said, "must 
 not fail in the duty which devolves upon it ; there must 
 result from its deliberations something tangible, something 
 which all mankind confidently expects. The eagerness 
 which all the powers have shown in accepting the propo- 
 sition contained in the Russian circulars is the most 
 eloquent testimony of the unanimity accorded to ideas of 
 peace. . . . The nations have an ardent desire for peace, 
 and we owe it to humanity, we owe it to the governments 
 which have confided their powers to us here and which 
 have in charge the welfare of their people, we owe it to 
 ourselves, to accomplish a useful work in determining tjie 
 method of employing some of the means designed to
 
 38 THE TWO HAGUE CONFERENCES 
 
 insure peace. ... It is not a question of entering the 
 domain of Utopia. In the work which we are about to 
 undertake, we should keep in view the possible, and not 
 attempt to seek for abstract ideals. Without at all sacri- 
 ficing our ulterior hopes, 1 we should remain within the 
 realm of reality and test it to its lowest depth, so as to lay 
 solid foundations and build on concrete bases." After 
 praising the attempts of diplomacy to smooth away inter- 
 national differences and jealousies which, in spite of many 
 mutual interests and bonds between the nations, inevi- 
 tably arise, Baron de Staal said that although " diplo- 
 macy long ago admitted arbitration and mediation within 
 its practice, it has not determined the method of their 
 employment, nor has it defined the cases in which they 
 should be applied. It is to this high task that we are to 
 devote our efforts, sustained by the conviction that we 
 are striving for the welfare of all mankind along the path 
 which preceding generations have traced for us." After 
 alluding to the other two parts of the Russian pro- 
 gramme, the mitigation of the horrors of warfare and the 
 limitation of armaments, the orator concluded with the 
 words: " Such, then, gentlemen, are the essential ideas which 
 should in general direct our deliberations. We shall con- 
 sider them, I am sure, in a lofty and genuinely conciliatory 
 spirit, for the purpose of pursuing the path which leads to 
 the consolidation of peace. We shall thus accomplish a 
 useful task, for which future generations must thank the 
 sovereigns and governments represented within these walls." 
 
 1 This expression was denounced in many newspapers as an evidence of 
 Russia's determination to push on, in spite of the Peace Conference which it 
 had called, in its career of territorial aggrandizement. If such had been Staal's 
 meaning, he would have been too astute to confess it; what the words implied 
 were, of course, ulterior hopes of universal and permanent peace.
 
 MEETINGS 
 
 39 
 
 The tenth and last plenary session was held at three 
 o'clock in the afternoon of Saturday, the 29th of July. 
 The morning of that day had been devoted to the signing 
 of the various conventions and declarations agreed upon. 
 These documents had been engrossed and the seals of the 
 various signatory powers affixed to them; they were then 
 spread out on the tables in the dining room of the House 
 in the Woods, and the delegates from each country in al- 
 phabetical order came out from the Orange Hall to sign 
 them. At the plenary session in the afternoon, the signa- 
 tures were first reported on ; then the president stated that 
 at the request of the government of the Netherlands he 
 would have the secretary read to the conference a letter 
 from the Queen of the Netherlands to the Pope and the 
 Pope's reply to it. These letters had to do with the meet- 
 ing of the conference at The Hague and the Pope's non- 
 participation in it ; l and many of the delegates considered 
 this rather remarkable action on the part of the Nether- 
 lands government and the president of the conference as 
 unnecessary and indeed ill-advised, especially in view of the 
 fact that the first delegates had been kept in ignorance of the 
 existence of the letters, which had been written in May, 
 and of the intention to have them read to the conference. 
 Immediately after this ceremony, the president delivered 
 his farewell address. This was responded to by Count 
 Munster, the first delegate from Germany. Baron d'Es- 
 tournelles, of France, and M. de Beaufort, of the Nether- 
 lands, then made brief addresses, 2 after which the president 
 declared the first Peace Conference adjourned without day. 
 
 1 See page n. 
 
 2 These four addresses had to do chiefly with the results of the conference, 
 and will be alluded to later, under the appropriate topic.
 
 40 THE TWO HAGUE CONFERENCES 
 
 The I Commission held eight reunions, at intervals 
 from the 23d of May to the 20th of July. Its first sub- 
 commission held six meetings, from May 26 to June 26; 
 and its second subcommission held seven meetings, from 
 May 26 to June 30. 
 
 The IT Commission held four reunions, from May 23 
 to July 5 ; its first subcommission held five meetings, from 
 May 25 to June 15; and its second subcommission held 
 twelve meetings, from May 25 to July 1. 
 
 The III Commission held nine reunions, from May 23 
 to July 25 ; and its committee of examination held eighteen 
 meetings, from May 26 to July 21. 
 
 It was in these twenty-one commission reunions and 
 forty-eight subcommission and committee meetings that 
 the detailed business of the conference was transacted. 
 Their deliberations will not be taken up separately and in 
 chronological order in this book, but will be narrated 
 according to topics discussed. 
 
 b. THE CONFERENCE OF 1907 
 
 The second conference, although it continued eight 
 weeks longer than the first, held only one more plenary 
 session. These were eleven in number and were held on 
 the following dates: June 15 and 19; July 20; August 
 17; September 7, 21, and 27; October 9, 16, 17, and 18. 
 
 The first session was opened at three o'clock in the 
 afternoon of June 15 by the Netherlands minister of for- 
 eign affairs, Jonkheer van Tets van Goudriaan, who in 
 welcoming the conference to The Hague mentioned the 
 part played in its convocation by the Czar and the Queen ; 
 and of President Roosevelt he spoke as follows :
 
 MEETINGS 41 
 
 "But I think that it would be improper to omit at this hour the 
 tribute of our gratitude to the eminent statesman who presides over 
 the destinies of the United States of America. President Roosevelt 
 has powerfully contributed to the growth of the grain sowed by the 
 august initiator of the solemn international assemblies convoked for 
 the discussion and better definition of the rules of international law." 
 
 On the motion of M. van Tets, a telegram of greeting 
 was sent to the Czar, and the first delegate from Russia, 
 M. Nelidow, was chosen president of the conference. „ 
 
 M. Nelidow nominated the honorary president, the vice 
 president, and the secretaries of the conference, and pro- 
 posed that a telegram of greeting be sent to the Queen; 
 he also referred to the part played in convoking the con- 
 ference by "the eminent head of the great North Ameri- 
 can Confederation, whose generous impulses are inspired 
 always by the noblest sentiments of justice and humanity." 
 In speaking of the work of the conference, "the discussion 
 in common of the dearest interests of humanity — those 
 of conciliation and justice," M. Nelidow said: 
 
 "Every friend of civilization follows with sympathetic interest the 
 progress of international institutions growing out of the first Peace 
 Conference, and a generous citizen of the United States has given a 
 fortune for the erection here of a sumptuous palace where they will 
 have their permanent seat. It is for us to make them worthy of this 
 munificent act, and thereby to prove to Mr. Carnegie our apprecia- 
 tion. But let us not be too ambitious. Let us not forget that our 
 means of action are limited; that nations are living beings as truly 
 as are the individuals who compose them; that they have the same 
 passions, the same aspirations, the same defects, the same illusions. 
 . . . But let not that discourage us from dreaming of the ideal of a 
 universal peace and a brotherhood of peoples, which are after all 
 only the natural and higher aspirations of the human soul. Is not 
 the essential condition of all progress the pursuit of an ideal towards 
 which one always strives without ever being able to attain it ? Excel
 
 42 THE TWO HAGUE CONFERENCES 
 
 sior is the motto of progress. Let us then bravely take up the work 
 before us, having as the light of our path the luminous star of peace 
 and justice, to which we shall never attain, but which will lead us 
 always towards the welfare of humanity." 
 
 After a duration of thirty-five minutes the session closed. 
 
 At the second plenary session, telegrams from the Queen 
 and Czar were read ; the organization of the conference 
 and the few rules necessary for its procedure were adopted; 
 the president announced that the governments represented 
 at the second conference which had not participated in the 
 first had given in their adhesion to the acts of the first; 
 the German and British delegations announced that they 
 would propose the establishment of an international court 
 of appeal to adjudicate cases of prizes taken in naval war- 
 fare; and the United States delegation announced that it 
 would reserve the right of introducing the question of the 
 collection of public debts by force, or any other question 
 not mentioned in the programme. The session lasted 
 forty-five minutes. 
 
 The third plenary session, after the presentation of the 
 report of the Commission on Petitions, was devoted to the 
 discussion and adoption of the III Commission's report on 
 the application of the Geneva Convention to maritime 
 warfare. 
 
 At the fourth plenary session, reports from the II and 
 III Commissions on the laws and customs of war on land, 
 and on the bombardment of seaports, were adopted, and the 
 question of the limitation of armaments was disposed of. 
 
 The fifth plenary session was devoted to the adoption of 
 the II Commission's report on the declaration of war and 
 the rights and duties of neutral states, and to a discussion 
 of the same commission's report on the treatment of neu-
 
 MEETINGS 43 
 
 trals in the territory of belligerents, which was referred 
 back to the commission. 
 
 The sixth plenary session was opened by the announce- 
 ment that, "under the aegis of the conference," a treaty of 
 arbitration had just been concluded between Italy and Ar- 
 gentina ; the amended report of the II Commission on the 
 status of neutrals in belligerent territory was read and 
 adopted ; the report of the I Commission establishing an 
 International Prize Court, and the report of a special 
 committee fixing a time for the convocation of a third 
 Peace Conference, were also read and adopted. 
 
 At the seventh plenary session, the laws and customs of 
 warfare on the sea, elaborated by the IV Commission, were 
 reported and adopted. 
 
 At its eighth plenary session, the conference approved 
 the III Commission's reports on the location of sub- 
 marine mines, and on the conduct of warships in neutral 
 ports in time of war. 
 
 The important reports of the I Commission on the Per- 
 manent Court of Arbitration and on the extension of 
 obligatory arbitration were adopted at the ninth plenary 
 session; the resolution offered by Baron d'Estournelles 
 de Constant, in regard to the construction of the Peace 
 Palace, was unanimously adopted j 1 and the Commission 
 on Editing began its report on the Final Act. 
 
 The report of the Commission on Editing was completed 
 at the tenth plenary session, and the Final Act was adopted ; 
 the Commission on Petitions also made its final report. 
 
 The eleventh and last plenary session, October 18, was 
 devoted to addresses of farewell, delivered by President 
 Nelidow, Vice President de Beaufort, of the Netherlands, 
 
 1 See page 20.
 
 44 THE TWO HAGUE CONFERENCES 
 
 Sir Edward Fry, of Great Britain, Count Tornielli, of 
 Italy, M. Saenz Pena, of Argentina, M. Perez Triana, 
 of Colombia, M. Tzudzuki, of Japan, Samad Khan, of 
 Persia, and M. van Tets van Goudriaan, the Netherlands 
 minister of foreign affairs, and the honorary president 
 of the conference. These addresses were devoted partly 
 to congratulations and thanks extended to various officials 
 and governments, and partly to a discussion of the general 
 results of the conference. From this latter point of view, 
 two or three of them are of historic interest and will be 
 referred to again. 1 
 
 The I Commission held ten reunions, between June 22 
 and October 11; its first subcommission, and its various 
 committees, met forty-seven times ; and its second subcom- 
 mission and committee met six times. The II Commis- 
 sion's reunions were six in number, and extended from June 
 22 to September 9; its first subcommission met five times, 
 and its second subcommission seven times. The III 
 Commission held eight reunions, between June 4 and 
 October 4; its first and second subcommissions met four 
 and five times, respectively. And the IV Commission's re- 
 unions, extending from June 24 to September 26, numbered 
 fourteen, while its committees held twenty-one meetings. 
 
 When it is recalled that many of these nearly eight score 
 meetings were several hours in length, it must be admitted 
 that the conference's four months of existence were labo- 
 rious ones; but, on the other hand, it must remain a 
 source of surprise as well as of gratification that so many 
 results of weighty import were accomplished in meetings 
 comparatively few in number and extending over only 
 four months. 
 
 1 See Section XIV: A Summary of Results.
 
 VIII. PROGRAMME 
 a. THE CONFERENCE OF 1899 
 
 For some time after the publication of Count Mouravieff's 
 rescript of August 24, 1898, suggesting a conference, it was 
 thought that the Russian government would have no defi- 
 nite proposals to bring before the conference, but would 
 simply introduce the subject of the limitation of armaments, 
 hoping that in the course of the discussion some practical 
 solution of the problem might arise. But as this plan was 
 too indefinite to be fruitful of practical results, a second 
 Russian rescript was issued January 11, 1899 [Russian 
 style, December 30, 1898], containing the following sug- 
 gestions as to a definite programme : 
 
 "The subjects to be submitted for international discussion at the 
 conference may be summarized, in general terms, as follows: 
 
 "1. An understanding stipulating the non-increase, for a definite 
 period, of the present effective military and naval forces, and also of 
 the military budgets pertaining to them; and a preliminary investi- 
 gation of the means by which even a reduction in these forces and 
 budgets may be secured in the future. 
 
 "2. A prohibition of the introduction, in armies and navies, of 
 any new kinds of firearms whatsoever, as well as of new explosives 
 or any powders more powerful than those now in use, either for mus- 
 kets or for cannon. 
 
 "3. A restriction of the use, in military campaigns, of the for- 
 midable explosives already existing; and a prohibition of the hurling 
 of projectiles or explosives of any kind from balloons or by analogous 
 means. 
 
 45
 
 46 THE TWO HAGUE CONFERENCES 
 
 "4. A prohibition of the use, in naval warfare, of submarine tor- 
 pedo boats or plungers, or of other similar engines of destruction; 
 and an agreement not to construct in the future war vessels with rams. 
 
 "5. The application to naval warfare of the stipulations of the 
 Geneva Convention of 1864, on the basis of the additional articles of 
 1868. 
 
 "6. The neutralization of ships or boats employed in saving those 
 overboard during or after naval battles. 
 
 "7. A revision of the Declaration concerning the laws and cus- 
 toms of war, elaborated in 1874 by the Conference of Brussels and 
 remaining unratified to the present day. 
 
 "8. The acceptance, in principle, of the employment of good 
 offices, of mediation and of facultative arbitration, in cases adaptable 
 to them, with the object of preventing armed conflicts between na- 
 tions; an understanding as to the method of their application, and the 
 establishment of a uniform practice in their employment." 
 
 No amendments or reservations were made by the other 
 governments in accepting this Russian programme, and 
 it became the basis of the conference's discussions and, as 
 we have seen, of the division of work between the first three 
 commissions. The order of topics in the Russian pro- 
 gramme was followed in assigning them to the three com- 
 missions, armaments coming first and arbitration last ; but 
 Baron de Staal, in his opening address, inverted this order, 
 placing arbitration first and dwelling chiefly upon it, while 
 armaments came last in his mention of topics and received 
 least attention from him. It may be remarked that the 
 conference itself emphasized this illustration of the old adage 
 that "the first shall be last, and the last shall be first"; 
 for it devoted itself chiefly to the topic of arbitration and 
 achieved its most noteworthy triumphs in connection with 
 it. When the second conference was summoned, arbitra- 
 tion was made the first topic on the programme, and it 
 was assigned to the I Commission.
 
 PROGRAMME 
 
 47 
 
 After the enumeration of topics suggested for discussion, 
 the Russian rescript of January n, 1899, continued: "It 
 is quite understood that all questions concerning the po- 
 litical relations of states, and the order of affairs estab- 
 lished by treaties, as in general all questions which do not 
 fall directly within the programme adopted by the cabinets, 
 should be excluded absolutely from the deliberations of the 
 conference." In Baron de Staal's opening address to 
 the conference, he too emphasized this exclusiveness of 
 the programme by saying, after its eight topics had been 
 assigned to the first three commissions: "It is understood 
 that, outside of the topics mentioned above, the conference 
 does not consider itself competent to consider any other 
 question. In case of doubt the conference shall have to 
 decide whether any proposition, originating in the com- 
 missions, is or is not within the scope of the topics outlined." 
 
 This ruling of the president was adhered to, and in the 
 few instances where new propositions were introduced in 
 commissions or subcommissions, the conference declined 
 their discussion on the ground of "no jurisdiction." 
 
 b. THE CONFERENCE OF 1907 
 
 When the Russian government issued its call for the sec- 
 ond conference, April 6, 1906 (Russian style, March 24, 
 1906), it published a programme of topics for discussion, 
 and as introduction to it said: "In taking the initiative 
 in convoking a second Conference of the Peace, the Impe- 
 rial Government has had in view the necessity of giving a 
 new development to the humanitarian principles which 
 served as the basis of work for the great international assem- 
 bly of 1899." After stating the reasons for this necessity
 
 48 THE TWO HAGUE CONFERENCES 
 
 in regard to arbitration and warfare upon land and sea, 
 the Russian circular continues: 
 
 "Believing, then, that there is reason at present for proceeding 
 with the examination of only those questions which are especially 
 prominent, inasmuch as they have arisen from the experience of re- 
 cent years, and without raising those which concern the restriction 
 of military or naval forces, the Imperial Government proposes as the 
 programme of the projected meeting the following principal points: 
 
 "i. Improvements in those provisions of the convention relative 
 to the settlement of international disputes which have to do with the 
 Court of Arbitration and the International Commissions of Inquiry. 
 
 "2. Additions to the provisions of the convention relative to the 
 laws and customs of warfare on land: among others, those con- 
 cerning the opening of hostilities, the rights of neutrals on land, 
 etc. ; and, one of the declarations of 1899 having lapsed, the question 
 of its renewal. 
 
 "3. The elaboration of a convention relative to the laws and cus- 
 toms of maritime warfare, concerning: 
 
 " special operations of maritime warfare, such as the bombardment 
 by a naval force of cities, towns and villages, the placing of torpedoes, 
 etc.; 
 
 "the transformation of merchant vessels into war ships; 
 
 "the treatment of the private property of belligerents on the sea; 
 
 " the interval of grace accorded to merchant vessels for leaving neu- 
 tral ports or the ports of the enemy after the opening of hostilities; 
 
 " the rights and duties of neutrals on the sea : among others, ques- 
 tions of contraband, the treatment of belligerent ships in neutral ports, 
 the destruction by superior force of neutral merchant vessels captured 
 as prizes. 
 
 "In this convention, also, should be introduced provisions relative 
 to warfare on land which might be equally applicable to warfare on 
 the sea. 
 
 "4. Additions to the convention of 1899 for the adaptation to mari- 
 time warfare of the principles of the Geneva Convention of 1864." 
 
 The above programme was subjected to the following 
 condition: "As was the case with the Conference of
 
 PROGRAMME 
 
 49 
 
 1899, it will remain quite understood that the delibera- 
 tions of the proposed assembly should affect neither the 
 political relations between states, nor the order of affairs 
 established by treaties, nor, in general, the questions 
 which do not fall directly within the programme adopted 
 by the cabinets." 
 
 This condition, however, was not indorsed by all of the 
 governments when they accepted the Russian invitation to 
 be represented at the conference, and they accordingly 
 made certain reserves. The United States reserved the 
 liberty of submitting two supplementary questions, namely : 
 that of the reduction or limitation of armaments, and that 
 of an agreement to observe certain limitations in the use 
 of force for the collection of ordinary public debts arising 
 from contracts. 
 
 Spain expressed its desire to discuss the limitation of 
 armaments, and reserved the right of introducing this 
 question. 
 
 Great Britain announced that it attached great impor- 
 tance to having the question of expenditures for armaments 
 discussed, and reserved the right of introducing it ; it also 
 reserved the right of abstaining from the discussion of 
 any question mentioned in the Russian programme which 
 should appear to it to lead to no useful result. 
 
 Japan believed that certain questions not specifically 
 enumerated in the programme might be profitably included 
 among those to be examined, and reserved the right of ab- 
 staining or withdrawing from any discussion taking or 
 promising to take a direction not conducive, in its judg- 
 ment, to a useful result. 
 
 Bolivia, 'Denmark, Greece, and the Netherlands also 
 reserved the right of proposing for consideration other
 
 50 THE TWO HAGUE CONFERENCES 
 
 subjects analogous to those specifically mentioned in the 
 Russian programme. 
 
 Germany and Austria reserved the right of abstaining 
 from the discussion of any question not appearing to tend 
 towards a practical result. 
 
 Even Russia, after being informed of these various reser- 
 vations, declared that it would maintain its programme of 
 April, 1906, as the basis of the deliberations of the confer- 
 ence, but that it would reserve in its turn the right of ab- 
 staining from the discussion of any question not appearing 
 to tend towards a practical result. 
 
 At least eleven of the countries invited having made reser- 
 vations as to the programme, and some of them in a very 
 positive, not to say belligerent, manner, it looked for a time 
 as though the second Peace Conference would have a very 
 stormy career, or would probably not enter upon any career 
 at all. But through the persuasive influence of diplo- 
 macy, and especially, it is believed, as a result of a visit 
 made by Professor de Martens, of Russia, to several of the 
 great powers which had made reservations, it was decided 
 that they would send representatives to the conference, and 
 that, in the words of Chancellor von Blilow, of Germany, 
 they would be "content to leave to those powers which are 
 convinced that such discussions will yield a genuinely 
 successful result, the burden of carrying them on." 
 
 This decision was carried out, and all the powers were 
 represented at the conference; but at its second session 
 (its first real business session), the United States delega- 
 tion reserved the right of presenting "the question of the col- 
 lection of public debts by force, or any other question not 
 mentioned in the programme" ; and the British delegation 
 also reserved "the right of formulating new propositions
 
 PROGRAMME 51 
 
 later." President Nelidow admitted the right claimed 
 by the two delegations, but ruled that every new proposi- 
 tion, not included within the subjects enumerated in the 
 programme, should first be communicated in writing to the 
 president of the conference and immediately printed and 
 distributed among the members. This ruling was accepted, 
 and thus the first great obstacle of the second conference 
 was avoided.
 
 IX. ARMAMENTS 
 
 a. THE CONFERENCE OF 1899 
 
 For centuries it has been the belief of the civilized world 
 that "if you wish for peace, you must prepare for war" 
 (si vis pacem, para helium) ; and for centuries it acted upon 
 that belief. But it remained for Prince Bismarck, the 
 "Iron Chancellor" of Germany, to develop this rather 
 vague and often insincere belief into a genuine "barracks 
 philosophy," which was applied by him most vigorously 
 in his own country and was adopted with as much thor- 
 oughness as possible by the governments of other Euro- 
 pean states. Possessed not so much by a genuine love of 
 peace as by a genuine fear of the consequences of war, Bis- 
 marck converted Prussia and Germany into a modern 
 Sparta as nearly as the circumstances of the Nineteenth 
 Century would permit ; and the other statesmen of Europe, 
 following his example, made of Europe an armed camp. 
 
 The creation and increase of armaments went on at 
 such a pace that "armed peace" became more burdensome 
 than actual war had been a generation before; and, like 
 the mediaeval knights who, settling disputes by appeals 
 to the ordeal of battle, had so increased their armor that 
 its weight kept them prone upon their backs if they chanced 
 to fall, so the civilized states of Europe came to see that 
 their appeal to the god of battles for the settlement of dis- 
 putes involved such enormous expenditures in time of 
 
 52
 
 ARMAMENTS 53 
 
 peace that they were badly crippled when warfare actually 
 began. 
 
 These considerations burned themselves in upon the 
 minds of the peoples, upon whose backs the military bur- 
 den necessarily rested, and when Bismarck fell from power 
 in 1890 they hoped that his system of "blood and iron" 
 would end. Less than a month after Bismarck's death 
 (July 30, 1898), the Czar issued his rescript for the first 
 Peace Conference, and the peoples at once made their wish 
 the father of their thought and said that now disarmament 
 would surely come. 
 
 But it was not disarmament that the Czar's rescript 
 proposed. It did allude to "a possible reduction of the 
 excessive armaments which weigh upon all nations" as 
 an "ideal towards which the endeavors of all governments 
 should be directed." It denounced the system of in- 
 creasing armaments as "a blow at the public prosperity 
 in its very source," as "paralyzing or checking the devel- 
 opment of national culture, economic progress, and the 
 production of wealth," as a prime cause of economic crises, 
 and as an "inevitable cause of the very cataclysm it is de- 
 signed to avert." And it contained these emphatic words : 
 " To put an end to these incessant armaments and to seek 
 the means of warding off the calamities which threaten 
 the whole world — such is the supreme duty which is 
 imposed to-day upon all states." But it was the increase 
 of armaments that the Russian statesmen had in mind, 
 and that the rescript was designed to emphasize and the 
 conference to consider. When Count Mouravieff read 
 the rescript to the foreign diplomatists he requested the 
 British Ambassador, Sir Charles Scott, to observe ' that 
 this eloquent appeal, winch he had drawn up at the die-
 
 54 THE TWO HAGUE CONFERENCES 
 
 tation of the Emperor, did not invite a general disarma- 
 ment, as such a proposal would not have been likely to be 
 generally accepted as a practical one at present, nor did 
 His Imperial Majesty look for an immediate realization 
 of the aims he had so much at heart, but desired to initiate 
 an effort, the effects of which could only be gradual.' 
 
 Count Mouravieff's second circular, January n, 1899, 
 suggested a programme of topics for the conference, and 
 mentioned first on the list the subject of armaments, in 
 the following words: "An understanding stipulating the 
 non-increase, for a definite period, of the present effective 
 military and naval forces, and also of the military budgets 
 pertaining to them ; and a preliminary investigation of the 
 means by which even a reduction of these forces and 
 budgets may be secured in the future." 
 
 This first article of the Russian programme was assigned 
 to the I Commission at the time of its creation, and its 
 importance was thus emphasized by the commission's 
 president, M. Beernaert, of Belgium: 
 
 "Among the tasks of high importance which lie before the con- 
 ference, our I Commission has, perhaps, the most sacred. We have 
 especially to study, to discuss, to realize, the master ideal which has 
 created this great international assembly, the ideal, namely, of assur- 
 ing to the peoples a durable peace, and of placing a barrier to the pro- 
 gressive and ruinous development of military armaments. Such is 
 the principal object of the message, henceforth famous, of the 24th 
 of August, 1898. . . . And with Emperor Nicholas II himself, 
 these are no new aspirations. Some years ago he made a present of 
 a bell to I know not what town of France — to Chateaudun, I think, 
 — and on the bronze he had engraved the words: 'May it never ring 
 other than the hour of concord and of peace.' May this beautiful 
 device, gentlemen, inspire our labors." 
 
 The subject was thus opened at the commission's
 
 ARMAMENTS 
 
 55 
 
 second reunion, May 26; but, in commenting on the order 
 of work, M. Beernaert said: 
 
 "At first sight, it would seem quite natural to begin at the begin- 
 ning, and discuss first that problem, fundamental and of high im- 
 portance, which is first submitted to our investigation. But I believe 
 it right to recommend a contrary procedure, and it is the inaugural 
 address of our honorable president [of the conference] that has sug- 
 gested to me the idea. Limitation of armaments, which forms the 
 frontispiece of the circular of the Russian government, appeared in 
 his address as a conclusion and as a kind of crown — a triumphal 
 crown — of our mutual efforts. Yesterday, too, an analogous pro- 
 cedure was followed by the II Commission ; in its examination of the 
 project discussed at the Conference of Brussels the last chapters were 
 taken up first, so as to reserve until the last those questions on which 
 an agreement appeared more difficult of formation. It is by harmony 
 that we should desire to arrive at harmony." 
 
 The commission shared its president's opinion, and the 
 subject was not taken up for discussion until June 23, 
 a month after the opening of the conference, and a month 
 before its adjournment. M. Beernaert again empha- 
 sized the importance and difficulties of the question, and 
 requested Baron de Staal to present the Russian proposals. 
 De Staal then spoke of the great need of " alleviating the 
 burdens of peace, not by disarmament, but by a limitation, 
 a halt, in the ascending course of armaments and expendi- 
 tures," and said that Russia's technical delegates would 
 present the Russian proposals. Before this was done, 
 however, General den Beer Poortugael, of the Netherlands, 
 made a short but powerful appeal for the plans about to 
 be presented, basing it upon the evils and dangers of 
 increasing armaments, which he likened to the wicked 
 fairy's fatal gift found at the bottom of Pandora's box, 
 and threatening the ruin of Europe. " To our govern-
 
 56 THE TWO HAGUE CONFERENCES 
 
 ments," he exclaimed, "bound together by the cord of 
 our military organizations, like Alpine tourists, the Czar 
 has said : ' Let us make a united effort, let us halt on this 
 edge of the abyss; if not, we shall perish !' Let us halt, 
 gentlemen; let us make this supreme effort, let us hold 
 fast!" 
 
 Colonel Gilinsky then introduced the Russian propo- 
 sitions in regard to land forces by a speech emphasizing 
 the evils of armaments and the need of restricting them. 
 
 "Gentlemen," said he, "will the peoples represented in this con- 
 ference be entirely satisfied if, in going hence, we take them arbitra- 
 tion and the laws of warfare, but nothing for times of peace, — of 
 this armed peace which is so heavy a burden on the nations, which 
 crushes them to that point where it can be sometimes said that open 
 war would perhaps be better than this state of secret war, this inces- 
 sant competition in which all the world pushes forward larger and 
 larger armies, — larger now in time of peace than they used to be in 
 times of greatest warfare ? The various countries have engaged in 
 war only once in every twenty or thirty years; but this armed peace 
 lasts for decades, it precedes war and follows it." 
 
 The propositions submitted by Colonel Gilinsky were 
 as follows: 
 
 i. An international agreement for a term of five years, 
 stipulating the non-increase of the present number of 
 troops maintained in time of peace in each mother country. 
 
 2. The determination, in case of this agreement, of the 
 number of troops to be maintained in time of peace by all 
 the powers, not including colonial troops. 
 
 3. The maintenance, for the same term of five years, 
 of the size of the military budget in force at the present 
 time. 
 
 At the same reunion of the commission, Captain Scheine..
 
 ARMAMENTS 57 
 
 of the Russian navy, presented the following propositions 
 in regard to naval forces : 
 
 1. The acceptance of the principle of determining, 
 for a period of three years, the size of the naval budget. 
 
 2. An agreement not to increase the total sum during 
 this triennial period. 
 
 3. The obligation to publish in advance during the 
 said period : 
 
 a. The total tonnage of war ships which it is proposed 
 to construct, without defining the types of the ships them- 
 selves ; 
 
 b. The number of officers and men in the navy ; 
 
 c. The expenses of coast fortifications, including forts, 
 docks, arsenals, etc. 
 
 At the next reunion of the commission, June 26, Colonel 
 Gilinsky made some explanatory comments upon his 
 three propositions, and stated that " since colonies often 
 find themselves in danger or even in a state of war, it 
 would not appear possible to prohibit the increase of 
 colonial troops." He also made the following argument 
 as to Russia's distant possessions: 
 
 "Russia has no colonies properly so-called, that is, possessions 
 absolutely separated by the sea. But we have territories which, from 
 the point of view of their defense, are in the same circumstances as 
 are colonies; for they are separated from the mother country, if not 
 by the sea, at least by enormous distances, and by the difficulty of 
 communication." 
 
 He cited Central Asia and the military district of Amur 
 as examples of such territories, and proposed that they 
 be treated as colonies, and the increase of their troops 
 left unrestricted. 
 
 The Russian proposals then being taken up for dis-
 
 58 THE TWO HAGUE CONFERENCES 
 
 cussion, Colonel von Schwarzhoff, of Germany, first re- 
 plied to General Poortugael's speech, quoted above, and 
 declared that " as far as Germany is concerned, I can 
 reassure her friends completely and dissipate all benevo- 
 lent anxiety regarding her. The German people are not 
 crushed beneath the weight of expenditures and taxes; 
 they are not hanging on the edge of a precipice; they 
 are not hastening towards exhaustion and ruin. Quite 
 the contrary : public and private wealth is increasing ; 
 the general welfare and standard of life are rising from 
 year to year. As for compulsory military service, which 
 is intimately associated with these questions, the German 
 does not regard it as a heavy burden, but as a sacred 
 and patriotic duty, to the performance of which he owes 
 his existence, his prosperity, his future." He then took 
 up Colonel Gilinsky's propositions and arguments, declar- 
 ing them to be not quite consistent with each other. 
 
 "On the one hand," he said, "it is feared that excessive armaments 
 may cause war; on the other, that the exhaustion of economic forces 
 will make war impossible. As for me, I have too much confidence 
 in the wisdom of sovereigns and nations to share such fears. 
 
 "On the one hand, it is pretended that only those measures are 
 necessary which have long been practiced in some countries and which, 
 therefore, present no technical difficulties; on the other hand, it is 
 said that this is precisely the most difficult problem to solve, and that 
 for it a supreme effort is necessary. I am entirely of the latter opin- 
 ion. We shall encounter, in fact, insurmountable obstacles, — diffi- 
 culties which may be called technical in a little larger use of the term. 
 
 "I believe that the question of troops cannot be considered entirely 
 alone, separated from a crowd of other questions to which it is almost 
 subordinate. Such are, for example, the extent of public instruction, 
 th? length of active service, the number of established regiments, the 
 troops in the army units, the number and duration of enrollments 
 under the flag (that is to say, the military obligations of retired sol-
 
 ARMAMENTS 
 
 59 
 
 diers), the location of the army corps, the railway system, the number 
 and situation of fortified places. In a modern army, all such things 
 are connected with each other and form, together, the national de- 
 fense which each people has organized according to its character, its 
 history, and its traditions, taking into account its economic resources, 
 its geographical situation, and the duties which devolve upon it. 
 I believe that it would be very difficult to replace this eminently na- 
 tional task by an international agreement. It would be impossible 
 to determine the extent and the force of a single part of this compli- 
 cated machinery. 
 
 "Again, mention has been made only of troops maintained in 
 mother countries, and Colonel Gilinsky has given us the reason for 
 this; but there are territories which are not part of the mother coun- 
 try, but are so close to it that troops stationed in them will certainly 
 participate in a continental war. And the countries beyond the 
 seas? How can they permit a limitation of their troops if colonial 
 armies, which alone menace them, are left outside of the agreement? 
 
 "Gentlemen, I have restricted myself to indicating, from a general 
 point of view, some of the reasons which, to my mind, are opposed 
 to the realization of the desire, which is surely unanimous, of reaching 
 an agreement on the subject before us." 
 
 Colonel Gilinsky replied that it would be impossible 
 for him to answer the arguments of a domestic nature 
 advanced by Colonel von Schwarzhoff; but that if an 
 agreement could be arrived at, he believed it would 
 be possible for states to make the necessary arrange- 
 ments for enforcing it. As to the wealth of nations, 
 he had not said that all countries are being impoverished, 
 for there are some which are progressing in spite of mili- 
 tary expenditures ; but these expenditures are certainly 
 not an aid to public prosperity. Increasing armaments are 
 not of a nature to augment the riches of states, although 
 some individuals may profit by them. He willingly 
 admitted that railroads have a great influence on the 
 defense of a country ; an army should be much larger if it
 
 60 THE TWO HAGUE CONFERENCES 
 
 be unconnected with the interior by numerous railways. 
 It is precisely for this reason that a country rich in rail- 
 roads may reduce its army, or at least not increase it. 
 As for countries beyond the seas, he admitted exceptions, 
 notably among those whose army is small or in process 
 of formation; what is necessary here is not to adopt 
 a general rule covering everything, but to find a formula 
 satisfactory, if not to every one, at least to a large 
 number. 
 
 Colonel von Schwarzhoff replied that he feared lest he 
 had been misunderstood; he had not denied that another 
 use might be found, perhaps more humanitarian, for the 
 money spent on armaments. He merely wanted to reply 
 to language which perhaps, and certainly in his opinion, 
 was a trifle exaggerated. The number of troops alone 
 does not afford a proper basis of comparison for the 
 strength of armies, but there are a number of other things 
 to take into consideration. While maintaining the num- 
 ber of its troops, any power whatever can increase its 
 military strength. The equilibrium which is supposed 
 to exist at present would then be destroyed; for its res- 
 toration, it is necessary that the other powers, which 
 perhaps would not be able to employ the same measures, 
 should be free to choose among all the measures acces- 
 sible to them. 
 
 At the conclusion of this debate between the Russian 
 and German colonels, two delegates from the Nether- 
 lands replied to some of Colonel von Schwarzhoff's argu- 
 ments. M. van Karnebeek emphasized the importance of 
 the question of increasing armaments and the desirability 
 of a discussion of it by the conference, notwithstanding 
 its technical difficulties.
 
 ARMAMENTS 6 1 
 
 "Of course," he continued, "it may be that in some countries 
 military expenditures press less heavily than elsewhere; but it must 
 be recognized that the sums devoted to armaments might, even in 
 those countries, be employed more usefully for a different purpose. 
 There are other countries where people do not take the point of view 
 of Colonel von Schwarzhoff, and where military expenditures are 
 evidently a burden on national prosperity. The question should 
 not be considered only from the point of view of the country whose 
 prosperity, apparently, has not yet suffered because of armaments; 
 but even in these countries, it may be questioned whether such ex- 
 penditures are really necessary for the national defense, or if they are 
 not rather the result of international competition in this direction 
 Now, the fundamental idea of the Russian propositions is precisely 
 that the burden of armaments may be reduced if an agreement can 
 be secured for reducing this international competition. But it is 
 necessary to consider the question from still another point of view. 
 There is, for the several countries, not only an external danger to be 
 foreseen, but they have also to take account of opinion at home which, 
 in time, may also become a peril. Enormous military expenditures 
 which burden nations may furnish dangerous weapons against the 
 established social order. And if, because of technical difficulties, we 
 too readily declare ourselves incapable of endeavoring to reach a 
 solution of this important question, we might play the game of those 
 who find it to their advantage to agitate against the existing order 
 of things." 
 
 General Poortugael replied briefly to Colonel von 
 Schwarzhoff, and, while congratulating him on Germany's 
 alleged favorable condition in regard to military expendi- 
 tures, said that it was not the present but the future that 
 he had in mind when he made his first address: "I used 
 the words, 'in continuing in this path,' and I believe now 
 and always that this path is dangerous even for the wealth- 
 iest states." 
 
 Another feature of this animated debate was the dec- 
 laration of Dr. Standoff, of Bulgaria, that "armed peace
 
 62 THE TWO HAGUE CONFERENCES 
 
 is ruinous for small states, whose needs are numerous, 
 and who have everything to gain by investing their means 
 in. the development of industry and agriculture, and in 
 the requisites of progress." M. Bourgeois, of France, 
 gracefully acknowledged the force of Dr. Standoff's 
 remarks by moving that the small states should be rep- 
 resented, as well as the large ones, on the committees 
 which should investigate and report upon the subject. 
 The commission then decided that each of its subcom- 
 missions should appoint technical committees, one mili- 
 tary and one naval, to consider the question. 
 
 The military committee was composed of Colonels 
 Gilinsky and Schwarzhoff, and military representatives 
 from five other large powers and two small powers. 1 
 This committee met twice, and after a thorough exchange 
 of views — of which no minutes were kept — made the 
 following report to the commission at its next session, 
 June 30: 
 
 "The members of the committee charged with the examination of 
 the propositions of Colonel Gilinsky, relating to the first topic of 
 Count Mouravieff's circular, have met twice. With the exception 
 of Colonel Gilinsky, they have decided unanimously: first, that it 
 would be very difficult to fix, even for a term of five years, the number 
 of troops, without regulating at the same time other elements of the 
 national defense; second, that it would be no less difficult to regulate 
 by an international agreement the elements of this defense, organized 
 in each country upon very different principles. Hence, the committee 
 regrets its inability to accept the proposition made in the name of 
 
 'The members of this committee were as follows: Colonel von Schwarz- 
 hoff, of Germany; Captain Crozier, of the United States; General Mounier, 
 of France; Colonel Gilinsky, of Russia; General Sir John Ardagh, of Great 
 Britain; Lieutenant Colonel von Khuepach, of Austria ; General Zuccari, of 
 Italy; Captain Brandstrom, of Sweden; and Colonel Coanda, of Roumania- 
 As to Captain Crozier's membership, see page 67.
 
 ARMAMENTS 63 
 
 the Russian government. The majority of its members believe that 
 a more thorough study of the question by the governments themselves 
 would be desirable." 
 
 After this report was read, no one responded to the 
 president's invitation to discuss it, and he therefore said 
 that he considered the silence of the assembly as a complete 
 approval of it, and that under the circumstances it was 
 not necessary to take a vote upon it. 
 
 But the question was not to be thus dropped in silence. 
 Baron de Bildt, of Sweden and Norway, stated that the 
 Russian propositions were unacceptable to his country 
 only because of their form and not because of their object, 
 and concluded an eloquent address with the words : 
 
 "We have therefore not been able to vote for the Russian proposi- 
 tion as it has been formulated, and I state this fact with sincere regret 
 — I will say more — with genuine sorrow. For, gentlemen, we are 
 about to terminate our labors, recognizing that we have been confronted 
 with one of the most important problems of the century, and that we 
 have accomplished very little towards its solution. Let us not in- 
 dulge in illusions. When the results of our deliberations shall be- 
 come known, there will arise, notwithstanding all that has been done 
 for arbitration, the Red Cross, etc., a great cry: ' It is not enough ! ' 
 And this cry, 'It is not enough,' most of us must conscientiously 
 acknowledge to be just. Our consciences, it is true, may also tell us 
 in consolation that we have done our duty, since we have faithfully 
 followed our instructions. But I venture to say that this duty is not 
 fulfilled and that there yet remains something else for us to accom- 
 plish. 
 
 "Permit me to explain. The Czar's proposal [as to armaments] 
 has been strewn with all the flowers of rhetoric by men much more 
 eloquent than I. It will suffice for me to say that, while his idea is 
 grand and beautiful, and while it responds to a desire felt by thou- 
 sands upon thousands of men, this also is true : it can not die. If the 
 Czar will only add to the nobility of heart and generosity of spirit, 
 of which he has given proof, the virtue of perseverance, the triumph
 
 64 THE TWO HAGUE CONFERENCES 
 
 of his labors is assured. He has received from Providence not only 
 the gift of power, but also that of youth. If the generation to which 
 we belong is not destined to accomplish the task, he may count upon 
 that which is coming soon to take our places. The future belongs to 
 him. But, meanwhile, all of us who desire to be, each in his little 
 sphere of activity, his humble and faithful colaborers, have the duty 
 of searching for, and explaining to our governments with entire frank- 
 ness and complete veracity, each imperfection, each omission, which 
 may occur in the preparation or in the execution of this work; and of 
 seeking with tenacity the means of doing better and doing more, 
 whether these means be found in new conferences, in direct nego- 
 tiations, or with all simplicity in the setting of a good example. 
 This is the duty which is left for us to fulfill." 
 
 This speech was warmly applauded, and under the 
 influence of its profound impression, M. Bourgeois, of 
 France, made a forceful address, in which he said : 
 
 "This commission certainly does not wish to remain indifferent 
 to the question of principle presented to the civilized world by the 
 generous initiative of His Majesty the Emperor of Russia. It seems 
 to me necessary that an additional resolution be adopted by us to 
 express more precisely the sentiment which animated the preceding 
 speaker, and which should make us all desire that the work com- 
 menced should not be abandoned. This question of principle may be 
 stated in very simple words : ' Is it desirable to restrict the military ex- 
 penses which burden the world? ' ... We shall find, I hope, a gen- 
 eral formula which, recognizing the difficulties of which we are all 
 aware, shall at least express this thought, that the limitation of arma- 
 ments will be a blessing to mankind, and which shall give to the gov- 
 ernments the moral support necessary to enable them to pursue this 
 noble object. ... If sad necessity obliges us to renounce for the 
 present a direct and positive agreement on this proposition, we should 
 endeavor to prove to public opinion that we have at least sincerely 
 examined the problem presented to us. We shall not have labored in 
 vain if, in a formula of general scope, we indicate the goal towards 
 which we desire unanimously, I hope, to see all civilized peoples 
 advance."
 
 ARMAMENTS 65 
 
 At the request of the president; M. Bourgeois then 
 presented in writing his proposition, which was as follows : 
 
 "The commission believes that a limitation of the 
 military expenses which now burden the world is greatly 
 to be desired in the interests of the progress of the material 
 and moral well-being of mankind." This proposition 
 was adopted by acclamation ; and the commission then 
 turned to the consideration of the question of naval 
 armaments. 
 
 The second subcommission of the I Commission decided, 
 at its meeting on June 26, to discuss the question of naval 
 armaments before referring it to a special committee. 
 Captain Scheme explained the Russian propositions, 1 and 
 stated the proposed agreement to be that "each govern- 
 ment shall have the right of fixing its budget at the point 
 which seems to it desirable, but once this budget is fixed 
 and communicated, the total sum cannot be increased 
 for a term of three years, dating from the time when the 
 agreement goes into force." The representative of the 
 Netherlands alone expressed approval of the proposition, 
 while the delegates from eight countries, large and small, 
 advanced various objections to it. Among these objec- 
 tions were the facts that parliaments shared with execu- 
 tives the control of budgets; that some parliaments were 
 renewed annually, or within very short periods; that it 
 would be very difficult for one government to decide upon 
 the size of budgets, since it would be ignorant of the size 
 of the budget which other governments would adopt; 
 and that this would lead to the fixing of a very large 
 budget, and might lead to the building of even more ships 
 than would have been built if the international agreement 
 
 1 See page 57.
 
 66 THE TWO HAGUE CONFERENCES 
 
 had not been made. The subcommission rejected (by 
 a vote of five to five, with five abstentions) a motion to 
 refer the problem to the various governments for a thor- 
 ough study which should enable it to be solved at a later 
 conference. It then adopted a motion of Captain Scheme 
 (by a vote of seven ayes, one no, and seven abstentions) 
 that the delegates be asked to secure instructions from 
 their governments, as soon as possible, so that the Russian 
 propositions might be decided by the existing conference. 
 
 This report was presented to the commission at its 
 reunion of June 30, and it was decided that the time before 
 the end of the conference would be too short for the dele- 
 gates to procure instructions from their governments. It 
 was therefore voted, without final opposition, although 
 Captain Scheme resisted the motion for a time, that the 
 question of naval armaments, like that of military arma- 
 ments, should be referred to the governments for thorough 
 study, and that M. Bourgeois's motion was also equally 
 applicable to armaments on both land and sea. 
 
 The conference, at its sixth session, on the 21st of July, 
 adopted unanimously and without discussion these reports 
 of the commission, and thus the question of armaments 
 was finally disposed of. 
 
 The failure of the conference to propose any answer to 
 what was regarded as the burning question of armaments 
 and as the prime cause of its convocation was widely 
 commented upon as evidence of the failure of the confer- 
 ence as a whole. But its leaders denied this by pointing 
 to the other positive work of the conference, and especially 
 to its work in behalf of arbitration. And they insisted 
 with great force that until arbitration, or some other peace- 
 ful measure, is adopted for the settlement of international
 
 ARMAMENTS 67 
 
 disputes, the ordeal of battle will continue to be appealed 
 to, and the governments will consider it their duty to pre- 
 pare for that ordeal by perfecting their armaments. On 
 the other hand, the question of increasing armaments 
 became more prominent than ever, in the years following 
 the conference, because of the enormous accessions almost 
 universally made to them, and a widespread determina- 
 tion arose that it should be definitely answered in the next 
 conference. 
 
 As to the precise part played by the delegates from the 
 United States in the disposition of the question of arma- 
 ments, there is a discrepancy in the records. The official 
 rapporteur of the I Commission, M. van Karnebeek, states 
 in his report to the conference, which was unanimously 
 adopted (Captain Crozier being present), that Captain 
 Crozier, of the United States, was one of the committee of 
 experts which rejected unanimously Colonel Gilinsky's 
 proposals for the restriction of armaments; but the 
 compte-rendu of the subcommission's meeting, in which 
 the committee was appointed, does not include Captain 
 Crozier as one of the committee. In a subsequent reunion 
 of the commission, M. Beldiman, of Roumania, proposed 
 that the names of the delegates who took part in the work 
 of the technical committee be included in the report to 
 the conference. Captain Crozier opposed this proposition, 
 and stated that the members of that committee had taken 
 part in its work, not as delegates of governments, but as 
 representatives of the subcommission in their quality as 
 individuals and as experts. The representatives of Sweden 
 and Turkey supported Captain Crozier's view, ■ but M. 
 Beldiman's motion was adopted by a vote of twelve to ten 
 (with one abstention), and the rapporteur mentioned in
 
 68 THE TWO HAGUE CONFERENCES 
 
 his report to the conference the names of the members 
 of the committee, including among them, as stated above, 
 that of Captain Crozier. 
 
 Immediately after this episode in the reunion of the 
 commission, Captain Mahan, of the United States Navy, 
 who, in the meeting of the naval subcommission, had 
 insisted on the difficulties of the Russian propositions, 
 made the following declaration : 
 
 "The delegation of the United States of America have concurred 
 in the conclusion upon the first clause of the Russian letter of Decem- 
 ber 30, 1898, presented to the conference by the I Commission, 
 namely : that the proposals of the Russian representatives, for fixing 
 the size of effective forces and of budgets, military and naval, for 
 five and three years, can not now be accepted, and that a more pro- 
 found study on the part of each state concerned is to be desired. 
 But, while thus supporting what seemed to be the only practicable 
 solution of a question submitted to the conference by the Russian 
 letter, the delegation wishes to place upon the record that the United 
 States, in so doing, does not express any opinion as to the course to 
 be taken by the states of Europe. 
 
 "This declaration is not meant to indicate mere indifference to a 
 difficult problem, because it does not affect the United States immedi- 
 ately, but expresses a determination to refrain from enunciating opin- 
 ions upon matters which, as concerning Europe alone, the United 
 States has no claim to enter. The words drawn up by M. Bourgeois, 
 and adopted by the I Commission, received also the hearty con- 
 currence of this delegation because, in so doing, it expresses the cor- 
 dial interest and sympathy with which the United States, while care- 
 fully abstaining from anything that might resemble interference, 
 regards all movements that are thought to tend to the welfare of 
 Europe. The military and naval armaments of the United States are 
 at present so small, relatively to the extent of territory and to the 
 number of the population, as well as in comparison with those of 
 other nations, that their size can entail no additional burden of 
 expense upon the latter, nor can even form a subject for profitable 
 mutual discussion."
 
 ARMAMENTS 69 
 
 This declaration is an especially interesting one from 
 the point of view, both of the traditional and the subse- 
 quent policy of the United States in regard to European 
 affairs, and of the subsequent development of its military 
 and naval armaments. 
 
 b. THE CONFERENCE OF 1907 
 
 After the adjournment of the first conference, it was 
 argued that that body had taken up the question of arma- 
 ments "at the wrong end"; that it had devoted itself 
 chiefly to the balancing of ship against ship and tonnage 
 against tonnage, and had consequently fallen into a hope- 
 less technical tangle and mathematical snarl; that what 
 was needed was a thorough study of the economic and 
 political aspects of the question. But this study, recom- 
 mended by the conference itself, was not entered upon by 
 the governments; and statesmen continued to suggest 
 mathematical solutions of the problem, such as the re- 
 duction of the size of battle ships, or the restriction of 
 military budgets for a term of five years to the amounts 
 expended during the preceding five years. 
 
 The Russian programme for the second conference 
 alluded to the subject of armaments, but barred it out from 
 consideration, in the following words : "Believing that there 
 is opportunity at present for proceeding with an examina- 
 tion of only those questions which are pressed forward 
 in a particular manner by the experience of the last few 
 years, without taking up those which may concern the 
 limitation of military or naval forces, the Imperial Gov- 
 ernment proposes, etc." — This omission has been ascribed 
 to the almost unanimous opposition of the first conference
 
 70 THE TWO HAGUE CONFERENCES 
 
 to Russia's plans for the restriction of armaments, to Rus- 
 sia's belief that its losses in armament during the Russo- 
 Japanese War should be more than made good, and to the 
 fear that to introduce the subject in the second conference 
 would be productive of discord rather than of good results. 
 This last explanation was given by Russia's first delegate, 
 President Nelidow, in his address to the conference when 
 the subject was introduced. After mentioning the various 
 wars which have occurred since the first conference, and 
 the great increase of armaments, instead of the study of 
 their limitation recommended by that conference, which 
 the various governments have undertaken, M. Nelidow 
 said: 
 
 "It was in consideration of these circumstances, gentlemen, that 
 the Russian Government omitted to mention this time, in the pro- 
 gramme which it proposed for the conference, the limitation of arma- 
 ments. It believed that this question was not ready to be considered 
 with good results ; and it did not wish to provoke discussions which, 
 as the experience of 1899 showed, might only be opposed to the object 
 to be striven for in common, and only accentuate discord between the 
 powers by causing irritating debates." 
 
 But for whatever reasons the Russian government had 
 held back in the path which it had been the first to take, 
 the governments of other countries were urged forward 
 upon it by the determined demand of their people. This 
 demand was made with preeminent force in Great Britain ; 
 and the Liberal Government there had committed itself 
 willingly, and enthusiastically on the part of the prime 
 minister, to its realization. Hence, both before and at 
 the opening of the conference, Great Britain made a reso- 
 lute stand for the right of introducing the topic for discus- 
 sion, even though it had been omitted from the official
 
 ARMAMENTS 7 1 
 
 programme. The United States joined Great Britain in 
 this determination, and France, Spain, and Italy ex- 
 pressed their willingness to discuss it if introduced ; but 
 Japan, Austria, Germany, and Russia gave notice that 
 they would not participate in discussing the question, for 
 which, to quote the words of Chancellor von Biilow, of Ger- 
 many, "no concrete, serious, practical, realizable answer 
 was presented." 
 
 Despite the expressed and powerful opposition to having 
 the question discussed, the delegations of Great Britain and 
 the United States, at the second plenary session — the first 
 business one — reserved the right of presenting it, "or any 
 other question" not on the programme. 
 
 More than eight weeks then elapsed, during which 
 time no visible step was taken towards raising the question, 
 although there were many rumors as to what was being 
 done or attempted behind the scenes. During this time 
 the United States delegation was doing its utmost to pro- 
 mote three projects in which it was vitally interested, and 
 was apparently awaiting the lead of Great Britain in the 
 matter of armaments. And in England a lively agita- 
 tion, in which the Interparliamentary Union took part 
 together with numerous peace societies, was set on foot 
 to urge the British delegation forward. At last, in the 
 fourth plenary session, August 17, Sir Edward Fry, Great 
 Britain's first delegate, took the matter up. After quoting 
 the memorable warning as to increasing armaments and 
 their results which was voiced in the Russian rescript of 
 August, 1898, Sir Edward Fry said: 
 
 "These words, so eloquent and so true when they were first writ- 
 ten, are to-day still more real and true. For, Mr. President, since 
 that time military expenses, alike for armies and for navies, have
 
 72 THE TWO HAGUE CONFERENCES 
 
 considerably increased. Thus, according to the most exact informa- 
 tion which I have received, these expenditures attained in 1898 (that 
 is, the year immediately preceding the first conference at The Hague) 
 a total of more than 251 millions of pounds sterling for the countries 
 of Europe, — with the exception of Turkey and Montenegro, about 
 which I have received no information, — the United States of Amer- 
 ica, and Japan ; whereas the same expenditures by the same countries 
 in 1906 exceeded a total of 320 millions of pounds sterling. . . . 
 
 "Such are the excessive expenditures which could be devoted to 
 better purposes ; such, Mr. President, is the burden under which our 
 peoples groan; such is the Christian peace of the civilized world 
 in the Twentieth Century. I will not speak to you of the economic 
 side of the question, of the great number of men whom these prepara- 
 tions for war compel to abandon their employments, and of the 
 prejudice which this state of things conveys to prosperity in general. 
 You know better than I this side of the question. 
 
 "I am quite sure, then, that you will agree with me in the assertion 
 that the realization of the wish expressed by the Emperor of Russia 
 and by the first conference would be a great blessing to all mankind. 
 Is this wish attainable ? That is a question to which I can not give 
 you a categorical reply. I can only assure you that my government 
 is a convinced partisan of these high aspirations, and that it charges 
 me to summon you to work and toil together for the fulfillment of this 
 noble desire. 
 
 'Tn the olden days of antiquity, Mr. President, men dreamed of 
 a golden age which was said to have exisced on earth in times long 
 before. But in all centuries and among all nations, poets, sibyls, 
 prophets, and all noble and inspired souls have nourished the hope 
 that that golden age would return in the form of the reign of universal 
 peace. 'Ultima Cumasi venit jam carminis astas Magnus ab integro 
 saeculorum nascitur ordo Jam redit et virgo: redeunt Saturnia regna.' 
 
 "Such was the dream of the Latin poet for his age ; but to-day the 
 belief in the solidarity of the human race is spread, more than ever 
 before, over all the earth. It is this belief which has made possible 
 the convocation of the present conference; and it is in the name of 
 this belief that I beseech you not to separate without having demanded 
 that the governments of the world shall devote themselves very seri- 
 ously to the question of military expenditures.
 
 ARMAMENTS 73 
 
 "My government recognizes that it is the duty of each country 
 to protect itself against its enemies, and against the dangers which 
 may threaten it, and that each government has the right and the duty 
 of deciding what is proper for its country to do for this purpose. It 
 is then only by good will, the free will of each government, acting 
 through its own head for the happiness of its country, that the object 
 of our desires can be attained. 
 
 "The government of His Britannic Majesty, recognizing that sev- 
 eral powers desire to restrict their military expenditures, and that it is 
 by the independent action of each power that this result can be 
 attained, has believed it to be its duty to seek for the means of fulfilling 
 these aspirations. Hence my government has authorized us to make 
 the following declaration: 'The Government of Great Britain will 
 be ready to communicate each year to the powers that will do the 
 same, its plan of constructing new war ships and the expenditures 
 which this plan will require. Such an exchange of information will 
 facilitate an exchange of views between the governments on the reduc- 
 tions which by common agreement may be effected. The Britannic 
 Government believes that in this way an understanding may be 
 reached on the expenditures which the states that agree to pursue this 
 course will be justified in entering upon their budgets.' 
 
 "In conclusion, then, Mr. President, I have the honor of proposing 
 the adoption of the following resolution: The conference confirms 
 the resolution adopted by the Conference of 1899 in regard to the 
 restriction of military expenditures; and, since military expenditures 
 have increased considerably in nearly every country since the said 
 year, the conference declares that it is highly desirable to see the 
 governments take up the serious study of this question." 
 
 On the conclusion of Sir Edward Fry's ten minutes 
 address, President Nelidow read the following letter from 
 Ambassador Choate, of the United States : 1 
 
 "In the course of the negotiations which preceded the present 
 conference, the Government of the United States of America thought 
 that it was its duty to reserve the right of proposing here the important 
 
 1 This letter, translated into French and dated at The Hague, August 17, 
 was sent to the president of the conference.
 
 74 THE TWO HAGUE CONFERENCES 
 
 subject of the limitation of armaments, in the hope that this might 
 promote somewhat the realization of the exalted ideal which inspired 
 the Emperor of Russia in his first appeal. 
 
 "While regretting that more progress in the direction indicated by 
 His Imperial Majesty could not be made at this time, we are happy 
 to believe that there is not the least intention on the part of the nations 
 to abandon their effort ; and we ask permission to express our sym- 
 pathy for the views which have been stated by His Excellency the 
 First Delegate of the British Delegation, and to adhere to the proposi- 
 tion which he has just made." 
 
 When this letter had been read, M. Bourgeois, of 
 France, arose and said that he gladly adhered to the 
 " proposition made by Great Britain and sustained by our 
 colleagues of the United States of America. And it will 
 be permitted, perhaps, to the first delegate of the French 
 Republic, in view of the fact that in 1899 he was the 
 mover of the first conference's resolution, to express his 
 confidence that from this time until the next Peace Con- 
 ference the study to which the conference invites the gov- 
 ernments will be resolutely pursued." 
 
 President Nelidow then read a letter from the Spanish 
 delegation expressing similar sentiments; and then the 
 treaty for mutual disarmament concluded between Ar- 
 gentina and Chili five years before, in response to the 
 resolution of the Conference of 1899, was read and vigor- 
 ously applauded. 
 
 M. Nelidow, in closing the "discussion" of the topic, 
 explained, as stated above, why Russia had omitted it 
 from the conference's programme, and concluded his 
 address with the words : 
 
 "For my part, I do not see any other way [than to pass the British 
 resolution] of testifying to the interest which the powers have in this 
 question. If it was not ripe in 1899, it is not more so in 1907. Noth-
 
 ARMAMENTS 75 
 
 ing has been done in the matter, and the conference is quite as little 
 prepared to deal with it to-day as it was then. Any fruitless discussion 
 of it will only be injurious to the cause which we have had in view, by 
 accentuating differences of judgment on matters of fact, whereas 
 there is a unity in general intentions which may some day find their 
 realization. 
 
 "Hence it is, gentlemen, that the proposal which the British dele- 
 gation has made to us to confirm the resolution passed by the Con- 
 ference of 1899, in formulating again the desire which was expressed 
 then, is the one which corresponds best to the present status of the 
 question under consideration, as well as to the interest which we all 
 have in seeing it led within that path where the unanimity of the 
 powers alone can constitute a guarantee of its future promotion. And 
 it will be an honor for the second Peace Conference to have aided its 
 progress by a favorable vote. I can, then, only applaud the English 
 initiative and urge you to vote for the adoption of the resolution which 
 Sir Edward Fry has proposed to us by unanimous acclaim." 
 
 The resolution was then adopted by acclamation, and 
 the question of armaments was answered, so far as the 
 second Peace Conference was concerned.
 
 X. WARFARE IN THE AIR 
 
 a. THE CONFERENCE OF 1899 
 
 Baron d'Estournelles de Constant, a delegate from 
 France, — that country in which patriotism runs very- 
 high, — remarked during the debate on hurling pro- 
 jectiles or explosives from balloons, that "just as 
 steam and electricity have done so much to diminish the 
 importance of existing boundary lines, the invention of 
 an aerial ship will annihilate them altogether." It has 
 also been remarked that "it is probably the inventor, 
 rather than the statesman or the clergyman, who will put 
 an end to the present system of warfare on land and sea." 
 
 But it was neither the patriotic, or national, motive 
 of preserving boundary lines between countries, nor the 
 fear that the development of warfare in the air would 
 make useless the great armaments on land and sea, which 
 caused the conference to prohibit for five years " the hurl- 
 ing of projectiles or explosives from balloons or by other 
 new analogous means." Nor was it the poetic desire 
 that at least one of "nature's four elements," the air, 
 should be protected from the fate which has overtaken 
 earth, fire, and water, its use, namely, as the element of 
 human warfare. 
 
 The motive which induced Russia to propose, and the 
 conference to adopt, the prohibition, was claimed by 
 both sides in the debate to be a purely humanitarian one. 
 
 76
 
 WARFARE IN THE AIR 77 
 
 One view of the humanitarian phase of the question was 
 expressed by General Poortugael, of the Netherlands, 
 who said : 
 
 "I know well that when it is necessary to make war, it should be 
 made as energetically as possible ; but that does not imply that every 
 means should be permitted. . . . Now, the progress of science, of 
 chemistry in particular, is such that things quite incredible yesterday 
 are realities to-day. We can foresee the use of projectiles, or other 
 things filled with deleterious gas and soporifics which, hurled down 
 from balloons into the midst of troops, would disable them at once. 
 Since such attacks can not be guarded against, they resemble treach- 
 ery; and all that resembles treachery should be scrupulously elimi- 
 nated. Let us be chivalrous even in the manner of making war ! " 
 
 Colonel Gilinsky, of Russia, said that "in the opinion of 
 the Russian government the various means of injuring 
 the enemy at present in use are sufficient " ; and General 
 Mounier, of France, added that "projectiles launched 
 from balloons now might make victims of non-com- 
 batants." 
 
 Under the influence of this humanitarian argument, 
 the subcommission voted almost unanimously for the 
 permanent prohibition of balloons for military purposes. 
 But one week later, Captain Crozier, of the United States, 
 moved that the prohibition be limited to five years, and 
 based his motion on the following argument, which he 
 called a humanitarian argument, while questioning the 
 logic, from a humanitarian standpoint, of a permanent 
 prohibition. 
 
 "It seems to me difficult," said he, "to justify by a humanitarian 
 motive the prohibition of the use of balloons for the hurling of pro- 
 jectiles or other explosive materials. We are without experience in 
 the use of arms whose employment we propose to prohibit forever. 
 Granting that practical means of using balloons can be invented,
 
 78 THE TWO HAGUE CONFERENCES 
 
 who can say that such an invention will not be of a kind to make its 
 use possible at a critical point on the field of battle, at a critical mo- 
 ment of the conflict, under conditions so defined and concentrated 
 that it would decide the victory, and thus partake of the quality pos- 
 sessed by all perfected arms of localizing at important points the de- 
 struction of life and property and of sparing the sufferings of all who 
 are not at the precise spot where the result is decided. Such use tends 
 to diminish the evils of war and to support the humanitarian con- 
 siderations which we have in view. I do not know of machines thus 
 efficient and thus humanitarian, in the incomplete stage of develop- 
 ment in which aerostation now is; but is it desirable to shut the 
 door to their possible introduction among the permitted arms? In 
 doing so, would we not be acting entirely in the dark, and would we 
 not run the risk of error inherent in such a manner of procedure? 
 The balloon, as we know it now, is not dirigible; it can carry but 
 little; it is capable of hurling, only on points inexactly determined 
 and over which it may pass by chance, indecisive quantities of ex- 
 plosives, which would fall, like useless hailstones, on both combat- 
 ants and non-combatants alike. Under such conditions it is entirely 
 suitable to forbid its use, but the prohibition should be temporary 
 and not permanent. At a later stage of its development, if it be seen 
 that its less desirable qualities still predominate, there will still be 
 time to extend the prohibition ; at present let us confine our action 
 within the limits of our knowledge." 
 
 Captain Crozier had at first voted for the permanent 
 prohibition in the subcommission, and was thus enabled 
 to move its reconsideration ; but the president of the sub- 
 commission ruled that the question should now be sent 
 to the commission as a whole. In the commission, Cap- 
 tain Crozier repeated his motion and argument, adding 
 that existing balloons might injure inoffensive populations 
 as well as combatants, and destroy a church as well as 
 a battery; but that perfected balloons might diminish 
 the length of a war, and consequently its evils, as well as 
 the expenses caused by it. The representatives of France
 
 WARFARE IN THE AIR 79 
 
 and Great Britain supported this argument, and after 
 Colonel Gilinsky, of Russia, had failed to carry a prohi- 
 bition of ten years, the commission unanimously adopted 
 Captain Crozier's motion for a prohibition of five years 
 duration. This prohibition was adopted unanimously 
 by the conference at its session on July 21, and became 
 one of the three prohibitive declarations appended to the 
 Final Act. 
 
 b. THE CONFERENCE OF 1907 
 
 The five years prohibition of the use of balloons, im- 
 posed by the first conference, expired July 29, 1904. 
 Before and after that date, there were various evidences 
 that the development of the use of balloons had made 
 noteworthy progress. While the second conference was 
 in session, there came reports to The Hague that in Ger- 
 many a dirigible balloon, with a speed of thirty milej 
 an hour, had made a successful ascent ; that in France the 
 air ship "La Patrie," made in the shape of a cigar, dirigi- 
 ble at will, and having a speed of thirty-one leagues an 
 hour with the wind and eighteen leagues against the wind, 
 had maneuvered successfully at the military review of 
 Longchamps; that the French prime minister and min- 
 ister of war had spent two hours in "La Patrie," sailing, 
 or flying, at will around Paris, and had determined to 
 organize a corps of military, aerostats to be associated 
 with the forts on the German frontier. And it was freely 
 predicted that within four or five years the air would be 
 as full of air ships as the streets are now of automobiles. 
 
 In the midst of such reports and predictions (August 7), 
 the first subcommission of the II Commission took up 
 the discussion of the proposition made by the Belgian
 
 80 THE TWO HAGUE CONFERENCES 
 
 delegation to renew the prohibition of 1899 for another 
 period of five years. Lord Reay, of Great Britain, sup- 
 porting this proposition, said that two elements, the earth 
 and the sea, are quite sufficient for warlike operations; 
 the air should be left free. ... " What purpose will 
 be served," he asked, "by the protective measures already 
 adopted [for war on land], if we open to the scourge of 
 war a new field more terrible perhaps than all the others?" 
 
 The Russian and Italian representatives proposed that 
 a permanent prohibition be placed upon the bombard- 
 ment, by air ships, of unfortified towns and cities; but 
 this proposition was decided to have been already in- 
 cluded within the laws and customs adopted for war on 
 land, and it was accordingly withdrawn. The French 
 delegation argued that the said laws and customs made 
 unnecessary any regulation concerning warfare in the air. 
 But the Belgian proposal to renew the prohibition of 1899 
 for five years was supported by the representatives of 
 Austria, Turkey, Greece, Portugal, and China, and it 
 was adopted in the subcommission by a vote of twenty- 
 nine to six, and in the commission without being sub- 
 mitted to a vote. 
 
 In the plenary session of the conference, on the 17th 
 of August, Great Britain's delegation offered the amend- 
 ment, to the Belgian proposition, that the prohibition be 
 extended "until the end of the third Peace Conference." 
 This amendment was accepted by a vote of twenty-eight to 
 eight (with eight abstentions) ; and then the prohibition 
 was adopted by a vote of twenty-nine to eight (with 
 seven abstentions). 1 
 
 1 The negative vote was cast by Germany, Argentina, Spain, France, 
 Montenegro, Persia, Roumania, and Russia. The seven abstentions were: 
 Chili, Colombia, Japan, Mexico, Peru, Sweden, and Venezuela.
 
 WARFARE IN THE AIR 8 1 
 
 The Japanese delegation explained that its abstention 
 from the vote was due to the lack of unanimity on the 
 question among the great military powers, and said that 
 it did not see much use in binding itself as regards some 
 powers, while as regards the others it would be necessary 
 to continue to study and perfect the means of warfare in 
 the air. In accordance with this interpretation of the 
 conference's vote the air ship will have at least seven years 
 to show what it can do. If it should prove itself thoroughly 
 efficient, it seems probable that it will be admitted as 
 an engine of warfare, as well as of communication and 
 espionage. Should this prove to be the case, dire pre- 
 dictions are made as to its political, financial, and military 
 results. One eminent prophet has said that before it 
 boundaries and nationalities would be obliterated, forts 
 and custom houses would become useless. From the 
 financial point of view, it is urged that when the trans- 
 portation of dutiable goods is made by balloons, govern- 
 ments can no longer depend upon customs dues in time 
 of war, and that then their war budgets will be more 
 directly felt and more bitterly resented than at present; 
 that, although the cost of constructing a balloon is rela- 
 tively small — about $50,000, — the manufacture of shells 
 for combating them will have to be developed, and they 
 themselves will become more and more expensive through 
 the introduction of new means of ascending higher and flying 
 faster in order to avoid the shells. Thus, financially, the 
 result of air war ships would be both to increase enor- 
 mously the cost of armaments and to diminish the sources 
 of revenue for supplying it. From the military point of 
 view, it is urged by a German lieutenant colonel that air 
 war ships would make war "more bloody and infernal
 
 82 THE TWO HAGUE CONFERENCES 
 
 than it is at present"; that "frightful ravages would be 
 wrought where their projectiles strike"; that "soldiers 
 would dream of being exposed constantly, even during 
 the night, to a death-dealing rain, and great panics would 
 ensue; and that hence it is above all the moral effect of 
 such arms which should form the chief objection to their 
 use." One eminent Austrian statesman has gone still 
 farther in this military critique, and has predicted that 
 "all the armaments in the world would be rendered 
 obsolete by the advent of war ships in the air." 
 
 Whether or not these and similar arguments will be 
 used in the next conference in favor of renewing, or mak- 
 ing permanent, the prohibition of balloons as war ships, 
 or of recognizing them as regular engines of warfare, 
 will depend, of course, upon the progress made in aero- 
 statics during the next seven years; but even now it may 
 be assumed that the subject will become of increasing 
 importance in each recurring conference. 
 
 The United States delegation took no part, in the Con- 
 ference of 1907, in the discussion of the question, but 
 voted with the majority, in both subcommission and con- 
 ference, in favor of the temporary prohibition. Professor 
 Renault, of France, repeated the arguments used in 1899 
 by Captain Crozier, of the United States, in favor of a 
 temporary as against a permanent prohibition. The 
 French delegation, however, opposed any other restric- 
 tion on warfare in the air than had been adopted for war- 
 fare on the land. And this opposition probably caused 
 a negative vote to be cast in the conference by the German 
 delegation, which had voted in the subcommission in 
 favor of the temporary prohibition on condition that the 
 affirmative vote should be unanimous.
 
 XI. WARFARE ON THE SEA 
 A. NEW ARMS AND METHODS 
 
 a. The Conference of 1899 
 
 The second topic mentioned in the Russian programme 
 of January 11, 1899, was "the prohibition of the use in 
 armies and fleets of any new kinds of firearms whatever, 
 and of new explosives, or any powders more powerful 
 than those now in use, either for muskets or cannon." 
 When this topic came up for discussion in the naval sub- 
 commission of the I Commission, the first difficulty which 
 arose was as to the precise meaning of the term "new 
 kinds of firearms." Captain Scheine, of Russia, an- 
 swered this question by saying that "the term should be 
 understood in the sense of an entirely new type, and should 
 not include transformations and improvements." But 
 to this it was objected by Admiral Pephau, of France, 
 that "a new type" — of cannon, for example — was 
 merely an old type gradually modified and improved. 
 Again, it was asked, by Captain Sakomoto, of Japan, if 
 "new type" included one already invented, but not yet 
 adopted. And, finally, the term "prohibition" was ob- 
 jected to as being inadmissible; for, if it was to be ap- 
 plied to the invention and construction of such engines of 
 warfare, it could be enforced — if at all — only by a law 
 of each nation; and if it was to be applied to the intro- 
 duction of such arms from abroad, it would be an in- 
 fringement on national sovereignty. 
 
 83
 
 84 THE TWO HAGUE CONFERENCES 
 
 Captain Scheme replied to the last objection that the 
 prohibition was to be only a temporary one, for say three 
 or four years; and that, since it was not very probable 
 that arms in general would be greatly modified during 
 that time, the governments could use the opportunity 
 for looking further into the question and deciding upon 
 some definite line of action. 
 
 The Russian proposal was urged on the twofold ground 
 of economy, — the reduction of warlike expenditures, 
 and humanity, — the alleviation of the horrors of warfare. 
 
 To these arguments it was replied, by Admiral Fisher, 
 of Great Britain, that each country desires to equip itself 
 with the best arms that it can procure; that such arms 
 tend to shorten and to prevent wars ; and that a restriction 
 on the invention and construction of new types of arms 
 would place civilized peoples in a disadvantageous position 
 in time of war with nations less civilized or with savage 
 tribes. In the military subcommission, the argument 
 was also made on the economic phase of the question by 
 General Poortugael, of the Netherlands, that a new in- 
 vention might occasion, not greater expense, but econ- 
 omies of various kinds; he added, however, that in case 
 an international agreement could be reached, the Nether- 
 lands would willingly join in it. 
 
 The United States delegation says of this general sub- 
 ject, in its final report to the government : 
 
 "The American delegation approached the subject of the limita- 
 tion of invention with much doubt. They had been justly reminded 
 in their instructions of the fact that by the progress of invention as 
 applied to the agencies of war, the frequency and indeed the ex- 
 hausting character of war had been as a rule diminished rather than 
 increased. As to details regarding missiles and methods, technical
 
 WARFARE ON THE SEA 85 
 
 and other difficulties arose which obliged us eventually to put our- 
 selves on record in opposition to the large majority of our colleagues 
 from other nations on sundry points. While agreeing with them most 
 earnestly as to the end to be attained, the difference in regard to some 
 details was irreconcilable. We feared falling into worse evils than 
 those from which we sought to escape." 
 
 Captain Mahan, the United States representative on 
 the naval subcommission, was a good exponent of this 
 optimism as to the possibilities of " Yankee inventiveness " 
 and of " Yankee caution," and shared in the criticism of 
 the Russian proposal as to "new arms." 
 
 1. Marine Cannon 
 
 The subcommission, being unwilling to express its 
 opinion on an indefinite question, however important it 
 might be, requested Captain Scheine to define precisely 
 what "new arms" were implied by the Russian proposal. 
 This he did by taking up, first, the question of marine 
 cannon. After describing the various types of cannon, 
 he proposed that the powers should agree for a period 
 of three or five years (each power to fix the beginning of 
 the period) to limit the caliber of ordinary guns to seven- 
 teen inches (43 cm.), and of rapid-firing guns to eight 
 inches (20 cm.); their length to forty-five calibers; and 
 the initial velocity to three thousand feet a second (914 m.). 
 Captain Mahan having made the remark that if calibers 
 are to be limited, armor also should be restricted, Captain 
 Scheine proposed that the maximum thickness of armor 
 should be fourteen inches (355 mm.) according to the 
 latest Krupp pattern. After a discussion of these prop- 
 ositions, and a restatement by various delegates of much 
 the same objections which they had made to the restriction
 
 86 THE TWO HAGUE CONFERENCES 
 
 of "new arms" in general, it was agreed that the delegates 
 should inform their governments of the Russian proposals, 
 and await their instructions. Captain Mahan said that, 
 although he was willing to consult his government, he 
 did not believe that the United States would be inclined 
 to restrain inventions, especially those related to the per- 
 fecting of armor plate. 
 
 Admiral Pephau, of France, thinking that an agree- 
 ment might be secured upon a general statement, if not 
 on a specific restriction, proposed that the governments 
 should agree not to introduce within a certain time "a 
 radical transformation in existing types, such as that from 
 a muzzle-loading to a breech-loading cannon " ; and that, 
 " in any case, the calibers at present in use shall not be in- 
 creased." Of the fourteen votes cast on this proposition, 
 however, seven were for, and seven against ; the affirma- 
 tive were chiefly those of the small powers, and the nega- 
 tive chiefly those of the large powers, including the 
 United States. This compromise was, accordingly, re- 
 jected; and, after some of the governments had been 
 heard from, a vote was taken on the specific pro- 
 posals of Russia, with the result that of ten votes cast, 
 seven were for and three agansit them. 1 When this 
 result was reported to the commission, that body voted 
 unanimously to leave the question open and to recommend 
 it to the serious study of the governments ; and the con- 
 ference adopted this recommendation unanimously, with 
 the exception of a few abstentions. 
 
 1 Those voting aye, on condition of unanimity, were: Russia, Austria- 
 Hungary, Sweden and Norway, Japan, the Netherlands, Roumania and Siam; 
 those voting no were : United States, Germany, Italy.
 
 WARFARE ON THE SEA 87 
 
 2. Explosives and Asphyxiating Gases 
 
 The Russian programme included, next, the prohibi- 
 tion of "new explosives, or any powders more powerful 
 than those now in use." When this topic was taken up 
 in the naval subcommission, M. Rolin, delegate from 
 Siam, objected to the proposal because "the employment 
 of explosives, particularly for the small powers, constitutes 
 a special means of defense." Admirals Fisher, of England, 
 and Pephau, of France, also objected to the prohibition 
 for the same reasons as were urged in the case of "new 
 arms"; and after his defeat on this latter question, Cap- 
 tain Scheine, of Russia, did not press his plan regarding 
 new explosives, but cleverly substituted for it a proposal 
 to prohibit the use of "projectiles charged with explo- 
 sives which diffuse asphyxiating or deleterious gases." 
 When Count Soltyk, of Austria-Hungary, objected to this 
 phraseology because "all explosives contain gas more or 
 less injurious," Captain Scheine defined the prohibition to 
 "include only those projectiles whose object is to diffuse 
 asphyxiating gases, and not to those whose explosion pro- 
 duces incidentally such gases." 
 
 The representatives of Russia, Denmark, France, 
 Austria-Hungary, Great Britain, and Portugal supported 
 this proposal, making the following arguments: the task 
 of the conference being to restrict the means of destruc- 
 tion, it is logical to prohibit new means, above all when 
 they have (as have such projectiles) a barbarous char- 
 acter and partake of treachery and cruelty similar to the 
 poisoning of drinking water; directed against a besieged 
 city, they would destroy more non-combatants than 
 ordinary projectiles; death from asphyxiation is more
 
 88 THE TWO HAGUE CONFERENCES 
 
 cruel than death from bullets ; means should be sought for 
 putting enemies out of the battle, but not out of this world. 
 As a result of these arguments, the prohibition was 
 voted in the subcommission, unanimously, with the ex- 
 ception of the vote of the delegate from the United States, 
 which was cast against it. Captain Mahan carried his 
 struggle to permit the use of such gases through the sub- 
 commission, commission, and conference. In defense of 
 his action, he made the following report to the United 
 States government : 
 
 "As a certain disposition has been observed to attach odium to the 
 view adopted by this Commission [i.e. the United States delegation] 
 in this matter, it seems proper to state, fully and explicitly, for the 
 information of the Government, that on the first occasion of the 
 subject arising in Subcommittee, and subsequently at various times 
 in full Committee, and before the Conference, the United States naval 
 delegate did not cast his vote silently, but gave the reasons, which at 
 his demand were inserted in the reports of the day's proceedings. 
 These reasons were, briefly: i. That no shell emitting such gases is 
 as yet in practical use, or has undergone adequate experiment; con- 
 sequently, a vote taken now would be in ignorance of the facts as to 
 whether the results would be of a decisive character, or whether injury 
 in excess of that necessary to attain the end of warfare, the immediate 
 disabling of the enemy, would be inflicted. 2. That the reproach of 
 cruelty and perfidy, addressed against these supposed shells, was 
 equally uttered formerly against firearms and torpedoes, both of 
 which are now employed without scruple. Until we knew the effects 
 of such asphyxiating shells, there was no saying whether they would 
 be more or less merciful than missiles now permitted. 3. That it was 
 illogical, and not demonstrably humane, to be tender about asphyxiat- 
 ing men with gas, when all were prepared to admit that it was allow- 
 able to blow the bottom out of an iron-clad at midnight, throwing four 
 or five hundred into the sea, to be choked by water, with scarcely the 
 remotest chance of escape. If, and when, a shell emitting asphyx- 
 iating gases alone has been successfully produced, then, and not be- 
 fore, men will be able to vote intelligently on the subject."
 
 WARFARE ON THE SEA 89 
 
 In the meeting of the commission to which the result of 
 this discussion was reported, the president, M. van Karne- 
 beek, of the Netherlands, made an urgent appeal, to the 
 United States delegation to make the vote against asphyxi- 
 ating gases unanimous, and said that six of the countries 
 voting aye had done so only in case of unanimity. But 
 Captain Mahan replied that it was "impossible to change 
 his first vote, because it was based on a question of 
 principle." 
 
 In the session of the conference, when the question was 
 finally disposed of, the United States voted no, and Great 
 Britain cast the same vote, unanimity not having been 
 secured ; but all the other countries voted for the prohibi- 
 tion, and the conference adopted the following declaration : 
 
 "The Undersigned, Plenipotentiaries of the Powers represented 
 at the International Peace Conference at The Hague, duly authorized 
 to that effect by their Governments, inspired by the sentiments which 
 found expression in the Declaration of St. Petersburg of the 29th No- 
 vember (nth December), 1868, declare as follows: The Contracting 
 Powers agree to abstain from the use of projectiles the object of which 
 is the diffusion of asphyxiating or deleterious gases." 
 
 This declaration was signed by the delegations of all the 
 twenty-six countries represented, with the exception of 
 those of the United States and Great Britain. 
 
 In defense of Captain Mahan's stand on this question, 
 the following paragraph from the United States secretary 
 of state's instructions to the delegation may be noted: 
 "It is doubtful if wars will be diminished by rendering 
 them less destructive, for it is the plain lesson of history 
 that the periods of peace have been longer protracted as 
 the cost and destructiveness of war have increased. The 
 expediency of restraining the inventive genius of our peo- 
 
 . S rv^ ;
 
 90 THE TWO HAGUE CONFERENCES 
 
 pic in the direction of devising means of defense is by no 
 means clear, and, considering the temptations to which 
 men and nations may be exposed in a time of conflict, it 
 is doubtful if an international agreement of this nature 
 would prove effective." 
 
 On the other hand, it should be noted that our delega- 
 tion was not united in its opposition to the prohibition of 
 asphyxiating bombs. Ambassador White, the leader of 
 the delegation, recorded in his diary at the time of the 
 discussion of the question: " To this [Captain Mahan's 
 argument] it was answered — and, as it seemed to me, 
 with force — that asphyxiating bombs might be used 
 against towns for the destruction of vast numbers of non- 
 combatants, including women and children, while torpe- 
 does at sea are used only against the military and naval 
 forces of the enemy. The original proposal was carried 
 by a unanimous vote, save ours. I am not satisfied with 
 our attitude on this question ; but what can a layman do 
 when he has against him the foremost contemporary 
 military and naval experts ? My hope is that the United 
 States will yet stand with the majority on the record." x 
 
 It should be noted, also, that in the Conference of 
 1907, Great Britain's first delegate, Sir Edward Fry, 
 announced that his government, desirous of promoting 
 the utmost possible unanimity among the nations, had 
 instructed him to accept the declaration of 1899 against 
 the use of asphyxiating gases. Since the governments of 
 South and Central America, for the first time represented 
 in 1907, had already accepted the acts of 1899, Great 
 Britain's adhesion to the above declaration left the United 
 States government alone in opposition to it. 
 
 1 Andrew D. White, " Autobiography," II, 319-320.
 
 WARFARE ON THE SEA 
 
 9 1 
 
 3. Torpedo Boats and Rams 
 
 The Russian proposal on this topic was: "A prohibi- 
 tion of the use, in naval warfare, of submarine torpedo 
 boats or plungers, or other similar engines of destruction; 
 an agreement not to construct, in the future, vessels with 
 rams." 
 
 The president of the naval subcommission opened the 
 discussion of the question as to torpedo boats with the 
 remark that "if one nation should adopt these terrible 
 engines of war, all others should be left free to make use 
 of them also." The delegates of Great Britain, Germany, 
 Russia, Japan, Italy, and Denmark said that their coun- 
 tries would vote for the prohibition, but only in case una- 
 nimity could be secured. Captain Mahan, of the United 
 States, said that he wished to leave his government in 
 entire liberty to make use of such boats, but would await 
 the decisions of the other delegates. Austria-Hungary's 
 delegate believed that they should be permitted for the 
 defense of seaports and roadsteads; the delegate of 
 France believed that the submarine torpedo has an emi- 
 nently defensive object and should be permitted ; and the 
 delegates of the Netherlands, Siam, and Sweden and Nor- 
 way supported this conclusion for the reason that the sub- 
 marine torpedo is the rightful weapon of the small and 
 feeble. This difference of opinion being so great, neither 
 the subcommission, commission, nor conference attempted to 
 express any formal resolution on the use of torpedo boats. 1 
 
 The construction of war ships with rams was another 
 question which failed to receive a definite answer. It was 
 
 1 In the commission, a vote was taken on the Russian proposal, ten states 
 voting for it, and nine against it; the United States voted against it.
 
 g 2 THE TWO HAGUE CONFERENCES 
 
 argued that the prohibition could not extend to ships 
 already made, nor to ships contracted for and under 
 construction ; nor could it be properly held to apply to a 
 war ship which is not provided with a ram ? but is strength- 
 ened at the bow in such a manner as to give and sustain 
 a shock. Captain Hjulhammar, of Sweden and Norway, 
 argued that by suppressing the ram and not the torpedo 
 boat but little would be done in the cause of humanity; 
 and that the ram is useful against transports in case of dis- 
 embarkation, — a matter of importance to states having 
 a long extent of coast. And M. de Bille, of Denmark, 
 argued that the ram constitutes a useful means of defense, 
 and offers to small ships their only chance of defeating 
 large ones. 
 
 Captain Scheme, of Russia, having failed to secure any 
 agreement as to the construction of ships with rams, 
 proposed that in time of peace the rams on war ships 
 should be masked, so as to reduce the danger from them 
 to other ships in case of collision. But on this proposal 
 the argument was made that means of masking rams are 
 as yet but too little developed ; and although the subcom- 
 mission reported the question to the commission, which 
 alone was competent to deal with it, no action was taken 
 upon it. 
 
 Captain Mahan was one of those who argued against the 
 subcommission's competency to deal with the masking of 
 rams ; but in the commission the United States was one of 
 the seven states that voted for the prohibition of the con- 
 struction of ships with rams, on condition that the vote 
 should be unanimous. 1 
 
 1 These states were: The United States, Great Britain, Italy, Japan, 
 Persia, the Netherlands, and Roumania ; four others voted for the prohibition
 
 WARFARE ON THE SEA 
 
 b. The Conference of 1907 
 
 93 
 
 The Russian programme for the second conference 
 contained no reference to "new kinds of firearms." This 
 is not surprising, considering the decided rejection of 
 Russia's proposals concerning them in 1899 ; and consider- 
 ing also the fact that it omitted from its programme for 
 1907 its entire armament policy, of which new arms, 
 marine cannon, etc., formed a part. But, with the state- 
 ment that " it is desirable at present to examine only those 
 questions which are especially pressing, those, namely, 
 which have arisen from the experience of the years just 
 past," the programme specified the three questions of sub- 
 marine mines, naval bombardment, and the transfor- 
 mation of merchant ships into cruisers, as requiring an 
 international agreement. 
 
 1. Submarine Mines 
 
 The placing of torpedoes, or the use of submarine mines, 
 was made prominent by the Russo-Japanese War; and 
 the question of regulating it was considered by several of 
 the great naval and maritime powers to be an urgent one. 
 
 When it came up for discussion in the first subcom- 
 mission of the III Commission, the subcommission's 
 president declared that its solution presented greater 
 technical difficulties than any other question before the 
 conference; but that if such solution could be reached, it 
 would prove most valuable in the promotion of humanity 
 and peace. 
 
 without reserve: France, Greece, Siam, and Bulgaria; and seven states voted 
 against it: Germany, Austria-Hungary, Denmark, Spain, Portugal, Sweden 
 and Norway, and Turkey.
 
 94 THE TWO HAGUE CONFERENCES 
 
 The basis of discussion was Great Britain's proposi- 
 tions that the use of unanchored, or floating, submarine 
 contact mines should be forbidden; that the use of 
 such mines as do not become harmless when breaking 
 loose from their anchorage should be prohibited; that 
 the use of mines to establish or maintain a commer- 
 cial blockade should be prohibited; that belligerents 
 should be permitted to use mines only in their own or 
 their enemies' territorial waters, or at a distance of ten 
 miles in front of naval forts. 
 
 Captain Ottley, of the British navy, supported these 
 propositions in a speech in which he showed the great 
 danger of the indiscriminate sowing of the high seas with 
 floating mines, to human life and to the commerce of neu- 
 tral nations. The Chinese delegates supported the British 
 propositions on the ground of a "large humanity," and 
 emphasized their support by citing some consequences 
 to their country of the Russo-Japanese War. They 
 stated that their government was still obliged (two years 
 after the close of that war) to furnish its coasting vessels 
 with special instruments to remove and destroy the float- 
 ing mines which encumber not only the high seas but 
 also its own territorial waters; that, in spite of every 
 precaution, a very considerable number of coasting ships, 
 fishing boats, junks, and sampans, have foundered as a 
 result of striking these mines; and that from five to six 
 hundred Chinese citizens, peacefully pursuing their occu- 
 pations, have suffered a cruel death from these dangerous 
 engines of warfare. 
 
 Several other delegations admitted the truth of Cap- 
 tain Ottley's arguments, but proposed various amend- 
 ments to the British propositions. The Italian and
 
 WARFARE ON THE SEA 
 
 95 
 
 Japanese delegates proposed that, instead of prohibiting 
 floating mines altogether, as the first British proposition 
 required, a belligerent should have the right of using float- 
 ing mines which should become harmless "within one 
 hour after they are launched," or "after a duration of 
 submersion restricted in such a way as to present no 
 danger to neutral vessels outside the immediate sphere of 
 hostilities." The delegations of the Netherlands and 
 Brazil demanded that the right of using anchored mines 
 be accorded to neutrals for the purpose of defending their 
 neutrality, as well as to belligerents. And Admiral Siegel, 
 of Germany, insisted that, instead of restricting belliger- 
 ents in the use of mines to their own or each other's terri- 
 torial waters, they should be permitted to use them also 
 on the "theater of war"; that is, on the space of sea on 
 which a warlike operation is being carried out, or has just 
 been carried out, or on which such operation may result 
 from the presence or the approach of the armed forces of 
 the two belligerents. 
 
 After a prolonged discussion of the subject in its various 
 phases, it was referred to a committee of twenty-four 
 delegates, representing chiefly the countries which had 
 presented propositions in regard to it. 1 
 
 This committee, after six weeks of discussion, appealed 
 to the III Commission to know if that commission, or 
 even the conference itself, was competent to restrict the 
 use of mines by neutral nations. An animated debate 
 on this question arose in the commission, which decided 
 that it was competent to impose such restriction. After 
 
 1 The United States delegation had presented a proposition, similar to the 
 first two British propositions, designed to protect the commerce of neutral 
 nations; Admiral Sperry, U.S.N., was appointed on the committee.
 
 96 THE TWO HAGUE CONFERENCES 
 
 three more weeks of discussion, the committee presented 
 a voluminous report which touched upon various phases 
 of the subject and stated that, in spite of the great diffi- 
 culties connected with it, certain principles had been 
 unanimously accepted by the committee and certain rules 
 for applying those principles had been adopted by a 
 majority vote. The principles unanimously accepted 
 were few but important, and were stated as follows: a. 
 fundamental distinction must be made between automatic 
 contact mines which are anchored, or cabled, and those 
 which are not cabled; the latter may be used anywhere, 
 but they should be so constructed as to become harmless 
 within an extremely short lapse of time ; the same is true, 
 also, of automobile torpedoes which have missed their 
 aim. As to cabled mines, it is necessary to restrict their 
 use within certain places ; but since this restriction can not 
 be absolute, and since it can not preclude the possibility of 
 placing them in places where peaceful navigation should 
 be able to count on free access, it is necessary to restrict 
 cabled mines also within a limit of time during which they 
 may continue dangerous. And, finally, every cabled mine 
 should be so constructed as to become harmless as soon as 
 it breaks loose from its cables. 
 
 Upon these principles the majority of the committee 
 based a series of special rules, which were recommended 
 to the commission. In the long debate upon these rules, 
 within the commission, the delegates from the United 
 States, Great Britain, and Japan argued that they were 
 not sufficiently restrictive; while two delegates from 
 Germany insisted that they went too far in the direction 
 of crippling the warlike efficiency of small fleets. Con- 
 cessions were made by both sides in the debate, and the
 
 WARFARE ON THE SEA 97 
 
 rules finally adopted received the unanimous vote of 
 the thirty-eight delegations present when the vote was 
 taken. 1 
 
 The conference, also, adopted these rules unanimously, 
 except that eight delegations reserved their votes on parts 
 of them. They forbid : first, the use of unanchored 
 mines, unless constructed in such a manner as to become 
 harmless within one hour after their control has been 
 lost ; 2 second, the use of anchored mines which do not 
 become harmless as soon as they break their cables; third, 
 the use of torpedoes which do not become harmless when 
 they have missed their aim; fourth, the placing of mines 
 along the coasts and in front of the ports of the enemy, 
 with the sole purpose of intercepting commerce. 3 They 
 provide, also, that every possible precaution shall be taken 
 to protect peaceful navigation from mines, the belliger- 
 ents agreeing, whenever possible, to cause them to become 
 harmless after a limited time and, when they cease to be 
 guarded, to indicate the dangerous regions and inform 
 the governments of them, as soon as military exigencies 
 permit. Neutral governments which place mines along 
 their coasts are subjected to the same rules as are belliger- 
 ents. At the end of a war, both belligerents are required 
 to remove the mines which they have planted, both on 
 their own and the enemy's coasts, as well as elsewhere. 
 All the contracting powers agree to transform, as soon as 
 possible, their mining materials into the perfected types 
 necessitated by the above rules; and the rules themselves 
 
 1 There were six absences: Chili, Dominican Republic, Luxemburg, 
 Nicaragua, Panama, and Paraguay. 
 
 2 Dominican Republic, Mexico, Montenegro, Russia, Siam, and Turkey 
 reserved their vote on this rule. 
 
 3 Germany and France reserved their vote on this rule-
 
 98 THE TWO HAGUE CONFERENCES 
 
 are to remain in force for seven years, and longer unless 
 repudiated in a prescribed manner. 
 
 The disappointment of the British delegation that the 
 rules adopted were not more radical was voiced by Sir 
 Ernest Satow, who, in a plenary session of the conference, 
 made the following statement : 
 
 "Having voted for the Convention on Mines which the conference 
 has just adopted, the British delegation desires to assert that it can 
 not consider this arrangement as definitively solving the question, 
 but as marking only one step in international legislation on the sub- 
 ject. It believes that there has not been sufficient regard for the right 
 of neutrals to protection, nor for the sentiments of humanity which 
 can not be neglected; it has done its utmost to induce the conference 
 to adopt this view, but its efforts in this direction have been futile. 
 
 "The high seas, gentlemen, are a great international highway. 
 If, in the present state of international laws and customs, belligerents 
 are permitted to settle their disputes on it, it is none the less incum- 
 bent upon them to do nothing which, long after their own departure 
 from the scene of conflict, might make this highway dangerous for 
 neutrals who have an equal right to its use. We declare, without 
 hesitation, that the right of neutrals to security in navigating the high 
 seas should take precedence of the transient right of belligerents to 
 make use of them as the place of warlike operations. 
 
 "But the convention which has been adopted does not impose 
 upon the belligerent a single restriction as to the placing of cabled mines 
 wherever it may seem to him desirable, whether it be in his own ter- 
 ritorial waters for purposes of defense, or in those of the enemy for pur- 
 poses of attack, or, finally, in the high seas, thus necessarily causing great 
 risks to neutral navigation in time of naval warfare and, indeed, the 
 probability of disasters. We have already insisted, several times, on the 
 danger of such a condition ; we have been obliged to point out what 
 might be the consequences of the loss of some great steamboat be- 
 longing to a neutral power. We have not failed to advance every 
 argument in favor of restricting the field of action of these mines, 
 and particularly to emphasize the advantages which the whole 
 civilized world would derive from such a measure, since it would
 
 WARFARE ON THE SEA 99 
 
 diminish, to a certain extent, the causes of armed conflict. It has 
 seemed to us that the adoption of the proposition made by us at the 
 beginning of the discussion would have prevented the dangers which, 
 in every future naval war, will threaten to disturb peaceful relations 
 between neutrals and belligerents. But, since the conference has not 
 partaken of our way of thinking, it remains for us to declare in the 
 most formal manner that those dangers exist and that it is due to the 
 incomplete state of the present convention that they will make them- 
 selves felt in the future. This convention, being as it is, in our 
 opinion, only a partial and insufficient solution of the problem, it 
 can not be considered, as I have said before, a complete exposition of 
 international law on the subject; and the legitimacy of such or such 
 act can not be assumed simply because this convention has not pro- 
 hibited it. This is the principle which we desire to assert, and which 
 can never be ignored by any state, whatever may be its power." 
 
 Baron Marschall von Bieberstein, of the German dele- 
 gation, immediately replied to Sir Ernest Satow as follows : 
 
 "In view of the declaration just made by the honorable delegate 
 from Great Britain, I desire to repeat what I have said already in the 
 commission: 'A belligerent who sinks mines assumes very heavy 
 responsibility towards neutrals and towards peaceful navigation. 
 On this point we are all agreed. No one will resort to this weapon 
 without absolutely urgent military reasons. Now, military operations 
 are not controlled solely by the prescriptions of international law. 
 There are other factors ; conscience, good sense, and the sentiment of 
 duties imposed by the principles of humanity will be the surest guides 
 for the conduct of sailors, and will form the most effective guaranty 
 against abuses. The officers of the German navy — I proclaim it 
 aloud — will always fulfill in the strictest manner the duties prescribed 
 by the unwritten law of humanity and civilization. 
 
 "'I need not tell you that I recognize entirely the importance of 
 codifying rules to be followed in war. But we should avoid the pro- 
 mulgation of rules whose strict observance may be rendered impos- 
 sible by the force of circumstances. It is of the first importance 
 that the international maritime law which we desire to enact should 
 contain only those clauses whose enforcement is possible from the
 
 IOO THE TWO HAGUE CONFERENCES 
 
 military point of view, — even under exceptional circumstances. 
 Otherwise, the respect for law will be diminished and its authority 
 destroyed. Hence it seems to us preferable to maintain for the 
 present a certain reserve, in expectation that within five years we 
 shall be in a better position to find a solution acceptable to everyone.' 
 "As to sentiments of humanity and civilization, I can not admit 
 that any government or nation is in this sense superior to that which 
 I have the honor to represent." 
 
 With this exchange of views between the chief naval and 
 the chief military power of Europe, the conference passed 
 finally from the subject of submarine mines. 
 
 2. Naval Bombardment 
 
 A proposition was made in the Conference of 1899 
 that the rule adopted for land warfare as to the bom- 
 bardment of undefended cities, etc., should be extended 
 to naval warfare also. But it was decided that the ques- 
 tion was too complicated to be solved at that time, and 
 the conference contented itself with passing, unanimously, 1 
 a desire [voeu] that it be referred to the consideration of 
 a later conference. 
 
 It was mentioned, as has been said, in the Russian 
 programme for the second conference, and was assigned 
 to the first subcommission of the III Commission. Its 
 consideration was postponed until after the discussion of 
 the question of submarine mines; but at the first session 
 of the subcommission it was introduced by the United 
 States delegation, which proposed that the bombardment, 
 by a naval force, of unfortified and undefended towns, 
 villages, or buildings, be prohibited. This prohibition 
 
 1 The British delegation refrained from voting, because of lack of instruc- 
 tions.
 
 WARFARE ON THE SEA 101 
 
 included bombardment for non-payment of ransom; 
 but the proposition admitted that such towns, villages, or 
 buildings are liable to bombardment (after due notice) 
 when reasonable requisitions for provisions and supplies 
 essential to the naval force at the time of the requisition 
 are withheld. And it also admitted that such places are 
 liable to the damages incidental to the destruction of 
 military or naval establishments, public depots of muni- 
 tions of war, or vessels of war in port. 
 
 This proposition was taken as the basis of discussion, 
 and, although amended in several particulars, its substance 
 was adopted by the conference and embodied in some 
 important rules. By unanimous vote, the bombardment 
 of undefended ports, towns, villages, dwellings, or build- 
 ings was prohibited. A difference of opinion arose, 
 however, as to the precise meaning of the term "un- 
 defended." General Poortugael, of the Netherlands, 
 insisted that an unfortified town situated near a coast 
 defended by soldiers and cannon (The Hague, for exam- 
 ple) should be considered an " undefended" town. This 
 argument was informally acquiesced in, but it was not 
 deemed possible to formulate a precise definition of the 
 term. It was definitely voted, however, that a place may 
 not be bombarded even though defended by automatic 
 submarine mines of contact anchored before its port. 
 This last proviso was vigorously opposed by Captain 
 Ottley, of Great Britain, who argued that a submarine 
 mine is as much of a defense as are cannon ; that the fire 
 of a cannon can rarely destroy a vessel in the offing, 
 whereas the explosion of a single mine will certainly do 
 so; that it is in the interests of all neutral countries to 
 free the sea of these murderous instruments, since, being
 
 102 THE TWO HAGUE CONFERENCES 
 
 entirely concealed, they are equally dangerous to friends 
 and enemies, neutrals and non-combatants; that, if 
 ports are undefended otherwise than by submarine mines, 
 they are immune from bombardment and hence do not 
 need the mines to protect them; and that it would be an 
 outrage upon a belligerent, approaching a so-called unde- 
 fended port, to be destroyed by a mine belonging to the 
 port which claimed inviolability for itself. 
 
 This line of argument induced six delegations ' to 
 reserve their votes on the proviso; but the argument that 
 a submarine mine was only a passive instrument of de- 
 struction, and would be made harmful to the belligerent 
 only when he himself approached it, was accepted as 
 conclusive by a large majority of the delegations, all of 
 which, with the exception of the six referred to, voted 
 for the proviso. 
 
 It was also voted, unanimously and without discussion, 
 that the bombardment of undefended ports, etc., for the 
 non-payment of requisitions of money, should be pro- 
 hibited; and that pillage, even of those towns taken by 
 assault, should also be prohibited. 
 
 In the case of those ports, etc., which contain military 
 works, military or naval establishments, depots of arms 
 or materials of war, workshops and plants capable of 
 being utilized for the needs of a fleet or army, or whose 
 harbors contain war ships, the commander of a naval 
 force may demand the destruction of these things by the 
 local authorities within a reasonable time, and if this 
 demand is not complied with and no other method of 
 destroying them is possible, he may then destroy them by 
 bombardment. The proviso that a "reasonable time" 
 
 1 Great Britain, Germany, France, Spain, Japan, and China.
 
 WARFARE ON THE SEA 
 
 103 
 
 must be given to the local authorities before the bombard- 
 ment is begun, was vigorously opposed by Captain Ottley, 
 of Great Britain, for the reason that a fleet anchored 
 within the harbor of an undefended port might profit by 
 any delay to procure reinforcements and thus avoid 
 destruction or even achieve a victory. The naval dele- 
 gates of various countries supported this view of the mat- 
 ter, and it was decided to adopt the further proviso that 
 if military exigencies require immediate bombardment, 
 and do not admit of according a delay, the bombardment 
 may take place at once, but that the commandant of the 
 bombarding fleet must take all requisite measures to 
 cause the unfortified city itself to suffer the least possible 
 inconvenience. This proviso was adopted by a unani- 
 mous vote, with the exception of that of Haiti's delega- 
 tion, which reserved its vote upon it for the reason that 
 "it seems very rigorous indeed to admit that even the 
 unexpected presence, within an undefended port, of war 
 ships which the enemy might think should be destroyed, 
 is sufficient to expose the town and its inhabitants to the 
 results of an unexpected and immediate bombardment." 1 
 It was further conceded 2 that if the local authorities 
 of undefended ports, etc., refuse to comply with a formal 
 demand for stores or provisions necessary to the present 
 needs of the naval force near it, then, after express noti- 
 fication, the commander of the said force may proceed to 
 a bombardment. The Spanish delegation proposed that 
 these stores or provisions should be paid for at current 
 
 1 M. van den Heuvel, of Belgium, also opposed this proviso, and voted 
 against it, in the commission; but in the conference, Belgium's vote was 
 cast for it. 
 
 2 By unanimous vote, except that Chili's delegation reserved its vote.
 
 104 THE TWO HAGUE CONFERENCES 
 
 prices, and that they should be limited to the quantity 
 which can be demanded in a neutral port. The last of 
 these propositions failed of adoption ; but it was provided 
 that such stores or provisions may be requisitioned only 
 with the sanction of the commandant himself, and shall 
 be paid for in cash, whenever possible, or vouched for, 
 otherwise, by written receipts. On the motion of the 
 Turkish delegation, it was also provided that such requi- 
 sitions shall be in accord with the resources of the place 
 on which they are made. 
 
 While conceding the right of bombardment of unde- 
 fended ports, etc., under the exceptional circumstances 
 stated above, the conference voted that every necessary 
 measure shall be taken by the commandant of the bom- 
 barding force to save from injury, as far as possible, the 
 buildings devoted to religion, art, science, and benevolence, 
 historic monuments and hospitals, on condition that they 
 are not used at the time for a military purpose. It was 
 made the duty of the inhabitants of a bombarded town 
 to designate such buildings by visible signs, consisting 
 of large, stiff, rectangular panels, divided diagonally 
 into two colored triangles, the upper one black and the 
 lower one white. 
 
 3. Merchant Ships transformed into Cruisers 
 
 This topic was mentioned in the Russian programme 
 and was the first one assigned to the IV Commission. 
 When it was taken up for discussion, seven propositions 
 concerning it were presented by various delegations. 
 None of these propositions suggested the abolition of 
 the practice of transforming merchant ships into cruisers,
 
 WARFARE ON THE SEA 
 
 *°5 
 
 although Brazil's first delegate said that there is danger 
 of its restoring in an indirect manner the system of pri- 
 vateering which the Declaration of Paris of 1856 pro- 
 hibited. The Japanese delegation proposed that the 
 transformation of fishing boats into war vessels be pro- 
 hibited ; and this prohibition was implied in the exemption 
 later accorded to such boats from capture. 
 
 Lord Reay, on behalf of Great Britain, moved that every 
 merchant ship, whether belligerent or neutral, which is em- 
 ployed in the transport of marines, land troops, munitions 
 of war, combustibles, provisions, drinking water, or any 
 other kind of naval supplies, shall be considered an "aux- 
 iliary war vessel" and treated as such; also that the same 
 treatment should be accorded to any vessel designed to 
 repair war ships, or to carry dispatches or transmit infor- 
 mation, if the said vessel is obliged to conform to the 
 sailing orders communicated to it directly or indirectly 
 by a belligerent fleet. It was obvious that this proposi- 
 tion raised the question of the definition of "contraband 
 of war," and that it provided for a kind of involuntary 
 and unofficial transformation of merchant vessels into 
 war ships. It was therefore vigorously combated on both 
 these grounds, and Lord Reay finally withdrew it from 
 further consideration by the existing conference, saying 
 that it should be submitted to the next conference after 
 a careful study of the question by the various govern- 
 ments, and that meanwhile such vessels would be subject, 
 as rendering "hostile assistance," to the principles of 
 international law. 
 
 The Japanese and the British propositions were the 
 only ones which had to do with the question of what 
 vessels may be transformed into war ships; and it was
 
 106 THE TWO HAGUE CONFERENCES 
 
 unanimously agreed, by silent assent and without formal 
 vote, that "in time of war, ships belonging to the merchant 
 marine of any power may be incorporated in its war 
 fleets." But it was also unanimously agreed, by formal 
 vote, that "it is desirable to define the conditions under 
 which this operation may be effected, in so far as the rules 
 regarding it are generally accepted." The commission 
 then entered upon a debate as to the duration, place, and 
 method of the transformation. 
 
 Austria, supported by Germany, proposed that the 
 transformation should be made for the entire duration of 
 the war, and that a retransformation should not occur 
 until the war had ended. This proposition was based on 
 the argument that a ship should be all one thing or all the 
 other, — a ship of war or a merchant ship, and that it 
 should not be permitted to change its character, and with 
 that, its responsibilities, at will. Against this, Japan 
 urged that belligerents should not be hampered, in this 
 matter, by too strict rules; and the majority adhered to 
 this view and refused to enact any rule as to the duration 
 of the transformation. 
 
 Italy, supported by Mexico, proposed that merchant 
 ships should be forbidden to become war ships either in 
 the waters of another state or on the high seas. But, 
 while it was generally admitted that such transformation 
 must not occur in the waters of a neutral state, it was 
 argued by Germany and Russia that it should be permitted 
 on the high seas. Belligerents transform captured mer- 
 chant ships into war vessels on the high seas ; why should 
 they not transform their own merchant ships there also? 
 Such was the argumentative question, which Great Britain 
 answered by saying, first, that such a transformation is
 
 WARFARE ON THE SEA 107 
 
 an act of sovereignty, which can be accomplished only in 
 those places where sovereignty can be exercised; and, 
 second, that such transformation on the high seas would 
 leave neutral nations in ignorance of the character as- 
 sumed by a ship which had left its last port as a merchant 
 vessel. France, in supporting the German view of the 
 question, answered Great Britain's arguments by say- 
 ing that a state has full sovereignty on the high seas 
 over all the ships under its flag ; and that neutral nations 
 could easily be informed, and should immediately be 
 informed, of the transformation by the belligerent pub- 
 lishing the vessel on its official list of war ships. Japan 
 rejected both the German proposal to permit the trans- 
 formation on the high seas, and the British proposal to 
 restrict it exclusively to the home ports of belligerents; 
 and proposed as a compromise to permit it in waters 
 belonging to lands occupied by belligerents as well as in 
 their own waters. 
 
 This discussion over the place of transformation was 
 continued in a special committee which finally submitted 
 the question to a vote, with the result that seven delega- 
 tions favored the German proposal as to the high seas, 
 and nine delegations followed England's lead against 
 it. In view of the indecisiveness of this vote, the commis- 
 sion and the conference voted that "the high contracting 
 parties not having been able to agree on the question, . . . 
 it is understood that this question stands entirely apart 
 and is not at all implicated in the rules adopted." 
 
 The rules adopted were six in number, and provided 
 that a merchant ship transformed into a war ship can have 
 the rights and duties pertaining to the latter only when 
 it is placed under the direct authority, the immediate
 
 108 THE TWO HAGUE CONFERENCES 
 
 control, and the responsibility of the state whose flag 
 it flies; that such transformed ships should bear the dis- 
 tinctive external marks of the war ships of their nation; 
 that their commanders should be in the service of the state 
 and duly commissioned by the competent authorities; 
 that their crews must be subjected to military discipline; 
 that they themselves are bound, in their operations, to 
 conform to the laws and customs of war; and that the 
 belligerent to whom they belong should mention their 
 transformation, as soon as possible, on the list of its war 
 ships. 
 
 These rules were voted in the commission unanimously, 
 with six abstentions, and in the plenary session of the 
 conference by thirty-two ayes, one reservation, 1 nine ab- 
 stentions, 2 and two absences. 3 
 
 Before voting in favor of these rules the delegations of 
 Spain and Mexico announced to the conference that their 
 respective countries accepted the Declaration of Paris 
 of 1856. 
 
 When the rules were voted in the commission, General 
 Porter, on behalf of the United States delegation, said 
 that the question of such regulation was of interest only 
 to those states which had signed the Declaration of Paris; 
 that the United States had not signed that declaration, 
 because it did not recognize the principle of the inviola- 
 bility of private property; and that therefore the United 
 States delegation would abstain from voting on the pro- 
 posed regulations. 
 
 1 Turkey, whose delegation had received no instructions. 
 
 2 United States, Colombia, China, Dominican Republic, Ecuador, Guate- 
 mala, Persia, Salvador, and Uruguay. 
 
 3 Nicaragua and Paraguay.
 
 WARFARE ON THE SEA Tog 
 
 B. THE GENEVA CONVENTION 
 
 i. Hospital Ships 
 
 a. The Conference of i8gg 
 
 The document referred to generally as "The Geneva 
 Convention," or "The Red Cross Rules," was called 
 officially "The Convention of Geneva for the Improve- 
 ment of the Condition of Soldiers wounded in Armies in 
 the Field." It consisted of ten articles, agreed to by 
 the representatives of twelve sovereigns, 1 and based on 
 the desire expressed in its preamble, "to alleviate, in so 
 far as they can, the evils inseparable from war, to sup- 
 press the useless hardships and improve the condition of 
 soldiers wounded on the field of battle." It was due 
 largely to the generous initiative of Switzerland, and was 
 signed at Geneva by the representatives of the twelve 
 sovereigns on the 2 2d of August, 1864. 
 
 Four years later, October 20, 1868, the representatives 
 of fourteen sovereigns 2 adopted at a conference in Geneva 
 fifteen additional articles. Five of these were amend- 
 ments to the earlier articles, and the other ten were de- 
 signed "to apply to fleets the advantages of the earlier 
 convention." 
 
 It was to these articles that the fifth and sixth items of 
 the Russian programme for the first conference referred 
 
 1 These were the sovereign rulers of the Netherlands, Baden, Belgium, 
 Denmark, Spain, France, Hesse, Italy, Portugal, Prussia, Switzerland, and 
 Wiirtemberg. 
 
 2 All of the former sovereigns were represented, with the exception of those 
 of Spain, Hesse, Portugal, and Prussia; and in place of these, were repre- 
 sentatives from the North German Confederation, Austria, Bavaria, Great 
 Britain, Sweden and Norway, and Turkey.
 
 HO THE TWO HAGUE CONFERENCES 
 
 in the words: "An application to naval warfare of the 
 stipulations of the Geneva Convention of 1864, on the 
 basis of the additional Articles of 1868; and a neutraliza- 
 tion of ships and boats employed in saving drowning 
 sailors during or after naval battles." But as only Articles 
 VI to XV of the Convention of 1868 applied to naval 
 warfare, these alone were taken up by the conference for 
 discussion. This discussion was carried through a special 
 committee of experts, a subcommission, the II Com- 
 mission, and the conference; it lasted from May 25 to 
 June 20, and was productive of some of the most useful 
 results of the conference. 
 
 The first step was to admit, without opposition, that 
 it was desirable to apply the Geneva articles to naval 
 warfare. This step was in itself of marked importance; 
 for the articles of 1868 had remained a dead letter, and 
 the difficulties of their application were obviously so great 
 that it seemed impossible to several of the naval powers 
 to accomplish anything in this direction at the Conference 
 of 1899. But thanks to the liberal and resolute policy 
 of a few of the largest naval powers, the desirability of 
 the step was admitted and the conference proceeded to 
 take it. 
 
 The first difficulty was to define precisely the scope 
 of the term "hospital ships." This term was given a 
 generous scope and was made to include three kinds: 
 1. Military hospital ships, that is to say, ships constructed 
 or assigned by states especially and solely for the purpose 
 of assisting the wounded, sick, or shipwrecked. 1 
 
 1 The French word used here is naufrages, the nearest translation of which 
 in English is shipwrecked; but it implies, not sailors wrecked by storm on 
 coasts or rocks, but those who have been placed in danger of drowning as a 
 result of naval combat.
 
 WARFARE ON THE SEA III 
 
 2. Hospital ships equipped wholly or in part at the 
 cost of private individuals or officially recognized relief 
 societies, and belonging to one of the belligerent nations. 
 
 3. Hospital ships equipped wholly or in part at the 
 cost of private individuals or officially recognized soci- 
 eties of neutral nations. In addition to these three kinds 
 of hospital ships, strictly so called, neutral merchantmen, 
 yachts, or other non-military vessels, having or taking on 
 board sick, wounded, or shipwrecked belligerents, were 
 also exempted from capture for so doing. 
 
 All of these four kinds of vessels are to be respected 
 and exempt from capture, provided they fulfill certain 
 conditions. The "military," or government, hospital 
 ships must have their names communicated, before they 
 are employed, to the belligerents; the private or semi- 
 private hospital ships belonging to belligerent nations, 
 or to neutrals, must have commissions from their govern- 
 ments, and their names must be communicated to the 
 belligerents before they are employed. All three kinds 
 of hospital ships must afford relief to the wounded, sick, 
 and shipwrecked of the belligerents, irrespective of their 
 nationality; they must not be used for any military pur- 
 pose; they must not in any way hamper the movements 
 of the combatants; they must act at their own risk and 
 peril during and after an engagement ; and the belligerents 
 have the right to control and visit them, refuse their 
 assistance, order them away, make them take a certain 
 course, put a commissioner on board, or even detain 
 them if important circumstances require it. And the 
 neutral merchantmen and yachts are liable to capture 
 for any violation of neutrality committed by them. 
 
 To distinguish hospital ships from war ships, as well
 
 112 THE TWO HAGUE CONFERENCES 
 
 as to prevent their being used for military purposes, it 
 was agreed that the "military," or government, hospital 
 ships shall be distinguished by being painted white out- 
 side, with a horizontal band of green about one and a half 
 meters wide; that the private or semiprivate hospital 
 ships belonging to the belligerents or to neutrals shall be 
 distinguished by being painted white outside with a 
 horizontal band of red about one and a half meters wide ; 
 and that all hospital ships shall make themselves known 
 by hoisting, together with their national flag, the white 
 flag with a red cross provided by the Geneva Convention. 
 The discussion of these three questions — ■ the meaning 
 of "hospital ships," the restrictions imposed upon them, 
 and their distinguishing signs — was an animated and 
 interesting one. On the first point, Captain Scheme, of 
 Russia, argued that by placing all hospital ships under the 
 control of the admiral of one or the other of the belligerent 
 fleets, the field of battle would not be invaded by ships 
 of a private character. But, on the motion of M. Renault, 
 of France, it was decided that private or semiprivate 
 ships should be permitted, provided they were kept under 
 the control of one or other of the belligerents. This was 
 a very important decision, as it enables the hospital ships 
 of the Red Cross Society and of other societies and in- 
 dividuals to participate in the work of rescue. The French 
 delegates also prevented this participation from being 
 restricted by a Russian proposal that all hospital ships 
 should be constructed on such a model that they could 
 not be used as ships of war; the French argument pre- 
 vailed that the previous notice and other restrictions re- 
 quired of them would be sufficient to prevent fraud. 
 It was also argued, by Captain Alahan, of the United
 
 WARFARE ON THE SEA 1 13 
 
 States, among others, that neutral hospital ships and 
 merchantmen had been conceded a status and immunities 
 hitherto unknown and not now justifiable; and Captain 
 Marian went so far as to say: "Upon reflection I am 
 satisfied that no necessity exists for the authorization of 
 hospital vessels under a neutral flag upon the scene of 
 naval war, and that the adhesion of our government to 
 such a scheme may be withheld without injury to any 
 one." But this restricted policy was rejected in the in- 
 terests of humanity. 
 
 On the other hand, no delegate proposed that a mer- 
 chantman belonging to one of the belligerent powers, 
 and having on board sick or wounded, should also be 
 respected and exempt from capture ; the committee report- 
 ing the resolutions commented on this fact as follows: 
 "The consequence of this silence is that such ships remain 
 under the rule of the common law, and hence are exposed 
 to capture; this rigorous consequence appears to us only 
 logical and in conformity with principles." 
 
 As to conditions imposed on hospital ships, it was sug- 
 gested that notification of their character should be made 
 "before the opening of hostilities"; but this was rejected 
 in favor of the phrase "before they are employed." This 
 decision was made for the reason that it would be cruel to 
 prohibit belligerents from developing their hospital service 
 after war has commenced and in accordance with its 
 exigencies. It was also argued that since "military," or 
 government, hospital ships were to be exempt, by Article I, 
 from the rules applying to men-of-war during their stay 
 in neutral harbors, a notification of their names and use 
 should be made to neutral states as well as to the belliger- 
 ents themselves. But the reply was made that the dis-
 
 114 THE TWO HAGUE CONFERENCES 
 
 tinguishing marks of a hospital ship would be sufficient 
 notice of its character when entering a neutral port; 
 although it was admitted that it would be desirable for 
 such notices to be inserted in the official journals of the 
 belligerents, so that all the world might be informed. 
 
 In order to insure to the belligerents the efficient con- 
 trol of the private or semiprivate hospital ships fitted 
 out by neutrals, it was urged (by Captain Mahan, among 
 others) that such vessels, "being engaged in service iden- 
 tical with that of belligerent hospital vessels to which it 
 was proposed to extend the utmost possible immunity, 
 should frankly enter the belligerent service by hoisting 
 the flag of the belligerent to which it offered its services. 
 This being permitted by general consent, and for purposes 
 purely humanitarian, would constitute no breach of neu- 
 trality, while the control of either belligerent, when in 
 presence, could be exercised without raising those vexed 
 questions of neutral rights which the experience of mari- 
 time warfare shows to be among the most difficult and 
 delicate problems that belligerents have to encounter." 
 This proposition was opposed vigorously by Captain 
 Siegel, of Germany, who argued that "to compel such 
 vessels to hoist a foreign flag would be an act incompatible 
 with the sovereignty of the state to which they belong, — 
 an act which could be deemed but little friendly by the 
 power not favored, and which would even constitute, 
 perhaps, a violation of strict neutrality to the advantage 
 of one of the belligerents." This view of the question 
 prevailed, and all hospital ships were permitted to carry 
 the flag of their own country. 
 
 When the question as to the distinctive flag for hospital 
 ships arose in the subcommission, the representative of
 
 WARFARE ON THE SEA 1 15 
 
 Turkey said that in all cases where Turkish hospital ships 
 have to perform their mission, the emblem of the Red Cross 
 would be replaced by the Red Crescent; he said in ad- 
 dition that, since Ottoman ships of war have always 
 respected the Red Cross as the emblem of the Geneva 
 Convention, he would express the desire that by way 
 of reciprocity the Red Crescent should be assured the 
 same respect. The representative of Siam said that his 
 government places beside the Red Cross, on the flag of 
 the Geneva Convention, an emblem sacred in the Buddhist 
 religion, also in red and called "The Flame." And at a 
 later meeting of the full commission the representative of 
 Persia made the following declaration: 
 
 "In accordance with instructions which I have just received from 
 Teheran, I am directed to inform the commission that the Persian 
 Government will claim, as a distinctive flag, a white flag with the Red 
 Sun. The adoption of the Red Cross as the emblem of hospitals was 
 an act of courtesy on the part of the governments signing the Geneva 
 Convention towards the honorable government of Switzerland, whose 
 national flag was adopted, with the colors reversed. We should 
 be happy to extend the same mark of courtesy to the honorable gov- 
 ernment of Switzerland, if that were not impossible because of agita- 
 tions which would result from it in the Mussulman army." 
 
 Captain Mahan, of the United States, remarked that the 
 emblem of the Red Cross has a religious character which 
 is addressed particularly to Christian states, and he 
 thought that it would be better to adopt another one which 
 would be recognized by all. But the president of the 
 subcommission remarked that it was not competent to 
 enter on the discussion of a proposition tending to revise 
 a clause of the Geneva Convention. This view pre- 
 vailed, and the conference adopted the Red Cross as the
 
 Il6 THE TWO HAGUE CONFERENCES 
 
 emblem of hospital ships, but recorded the declarations 
 of Turkey, Siam, and Persia regarding it ; and these three 
 governments signed it as adopted. 
 
 b. The Conference of igoy 
 
 The last item on the Russian programme for the second 
 conference was "the additions to be made to the Conven- 
 tion of 1899 f° r the adaptation to maritime war of the prin- 
 ciples of the Convention of Geneva of 1864, revised in 
 1906." l This topic was assigned to the second subcom mis- 
 sion of the III Commission, and was the first topic com- 
 pleted by the conference. When it came up for discussion, 
 the delegations from Germany and France proposed 
 modifications of detail in the former convention, while 
 certain other delegations, notably that of the Netherlands, 
 proposed modifications in its principles. 
 
 As to the kind of vessels to be used for hospital purposes, 
 it was decided that, instead of permitting neutral merchant- 
 men, yachts, and other non-military boats to take on board 
 the sick, wounded, and shipwrecked, and then to hold 
 them exempt from capture [as was done by Article VI 
 of the former convention], belligerents should be given 
 the right of requesting them to do so, and that only in 
 case they acted upon such request, and not on their own 
 initiative, were they to be given "special protection and 
 certain immunities." This restriction of the charitable 
 activity of neutral vessels was defended on the ground that 
 such rescue work is not a right conceded to neutral ships 
 by international law, or by logic or humanity; but that 
 to request it should be a right conceded to belligerents 
 
 1 For this revision, see later, page 193.
 
 WARFARE ON THE SEA 117 
 
 which they would not be slow to exercise, and that hu- 
 manity would dictate compliance with the request on the 
 part of neutral vessels. 
 
 In regard to distinguishing marks, it was decided that 
 hospital ships should hoist at night three lights, green, 
 white, green, placed vertically one under the other; and 
 when to this plan the objection was made that it would 
 betray to the enemy the maneuvers of the fleet with 
 which the hospital ships sailed, it was decided that this 
 distinctive sign should be used only in time of battle. 
 
 The question of the flag under which neutral hospital 
 ships should operate gave rise in the second conference 
 as in the first to considerable discussion. M. Renault, of 
 France, argued in favor of the independence of such ships 
 being maintained by the use of the flag of the neutral 
 nation; but the belief prevailed that such independence 
 would result in serious interference with the military 
 rights of belligerents. It was accordingly decided that 
 neutral hospital ships complying with the request of a 
 belligerent to render aid should hoist that belligerent's 
 flag, together with the Red Cross flag, and be submitted 
 to the belligerent's control. This was the proposition 
 which was supported in 1899 by Captain Mahan, of the 
 United States, and by several other delegates, and which 
 was vigorously and successfully opposed by Captain 
 Siegel, of Germany. In the 1907 conference, Captain 
 (now Admiral) Siegel admitted that in view of the latitude 
 given to neutral hospital ships in regard to their arma- 
 ment, their personnel, and their use of wireless telegraphy, 
 it would be desirable that the belligerent flag should re- 
 place that of the neutral nation. 
 
 As to the armament of such ships, it was voted that
 
 Il8 THE TWO HAGUE CONFERENCES 
 
 "they have no need of other cannon than those which are 
 requisite for the making of signals." 
 
 The use of radiography on board hospital ships was 
 permitted in the interest of efficiency; and the argument 
 that it might be used to send dispatches injurious to the 
 belligerent was met by the statement that the removal of 
 radiographic apparatus, by order of the commander of a 
 belligerent force, would be very easy, and that it would be 
 possible also to receive messages by means of it and at 
 the same time to prevent their being sent. 
 
 The Turks and the Persians reserved the right of re- 
 placing the Red Cross by the Red Crescent and the Red 
 Lion (or the Red Sun), respectively; and their appeal for 
 reciprocity in this regard was accepted, not by the con- 
 ference as a whole, but by several separate delegations. 
 Great Britain accepted their appeal in a plenary session of 
 the conference, and Russia, in accepting it in a reunion 
 of the commission, recalled the fact that "during the war 
 of 1877-1878 the Red Cross and the Red Crescent acted 
 together in protecting the humanitarian interests of which 
 they are the symbols." 
 
 2. The Personnel of Captured Ships 
 a. The Conference of i8gg 
 
 The articles of the Geneva Convention have to do with 
 two classes of persons on board captured ships; namely, 
 the religious, medical, and hospital staff, and the sick, 
 wounded, or shipwrecked soldiers and sailors. 
 
 The conference decided that the religious, medical, and 
 hospital staff of any captured ship should be inviolable and 
 that its members must not be made prisoners of war ; that
 
 WARFARE ON THE SEA Iig 
 
 on leaving the captured ship they may take with them their 
 private property, including their scientific instruments; 
 that this staff shall continue to fulfill its functions as long 
 as it is necessary, and that it can then leave the ship when 
 the commander in chief considers it possible; and that 
 the belligerents must guarantee to the staff that has fallen 
 into their hands the enjoyment of their emoluments intact. 
 
 In the debate on this article, a delegate from Japan 
 asked if the emoluments referred to were meant to be 
 those accorded by the government of the captured or 
 the captor ship, and argued that they should be those of 
 the captor. But a delegate from France replied that if 
 this view prevailed, emoluments in certain cases would 
 be nothing at all, and that it would be simpler and more 
 just to assure to the staff its accustomed emoluments. 
 Aji Austrian delegate argued that it would cause great 
 inconvenience to restore the staff to liberty, and that it 
 should be kept under the surveillance of the commander 
 in chief; but the principle was insisted upon that it should 
 be considered inviolable, and its members not held as pris- 
 oners of war, but should be permitted to leave the ship 
 as soon as possible. The commander in chief was to 
 decide when this time had arrived, but he should act 
 wholly under the idea that he was not dealing with pris- 
 oners of war, and did not have the power of dealing with 
 them capriciously. Captain Mahan's suggestion, that "a 
 time should be fixed after which the staff should neces- 
 sarily be liberated," was not adopted. 
 
 Sick, wounded, or shipwrecked soldiers and sailors, 
 to whatever nation they belong, must be protected and 
 cared for by their captors, but they are regarded as prison- 
 ers of war; the captor must decide, according to circum-
 
 120 THE TWO HAGUE CONFERENCES 
 
 stances, whether it is best to keep them, or to send them 
 to a port of his own country, to a neutral port, or even to 
 one of their own ports ; and in the last cited case, prisoners 
 thus restored to their country can not serve again during 
 the continuance of the war, unless duly "exchanged." 
 
 In making these rules the conference refused to use 
 the term "victims of maritime war," and accepted that 
 of "sick, wounded, or shipwrecked soldiers and sailors." 
 This was done on the motion of delegates from Japan 
 and Turkey, who said that during the recent Chino- Jap- 
 anese and Greco-Turkish wars, sick and wounded sol- 
 diers belonging to land armies were captured while being 
 transported by sea. The phrase adopted includes all 
 sick or wounded soldiers and sailors found on board 
 captured ships, whether their sickness or wounds were 
 incurred before or after coming on board. The use of 
 the word "captor" was also objected to, since it might 
 exclude the sick and wounded on board hospital ships 
 and neutral merchantmen which are exempt from "cap- 
 ture"; but on the motion of Captain Scheine, of Russia, 
 it was decided that "capture" in such cases would be ac- 
 complished by a mere "visit," made by a war ship to them. 
 
 As to the status of "prisoner of war" which was retained 
 for the sick, wounded, or shipwrecked, the objection was 
 made that it is a useless and cruel one. But the reply 
 was made and accepted that the fundamental principle 
 to be applied is that "a belligerent has in his power hostile 
 combatants; it matters little that they are wounded, sick, 
 or shipwrecked, or that they have been taken on board 
 a vessel of any particular kind. They must be treated 
 humanely, of course, — this is also a fundamental prin- 
 ciple; but they are the prisoners of their captor."
 
 WARFARE ON THE SEA 121 
 
 A delegate from Siam objected to the proviso that the 
 captor may send such prisoners to one of their home ports, 
 saying that it had no practical use. But it was shown 
 that such a course might be taken when there was no other 
 port near, or when the prisoners were very seriously ill 
 or wounded. Both humanity and interest would dictate 
 such a course; for the captor would burden neither him- 
 self nor his country with the hopelessly sick or wounded. 
 The Siamese motion that this clause be stricken out was 
 accordingly rejected. A Japanese motion, that the word 
 "serve" be replaced by "take up arms again," was also 
 rejected; although it was conceded that the sick and 
 wounded captured by the enemy and restored to their 
 country could only serve in civil offices, ambulance corps, 
 etc., and not as combatants, unless duly exchanged. 
 
 In the case of the shipwrecked, wounded, or sick landed 
 at a neutral port, it was provided that they could be so 
 landed only with the consent of the neutral state; but 
 that once landed there, they must be guarded by the neutral 
 state so that they can not again take part in the war. This 
 rule led to an animated debate, was adopted by a bare- 
 majority of the delegations, and was rejected by a number 
 of important governments who signed the convention 
 only on the condition that this article be inoperative in so 
 far as they were concerned. 
 
 The first part of the rule was accepted by every one. A 
 neutral country does not break the laws of neutrality by 
 receiving such guests; but they can not be forced upon it 
 by the belligerents: humanity and its own wishes alone 
 can dictate their reception. But the second part of the 
 rule, that the neutral nation, once receiving them, must 
 prevent their taking part again in the war, was strongly
 
 122 THE TWO HAGUE CONFERENCES 
 
 opposed. The opposition argued that the laws of war on 
 land permitted the neutral nation to send sick and wounded 
 soldiers back to their own land ; that the laws of war on 
 the sea permitted belligerents to send their sick and 
 wounded captives back to their own land; that it would 
 be an infringement on the rights of neutrals to compel 
 them to bear the burden of guarding belligerent guests 
 during the whole course of the war; and, finally, that an 
 epidemic of disease might break out in the port or town 
 of their detention, in which case at least the neutral state 
 should be free to send its guests home. 
 
 The supporters of the rule replied to these arguments 
 that shipwrecked sailors were not so harmless as wounded 
 soldiers, and neutral states receiving them should prevent 
 their reentry into the war ; that there is a great difference 
 between one of the belligerents restoring captives to their 
 own country and a neutral state doing the same thing, 
 since "the neutral is less competent to decide on their 
 condition than is the belligerent"; that the burden of 
 guarding sailors would be far less than that of guarding 
 soldiers, since very few sailors would be landed in a neu- 
 tral country in comparison wi h the large number of sol- 
 diers who would find their way to a neutral country after a 
 land battle; and that the expenses incurred by a neutral 
 state in caring for and guarding the belligerents it receives 
 must be paid by the state to which they belong. 1 A vote 
 was taken on the rule, after this prolonged discussion, and 
 resulted in its adoption by ten delegations against nine. 2 
 
 1 This last provision was made a part of the rule as adopted. 
 
 2 It is to be noted that three of the ten delegations voting "aye" signed 
 the convention at the end of the conference only on the condition of com- 
 plete liberty of action so far as this rule was concerned; the United States, 
 which was one of the nine delegations voting "no," also signed it under the 
 same condition.
 
 WARFARE ON THE SEA 
 
 123 
 
 This vote in its favor was so indecisive that, at a sub- 
 sequent meeting, it was decided to add the proviso that 
 the rule would be operative on neutral countries only 
 "in the absence of a contrary arrangement between the 
 neutral state and the belligerents." This proviso was 
 based on the supposition that belligerents would be so 
 anxious to have their sick, wounded, and shipwrecked 
 received by neutral states that they would make arrange- 
 ments for their return to their own homes and thus relieve 
 the neutral states of the burden of guarding them. This 
 modification of the rule induced all but one of the nine 
 delegations voting "no" to accept the rule and sign the 
 convention. The other one, the United States, signed 
 the convention, but excluded this rule; and Germany, 
 Great Britain, and Turkey did the same. 1 
 
 The United States naval representative, Captain Mahan, 
 believed that the articles as adopted by the special com- 
 mittee, the subcommission, the commission, and the con- 
 ference omitted an important topic, that, namely, of the 
 rescue of belligerents by neutral vessels which chanced to 
 be present on the arena of combat. This topic was sug- 
 gested to Captain Mahan by the case of the rescue of the 
 captain and men of the "Alabama" by the British yacht 
 " Deerhound." In order to prevent a similar escape of a 
 commander in chief and other important officers from 
 the hands of a victorious belligerent through the inter- 
 vention of a neutral boat, Captain Mahan proposed in 
 the subcommission that men rescued by neutral vessels of 
 any kind, hospital ships or others, shall not be considered 
 
 1 It was arranged in 1900 that the convention could be signed by these 
 four countries, and that where this rule (Article X) should appear, there 
 should be inserted the word "Exclu," — excluded.
 
 124 THE TWO HAGUE CONFERENCES 
 
 under a neutral flag, but shall be surrendered on demand 
 to a ship of war of either belligerent; in case no such 
 demand be made, the men thus rescued are not to serve 
 for the rest of the war, unless duly exchanged, and the gov- 
 ernment of the neutral rescuer must prevent as- far as pos- 
 sible such persons from serving until discharged. Captain 
 Mahan supported his proposition before the special com- 
 mittee of experts, 1 in a two hours' session, but failed to se- 
 cure its adoption, either by the committee or the commission. 
 On being informed that a further attempt to secure its adop- 
 tion would probably imperil the unanimity with which the 
 other articles had been received, the United States delega- 
 tion instructed Captain Mahan to withdraw his proposed 
 additions; this he did by letter to the committee, and with 
 a statement to the conference that the delegation's reason 
 for doing so was "not because of any change of opinion 
 as to the necessity of the proposed additions, but in order 
 to facilitate the conclusion of the labors of the conference." 
 
 b. The Conference of igoy 
 
 The conference did not modify the rules of 1899 as far 
 as the religious, medical and hospital staff of captured 
 ships was concerned; but it did amplify the rules con- 
 cerning the sick, wounded, or shipwrecked soldiers and 
 sailors of such ships. It provided that any belligerent 
 war ship may demand the surrender of the sick, wounded, 
 or shipwrecked on board military hospital ships, the hos- 
 pital ships of charitable societies or individuals, and 
 merchant ships, yachts, etc., whatever may be the nation- 
 ality of such vessels. 
 
 1 This committee was composed of one member each from Great Britain, 
 Germany, Russia, and France.
 
 WARFARE ON THE SEA 
 
 I2 5 
 
 When this rule was debated in the subcommission, it 
 was admitted that a belligerent war ship, exercising its 
 right of visit to such ships and finding disabled men on 
 board, would often find it to its own advantage not to 
 burden itself with them, but to leave them where they 
 were found. But it was argued that, if it should appear 
 that such disabled men, and especially those rescued 
 from drowning, would still be able to render important 
 services to their country, they should not be permitted 
 to escape, but might be demanded by the belligerent war 
 ship and must be surrendered to it. This belligerent 
 right was conceded on the express ground that both the 
 Conventions of 1899 and 1907 regard such men as pris- 
 oners of war, since, in spite of their physical condition, 
 they are combatants of a belligerent nation and have 
 fallen into the power of the enemy. 
 
 It was also urged that to compel a neutral ship to sur- 
 render the wounded, whom it had received out of charity, 
 would be an act of inhumanity. But to this objection 
 the reply was made that international law would permit 
 not only the seizure of hostile combatants found on 
 board a neutral ship, but the seizure and confiscation 
 of the ship itself, for having rendered a non-neutral serv- 
 ice; and, further, that if men rescued from drowning, 
 for example, could escape capture solely because they had 
 found refuge on board a neutral ship, the belligerent 
 powers would eliminate the charitable activity of neutrals 
 from the moment that such activity might result in an 
 irreparable injury to themselves, and that thus humanity 
 would be an even greater loser in the absence of the rule. 
 
 It should be noted that the rule as applied to neutral 
 merchant ships gives to belligerent cruisers only the right
 
 126 THE TWO HAGUE CONFERENCES 
 
 of demanding the surrender of the refugees on board of 
 them, and not the right of capturing them or even of 
 turning them from their route or imposing upon them a 
 fixed itinerary. 
 
 The French delegation, influenced by an incident in 
 the recent Russo-Japanese War, proposed that the ship- 
 wrecked, wounded, or invalids received on board a neutral 
 war ship should not be surrendered to their enemy, but 
 should be kept under guard. This proposition was 
 adopted by the conference, on the ground that such refu- 
 gees should receive treatment analogous to that accorded 
 to combatants who take refuge in neutral territority. 
 
 One other rule, adopted from the Geneva Convention 
 as applied on land, was that after each combat the two 
 belligerents, in so far as military interests permit, shall 
 take measures for rescuing the shipwrecked, wounded, and 
 invalids, and for protecting them, as well as the dead, 
 against pillage and ill treatment; they shall also take care 
 that the burial, immersion, or incineration of the dead be 
 preceded by an attentive examination of the corpses. This 
 last reference to the burial and incineration of the victims 
 of maritime warfare was intended to cover the case of a 
 battle fought near the coast on which the bodies of many 
 victims would be found. 
 
 C. THE PRIVATE PROPERTY OF BELLIGERENTS 
 
 a. The Conference of 1899 
 
 The Russian programme contained no reference to the 
 exemption of private property from capture in maritime 
 warfare ; but the United States government instructed its 
 delegation to introduce the subject before the conference
 
 WARFARE ON THE SEA 
 
 127 
 
 at the first favorable opportunity. An attempt was 
 made in an informal meeting of the first delegates on the 
 day after the opening of the conference to secure general 
 consent to its introduction. But this attempt failed, owing 
 to objections strongly urged by the representatives of 
 Russia, Great Britain, and France. The chief objection 
 urged was that, unless the programme were strictly ad- 
 hered to, and every topic not included within it were 
 rigidly excluded, the conference would find itself over- 
 whelmed by the flood of topics pouring in upon it from 
 outside sources and would end in confusion, discord, and 
 failure. 
 
 A good deal of private persuasion was required to con- 
 vince most of the first delegates that an exception to this 
 wise rule should be made in favor of the topic which the 
 United States delegation had so much at heart. Finally 
 when, in July, the II Commission adopted the rule that 
 private property should not be confiscated in warfare on 
 land, Ambassador White, of the United States, believed 
 that the best opportunity had arrived, and he prevailed 
 on the commission's president, Professor de Martens, of 
 Russia, to read a letter on the subject which he had written 
 to the commission. Professor de Martens said that he 
 was happy to state that "as early as 1823 Russia had ex- 
 pressed its sympathy with the American idea, which has 
 a right to the benevolent interest of the whole world." 
 "But," he continued, "will it be possible to discuss here 
 this important question? If this inviolability be admitted, 
 the maritime states will have to change radically their 
 plans and projects. The question is so complex that it will 
 be very difficult to find, under present circumstances, a 
 solution acceptable by every one ; and a decision will have
 
 128 THE TWO HAGUE CONFERENCES 
 
 value only if it be taken unanimously." He then proposed 
 that the consideration of the question be referred to a 
 later conference, "better prepared to answer it and to 
 elaborate a plan which can secure universal consent." 
 "If this commission will adopt this proposition," he con- 
 cluded, "it will both show its prudence and at the same 
 time will yield homage to the generous initiative of the 
 United States." 
 
 Sir Julian Pauncefote, of Great Britain, opposed the 
 proposition of Professor de Martens, arguing that, the 
 topic not being on the programme, it should not be raised 
 at all. Captain Scheine, of Russia, shared Pauncefote's 
 opinion, and said that, since his instructions had nothing 
 to do with the laws and customs of maritime war, he would 
 abstain from participating in any discussion of the ques- 
 tion raised. 
 
 Ambassador White, on the other hand, argued that the 
 conference was quite as competent for the consideration 
 of this question as for that of many others which had 
 been settled by it. But he admitted that the time was not 
 favorable for a proper discussion of it, although it was of 
 great importance to all the powers represented; and he 
 therefore proposed that it be submitted to the whole con- 
 ference in plenary session, which would decide whether it 
 would discuss it or confide its consideration to another 
 conference. "And," he said in conclusion, "if the con- 
 ference does not desire to discuss the question, the United 
 States delegation will yield to the reference of it to another 
 conference. We do not want to hurl a brand of discord 
 into our meetings and thus injure results secured on other 
 very important questions ; we ask only that our proposition, 
 which has been made in entire good faith, be submitted
 
 WARFARE ON THE SEA 
 
 129 
 
 to the conference in plenary session; there, we will not 
 oppose the reference of the question to a later con- 
 ference." 
 
 M. Rahusen, of the Netherlands, said that he agreed 
 with Ambassador White as far as the question of com- 
 petence was concerned: "The conference has considered 
 the question of private property on land ; why not as well 
 examine the question of private property on the sea ? And, 
 moreover, for what reason should one question be treated 
 differently from the other?" As an immediate solution of 
 the question, he suggested that the governments favorable 
 to the principle of inviolability should secure it by making 
 separate treaties with each other. 
 
 After a further discussion as to the competence of the 
 conference to deal with the question in any way, the 
 commission resolved by unanimous vote, Great Britain, 
 France and Russia refusing to vote at all, that the ques- 
 tion should be referred to a later conference, and that this 
 resolution should be submitted to the existing conference 
 for its approval in plenary session. 
 
 When this resolution was reported to the conference on 
 the 5th of July (the same day on which the commission had 
 adopted it), Ambassador White made a noteworthy ad- 
 dress in support of the principle of the inviolability of 
 private property, with the exception of contraband of war, 
 in time of naval warfare, — a principle which "the govern- 
 ment of the United States, during more than a century, 
 has seriously endeavored to have adopted" in international 
 law. After admitting that, because of the doubt as to its 
 competence to deal with the question, the existing con- 
 ference did not furnish a suitable opportunity for its 
 discussion, Dr. White continued:
 
 13° 
 
 THE TWO HAGUE CONFERENCES 
 
 "But, obliged to recognize this fact with a sincere regret, we believe 
 that our instructions impose upon us the duty of doing all that is 
 within our power to bring this great question, so important for us all, 
 prominently before the minds of the nations represented here. 
 
 "We have not lost the hope of seeing this question brought to a 
 favorable solution. Nothing is more evident than the fact that, more 
 and more, eminent thinkers in the domain of international law are 
 inclining towards the doctrine which we defend. More and more, 
 also, it is becoming plain that the adoption of this principle is in the 
 interests of every nation. 
 
 "It must be acknowledged that any agreement to abstain from pri- 
 vateering is idle, if it does not at the same time recognize the inviola- 
 bility of all private property on the sea, with the exception of contra- 
 band of war. The two systems of injuring the enemy during war are 
 logically united. If abstention from the use of one system is agreed 
 on, a necessary guarantee of that agreement is that the other will not 
 be resorted to. 
 
 "It is becoming more and more evident that the eminent Count 
 Nesselrode expressed not only his profound conviction, but also a 
 great truth, in affirming that this declaration, which the United States 
 supported in his time as it does now, will be a crown of glory to modern 
 diplomacy. 
 
 "I am not ignorant that an argument has been advanced which, 
 at first sight, may seem to have considerable force, the argument that 
 even if we should guarantee the inviolability of private property, with 
 the exception of contraband of war, a new and very knotty question 
 would immediately arise, the definition, namely, of what should be 
 understood to-day by contraband of war. 
 
 "... But I surely need not say to an audience as intelligent and 
 enlightened as this, that the difficulties which may beset the taking of 
 a second step in an affair of this kind do not constitute a reason for 
 renouncing the first step. The wiser course would seem to be to take 
 the first step and, having taken it, to consider what should be the 
 second. 
 
 "... It must be admitted that more harm than good has been 
 done by some of the arguments which have likened private property 
 on the sea to private property on the land in time of war. But that 
 proves nothing against the crushing mass of arguments in favor of our
 
 WARFARE ON THE SEA 
 
 131 
 
 proposition. If the question were under discussion at the present 
 moment, if there were not other subjects on which the attention of the 
 world is centered, and which absorb our activities, I should like to 
 direct your thoughts to the immense losses which would be suffered by 
 the nations in case of a declaration of war. I would cite as example 
 the losses resulting from the denationalization of merchant vessels, 
 without a proportionate effect upon the decision of the questions in 
 dispute. 
 
 "A rapid glance at the history of the Confederate cruisers during 
 the American Civil War shows how serious would be the loss of the 
 power directly interested. Three Confederate cruisers alone played 
 a part of considerable importance; their prizes were limited to 169 
 ships; the rate of insurance between the United States and Great 
 Britain increased from 30 to 120 shillings per ton; nearly one half 
 million tons of American merchant shipping were placed under the 
 English flag; the final result was the almost entire disappearance 
 of the merchant marine of the United States. If such a result was 
 secured by the operations of three small ships, far from excellent and 
 badly equipped, what would happen with the means which to-day 
 are at the disposal of the large nations? 
 
 "On the other hand, all the world knows that this use of privateers 
 had not the slightest effect in terminating or even shortening the war. 
 If those losses had been ten times greater, they would have contributed 
 nothing to the abridgment of hostilities. There would have been 
 simply the destruction of a large quantity of property belonging to the 
 most laborious and the most meritorious part of our population, — 
 that of our merchants who had placed on board their ships the wealth 
 which they had earned. The most evident result was to leave a cause 
 of resentment between two great nations, — a resentment which a 
 famous arbitration succeeded in removing. 
 
 "... Gentlemen, the American delegation does not defend the 
 particular interests of its own country. We know very well that, 
 under present conditions, if war were declared between two or more 
 European powers, there would be immediately an enormous transfer 
 of cargoes and ships to neutral countries, and that the United States, 
 as one of them, would reap from it enormous advantages. But my 
 government does not desire to profit in ways of that kind. 
 
 "May I not say that a characteristic trait of my fellow-citizens has
 
 132 THE TWO HAGUE CONFERENCES 
 
 been greatly misunderstood in Europe? Europeans generally sup- 
 pose that the people of the United States is a people eminently prac- 
 tical. That is true; but it is only one half of the truth. For the 
 people of the United States are not only practical; they are still 
 more devoted to the ideal. There is no greater error, when one 
 regards the United States, or when one deals with it, than to suppose 
 that its citizens are guided solely by material interests. Our own 
 Civil War shows that the ideal of maintaining the Union of the States 
 led us into a conflict which cost the sacrifice of nearly one million men 
 and of nearly ten thousand millions of dollars. 
 
 "I say this not from vanity, but to show that Americans are not 
 merely practical people, but are idealists also; and they are such as 
 regards the question of the inviolability of private property on the sea. 
 This is not merely a question of interest for us; it is a question of 
 right, of justice, of progress for the whole world." 
 
 Dr. White then made an appeal for the consideration of 
 "this grave question" by all the members of the existing 
 conference, and for its specific reference to a future con- 
 ference, declaring, in conclusion, that "the solution of this 
 question, in the way which I have indicated, will confer 
 honor upon all those who shall have participated in it, 
 and will be to the enduring advantage of all nations 
 interested." 
 
 Count Nigra, of Italy, supported the proposition to refer 
 the subject to another conference, and said that the Italian 
 government has not restricted itself to the protestation of 
 respect for private property on the sea, but has sanctioned 
 the principle in its laws. He recalled, in particular, an 
 article of the commercial treaty concluded between Italy 
 and the United States, which stipulates, under the proviso 
 of reciprocity, a recognition of the inviolability of such 
 property. 
 
 President de Staal then consulted the conference on the 
 adoption of the proposed resolution ; thereupon Sir Julian
 
 WARFARE ON THE SEA 133 
 
 Pauncefote explained that in default of instructions from 
 his government in regard to the matter he would be obliged 
 to abstain from voting. The resolution was then voted by- 
 acclamation, and was embodied as one of the six desires 
 (vceux) of the conference under the following form: "5th. 
 The conference expresses the desire that the proposition 
 tending to declare the inviolability of private property in 
 warfare upon the sea be referred for consideration to a 
 later conference." 
 
 b. The Conference of 1907 
 
 1. Merchant Ships and Cargoes 
 
 Although the United States delegation had failed in the 
 first conference to have the subject of the exemption of 
 private property in maritime war discussed, it had suc- 
 ceeded in directing attention to it in an impressive manner 
 and in having it included, so far as the conference could 
 do so, in the programme of topics for the subsequent con- 
 ference. The United States Congress in April, 1904, 
 passed a joint resolution that the president should endeavor 
 to induce the chief maritime powers to recognize the prin- 
 ciple contended for in the permanent law of civilized na- 
 tions; and President Roosevelt, through Secretary Hay's 
 circular letter to the powers, dated October 31, 1904, 
 inviting them to meet in another conference, emphasized 
 the importance of the question and the need of having it 
 considered in the proposed conference. Russia, too, in 
 its official programme of March 24 (April 6), 1906, men- 
 tioned it specifically among the subjects to be discussed. 
 There could be, then, no question this time as to the com- 
 petence of the conference to deal with it; and it was
 
 134 THE TWO HAGUE CONFERENCES 
 
 referred specifically to the IV Commission to be con- 
 sidered. 
 
 At the first meeting of this commission, June 24, Am- 
 bassador Choate presented the American proposition, as 
 follows : 
 
 "The private property of all the citizens of the signatory powers, 
 with the exception of contraband of war, shall be exempt on the sea 
 from capture or seizure by either the armed vessels or the military 
 forces of the said powers. Nevertheless, this provision does not at 
 all imply the inviolability of vessels which should try to enter a port 
 blockaded by the naval forces of the said powers, nor the inviolability 
 of the cargoes of the said ships." 
 
 Four days later, this proposition came up for discussion 
 and was approved by the representatives of Austria, Bra- 
 zil, and Italy, who claimed for their countries a long and 
 practical support of the principle embodied in it. On 
 the other hand, M. Nelidow, speaking simply as a mem- 
 ber, and not as the president, of the conference, said that 
 such immunity of private property might promote war 
 instead of peace, because it would destroy the financial 
 arguments of maritime and commercial communities for 
 the maintenance of peace; but he was careful to state 
 that this was only a personal opinion and he would not at 
 all say that Russia would oppose the proposition. 
 
 Ambassador Choate then made an eloquent speech, in 
 which he traced the efforts made by the United States and 
 its diplomatists, from the time of the treaty with Great 
 Britain in 1783 down to the first Peace Conference, to 
 have the principle embodied in his proposition accepted 
 as international law; he mentioned the support given it 
 by various European countries; cited English and Rus- 
 sian writers, such as Lord Palmerston, Richard Cobden,
 
 WARFARE ON THE SEA 1 35 
 
 John Stuart Mill, Professor de Martens, Count Nessel- 
 rode, and Prince Gortschakof, who had admitted its 
 justice ; and showed that technical progress makes of pri- 
 vateering a kind of anachronism, that the game has be- 
 come not worth the candle, and that the tendencies of 
 modern civilization are all in favor of the enforcement of 
 this American idea. 1 
 
 At the next meeting of the commission, Baron von 
 Bieberstein, of Germany, spoke of the traditional sym- 
 pathy in his country for the American attitude towards 
 private property on the sea, but said that because of the 
 uncertainty as to the exact meaning of the terms "contra- 
 band" and "blockade," which are stated as exceptions 
 in the American proposition, he could not assent to that 
 proposition until the uncertainty as to the meaning of 
 the two terms mentioned was removed. 
 
 The delegates of Great Britain, Portugal, Russia, and 
 France coincided with the German view of the question, 
 and the French delegate proposed as a substitute for Mr. 
 Choate's proposition that the states which may exercise 
 the right of capture shall abolish the distribution of the 
 booty among the crew of the captor ship, and shall take 
 the necessary measures for preventing the losses caused by 
 the exercise of the right of capture from resting entirely on 
 the individuals whose goods have been captured. 
 
 Norway, Sweden, Austria-Hungary, and Brazil supported 
 the American proposition, but Brazil proposed that, in 
 case of its non-adoption, when the most imperious exigen- 
 
 1 The eminent rapporteur of the commission, Professor Renault, of 
 France, in commenting upon this remarkable address, said that " nothing 
 has been omitted which is calculated to strike and hold the attention." 
 Like Mr. Choate's other addresses, it was spoken in English, and then trans- 
 lated into French and printed copies supplied to all the delegates.
 
 136 THE TWO HAGUE CONFERENCES 
 
 cies of war compelled the exercise of the right of capture, 
 the individual from whom the goods were seized should be 
 given the right of just indemnity. 
 
 The Netherlands proposed that in order to prevent 
 merchant ships once captured and released from being 
 converted into ships of war, they should be furnished with 
 passports by their own governments in which the express 
 promise should be made that they would not, under any 
 circumstances, be used as war ships so long as the war 
 lasted; and that only when furnished with such passports 
 should merchant ships and their cargoes be exempt from 
 capture. 
 
 M. Perez Triana, of Colombia, opposed the American 
 proposition, on the ground that privateering is the natural 
 weapon of warfare for a weaker nation, without war ships, 
 to use against a stronger; and he replied to Mr. Choate's 
 statement that the capture of private property on the sea is 
 a relic of piracy, by saying that war itself is only organized 
 murder, and that when war commences privateering is 
 justifiable also. M. Triana also made a veiled attack 
 upon the United States' recent policy of building up a 
 large navy while its merchant marine has been dwindling, 
 and contrasted it with the policy of a small navy and a 
 large merchant marine which marked the "good old days 
 when the United States was the disinterested defender of 
 the principles of justice and humanity." 
 
 At the next session of the commission, M. Beernaert, of 
 Belgium, made a powerful appeal for the adoption of a 
 compromise between the extremes of the entire abolition 
 and the unrestricted use of the capture of private 
 property on the sea ; and he proposed as this compromise 
 that vessels exclusively devoted to the fishing industry, or
 
 WARFARE ON THE SEA 
 
 m 
 
 to scientific and hospital purposes, should be exempt 
 from capture; that merchant ships and cargoes could be 
 seized, but should be restored or compensated for at the 
 end of the war; and that the officers and crews of such cap- 
 tured ships should not be retained as prisoners of war, but 
 should be disembarked as soon as possible and set at 
 liberty on condition that they should take no part in the 
 war. 
 
 The second delegate from China (Hon. John W. Foster, 
 a citizen of the United States) supported the American 
 proposition and, asserting that in our times peace is the 
 normal state of nations and war the abnormal, he made 
 an eloquent plea for every possible measure which should 
 make the high seas free to the peaceful commerce of the 
 world, unharassed by fear of the brutalities of war. 
 
 The first delegate from Spain announced that he would 
 oppose the American proposition, but that his country 
 would hereafter accept in its entirety the Declaration of 
 Paris of 1856 * whose principles it had observed in prac- 
 tice, notably during its last war. 
 
 After the discussion of the question had been carried 
 through four sessions of the commission, Mr. Choate 
 demanded that a vote should be taken, and that the Ameri- 
 can proposition, having been presented before any of the 
 various other propositions, should be voted on first. This 
 was done, on the 17th of July, and resulted in twenty-one 
 
 1 The Declaration of Paris of 1856 prohibited privateering in time of war; 
 but, as Ambassador Choate explained in the course of the debate in the Con- 
 ference of 1907, the United States had never adhered to that declaration 
 because it had not also prohibited the capture of private property by war 
 ships; and because, as Ambassador White had argued in 1899, privateering 
 and the capture of private property by wa"r ships should be abolished to- 
 gether.
 
 138 THE TWO HAGUE CONFERENCES 
 
 votes in favor of the proposition, eleven against it, one ab- 
 stention, and eleven absent. 1 
 
 When this vote was announced, the Belgian delegate 
 moved that a vote be taken on the substitute proposition 
 presented by him. Ambassador Choate objected to this, 
 saying that since the commission had already decided by 
 a strong majority in favor of the American proposition, 
 he did not think it necessary to discuss taking a half-loaf 
 when the whole loaf had already been gained. This state- 
 ment led to a discussion of the significance of the vote just 
 taken, and the opponents of the American proposition 
 argued that although a decided majority of the votes cast 
 had been in its favor, still there were absent eleven dele- 
 gations, one of whom, Argentina's, had expressed itself 
 as opposed to the proposition, and all might be ; and that 
 the delegations voting aye represented 804 millions of 
 people, "400 millions of whom were Chinese," while 
 those voting no represented 729 millions. This last state- 
 ment brought two representatives of China to their feet to 
 demand an explanation of the implication that the Chinese 
 should not be counted. 
 
 At the end of a rather animated discussion it was decided 
 that the other propositions should be voted upon so as to 
 see if greater unanimity could be secured than in the case 
 of the American. Accordingly, at the next meeting the 
 Brazilian proposition was voted on without discussion, 
 
 1 The ayes were: United States, Germany, Austria-Hungary, Italy, Den- 
 mark, Norway, Sweden, Greece, Belgium, Holland, Switzerland, Bulgaria, 
 Roumania, China, Persia, Siam, Turkey, Brazil, Cuba, Ecuador, and Haiti; 
 the noes were Great Britain, France, Russia, Japan, Spain, Portugal, Mon- 
 tenegro, Mexico, Colombia, Panama, and Salvador; Chili abstained from 
 voting; and Luxemburg, Servia, Argentina, Bolivia, Dominican Republic, 
 Guatemala, Nicaragua, Paraguay, Peru, Uruguay, and Venezuela were absent.
 
 WARFARE ON THE SEA 139 
 
 and resulted in thirteen ayes, twelve noes, and nineteen 
 abstentions and absences. 1 The Brazilian proposition 
 was thereupon withdrawn and the Belgian taken up. 
 Great Britain's delegation opposed this proposition on the 
 ground that the advantages offered by it to commerce 
 would not compensate for the difficulties it would entail 
 upon belligerents ; and France's delegation opposed it be- 
 cause it would be unjust to those powers which do not 
 possess a large number of widely separated ports to which 
 to conduct their prizes. A vote was then taken, with 
 the result that fourteen powers voted for the proposition, 
 nine against, and seven abstained. 1 The Belgian propo- 
 sition was thereupon withdrawn, and Professor de Mar- 
 tens, of Russia, proposed that a desire (vceu) be expressed 
 by the conference that belligerent powers, following the 
 precedent set in the Crimean and the Austro- Prussian 
 Wars, should at the commencement of any war declare 
 whether they would or would not renounce the practice 
 of capture. But in the face of opposition this proposition 
 too was withdrawn and without formal vote. 
 
 The further discussion of the question was now post- 
 poned for three weeks until the delegations could secure 
 instructions in regard to the French proposition. When 
 this was voted upon, August 7, the first clause providing 
 for the abolition by national legislation of the distribu- 
 tion of the prize received sixteen ayes, four noes, and four- 
 teen abstentions. The second clause, changed by an 
 Austrian amendment which was accepted by the French 
 delegation and providing that the states should seek the 
 means of preventing losses due to capture from falling 
 
 1 The United States delegation voted in the negative.
 
 140 THE TWO HAGUE CONFERENCES 
 
 entirely upon the individual owners, received seven ayes, 
 thirteen noes, and fourteen abstentions. 
 
 The United States delegation voted against both clauses 
 of the French proposition, and Mr. Choate explained that 
 although the delegation sympathized with every step 
 towards the realization of the immunity of private prop- 
 erty on the sea, its negative vote was due to the following 
 considerations: First, the vote for its own proposition 
 showed that it expressed very well the opinion of the ma- 
 jority of the conference; second, the United States had 
 recently suppressed for itself the distribution of prizes; 
 third, the second clause of the French proposition had to 
 do with a question which was purely national and which 
 should be answered by each country individually; and, 
 fourth, the delegation believed that the French answer to 
 this question would do nothing for the protection of com- 
 merce, but would tend rather to increase than to diminish 
 the chances of capture by making it known that the loss 
 would ultimately be sustained by the state, while it would 
 assuredly give rise to many and varied claims during each 
 war which would have to be adjusted at its conclusion by 
 diplomacy or by the national courts. 
 
 The facts of this long discussion were presented by the 
 commission to the conference at its plenary session of Sep- 
 tember 27. But neither in the commission nor in the 
 conference was any further attempt made to reach a defi- 
 nite conclusion on the question. This disposition of the 
 subject has since been explained by Mr. Choate as follows : 
 " It was not possible, however, in the face of great com- 
 mercial nations that opposed it, nations likely at any time 
 to be engaged in war, to press it further. We were in- 
 structed never to press anything to the point of irritation,
 
 WARFARE ON THE SEA 14 1 
 
 but if we found that it was not possible to carry a thing 
 by general consent, then we were to carry it as far as we 
 could and drop it and leave it for further consideration 
 in the hope that by and by, by the growing sense of the 
 nations, it would be accepted." 1 
 
 2. Delay of Favor to Merchant Ships 
 
 This topic was brought before the IV Commission by 
 its president, Professor de Martens, of Russia, in the 
 form of two questions : 
 
 "Is it good warfare (de bonne guerre), at the moment of the open- 
 ing of hostilities, to seize and confiscate merchant ships belonging to 
 the enemy, lying in the ports of one of the belligerents? Is it not 
 necessary to concede to such ships the right of free departure within 
 a fixed time, with or without cargoes?" 
 
 Professor de Martens, in proposing to answer the first 
 question in the negative and the second in the affirmative, 
 remarked that he did not desire to establish any new rule, 
 but merely to codify current custom; and the Russian 
 naval delegate made an appeal to "the history of warfare 
 from primeval times down to our own day" to prove that 
 the Russian proposition was in accord with current cus- 
 tom, and that the delay should be obligatory. The Ger- 
 man delegation accepted this view of the question of obli- 
 gation, but based it on the history of only the last half 
 century. Captain Ottley, of Great Britain, stated that 
 his country had accorded the delay as a favor, and ob- 
 jected to its being made a right. The Japanese delega- 
 tion made the same statement and objection as the British ; 
 
 1 From an address before the New York State Bar Association, January 
 24, 1908.
 
 142 THE TWO HAGUE CONFERENCES 
 
 and Admiral Sperry, of the United States, said that the 
 delay should be obligatory upon belligerents only within 
 the limits of military necessities. 
 
 France proposed as a compromise between the extremes 
 of favor and right, that the statement be made that the 
 "delay of favor is desirable," but that, if a merchant ship 
 should be seized without warning, or before it could 
 profit by a warning to make good its escape, it should not 
 be confiscated, but either retained during the war and 
 restored without indemnity after the war had ended, or 
 requisitioned on condition of indemnity. This compro- 
 mise proved acceptable to both parties to the contro- 
 versy, and was adopted by the conference. 
 
 As to the duration of the delay, the Russian proposal 
 was merely for "a fixed time"; but the Netherlands dele- 
 gation moved that the time should be fixed at "not less 
 than five days." Admiral Sperry and other delegates ob- 
 jected to the fixing of any specific time, and it was finally 
 decided that the ship should be permitted to depart "imme- 
 diately, or after a sufficient delay of favor." 
 
 There was general agreement that the delay of favor 
 should apply both to merchant ships lying in the enemy's 
 ports at the commencement of hostilities, and to those 
 which, having left their last port of departure before the 
 commencement of the war, enter the enemy's ports in 
 ignorance of the hostilities. But when the question arose 
 as to those ships encountered on the high seas in ignorance 
 of the war, there was a decided difference of opinion. 
 Great Britain championed the view that such ships should 
 be accorded the same treatment as was provided for the 
 other two classes. But Germany insisted upon the right 
 of destroying them on the high seas, and argued that by
 
 WARFARE ON THE SEA 
 
 H3 
 
 the British plan an injustice would be done those belliger- 
 ents which had but few and concentrated naval stations 
 to which to conduct their prizes, while those which had 
 many and widely scattered ones would be at an advantage. 
 To meet this objection, the commission adopted the rule 
 that the ships referred to may be seized, on condition of 
 restoration after the war without indemnity, or requisi- 
 tioned or even destroyed, on condition of indemnity and 
 under the obligation of providing for the security of the 
 persons and the preservation of the papers on board. But 
 this did not satisfy the German delegation, who argued 
 that this plan would entail upon the powers not possessing 
 many naval stations a heavy financial responsibility for 
 doing the only thing they could do with their prizes, 
 that is, destroy them. The Russian delegation supported 
 the German view of the matter; but the British plan was 
 adopted. And it was further provided that the cargoes 
 found on board of all the three classes of merchant ships 
 should be dealt with in the same way as the ships them- 
 selves. 
 
 When these rules came before the conference in plenary 
 session, the delegations from Germany, Russia, China, and 
 Montenegro made a reservation of the last one, while voting 
 for the rest. The entire project reported from the commis- 
 sion to the conference received the votes of all the other 
 thirty-eight delegations present, 1 with the exception of that 
 of the United States. General Porter, of the United States, 
 stated that his delegation would abstain from casting its 
 vote for the project for the reason that the United States 
 has always stood, and still stands, for the principle of the 
 exemption of all merchant ships and their cargoes from 
 
 1 Those of Nicaragua and Paraguay were absent.
 
 144 THE TWO HAGUE CONFERENCES 
 
 capture, — except those carrying contraband of war or 
 endeavoring to break a blockade. 
 
 3. The Treatment of Captured Merchant Crews 
 
 This topic was not included within the Russian pro- 
 gramme or proposals, but was introduced by the delega- 
 tions of Great Britain and Belgium. Great Britain pro- 
 posed that when a merchant ship belonging to the enemy, 
 but navigating with an exclusively commercial object, is 
 captured by a belligerent, the members of its crew who 
 are subjects or citizens of a neutral power shall not be 
 made prisoners of war. The proposition also included 
 the captain and officers of the ship, provided that they too 
 were citizens of a neutral nation and would give a promise 
 in writing not to serve on an enemy's ship during the rest of 
 the war. This proposition was adopted unanimously. 
 
 Belgium's delegation proposed to extend this rule to the 
 captain, officers, and crew of a captured merchant ship, 
 even though they were subjects or citizens of one of the 
 belligerent powers. And the commission and conference 
 adopted this liberal proposal also unanimously. 
 
 4. The Exemption of Certain Ships 
 
 This topic was brought before the IV Commission by 
 Professor de Martens's question, "Are coast fishing 
 boats, even those owned by the subjects of a belligerent 
 state, proper subjects for capture (de bonne prise)}" 
 This question was answered by an Austro-Hungarian 
 proposal to exempt from capture small coasting vessels 
 in general, — except for requisition in case of military 
 necessity; and by a Portuguese proposal to exempt
 
 WARFARE ON THE SEA 
 
 H5 
 
 fishing boats from capture provided they do not approach 
 war ships, or hinder the operations or place themselves at 
 the service of a belligerent. If they did any of the ex- 
 cepted things, they were, according to the Portuguese pro- 
 posal, to be treated as "auxiliary vessels"; and the large 
 fishing vessels were to be considered merchant vessels, — 
 "a status," remarked Ambassador Choate, of the United 
 States, "which is accorded them in the American courts." 
 
 Count Tornielli, of Italy, proposed that the exemption 
 of ships engaged in scientific or humanitarian missions 
 should also be carefully considered. 
 
 There was no objection whatever to these various rules 
 as they have been observed in practice for many genera- 
 tions, and every one was glad to see them "definitively 
 consecrated in a conventional arrangement." The rule 
 as adopted in regard to fishing boats provided that their 
 exemption should depend upon their being used exclusively 
 for coast fishing. But no attempt was made to define the 
 distance out to sea implied by the term "coast fishing," 
 because of the variety of coasts and of the depths of fish- 
 ing. Nor was an attempt made to fix a limit on the ton- 
 nage of fishing boats, a maximum number for the crew, 
 or any special kind of construction. It was thought that 
 the sole proviso necessary was that they should be used 
 exclusively for fishing purposes, and a strict prohibition 
 was placed both upon their owners and upon the states to 
 utilize them for any military purposes whatsoever while 
 preserving their peaceful appearance. 
 
 The ancient custom of exempting ships engaged in 
 scientific missions, which was strikingly illustrated by the 
 case of " La Perouse," was made the basis of the formal 
 rule, proposed by the Italian delegation, exempting from
 
 146 THE TWO HAGUE CONFERENCES 
 
 capture ships charged cither with scientific or with religious 
 or philanthropic missions. 
 
 5. The Exemption of Mail 
 
 This topic was not mentioned in the Russian programme, 
 but was introduced in the IV Commission by the German 
 delegation which proposed that correspondence conveyed 
 by sea should be made inviolable, whatever its character, 
 official or private, belligerent or neutral ; that in case of 
 the capture of the vessel carrying mail, the captor must pro- 
 vide for its expedition by the promptest means possible ; 
 and that, apart from the inviolability of postal correspond- 
 ence, mail packet boats should be subject to the same 
 conditions as other merchant ships, except that belliger- 
 ents should abstain as much as possible from exercising 
 over them the right of visit, and should make such visit 
 with all possible consideration. 
 
 This freedom demanded for mail in time of war as in 
 time of peace was willingly conceded by the conference, 
 which passed the rule as proposed by the German dele- 
 gation, except that mail destined to or coming from a 
 blockaded port is not to be inviolable. The general 
 satisfaction was expressed by General Poortugael, of 
 the Netherlands, who congratulated the conference on 
 having at last incorporated in international law a reform 
 which has been striven for for more than thirty years. 
 
 D. THE RIGHTS AND DUTIES OF NEUTRALS 
 
 a. The Conference of 1899 
 
 This topic was not mentioned in the Russian programme, 
 but was introduced into the discussions of one of the naval
 
 WARFARE ON THE SEA 147 
 
 subcommissions by a very elementary and relatively unim- 
 portant proposition. In connection with the question of 
 the use of new arms and methods in naval warfare, Captain 
 Scheine, of Russia, proposed that the contracting powers 
 concede to neutral states the "faculty" x of sending their 
 naval attaches to "the theater of maritime warfare," with 
 the authorization and under the control of the competent 
 military authorities of the belligerent powers. He argued 
 that this action would give to neutral naval attaches the 
 standing already conceded to military attaches in armies 
 on land. 
 
 Against this proposition it was at first argued that there 
 was no urgent need of providing for the measure, as it 
 was already being resorted to. And when Captain Scheine 
 replied that a recent case had proved that need, the sub- 
 commission decided that the proposition was equivalent 
 to compelling belligerents to admit neutrals on board their 
 war ships; that, since the practice differed in different 
 countries, its regulation should be left to special treaties 
 between neutrals and the belligerents; and that neither 
 the subcommission nor the conference was competent to 
 deal with the matter. It therefore declined to discuss it 
 further, and the question of neutral rights and duties on 
 the sea was not again brought up in the first conference. 
 But, as will be seen later, in consequence of an important 
 resolution adopted by the first conference concerning 
 neutral rights and duties on land, the maritime rights and 
 duties of neutrals came up in far more important aspects 
 in the Conference of 1907. 
 
 'Captain Scheine first used the word "right" (droit), but changed it to 
 faculte.
 
 148 THE TWO HAGUE CONFERENCES 
 
 b. The Conference of 1907 
 
 The question of neutral rights and duties on the sea was 
 mentioned in the Russian programme, and was referred to 
 the IV Commission, of which the eminent jurist, Professor 
 de Martens, of Russia, was president. It was soon 
 apparent that the discussion of the question would launch 
 the commission forth upon a domain which was not only 
 vast and complicated, but was almost untraversed. The 
 commission therefore decided that it would not divide 
 into sections, as the other commissions had done, and 
 that its first task should be the assertion of fundamental 
 principles. 
 
 After prolonged discussion, in both a special committee 
 of revision and in the commission itself, a preamble was 
 agreed upon which asserted that the basis of any set of 
 rules is the sovereignty of a neutral state, which can not 
 be altered by the mere fact of a war in which it intends 
 to take no part. Hence, belligerents are bound to respect 
 the sovereign rights of neutral states and to abstain, within 
 neutral territory and waters, from all acts which would 
 constitute on the part of the states which would tolerate 
 them a breach of their neutrality. And it is agreed that 
 the enforcement by a neutral state of its rights shall never 
 be considered as an unfriendly act by either belligerent. 
 
 On the other hand, it is conceded to be a neutral's duty 
 to apply impartially to all belligerents the rules adopted, 
 to exercise all the vigilance it can to prevent their violation, 
 and not to change any rules during the course of the war 
 except when experience has demonstrated the necessity of 
 doing so in order to safeguard its rights. 
 
 It was deemed impossible for the conference to adopt
 
 WARFARE ON THE SEA 149 
 
 rules to meet all the circumstances which may arise in 
 practice, and hence it was admitted that each neutral state 
 should adopt for itself the other rules necessary. But, 
 desiring to diminish as much as possible the differences 
 which still exist in the relations of the various nations with 
 belligerents, the conference requested the various powers 
 to decree precise rules for regulating the consequences of 
 the state of neutrality, and to communicate them to each 
 other by means of a notification addressed to the Nether- 
 lands government and sent by it to the others. 
 
 1. Belligerents in Neutral Waters 
 
 The rules adopted by the conference for the use of the 
 powers in common had to do with some, though unfor- 
 tunately not all, of the subjects considered to be of prime 
 importance. The conduct of belligerents in neutral ports 
 and waters is first taken up. Belligerents are forbidden 
 to use them as a base of naval operations against their 
 enemy, and, specifically, to install in them radio-telegraphic 
 stations or other apparatus designed to serve as a means 
 of communication with belligerent forces on land or sea. 
 
 Any act of hostility, including the capture of ships and 
 exercise of the right of visit, committed by belligerent 
 war ships within neutral waters, constitutes a violation of 
 neutrality and is strictly forbidden. If a ship be captured 
 within the territorial waters of a neutral state, that state 
 should, if the prize is still within its jurisdiction, use the 
 means within its power of procuring its release together 
 with its officers and crew, and for the confinement of the 
 crew placed on board of it by the captor ; if the prize has 
 been taken beyond the jurisdiction of the neutral state, that
 
 150 THE TWO HAGUE CONFERENCES 
 
 state may address itself to the belligerent government, 
 which must release the prize with its officers and crew. 
 A discussion arose over the word may in the last clause 
 of the above rule, some delegations desiring that the word 
 must should be used instead; but the majority decided 
 to give to the neutral state the option of addressing itself 
 to the offending belligerent, or to the new International 
 Prize Court established by the conference. In accord- 
 ance with old usage, belligerents are forbidden to establish 
 any prize court on neutral territory or on a ship in neutral 
 waters. 
 
 Belligerents are forbidden to bring their prizes into a 
 neutral port, except when the bad state of the sea or lack 
 of coal or provisions prevents navigation; and in such 
 cases, the prize must be taken away as soon as the reason 
 justifying its entrance has ceased to exist. If this is not 
 done, the neutral power must order it to be done at once; 
 and if its order is disobeyed, it must use all the means in 
 its power to release the prize with its officers and men, and 
 to confine the crew sent on board by the captor. The 
 same rule applies to prizes which are brought into a neu- 
 tral port without the reasons stated; except that access 
 to neutral ports may be granted to prizes which are to be 
 sequestered pending the decision of a prize court. This 
 last exception, it was hoped, would help to abolish the 
 destruction of neutral prizes. 
 
 The stay and transactions of belligerent war ships in 
 neutral waters are regulated by a number of important 
 rules. It is admitted that the neutrality of a state is not 
 compromised by the simple passage through its territorial 
 waters of belligerent war ships and their prizes; and that 
 it can even permit such ships to make use of its licensed
 
 WARFARE ON THE SEA 151 
 
 pilots. A neutral state is conceded the right of imposing 
 its own conditions for admission to its ports and waters, 
 provided it enforces them impartially; and it may even 
 exclude belligerent war ships which ignore such conditions 
 or violate its neutrality. 
 
 Belligerent war ships are forbidden, in neutral ports and 
 roadsteads, to repair their damages, except to the extent 
 indispensable to the security of their navigation. These 
 repairs must be effected as quickly as possible and under 
 the supervision of the neutral power. 
 
 Belligerents are forbidden to increase, in any manner 
 whatever, their military strength, in neutral waters. And 
 neutral governments are bound to use all the means they 
 possess to prevent, within their jurisdiction, the equip- 
 ment or armament of any ship which they have reasonable 
 grounds for believing is designed to cruise or to participate 
 in hostile operations against a power with which they are 
 at peace ; they are also bound to prevent the departure of 
 any such ship if, within their jurisdiction, it has been 
 adapted wholly or partially to military operations. When 
 this restriction on belligerents and neutrals alike was 
 adopted, the delegation from Brazil proposed an amend- 
 ment permitting the delivery from neutral dockyards of 
 war ships which have been ordered more than six months 
 before the declaration of war. This proposition was ob- 
 jected to chiefly by Dr. Drago, of Argentina, and was 
 rejected in committee by a vote of seven against two, with 
 five abstentions ; and it was not renewed in the commission. 
 
 Belligerent war ships are forbidden, within neutral 
 ports or waters, to renew or increase their military stores, 
 their armament, or their crews. Neutral states, too, are 
 forbidden, directly or indirectly, to furnish belligerent
 
 152 THE TWO HAGUE CONFERENCES 
 
 fleets with war ships, munitions, or military material of 
 any kind; but they are not bound to prevent the expor- 
 tation or transit, for the use of either belligerent, of arms, 
 munitions, or whatever may be useful to an army or a 
 fleet. 
 
 The question of food and fuel supplies proved a difficult 
 one and was warmly debated. The British delegation 
 proposed that belligerent ships be prohibited from having 
 their auxiliary vessels revictual them in neutral waters. 
 This proposition was voted twice in committee, the first 
 time by ten votes to four, but the second only by five votes 
 to three, with six abstentions. 
 
 Belligerent ships of war, in neutral ports and roadsteads, 
 can take on board only enough food to make up the 
 deficiency in their normal peace stores. The Russian 
 delegation proposed this same rule for the supply of fuel; 
 but Great Britain and Japan opposed this vigorously, 
 and demanded that the conference should adopt the 
 rule most generally in force at present ; that is to say, that 
 belligerent ships should take on only enough fuel to enable 
 them to reach the nearest port of their own country. This 
 last rule, it was argued, requires only a simple mode of 
 calculation, and does not impose on the neutral power 
 any obligation to supervise the ship's destination. 
 
 The German delegation, on the other hand, stood for 
 a greater extension of the privilege of coaling, and pro- 
 posed that belligerents should be permitted to fill their 
 bunkers entirely. After a long and apparently fruitless 
 discussion, the Japanese delegation moved that no rule 
 at all on the subject be adopted; but this motion was 
 voted down, and a compromise was adopted, including 
 both the British and the German proposition. Hence,
 
 WARFARE ON THE SEA 153 
 
 the rule reads as follows : Belligerent war ships may take 
 on only enough fuel to enable them to reach the nearest 
 port of their own country. They can, however, take on 
 enough fuel to fill their bunkers, properly so called, when 
 they are in the territory of neutral states which have 
 adopted this rule regarding the supply of fuel. 
 
 In order to prevent frequent renewals of fuel supply in 
 neutral ports, it was provided further that belligerent 
 war ships can not take on a second supply in the same 
 neutral territory less than three months after it has secured 
 the first. 
 
 The British delegation attempted to procure the rule 
 that "a neutral power must not knowingly permit a bel- 
 ligerent war ship within its jurisdiction to take on board 
 munitions, food, or fuel, to go to meet its enemy or to en- 
 gage in military operations." But this attempt met with 
 decided failure, as a strong majority rejected the propo- 
 sition as entailing too heavy a burden upon neutral states. 
 
 The next most difficult, and most debated, question 
 was that of the length of stay of belligerent war ships in 
 neutral ports. The Russian delegation proposed that 
 the neutral state should be at liberty to determine the 
 length of such stay. The British, Japanese, and Spanish 
 delegations, on the other hand, proposed that the length 
 of the stay be limited to twenty-four hours except in 
 unusual cases. The Italian delegation proposed as a 
 compromise between these two extremes, that the right 
 of the neutral state to determine the stay should be af- 
 firmed, but that if any neutral state has not done so, then 
 the time limit of twenty-four hours should be adhered to. 
 This compromise received the votes in committee of Great 
 Britain, Japan, and Portugal, against those of Germany
 
 154 THE TWO HAGUE CONFERENCES 
 
 and Russia, and was finally adopted in the commission 
 by a vote of thirty to four, with ten abstentions. 
 
 Germany and Russia struggled hard to prevent the 
 adoption in any form of the twenty-four hours rule; and 
 failing in this, they urged the adoption of the rule that 
 belligerent war ships should not be permitted to remain 
 more than twenty-four hours within neutral waters "sit- 
 uated within the immediate proximity of the theater of 
 war." This last phrase was defined by the German 
 delegation to mean the space of sea on which hostilities 
 are occurring, or have just occurred, or on which hostilities 
 may occur because of the presence or the approach of the 
 armed forces of two belligerents. This would not include 
 the case of an isolated cruiser exercising the right of capture 
 or of visit, or the passage of a single belligerent's naval 
 force. The argument advanced in support of this propo- 
 sition was that it would restrict the need of watchfulness 
 on the part of neutral states to a limited area of their coasts, 
 which, in some cases, were very greatly extended. In illus- 
 tration of this argument it was said that when a naval 
 battle was imminent in the Indian Ocean, it would not 
 then be necessary for the states of Northern Europe to 
 watch their ports and roadsteads; or when the theater 
 of war is in the Mediterranean, the coasts of the two 
 Americas would have no need of a severe control. 
 
 The British delegation, in combating this proposition, 
 emphasized the extreme difficulty of defining precisely 
 the meaning of the terms "theater of war" and "immediate 
 proximity," and the consequent difficulties and compli- 
 cations entailed by such vague terms upon neutral nations. 
 It also contended that the capture of merchant ships is 
 an act of hostility and would occur within a "theater of
 
 WARFARE ON THE SEA 
 
 J 55 
 
 war." It supported the twenty-four hours rule by argu- 
 ing that, having been adopted by Great Britain forty -five 
 years ago, and accepted by many other powers, it has 
 proved its practicability; and that it has the great ad- 
 vantage for neutral powers of being a definite rule, easy 
 of application by them. 
 
 The arguments of the British delegation prevailed, 
 and the commission decided by a vote of thirty to two, 
 with ten abstentions, to apply the twenty-four hours rule, 
 "in default of other special regulations prescribed by 
 the laws of the neutral state." As exceptions to the rule, 
 it was admitted that, if a stay in a neutral port is caused 
 by damages or by stress of weather, it may be prolonged 
 beyond the legal limit, but only until the special cause of 
 its delay is removed; and, also, that the rule does not 
 apply to war ships engaged upon an exclusively scientific, 
 religious, or charitable mission. 
 
 The length of stay in neutral ports raised again the 
 inflammatory question of fuel, and again a warm debate 
 occurred on the relation between them, in both committee 
 and commission. The committee decided that the taking 
 on of food and fuel should give no right to prolong the 
 legal duration of the stay. But in the commission, Russia 
 opposed this decision and, supported by Germany, argued 
 that the rules already adopted were sufficiently severe, 
 and that although large neutral powers have never pre- 
 vented a belligerent ship from repleting its stores, small 
 neutral powers might submit to pressure which they 
 "could not avoid. The British and Japanese delegations 
 argued for the retention of the rule; but the commission, 
 thinking, apparently, that since the Russian delegation 
 had yielded on the twenty-four hours rule, the British
 
 156 THE TWO HAGUE CONFERENCES 
 
 delegation should yield on this one, rejected the proposed 
 rule by a vote of twenty-seven to five, with ten abstentions. 
 
 In some countries, as in Italy, for example, the law 
 provides that a belligerent ship can not obtain coal until 
 twenty-four hours after its arrival. On this account, 
 the commission decided that, in such cases, the length of 
 stay may be increased by twenty-four hours. 
 
 As to the maximum number of belligerent war ships 
 admitted to a neutral port at the same time, it was readily 
 agreed that the neutral state itself should determine this 
 in advance; but that in default of such action on its part, 
 the maximum number shall be three. 
 
 One further question arose in regard to belligerents in 
 neutral ports. When the war ships of different belliger- 
 ents are in a neutral port at the same time, what shall be 
 the rule for their departure? Four different answers 
 were proposed for this question: 1. that the neutral 
 state should decide the order of their departure; 2. that 
 the priority of request should determine it; 3. that the 
 weaker ship should go first; and, 4. that the order of 
 arrival should determine the order of departure. The 
 last answer appeared to impose least responsibility upon 
 the neutral state, and it was accordingly decided that the 
 order of departure shall be determined by the order of 
 arrival, unless the ship arriving first be in the condition 
 where the prolongation of the legal stay is permissible; 
 but it was decided that at least twenty-four hours must 
 elapse between the departure of belligerent war ships of 
 hostile powers. It was also decided that a belligerent* 
 war ship must not leave a neutral port or roadstead less 
 than twenty-four hours after the departure of a merchant 
 ship flying the flag of its adversary.
 
 WARFARE ON THE SEA 157 
 
 The United States naval delegate, Admiral Sperry, 
 was a member of the committee of examination which had 
 special charge of the subject of belligerents in neutral 
 waters, and took a part, though not a prominent one, in 
 the debate. He stated that the American view of the 
 subject is inspired above all by respect for neutrality and 
 impartiality. Great Britain's plan formed the basis of 
 the rules adopted, but this was based partly upon the 
 Treaty of Washington of 187 1 between the United States 
 and Great Britain. The United States delegation cast 
 its vote with Great Britain's and against Germany's in 
 the two most debated questions, those of the fuel supply 
 and the length of the stay in neutral ports. 
 
 2. Blockade 
 
 The question of blockade was not discussed by the 
 Conference of 1899, nor was it mentioned in the Russian 
 programme of 1907. But Professor de Martens, of 
 Russia, president of the IV Commission of the second 
 conference, introduced it among the series of questions 
 which he formulated as the basis of the commission's 
 deliberations. His questions concerning it were as fol- 
 lows: "As to blockade in time of war, is there need of 
 modifying the terms of the Maritime Declaration of Paris 
 of 1856? 1 Is it desirable to state in a formal convention 
 
 1 The Declaration of Paris of 1856 was issued by a congress representing 
 France, Austria, Great Britain, Prussia, Russia, Sardinia [Italy], and Turkey. 
 It contained the four following rules: 1. Privateering is, and shall remain, 
 abolished; 2. A neutral flag covers the enemy's merchandise, with the excep- 
 tion of contraband of war; 3. Neutral merchandise, with the exception of 
 contraband of war, can not be seized under the enemy's flag; 4. Blockades, 
 to be obligatory, must be effective, that is to say, they must be maintained by 
 a force sufficient really to prevent access to the coast of the enemy. This
 
 158 THE TWO HAGUE CONFERENCES 
 
 the consequences, universally recognized, of the breaking 
 of an effective blockade?" 
 
 In response to these questions, the Italian delegation 
 presented a series of propositions designed to give as 
 much liberty as possible to the commerce of neutrals with 
 belligerents, by defining rigidly the meaning of an "effec- 
 tive" blockade, which alone, by the Declaration of Paris 
 and the law of nations, can be considered binding upon 
 neutral ships. In accordance with these propositions, 
 a blockade is effective only when maintained by naval 
 forces sufficient really to prevent the passage .of ships, 
 and stationed in such a way as to create an evident danger 
 to ships which desire to attempt it. 
 
 The words stationed and evident, in the above definition, 
 were designed to exclude blockade by cruisers and by 
 submarine mines from the category of effective blockades, 
 and were opposed, consequently, by Sir Ernest Satow, 
 of Great Britain, who desired to substitute for them the 
 words maneuvering and real. 
 
 The Italian propositions also aimed at the restriction 
 of blockade by providing that a ship may be seized for 
 violation of the blockade only at the moment when it 
 is attempting to break the established lines. General 
 Porter, of the United States delegation, opposed this 
 restriction and proposed that any ship which, after a 
 blockade has been duly announced, sets sail for a block- 
 aded port or place, or which attempts to break the block- 
 ade, may be seized for violation of the blockade. The 
 
 declaration has been ratified by numerous other governments than those 
 represented at the congress — by several at the Hague Conference of 1907 — 
 but not by the United States; the reason why the United States has not rati- 
 fied it has been that, while abolishing privateering, it did not abolish the cap- 
 ture of the enemy's, as well as neutrals', private property on the sea.
 
 WARFARE ON THE SEA 
 
 159 
 
 Netherlands representative opposed General Porter's 
 proposition on the ground that it was in line with the old 
 fictitious, or "paper," blockade which has been superseded 
 for half a century by an "effective" blockade, and that 
 by permitting the seizure of a ship anywhere on the ocean, 
 and before it has really attempted to break the blockade, 
 as well as on the lines of actual blockade, it would be an 
 unjustifiable detriment to neutral commerce. 
 
 The Italian propositions were supported by Germany, 
 Austria, the Netherlands, Turkey, and Greece, in Europe, 
 and by Brazil and Argentina ; while the British and Amer- 
 ican propositions were supported by Japan. In view 
 of the marked difference between the "Continental" 
 and the "Anglo-American" systems of blockade, and 
 after a discussion of the question in both the commission 
 and its special committee, it was decided that it was not 
 possible for the existing conference to reach an agreement 
 upon it. The committee, in reporting this decision to 
 the commission, accompanied it with the hope that, in 
 case of its further discussion being postponed, "a pro- 
 found study of it by the governments may secure, in the 
 near future, the sanction of a uniform practice which 
 the commercial interests and the peace of the world de- 
 mand." 
 
 The subject was not taken up again, but the conference 
 evidently intended that it should be placed upon the 
 programme of the next conference; for it is implied 
 by the resolution adopted that the said programme shall 
 include a regulation of the laws and customs of maritime 
 warfare.
 
 160 THE TWO HAGUE CONFERENCES 
 
 3. Contraband of War 
 
 This topic was not mentioned upon the Russian pro- 
 gramme, but President de Martens, of the IV Commission, 
 introduced it under the form of the following questions: 
 
 "Upon what is founded the right of belligerent powers 
 to prohibit commerce in objects constituting contraband 
 of war? Within what limits, of law and of fact, may this 
 right be exercised by belligerents? Within what limits, 
 of law and of fact, should this right be respected by 
 neutrals?" In response to these questions, propositions 
 were presented by the delegations of Great Britain, Ger- 
 many, France, Brazil, and the United States. 
 
 The British proposition was the first to be presented, 
 and was the most radical of all. It stated that the British 
 government was "ready to abandon the principle of con- 
 traband in case of war between the Powers who shall 
 sign a Convention to this effect"; and it provided that "the 
 right of visit shall be exercised only for the purpose of 
 proving the neutral character of the merchant ship." 
 Lord Reay, of the British delegation, supported this propo- 
 sition before the commission by a speech in which he 
 argued that with changed conditions of warfare and com- 
 merce it has become the custom constantly to extend the 
 definition of contraband of war, and thereby to increase 
 the injury to neutral commerce; but that, at the same 
 time, it has become increasingly more difficult, if not quite 
 impossible, to prevent commerce in contraband. The 
 enormous extension of transportation by land, thanks 
 to steam railways; the progress of science which, by 
 multiplying instruments of warfare on land and sea, has 
 increased in an equal measure the number of articles
 
 WARFARE ON THE SEA l6l 
 
 necessary for the operations of a fleet or an army; the 
 great increase in the dimensions of a ship of modern com- 
 merce : such are the reasons why the old rules no longer 
 accomplish the desired end of preventing neutrals from 
 trafficking in contraband. Hence it is that the belligerent 
 has been led to attempt the adaptation of old-time rules 
 to modern conditions, and has only succeeded, in reality, 
 in creating a condition of affairs which^ places excessive 
 obstacles in the way of neutral commerce without gaining 
 for himself an advantage equal to the wrong done to neu- 
 trals. Established usage permits at present a belligerent 
 to declare, at the beginning of a war, what comprise the 
 objects which he intends to treat as contraband of war, 
 and to add others to the list in the course of hostilities. 
 It is evidently in the interests of the belligerent to make 
 a list as complete as possible, and it has often been done 
 in terms so vague that the interests of neutral commerce 
 have been injured beyond what is reasonable. After 
 pointing out the difficulties of enforcement, and the 
 danger to peaceful relations, of the present distinction 
 between "absolute" and "conditional" contraband, — 
 an argument which he based upon Great Britain's own 
 experience as both belligerent and neutral since 1899, — 
 Lord Reay appealed to the commission to adopt the 
 British proposition, and thus to abolish "a frequent cause 
 of international differences" and to "contribute to the 
 work of peace and justice which is the object of our 
 efforts." 
 
 The German, French, and United States delegations 
 proposed to define more clearly the meaning and liability 
 of absolute and conditional contraband ; and the Brazilians 
 proposed to abolish the distinction between absolute and
 
 162 THE TWO HAGUE CONFERENCES 
 
 conditional contraband, and to make stated classes of 
 articles alone subject to capture. These propositions 
 were supported, and the British one opposed, by repre- 
 sentatives of each of the four delegations, who endeavored 
 to show that by their respective plans the principle of 
 contraband would be retained, in justice to belligerents, 
 and at the same time the rights of belligerents and the 
 interests of commerce would be reconciled. 
 
 A number of the smaller powers, 1 on the other hand, 
 gladly welcomed Great Britain's proposal, which seemed 
 to them, in the words of the Marquis de Soveral, of Portu- 
 gal, "a monument of profound wisdom and of great 
 abnegation." After two sessions of the commission had 
 been devoted to a discussion of the question, a vote was 
 taken on the British proposition, which resulted in twenty- 
 six for, five against, and four abstentions. 2 
 
 After this noteworthy but not unanimous vote, the 
 whole question was referred to a special committee for 
 examination and report. Lord Reay was made chairman 
 of this committee, which comprised representatives of 
 three delegations which had voted for the British propo- 
 sition; and of four which had voted against it. 3 In 
 opening its discussions, Lord Reay said that "the British 
 proposition to abandon the principle of contraband of 
 war not having been accepted unanimously, the committee 
 should seek in the other propositions submitted to the 
 commission the elements of a general agreement on the 
 question." Five sessions were devoted to the discussion 
 of these propositions by the committee, which came to 
 
 1 Sweden, Norway, Portugal, Switzerland, Belgium, and Argentina. 
 
 2 Delegations opposed: Germany, United States, France, Russia, and 
 Montenegro; abstentions: Turkey, Roumania, Panama, and Japan. 
 
 3 Great Britain, Brazil, Chili; Germany, United States, France, Russia.
 
 WARFARE ON THE SEA 163 
 
 a practical agreement upon a list of twelve classes of arti- 
 cles which should be considered "absolute" contraband 
 of war; but on the question of what should constitute 
 "conditional" contraband, the committee could not 
 reach any general agreement. This fact was reported 
 to the commission which, in its report to the conference, 
 expressed the belief that, in the general and sincere desire 
 for a regulation satisfactory to every one, the question 
 should be submitted to a renewed consideration on the 
 part of the governments interested. 
 
 The conference itself, in plenary session, did not take 
 up the subject specifically, but intended it to be included 
 in its resolution that the elaboration of a code of the 
 laws and customs of maritime warfare shall have a place 
 on the programme of the next conference. 
 
 4. Destruction of Neutral Prizes 
 
 This subject was brought before the IV Commission by 
 President de Martens's questions : 
 
 "Is the destruction of merchant vessels, in time of war, under a 
 neutral flag and loaded with troops or contraband of war, prohibited 
 by legislation or by international practice? Is the destruction of 
 all neutral prizes, by superior power, illegal according to legislation 
 at present in force or according to the practice of naval warfare?" 
 
 In answer to these questions, the British delegation 
 proposed that the destruction of a neutral prize by its 
 captor be forbidden, and that the captor be required 
 to release every neutral ship which he is unable to take 
 before a prize court. The United States delegation sub- 
 mitted a similar rule: "If, for any reason whatever, a 
 captured neutral vessel can not be brought to adjudication,
 
 164 THE TWO HAGUE CONFERENCES 
 
 this vessel should be released." The Japanese delegation 
 submitted the same rule as the British, but made the 
 following exceptions: 1. if the vessel is in the military 
 or naval service of the enemy, or under his control for 
 military or naval purposes; 2. if the vessel forcibly 
 resists visitation or capture; 3. if the vessel tries by 
 flight to escape visitation or capture. 
 
 The Russian delegation, on the other hand, made the 
 exception to the rule prohibiting destruction a very elastic 
 one; it proposed that the exception should be made in 
 those cases where the preservation of the captured ship 
 "might compromise the safety of the captor or the success 
 of his operations." The argument upon which the dele- 
 gation based this broad exception was that "absolute 
 prohibition of the destruction of neutral prizes by bellig- 
 erents would have as a consequence the establishment of a 
 position of marked inferiority for those powers having 
 no naval bases beyond the coasts of their own countries." 
 The Russian naval delegate, in a speech before the com- 
 mission, illustrated this argument by reference to the case 
 of a neutral vessel captured by a belligerent in close prox- 
 imity to a superior naval force of the enemy, or at a long 
 distance from the belligerent's ports, or when the bellig- 
 erent's ports are blockaded by the enemy. 
 
 Sir Ernest Satow, of Great Britain, replied to the Russian 
 argument by insisting that if a belligerent, because of 
 geographical location or of the insufficiency of maritime 
 resources, finds it impossible to exercise effectually the 
 right of seizing neutral ships carrying contraband of war 
 or seeking to violate a blockade, then he should leave them 
 at liberty; for, to give to belligerents the right of sinking 
 neutral prizes would lead inevitably to abuses and would
 
 WARFARE ON THE SEA 1 65 
 
 expose every neutral ship to the risk of being sunk every 
 time it met a belligerent war ship, whose captain would 
 not fail to exercise the right as seemed good to himself, 
 despite the orders which he may have received to act 
 circumspectly. By such a rule, the neutral vessel would 
 find itself in the same position as an enemy's vessel; 
 and its position would be even worse than that, since its 
 government would have no means of redressing the wrong 
 done it, short of itself declaring war on the belligerent 
 captor. 
 
 The United States delegation supported the British 
 view of the question; while the German delegation took 
 the Russian side. Count Tornielli, of Italy, said that the 
 absolute prohibition of the destruction of neutral prizes 
 would probably be acceptable to powers with few or no 
 widely scattered colonial ports and naval bases beyond 
 the coasts of their own countries, provided permission 
 be granted to belligerents to convoy their prizes into 
 neutral ports, to be kept there under sequestration; he 
 proposed, .accordingly, that the two- questions be discussed 
 in a joint meeting of the two committees of the III 
 and IV Commissions. This proposition was adopted; 
 but the result of the joint meeting was the practical failure 
 of both the prohibition of the destruction of neutral prizes 
 and the permission to convoy them within neutral ports. 1 
 
 The rule that neutral powers may admit to their 
 ports prizes — either belligerent or neutral — was finally 
 adopted by the conference ; but it was deemed impossible 
 to adopt any rule concerning the destruction of neutral 
 prizes. Hence this latter subject, also, was left to be 
 
 1 Eleven delegations voted for the prohibition, four against it, and two 
 abstained; nine voted for the permission, two against it, and six abstained.
 
 166 THE TWO HAGUE CONFERENCES 
 
 included within the programme of the next conference, 
 under the head of the laws and customs of naval warfare. 
 
 E. THE LAWS AND CUSTOMS OF NAVAL 
 WARFARE 
 
 a. The Conference of 1899 
 
 When the revision of the laws and customs of warfare 
 on land was under discussion, Count Nigra, of the Italian 
 delegation, endeavored to have extended to naval warfare 
 the rules adopted in regard to bombardment on land; 
 and Ambassador White and Captain Crozier, of the United 
 States delegation, endeavored to have extended to naval 
 warfare the rules adopted in regard to the treatment of 
 private property on land. But the utmost that could be 
 secured from the conference was the adoption, almost 
 unanimously, of the desire that these two phases of naval 
 warfare should be referred to the next conference. The 
 great work of codification, accomplished by the Con- 
 ference of 1899, was performed solely within the field of 
 warfare on land ; but its success in this field stimulated 
 the Conference of 1907 in its noteworthy attempt to codify 
 the laws and customs of warfare on the sea. 
 
 b. The Conference of 1907 
 
 The Russian programme for the Conference of 1907 
 included the following paragraph: 
 
 "As for maritime warfare, whose laws and customs differ on cer- 
 tain points from country to country, it is necessary to establish definite 
 rules harmonious with the rights of belligerents and the interests of 
 neutrals. A convention concerning these matters will have to be
 
 WARFARE ON THE SEA 167 
 
 elaborated, and it will form one of the most remarkable portions of 
 the task devolved upon the approaching conference." 
 
 As parts of this convention, the programme mentioned the 
 subjects of bombardment, mines, the transformation of 
 merchant vessels into war ships, the private property 
 of belligerents, the delay of favor accorded to merchant 
 vessels at the beginning of hostilities, contraband, the 
 conduct of belligerent war ships in neutral ports, and the 
 destruction of neutral prizes. All of these subjects have 
 been discussed above, and they form, of themselves, 
 no small part of a naval code. After mentioning these, 
 the programme continued: "In the said convention there 
 should be introduced rules of warfare on land which would 
 be applicable equally to warfare on the sea." And in 
 outlining the work of the IV Commission, President de 
 Martens's last question was: "Within what limits is the 
 convention of 1899 relative to the laws and customs of 
 warfare on land applicable to the operations of warfare 
 on the sea?" This question, which necessarily involved 
 a wide range of consideration, was not discussed by the 
 commission itself, but referred to its committee of exami- 
 nation, which, in turn, referred it for consideration and 
 report to Jonkheer van Karnebeek, of the Netherlands. 
 This last-named gentleman, with the assistance of M. 
 Beernaert, of Belgium, the president of the II Commission 
 (which had to deal with questions of warfare on land), ex- 
 amined and reported upon the applicability of each one of 
 the fifty-eight articles adopted in 1899 to control warfare 
 upon land. He reported to the committee that forty-six 
 of the fifty-eight articles were applicable, that four were not 
 applicable, and that there was doubt as to the applica-
 
 1 68 THE TWO HAGUE CONFERENCES 
 
 bility of the remaining eight. The committee decided 
 that time would not admit of the discussion of the report 
 by the existing conference ; * and recommended that a 
 special desire (vosu) be adopted in plenary session that 
 the codification of maritime laws of combat be made a 
 specific part of the programme of the next conference. 
 This vceu was unanimously adopted, and, on motion of 
 Sir Ernest Satow, of Great Britain, the further vceu was 
 adopted that " meanwhile, the powers shall apply as far 
 as possible to naval warfare the principles of the conven- 
 tion of 1899 relative to warfare on land." 
 
 1 The report was not commenced until August 28, and presented to the 
 committee until September 6.
 
 XII. WARFARE ON LAND 
 
 A. NEW ARMS AND METHODS 
 
 a. The Conference of 1899 
 
 "From the moment when every chance of an armed 
 conflict between nations can not be absolutely prevented, 
 it becomes a great work for humanity to mitigate the 
 horrors of war." These are the words by which President 
 de Staal invited the attention of the conference to the 
 subject of warfare on land. The Russian programme had 
 mentioned two aspects of the subject, the use of new kinds 
 of firearms and explosives, and the laws and customs of 
 warfare. The first of these was taken up for discussion 
 in the military subcommission of the I Commission. 
 This discussion occupied five meetings of the subcommis- 
 sion, and was based upon propositions introduced, ex- 
 plained, and defended, for the most part, by Russia's 
 military delegate, Colonel Gilinsky. These propositions 
 had a precedent in the Convention of St. Petersburg 
 of 1868, when the representatives of seventeen European 
 powers met on the invitation of the Russian government 
 and agreed upon a short "Declaration." This declara- 
 tion asserted that the progress of civilization should have 
 for its result all possible diminution of the calamities of 
 war; that the only legitimate object of warfare is the 
 weakening of the military forces of the enemy; that for 
 this purpose it is enough to put hors de combat the largest 
 
 169
 
 170 THE TWO HAGUE CONFERENCES 
 
 possible number of men; that this object would be ex- 
 ceeded by the use of weapons which would uselessly 
 aggravate the sufferings of men put hors de combat, or 
 which would make their death inevitable. The declara- 
 tion was followed by an agreement between the contract- 
 ing parties to renounce the use, in warfare with each other, 
 of projectiles weighing less than four hundred grammes 
 and being either explosive or charged with explosive or 
 inflammable materials. 
 
 1. Explosives 
 
 In the spirit of this declaration and agreement Colonel 
 Gilinsky presented to the conference several important 
 propositions. The first of these was a proposal to restrict 
 the use, in military operations, of the formidable explosives 
 already existing, and to prohibit the use of still more 
 powerful ones. Captain Crozier, of the United States, 
 took the lead in opposing this proposition, and he did so 
 on the ground that its adoption would be an obstacle to 
 one of Russia's prime objects in calling the conference, 
 that is to say, economy. If by a more powerful explosive 
 is meant one which gives a greater velocity to a projectile 
 of a given weight, or the same velocity to a heavier pro- 
 jectile, then an explosive is powerful in proportion to the 
 volume of gas produced by the heat of combustion; 
 hence it is quite possible to invent an explosive which, 
 supplying a larger volume of gas at a lower temperature 
 of combustion, would be more powerful than any now 
 in use and, at the same time, because of the low tempera- 
 ture, would cause less strain upon the musket and permit 
 its longer use. This argument was accepted as conclu-
 
 WARFARE ON LAND 
 
 171 
 
 sive, — although other arguments, unexpressed, were 
 doubtless present in the thought of the delegates, — and 
 it was unanimously voted that each state should be left 
 in entire liberty as to the use of explosives for propelling 
 missiles. 
 
 Colonel Gilinsky then proposed to prohibit the use of 
 new explosives — that is, "high explosives," or those used 
 as the bursting charge of projectiles — more powerful 
 than any now used. This proposition was rejected, 
 without discussion, by a vote of nine ayes and twelve 
 noes. 1 
 
 Colonel Gilinsky's third proposition was to prohibit 
 the use, for field artillery, of bursting, or mining, shells. 
 This proposition was also rejected, without discussion, by 
 a vote of ten ayes and eleven noes. 2 
 
 2. Field Guns 
 
 The Russian proposition on this topic was that the type 
 of cannon at present in use in several armies, that is to 
 say, the new rapid-fire cannon, should not be changed 
 during a period to be agreed upon. Colonel Gilinsky 
 based this proposition on the argument of economy, — 
 "the reduction of the military expenses which burden the 
 nations." But the representative of France said that 
 if the proposition implied that those countries having 
 inferior artillery could adopt the best now in use, it would 
 entail even greater expenses upon them by inciting them 
 
 1 All of the eight "great powers," except Russia, voted in the negative 
 with Spain, Sweden and Norway, Denmark, Turkey, and Roumania. 
 
 2 Denmark voted this time with the affirmative; the other negative votes 
 were as before.
 
 172 THE TWO HAGUE CONFERENCES 
 
 to place their equipment upon a plane of equality with 
 the best. 
 
 A vote was taken, accordingly, upon such permission 
 being given to the "backward" nations, with the result 
 that five delegations voted aye, 1 and the other delegations 
 either abstained from voting, or voted upon other phases 
 of the question. As one of the delegates said: "It was 
 impossible to state what the result of the vote was, — 
 the only thing evident was that the question was not 
 entirely understood by the voting delegates." 
 
 The president of the subcommission then put to a vote 
 the proposition presented by Russia, with the result that 
 all of the delegations voted against it, except that Russia 
 and Bulgaria abstained from voting at all. Colonel Gilin- 
 sky afterwards explained that he had abstained from 
 voting on the proposition because it had been made to 
 imply that no state, even the backward ones, could intro- 
 duce a better type of cannon than it already possessed; 
 while he had intended it to mean that the new rapid-fire 
 cannon should be considered the best type, and that no im- 
 provements on it should be permitted for a specified time. 
 
 The subcommission's report was accepted by the con- 
 ference, and no further attempt was made to prohibit the 
 use of improved field artillery. 
 
 3. Muskets 
 
 Colonel Gilinsky introduced his proposition as to mus- 
 kets by saying that the musket at present in use in all 
 armies is nearly of the same caliber and quality, and that 
 therefore he would propose that a period be agreed upon 
 
 1 Those of the United States, Italy, Belgium, Servia, and Siam,
 
 WARFARE ON LAND 
 
 J 73 
 
 during which no state should change the type of musket 
 at present in use in its own armies. This proposition 
 differed, it was noticed, from the Russian proposition 
 regarding field artillery, since it would not permit "back- 
 ward" nations to introduce improved types of muskets; 
 but Colonel Gilinsky defended this difference on the 
 ground that "the type of musket is very nearly the same 
 at present in all armies, while the type of field artillery 
 differs greatly." He supported his proposition entirely 
 on the ground of economy, and said that it would not 
 preclude new inventions designed to improve the existing 
 type of musket, but merely those which would modify 
 it essentially or transform it into an automatic musket. 
 "The automatic musket," he added, "exists for the present 
 only as a proposition, and has not yet been adopted any- 
 where." 
 
 In the discussion of this proposition, the objection was 
 at once made, by General Zuccari, of Italy, that the dif- 
 ference between the muskets of different nations is not 
 so small as stated, but that in reality it is quite great. 
 And Colonel Kuepach, of Austria-Hungary, stated that 
 an improvement, even a slight improvement, in muskets 
 at present in use might change entirely their character 
 or type. After a further exchange of views, it was 
 agreed that the Russian delegates should present a detailed 
 proposition specifying exact conditions. This they did, 
 as follows: 
 
 i. The minimum weight of the musket shall be 4 
 kilogrammes. 
 
 2. The minimum caliber shall be 63 millimeters. 
 
 3. The weight of the bullet shall not be less than iog 
 grammes.
 
 174 
 
 THE TWO HAGUE CONFERENCES 
 
 4. * The initial vitality shall not exceed 720 meters. 
 
 5. The rapidity of tiring shall be limited to 25 shots 
 per minute. 
 
 Colonel von Schwarzhoff, of Germany, analyzed these 
 conditions, and objected to the first on the ground of 
 humanity to the soldier. "It is far more humane," 
 he said, "to lighten the load which the soldier must carry, 
 than to fix a minimum weight for one part of his equip- 
 ment; all that is taken from the weight of the musket 
 would soon be replaced by an increase in that of powder 
 and shot." As to the minimum weight proposed for both 
 musket and bullet, Colonel von Schwarzhoff stated that 
 there were six governments which would be obliged by 
 the plan to make changes, little desirable either from the 
 military or economical point of view. The initial vitality, 
 he said, depends at least as much on the powder used as 
 on the kind or weight of the musket and the form of the 
 projectile; and, since each power is to be left at liberty 
 to adopt new explosives, it would seem logical not to 
 limit the initial vitality. The rapidity of firing does not 
 depend less, he argued, on the skill and training of the 
 marksman than on the mechanism of the musket ; hence, 
 in fixing a maximum it would be necessary to state whether 
 it is a moderate rapidity to which the majority of soldiers 
 may attain, or a rapidity which the best trained men 
 can not exceed. He admitted, however, that the proposed 
 maximum was large enough. 
 
 A vote was then taken on the detailed proposition, with 
 the result that fourteen delegations voted against it, four ! 
 for it, and two 2 abstained. 
 
 1 The Netherlands, Persia, Russia, and Bulgaria. 
 
 2 France, Roumania.
 
 WARFARE ON LAND 
 
 175 
 
 General den Beer Poortugael, of the Netherlands, had 
 feared that the detailed proposition of Russia would meet 
 with defeat, and before it was put to a vote he proposed 
 a general agreement between the powers "to use in their 
 armies, during the next five years, only the muskets in 
 use at the present time"; and that "the improvements 
 permitted should be of a kind to change neither the pres- 
 ent type nor caliber." Colonel von Schwarzhoff opposed 
 this proposition on the ground that it did not define what 
 improvements should be permitted: "In case of doubt, it 
 would be necessary, for the loyal fulfillment of the agree- 
 ment, to make known the improvement to the other powers 
 and ask their consent before adopting it, — an impos- 
 sibility." 
 
 The proposition was put to a vote and lost by a vote of 
 ten to ten, with one abstention. 1 
 
 At the next session of the subcommission, General 
 Poortugael presented another general proposition, similar 
 to the first but including the proviso that the powers 
 might adopt any improvement in the best existing type of 
 musket which should appear advantageous to them, and 
 that all the powers might adopt the best type then in use. 
 He supported this proposition in an ardent speech which, 
 by unanimous consent, was spread in full upon the minutes. 
 He first explained that the reason why he had presented 
 another proposition despite the adverse action taken on 
 the two others, was that his conscience told him that they 
 
 1 The four delegations which voted for the Russian detailed proposition, 
 voted also for the Netherlands' general one; and in addition to these, the 
 following delegations voted for the latter: Belgium, Denmark, Spain, Siam, 
 Sweden and Norway, and Switzerland; France voted against the latter, and 
 Roumania abstained; China, Mexico, Greece, and Luxemburg were absent; 
 Montenegro, represented by Russia, did not vote.
 
 176 THE TWO HAGUE CONFERENCES 
 
 should do all within their power to arrive at an agreement 
 on the question of muskets ; for, of all the questions sub- 
 mitted to the I Commission, that of muskets he believed 
 to be the easiest of solution, since nearly all armies were in 
 possession of good muskets of the same type. 
 
 "Gentlemen," he continued, "it is my belief that, not only from 
 an economic point of view, but also from the point of view of states- 
 manship {haute politique), which is fortunately the same for every 
 state, it is necessary and even urgent that we should do something. 
 
 "Whole populations, in every civilized land, expect that of us; it 
 would be very sad to disappoint their hope. They ask, they beseech 
 that a stop shall be put to throwing millions, nearly billions, into the 
 gulf of incessant changes, which are made so rapidly that sometimes 
 the weapon is changed three or four times before it is used. They 
 ask, they beseech that a stop shall be put to the extravagant expendi- 
 tures devoted to the implements of warfare, so that satisfaction can 
 be given to the social needs which are growing more and more pressing 
 and which, without money, must remain neglected. They ask, they 
 beseech that we stop, if only for a time, and if only to take breath, in 
 this frantic competition to hold the record for military inventions. 
 At the very least, let us try to agree on the question which lends itself 
 most readily to agreement ; to do otherwise would be to deceive cruelly 
 the nations. 
 
 "Let us discard all distrust, which is a bad counsellor. Let us not 
 forget that in this very question of muskets, Russia, which made the 
 original proposition, is equipped at present with a musket of large 
 caliber, that of 7.62 millimeters, while neighboring states, Sweden 
 and Norway and Roumania, have better muskets of a caliber of 6.5 
 millimeters. This, then, is an evident proof of disinterestedness, — 
 a sacrifice, if you will, laid on the altar of the common welfare. 
 
 "Let us not forget that it is the generous thought of the young 
 and august emperor of the largest empire in the world, who has re- 
 vealed his desire for prolonged peace; that, in his journey in Pales- 
 tine, another emperor, young, generous, and genial, at the head of the 
 formidable power of Germany, solemnly expressed on the classic soil 
 which we Christians call the Holy Land, his firm desire of main-
 
 WARFARE ON LAND 
 
 177 
 
 taining peace; and that, as all the world knows, the Emperor of 
 Austria-Hungary, the illustrious sovereign who lately celebrated his 
 jubilee in circumstances so sad, who lives only for the welfare of the 
 peoples whom he governs, is animated by sentiments equally peaceful. 
 
 "Let us not forget, either, as the honorable President of the Con- 
 ference, M. de Staal, has said, that 'the eagerness with which all 
 the powers have accepted the proposition contained in the Russian 
 circulars is the most eloquent proof of their unanimity with peace- 
 ful ideas.' 
 
 "In this state of things why do we hesitate, — we who have met 
 here to give a body, so to speak, to these ideas, — why do we hesitate 
 to do the minimum ; that is to say, to agree that only for the short time 
 of five years we will all keep the muskets that we have now, except 
 that those states which have inferior muskets — those without maga- 
 zine — may choose any existing type ? 
 
 "If, gentlemen, after all that has happened and is expected, this 
 conference, proudly announced and constituted, and unparalleled in 
 history, accomplishes nothing in the way of economies so ardently 
 desired, — if we place not a single restriction on the ruinous trans- 
 formation of armaments, we shall forge weapons for the enemy com- 
 mon to all governments, for those who wish to revolutionize the estab- 
 lished order of the world and who will not hesitate to scatter among 
 the people venomous germs and a doubt as to the sincerity of the gov- 
 ernments whom we represent. Those false prophets who make war 
 only upon each other will say to the people: 'Come with us 
 all you who are oppressed and who ask for bread and peace ; we 
 alone can give them to you.' And the people will throw them- 
 selves into their arms and will become their prey." 
 
 General Poortugael then endeavored to show that his 
 proposition was free from the objections which had been 
 made to the others, and in concluding his address, an- 
 swered the objection that the various governments could 
 not be trusted to introduce improvements without chang- 
 ing the type of their muskets, by saying : 
 
 "I take the liberty of replying as did the President of the Brussels 
 Conference, Baron Jomini: 'It would be a wrong to the contracting
 
 178 THE TWO HAGUE CONFERENCES 
 
 parties to imagine that they could have the intention of not abiding 
 by their agreement.' Gentlemen, it is with nations as with indi- 
 viduals. Francis I, defeated and made prisoner at Pavia by Charles 
 V, wrote to his mother from the Chateau de Pizzeghettone, these 
 memorable words: 'Madame, all is lost but honor.' He did not 
 cease to be 'the great king' when he had regained all that he had lost, 
 because honor still stayed with him. But, far different would it be 
 to forfeit an oath or an accepted agreement : 
 
 " 'Honor is like an isle with steep and landless shore; 
 
 When once it has been lost, it can not be regained more. ' 
 
 "I am convinced, then, gentlemen, that to be sure that the gov- 
 ernments will evade neither the spirit nor the letter of the agreement, 
 there is no better watchman, than the nations' honor. Let us believe 
 it!" 
 
 In reply to these glowing words, and after a motion 
 to record, print, and distribute them had been passed, 
 Colonel von Schwarzhoff said that as a simple technical 
 delegate he was not in a position to follow General Poor- 
 tugael into the domain of statesmanship {la haute politique). 
 He admitted that after all the efforts made it would be very 
 desirable to arrive at some agreement, but questioned if 
 the plan proposed could secure it. The technical object, 
 he said, is to realize economies or prevent new expendi- 
 tures in the equipment of infantry; but since it was pro- 
 posed to permit all the governments to introduce im- 
 provements in their muskets, the result would be, probably, 
 a double expenditure : first, for the improvements during 
 the five-year period, and then for a new type of musket. 
 Besides, he argued, it would be possible by modifications, 
 slight but expensive, to produce a weapon much superior 
 to the existing musket, and this would- oblige the other 
 powers to keep pace with them. 
 
 General Poortugael in reply to these arguments said
 
 WARFARE ON LAND 179 
 
 that it was not very probable that, within the short time 
 of five years, there would be need of making any consid- 
 erable change in the existing musket ; and that in any 
 case there was a great difference between expenditures for 
 improving the existing musket, which are usually but 
 small, and expenditures for an entire change of arms, which 
 requires three muskets for each man and costs, for an 
 army of 500,000 infantrymen, the sum of $15,000,000.00. 
 
 General Sir John Ardagh, of Great Britain, stated that 
 such an agreement would be very difficult to enforce ; that, 
 for example, a state might make a new type of musket in 
 its own arsenals and distribute them to its soldiers only 
 when war commenced. The Russian delegates replied 
 that this objection would be met by the good faith of 
 governments and by the control of public opinion, which 
 was sufficient even in the case of commercial agreements. 
 But Colonel von Schwarzhoff said that the difficulty 
 would arise in good faith, and in regard to the question 
 of what were merely improvements on the existing type 
 and what were radical transformations. 
 
 The vote which followed this extended discussion resulted 
 in ten ayes, three noes, 1 and eight abstentions. 2 
 
 Five of the abstentions were due to lack of instructions 
 from the home governments; and because of this fact, 
 and of the lack of a more decided vote, the subcommission 
 refrained from making any recommendation on the sub- 
 ject of muskets. When the report on the discussion was 
 presented to the I Commission, the delegations from the 
 United States, Austria, France, Japan, and Turkey added 
 
 1 Germany, Italy, and Great Britain. 
 
 2 The United States, Austria, France, Japan, Portugal, Switzerland, and 
 Turkey.
 
 180 THE TWO HAGUE CONFERENCES 
 
 their votes against General Poortugael's proposition ; and, 
 on the motion of M. van Karnebeek, of the Netherlands, 
 the commission voted unanimously to leave the question 
 to be studied carefully by the governments themselves, 
 and to be discussed in another conference. This vote 
 was adopted unanimously, with a few abstentions, by the 
 conference, and the question did not arise again in 1899. 
 
 The attitude of the United States government towards 
 the Russian proposition as to muskets was stated, early 
 in the debate, by Captain Crozier, who said that it did 
 not desire to limit itself in the case of hew inventions 
 having for their object the increase of efficiency in military 
 weapons, although there was then no question of a change 
 of small arms. The United States delegation took no 
 further part in the debate, but cast its vote against the 
 Russian and the two Netherlands propositions. 
 
 Still another question as to muskets was raised and 
 voted upon, but not discussed. The Russian delegation 
 proposed that the use of automatic muskets should be 
 forbidden. Nine votes were cast in favor of this propo- 
 sition, six votes against it, 1 and six delegations abstained. 2 
 
 The question of prohibiting the use of new means of 
 destruction depending on the application of chemistry 
 or electricity was also raised in the subcommission, but 
 not discussed by it, on the ground that it had not been 
 mentioned in the Russian programme. When it came 
 up in the commission, Colonel Gilinsky favored such pro- 
 hibition for the reason that "Russia is of the opinion that 
 the existing methods of making war are sufficient." 
 
 1 Germany, Austria-Hungary, Italy, the United States, Great Britain, and 
 Sweden and Norway. 
 
 2 France, Japan, Portugal, Roumania, Servia, and Turkey.
 
 WARFARE ON LAND 181 
 
 Colonel von Schwarzhoff also admitted that the existing 
 methods of making war were sufficient, but said: "We 
 should not tie our hands in advance so that we should have 
 to ignore more humane methods which may be invented 
 in the future." This last argument was accepted by the 
 commission, and the question was dropped without fur- 
 ther discussion or vote. 
 
 4. Bullets 
 
 The Russian programme did not specify the subject of 
 bullets ; but when new arms and methods of warfare came 
 up for discussion, Colonel Kunzli, of Switzerland, in- 
 quired if it would not be appropriate to prohibit the use 
 of projectiles which aggravate wounds and increase suffer- 
 ing, such, for example, as "dumdum" bullets. General 
 Poortugael, of the Netherlands, then said that his govern- 
 ment had instructed him to demand the formal prohibi- 
 tion of dumdum bullets, and defined them as inhuman 
 projectiles which make incurable wounds; which have 
 very soft points and very hard jackets, and, with a softer 
 inner substance, explode within the body, thus causing a 
 small hole on entering, but an enormous one on leaving, 
 the body of the victim. Such damages, he asserted, are 
 not necessary, for it is sufficient to render soldiers inca- 
 pable of service for a time without mutilating them. 
 
 General Sir John Ardagh, of Great Britain, replied 
 that a mistake had been made in attributing such conse- 
 quences to dumdum bullets, for they were like other 
 bullets, an ordinary projectile. 
 
 The president of the subcommission then said that a 
 concrete proposition was prerequisite to any practical 
 result, and requested Colonel Kunzli to present such propo-
 
 1 82 THE TWO HAGUE CONFERENCES 
 
 sition at the next meeting. Colonel Kunzli did so as 
 follows: "It is forbidden to use infantry projectiles, the 
 point of whose jacket is perforated or filed, and those 
 whose direct passage through the body is hindered by an 
 empty interior or by one filled with soft lead." Colonel 
 Gilinsky, of Russia, presented at the same time a resolu- 
 tion, which, amended by General Mounier, of France, 
 was adopted by the conference and was as follows: "The 
 contracting Powers prohibit the use of bullets which ex- 
 pand or flatten easily in the human body, such as bullets 
 with hard jackets, whose jacket does not entirely cover the 
 core or has incisions in it." 
 
 When this latter proposition was made, it was accepted 
 without debate by sixteen of the twenty delegations pres- 
 ent ; the delegates of the United States, Germany, and 
 Roumania said that they believed it would be acceptable 
 to their governments ; and it was taken under considera- 
 tion by the delegation of Great Britain. At the next 
 meeting it was put to a formal vote and received nineteen 
 ayes, and one no. 1 
 
 In justification of his negative vote on the proposition, 
 Sir John Ardagh, of Great Britain, demanded the liberty 
 of using against savage populations effective projectiles, 
 and said that, in civilized warfare, a soldier wounded by 
 a ball of small caliber retires to an ambulance and advances 
 no longer ; but that in war against savages the case is very 
 different : although penetrated two or three times, the 
 savage does not summon hospital attendants, he does not 
 stop marching forward, and before you have had time to 
 
 1 The delegation from Great Britain voted in the negative; the Austrian 
 delegation abstained from voting on this proposition because it had just 
 proposed one more general in character, which provided for the prohibition 
 of bullets that cause wounds unnecessarily cruel.
 
 WARFARE ON LAND 183 
 
 explain to him that he is in flagrant opposition to the 
 decisions of the Conference of The Hague he cuts off 
 your head. This distinction between civilized and savage 
 warfare was denounced by M. Raffalovich, of Russia, as 
 "contrary to the humanitarian spirit which rules this end 
 of the Nineteenth Century : both the savage and the civi- 
 lized enemy are men, and both deserve the same treatment." 
 President Beernaert, of Belgium, before submitting the 
 prohibitory proposition to a vote, also said that he believed 
 that he expressed the opinion of the subcommission in 
 asserting that no distinction should be made between 
 enemies in battles. 
 
 Although in a minority of one to nineteen in the sub- 
 commission, Sir John Ardagh opposed the adoption of 
 the proposition in the commission itself by reading an 
 address, in part as follows : 
 
 "I ask permission to present to this Honorable Assembly some 
 observations and explanations on a subject which has already been 
 submitted to a vote, that is, the question of bullets. In the session of 
 May 31, an article was accepted by a large majority against the use of 
 bullets with a hard jacket, whose jacket does not entirely cover the 
 core or has incisions in it. 
 
 "It seems to me that the use of these words describing technical 
 details of construction will result in making the prohibition a little 
 too general and absolute. It would not seem to admit of the excep- 
 tion which I would desire to provide for, that is, the present or future 
 construction of some projectile with shock sufficient to stop the 
 stricken soldier and put him immediately hors de combat, thus ful- 
 filling the indispensable conditions of warfare without, on the other 
 hand, causing useless suffering. 
 
 "The completely jacketed bullet of our Lee-Metford rifle is defec- 
 tive in this respect. It has been proven in one of our petty wars in 
 India that a man perforated five times by these bullets was still 
 able to walk a considerable distance to an English hospital to have
 
 184 THE TWO HAGUE CONFERENCES 
 
 his wounds dressed. It was proven just recently, after the Battle of 
 Om-Durman, that the large majority of the Dervishes who were able 
 to save themselves by flight had been wounded by small English bul- 
 lets, whereas the Remington and Martini of the Egyptian army suf- 
 ficed to disable. It was necessary to find some more efficient means, 
 and to meet this necessity in India, the projectile known under the 
 name of Dumdum was made in the arsenal of that name near 
 Calcutta. 
 
 "In the Dumdum bullet, the jacket leaves a small end of the 
 core uncovered. The result of this modification is to produce a cer 
 tain extension or convexity of the point and to cause a shock more 
 pronounced than that given by the completely jacketed bullet, but 
 at the same time less effective than that given by the bullet of the En- 
 field, Snider, or Martini rifles whose caliber is larger. The wounds 
 made by this Dumdum bullet suffice ordinarily to cause a shock 
 which stops an advancing soldier and puts him hors de combat; but 
 their result is by no means designed with the aim of inflicting useless 
 suffering. . . . 
 
 "It scarcely seems necessary for me to assert that public opinion 
 in England would never sanction the use of a projectile which would 
 cause useless suffering, and that every class of projectile of this nature 
 is condemned in advance; but we claim the right and we recognize 
 the duty of furnishing our soldiers with a projectile on whose result 
 they may rely, — a projectile which will arrest, by its shock, the charge 
 of an enemy and put him hors de combat immediately. 
 
 "... In fact, it has been clearly proven that our completely 
 jacketed bullet, such as is at present in use in the English army, does 
 not sufficiently protect our soldiers against the charge of a determined 
 enemy; hence we desire to reserve entire liberty to introduce modifica- 
 tions in the construction of either the jacket or the core, for the pur- 
 pose of causing the shock necessary for putting a man hors de combat, 
 without occasioning useless aggravation of suffering. 
 
 "Such is our point of view, and we can not, consequently, accept 
 the wording of the prohibition voted by the majority on the first 
 reading, which imposes a technical restraint on details of construc- 
 tion. 
 
 "Nevertheless, I desire to repeat that we are completely in accord 
 with the humanitarian principles proclaimed in the Convention of
 
 WARFARE ON LAND 1S5 
 
 St. Petersburg, and that we shall endeavor to observe them, not only 
 in their letter, but in their spirit also, in seeking a solution of the 
 problem as to what kind of projectile we shall adopt. I can assure 
 this Honorable Assembly that it is very disagreeable to me to find 
 myself obliged to vote, for the reasons which I have just explained, 
 against a rule inspired by principles of which I wholly approve; and 
 I still cherish the hope that it will be possible to arrive at a unanimous 
 agreement, by means of a phraseology which shall leave aside techni- 
 cal details of construction and affirm the principles on which we are 
 all agreed, — the principles enunciated in the Convention of St. 
 Petersburg ; that is to say, the prohibition of the use of bullets whose 
 effect is to aggravate uselessly the sufferings of men placed hors de 
 combat, or to render their death inevitable." 
 
 Captain Crozier, of the United States, came to the aid 
 of General Ardagh and proposed that the rule be phrased 
 in the following manner: "The use of bullets which in- 
 flict uselessly cruel wounds, such as explosive bullets and, 
 in general, every kind of bullets which exceed the limit 
 necessary for putting a man immediately hors de combat, 
 is forbidden." 
 
 Both the British and American propositions were 
 opposed by the members of various delegations on the 
 ground that they were too vague and general to be effec- 
 tive, — more vague, in fact, than the Declaration of St. 
 Petersburg which had been issued a generation before. 
 
 The proposition which had been voted by the sub- 
 commission by a vote of nineteen to one, with one absten- 
 tion, was then put to a vote in the commission and adopted 
 by twenty ayes, two noes (Great Britain and the United 
 States), and one abstention (Portugal). 1 
 
 When the proposition was reported by the commission 
 to the conference in plenary session, Captain Crozier, of 
 
 1 The representatives of China, Luxemburg, and Mexico were not present.
 
 i86 THE TWO HAGUE CONFERENCES 
 
 the United States, presented the following arguments 
 against its final adoption : 1 First, that it forbade the use 
 of expanding bullets, notwithstanding the possibility that 
 they might be made to expand in such regular manner as 
 to assume simply the form of a larger caliber, which 
 property it might be necessary to take advantage of, if it 
 should in the future be found desirable to adopt a musket 
 of very much smaller caliber than any now actually in use. 
 Second, that by thus prohibiting what might be the most 
 humane method of increasing the shocking power of a 
 bullet and limiting the prohibition to expanding and flat- 
 tening bullets, it might lead to the adoption of one of 
 much more cruel character than that prohibited. Third, 
 that it condemned by designed implication, without even 
 the introduction of any evidence against it, the use of a 
 bullet actually employed by the army of a civilized nation. 
 After the Russian and Netherlands military representa- 
 tives had replied to the arguments of Captain Crozier, 
 Ambassador White and Captain Mahan, both of the 
 United States, supported the proposition presented by 
 Captain Crozier, and demanded that it be voted upon 
 first, as an amendment to the proposition adopted by the 
 commission. Its opponents insisted that it was not an 
 "amendment," but a "new proposition," and that there- 
 fore the former proposition should be voted upon first. 
 This question of priority was submitted to a vote, with the 
 result that seventeen delegations voted in favor of the first 
 proposition's priority, and eight delegations voted in 
 favor of the American proposition's priority. The former 
 proposition, as submitted from the commission, was ac- 
 
 1 This statement is taken from Captain Crozier's report to the United 
 States delegation.
 
 WARFARE ON LAND 187 
 
 cordingly voted upon, with the result that twenty-two 
 delegations voted in favor of it, two delegations (Great 
 Britain and the United States) voted against it, and one 
 (Portugal) abstained from voting, while Luxemburg's 
 delegation was not present. 
 
 The final declaration adopted by the conference, after 
 a long and animated debate upon it in subcommission, 
 commission, and plenary session, was in the form of the 
 original proposition, and was signed by representatives 
 of all of the twenty-six powers, with the exception of 
 Great Britain, the United States, and Portugal. 1 
 
 b. The Conference of 1907 
 Bullets 
 
 The Russian programme for this conference mentioned, 
 among the topics connected with warfare on the land : 
 "Declarations of 1899. One among them having expired, 
 question of its renewal." 
 
 At the second meeting of the first subcommission of 
 the II Commission, on July 10, 1907, General Davis, 
 of the United States, presented the following propo- 
 sition : "The use of bullets which inflict unnecessarily 
 cruel wounds, such as explosive bullets, and, in general, 
 every kind of bullet which exceeds the limit necessary for 
 putting a man immediately hors de combat, should be for- 
 bidden." 
 
 At the last meeting of the subcommission, August 7, 
 after the other work assigned to it had been finished, its 
 president, M. Beernaert, of Belgium, stated that the 
 
 1 The British and Portuguese delegations in the Conference of 1907 an 
 nounced the adhesion of their governments to this declaration.
 
 1 88 THE TWO HAGUE CONFERENCES 
 
 Convention of 1899 had been completed by two other 
 declarations, one relative to the prohibition of bullets 
 which expand in the human body, and the other dealing 
 with the prohibition of asphyxiating projectiles; and that 
 no one had demanded the revision of these two declara- 
 tions. 
 
 Lord Reay, of Great Britain, then announced that his 
 government, which did not sign the latter declaration, 
 would give in its adhesion to it that day. 
 
 The president, after expressing his gratification for this 
 adhesion, passed to the declaration concerning bullets. 
 He expressed his opinion that all discussion on the subject 
 of this declaration should be held, as in the case of the 
 preceding one, inadmissible ; that these two declarations, 
 having been concluded for an indefinite term, can be de- 
 nounced only on condition of notice given one year in ad- 
 vance, and that no power had expressed such an intention ; 
 that, moreover, the modification or abrogation of these 
 declarations does not figure on the programme, and that 
 the restrictive proposition of the United States, likewise, 
 is not a part of it. 
 
 These observations of the president encountered no 
 contradiction ; and after the British and Portuguese rep- 
 resentatives had announced that their respective delegations 
 would sign the declaration prohibiting the use of bullets 
 which expand or flatten easily in the human body, and the 
 president had congratulated the conference "on these pre- 
 cious adhesions," the subcommission adjourned sine die. 
 
 The adhesion of Great Britain and Portugal to the dec- 
 laration of 1899 concerning bullets left the United States 
 delegation alone to contend for its view of the matter. It 
 did not shirk what it considered to be its duty, and at the
 
 WARFARE ON LAND 1 89 
 
 meeting of the II Commission on the 8th of August, Gen- 
 eral Davis recalled some of the facts above mentioned, and 
 made the following statement : 
 
 "In view of these facts, the United States delegation finds it 
 difficult to understand 'that no one has demanded the revision of these 
 two declarations.' Its desire in submitting its proposition of July 
 8 was to secure consideration for it by the commission. 
 
 "In the minutes of July 31, there was given an interpretation to the 
 programme, an interpretation which the delegation of the United States, 
 to its great regret, can not accept; the interpretation, namely, that the 
 declarations of 1899 can be modified only at the suggestion of a power 
 which has denounced them. The government of the United States 
 is not one of the signatories of the third declaration, and hence is 
 not in a position to denounce it in the manner and form prescribed 
 in the convention. . . . 
 
 "In conclusion, I address myself especially to the delegates who 
 bear officers' commissions in the armies of the nations represented 
 here. You are familiar with the whistling of bullets, you are accus- 
 tomed to the sight of the dead and wounded. We have regulated the 
 operations of warfare, we have improved the condition of neutrals: 
 these are acts of high justice; but we should not forget the combatant 
 officers and simple soldiers who bear the burdens of warfare. I hope 
 that this conference, convoked in the name of humanity, will not for- 
 get the lot of those who bear the inevitable losses and the cruelties 
 of battles. 
 
 "The duty of the delegation of the United States has been fulfilled ; 
 the duty of the conference commences at the point where that of the 
 delegation ends." 
 
 M. Beernaert, of Belgium, who was president of the II 
 Commission, as well as of its first sub-commission, replied 
 that General Davis's remarks would be placed upon the 
 record, but said that the question raised by him had been 
 placed before the commission [really, the subcommission], 
 and that no one had opposed the solution which it had re- 
 ceived. He ruled that the question was no longer open for
 
 190 
 
 THE TWO HAGUE CONFERENCES 
 
 discussion, and expressed the opinion that in other respects 
 also it had been well settled. The programme prepared 
 for the conference more than a year ago by the Russian 
 government, he asserted, included the regulation of warfare 
 and the renewal of the declaration relative to balloons; 
 but no proposition was made as to the two other declara- 
 tions, and no power had denounced them; hence they 
 retain their obligatory force for one year or more. In re- 
 gard to General Davis's proposition itself, M. Beernaert 
 said, in conclusion, that it was identical with the one pre- 
 sented by Captain Crozier in 1899, which was then unani- 
 mously rejected as insufficient ; and that Captain Crozier 
 himself then signed the declaration in its present form. 1 
 
 The commission then adjourned, and the question of 
 bullets was not taken up again. 
 
 B. THE GENEVA CONVENTION OF 1864 
 
 a. The Conference of 1899 
 
 When the II Commission was assigning its tasks to the 
 consideration of its two subcommissions, a debate occurred 
 as to the competence of the conference to revise the con- 
 vention adopted at Geneva in 1864 for the regulation of 
 warfare on the land. M. Odier, of Switzerland, took the 
 view that it would be better to refer the revision to a special 
 conference, in which medical and sanitary experts, and 
 representatives of all the powers which had signed the 
 convention, 2 might be present. This view was adopted 
 
 1 The last two of these statements were incorrect, — ■ according to the 
 official record of 1899. 
 
 2 All of these powers were represented in the Conference of 1 899 ; but some 
 of the minor German states which were independently represented in 1864 
 were represented in 1899 by delegates from the German Empire.
 
 WARFARE ON LAND 
 
 191 
 
 by the commission, although the sentiment was expressed 
 by M. Asser, of the Netherlands, that the existing conference 
 would have the right, even though it might be deemed in- 
 expedient to exert the right, of revising the said conven- 
 tion. 
 
 M. Asser, as president of the subcommission which dealt 
 with the application of the Geneva rules to maritime war- 
 fare, proposed to the subcommission the adoption of the 
 following desire (vceu) : 
 
 "The Conference of The Hague, taking into consideration the pre- 
 liminary measures initiated by the federal government of Switzerland 
 for the revision of the Convention of Geneva, expresses the desire 
 that, after a short interval, there shall be convoked a special confer- 
 ence, whose object shall be the revision of the said convention." 
 
 When this desire was reported to the commission, M. 
 Beldiman, of Roumania, moved to add, after the words 
 "a short interval," the words "and under the auspices of 
 the Swiss Federal Council." In making this motion, he 
 recalled that Switzerland has acquired an imperishable 
 claim to the gratitude of the civilized world for all that 
 concerns the establishment and development of the Red 
 Cross, and suggested that just homage would be rendered 
 to Switzerland by the adoption of his amendment. 
 
 The commission's president, M. de Martens, of Russia, 
 said that it would impose a burden upon the Swiss govern- 
 ment to decide that it alone had the right of convoking the 
 Conference of Revision ; and he cited a precedent of 1892 
 to show that Switzerland had not always taken precedence 
 in regard to the Red Cross movement. M. Asser, of the 
 Netherlands, and Sir Julian Pauncefote, of Great Britain, 
 supported M. de Martens's view, while representatives of 
 Germany, Japan, and Italy supported M. Beldiman's mo-
 
 192 THE TWO HAGUE CONFERENCES 
 
 tion. M. Odier, of Switzerland, said that, while he agreed 
 entirely with the view that his government could not claim 
 to monopolize the convocation of the proposed conference, 
 yet, since the idea of the Convention of Geneva had been 
 born in his country, he considered that up to a certain point 
 it had an interest and a particular right to take the initiative 
 in all that pertains to that convention. 
 
 After this rather unpleasant discussion, M. Beldiman's 
 amendment was put to a vote, with the result that thirteen 
 delegations voted for it, twelve delegations abstained from 
 voting, and one delegation (that of the United States) voted 
 against it. The desire as presented by M. Asser was then 
 passed by a vote of twenty-two ayes and four abstentions. 
 
 At the next meeting of the commission, Captain Mahan 
 said that the delegation of the United States had received 
 instructions from its government to vote for the amendment 
 offered by M. Beldiman, and that it desired, therefore, to 
 change its negative vote to an affirmative one. M. Beldi- 
 man thereupon said that his amendment had been adopted 
 by a majority vote ; but that in the interest of unanimity, 
 he would move that the desire as presented to the com- 
 mission should be recommended to the conference in ple- 
 nary session, with the further declaration that all the states 
 represented at The Hague would be happy to see the Fed- 
 eral Council of Switzerland take the initiative, after a short 
 interval, in convoking the proposed Conference of Revision. 
 
 Ambassador White, of the United States, announced that 
 the negative vote cast by his delegation at the last meeting 
 had been the result of a misunderstanding, and that the 
 American government had the liveliest desire to do justice 
 to Switzerland, which had taken the initiative in developing 
 this great humanitarian idea ; he would vote, therefore, for
 
 WARFARE ON LAND 193 
 
 M. Beldiman's motion. This motion was then adopted 
 unanimously, on the understanding, as expressed by the 
 commission's president, that no nation was bound in any 
 way by the adoption of the motion, and that no mandate 
 was laid upon Switzerland by it. 
 
 The conference in plenary session approved unanimously, 
 and without discussion, of the commission's recommenda- 
 tion. 
 
 The laws and customs of warfare on land, adopted by the 
 conference, included the provision that the obligations of 
 belligerents with regard to the sick and wounded are gov- 
 erned by the Geneva Convention of August 22, 1864, sub- 
 ject to any modifications which may be introduced into it. r 
 
 b. The Revision of 1906 2 
 
 Although the Geneva Convention was revised by a spe- 
 cial conference in 1906, and not by the Peace Conference 
 of 1907, it seems appropriate to give a brief account of the 
 revision in this place. For not only was the special con- 
 ference of revision inspired largely by the first Peace Con- 
 ference, but the revision itself became the basis of the work 
 of the second Peace Conference in its further adaptation of 
 the Geneva Convention to naval warfare. 
 
 The Swiss Federal Government issued the invitations 
 and the proposed programme for the conference, which 
 met in Geneva from the nth of June to the 6th of July, 
 1906. Thirty-four of the thirty-nine independent countries 
 
 1 Article 21. For this code of laws, see later, page 213. 
 
 2 The following account is based upon the official report of the conference, 
 published by the Swiss government in Geneva in 1906, and entitled " Actes 
 de la Conference de Revision reunie a Geneve du 11 Juin au 6 Juillet 1906 " 
 (one volume, 311 pages, folio).
 
 ig4 THE TWO HAGUE CONFERENCES 
 
 which had signed the Convention of Geneva, and two 
 others, were represented in the conference by seventy- 
 nine members, who were about equally divided between 
 the diplomatic, military, and medical professions. 
 
 The convention adopted by this conference bears the 
 date of July 6, 1906, and takes the place of the Convention 
 of 1864. It contains thirty-three articles, instead of the 
 original ten. The most important amendments and addi- 
 tions adopted are as follows : 
 
 Not only soldiers (militaires), but also "other persons 
 officially connected with the armies," are now to be cared 
 for, when sick or wounded, by the victorious army. 
 
 Sick and wounded, in the hands of the enemy, are now 
 considered prisoners of war; but belligerents are left free 
 to make mutual agreements to exchange such prisoners, 
 to return to their own country those whom they do not de- 
 sire to retain, or to send them to a neutral country, with the 
 latter's consent, to be confined until the end of hostilities. 
 
 The victorious army is required to take measures to 
 seek out the wounded on the field of battle, and to protect 
 them against pillage and ill treatment. This protection 
 must be extended to the dead also, who are not mentioned 
 in the Convention of 1864; an d before they are buried or 
 cremated, bodies must be carefully examined for any 
 remnant of life. 
 
 Belligerents are required to inform each other of the 
 marks of identity found on the dead, and of the etat nomi- 
 natif (name, regiment, company, etc.) of the sick or 
 wounded received by them. They must keep each other 
 informed of burial, death, and reception in hospitals of the 
 sick and wounded in their power. They must receive the 
 personal property, letters, etc., found on the field of battle,
 
 WARFARE ON LAND 195 
 
 or left by those who die in hospitals, and return them 
 through official means to those who have an interest in 
 them. 
 
 The Convention of 1864 provided that "every wounded 
 soldier received and cared for in a house shall protect it ; 
 and inhabitants who receive sick and wounded in their 
 homes shall be exempt from lodging troops and from a por- 
 tion of the military contributions which may be imposed." 
 This was regarded by the Conference of 1906 as an incen- 
 tive to fraud and deception on the part of such inhabitants, 
 and a source of just criticism of the convention itself. 
 It therefore substituted the rule that "the military authority 
 may appeal to the charitable zeal of the inhabitants to re- 
 ceive and care for the sick and wounded, under its own 
 control, and to accord to those who respond to this appeal 
 a special protection and certain immunities." 
 
 Movable, as well as immovable, hospitals are now to be 
 protected by belligerents, provided they are not used to 
 commit acts injurious to the enemy; and such acts are, by 
 a process of exclusion, carefully defined. 
 
 The Convention of 1864 provided that the personnel of 
 hospitals and ambulances shall participate in the benefits 
 of neutrality when they are performing their duties as care- 
 takers of the sick and wounded. The Convention of 1906 
 provided that such personnel, if assigned exclusively to 
 such duties, shall be protected under all circumstances ; 
 and that if they fall into the hands of the enemy, they shall 
 not be treated as prisoners of war. 
 
 Voluntary associations for the aid of sick and wounded 
 soldiers, such as the Red Cross societies of to-day, were 
 in their infancy in 1864, when the Convention of Geneva 
 was adopted, and the character and results of their opera-
 
 196 THE TWO HAGUE CONFERENCES 
 
 tions could not be certainly foreseen ; hence they were not 
 recognized by that convention, or by the additional articles 
 of 1868. But these societies have proven their efficiency 
 and helpfulness in such a striking manner during the wars 
 of the last generation, that the Conference of 1906 gladly 
 recognized them, and provided that, if duly recognized 
 and authorized by their own governments, their agents 
 should share the same protection and privileges as are 
 accorded to the hospital personnel of the governments 
 themselves. Before they begin operations, however, their 
 names should be notified by their respective governments 
 to each other; and their agents on the field of battle are 
 subjected to military laws and regulations. Such a society, 
 belonging to a neutral country, can not participate in the 
 work of caring for the sick and wounded of a belligerent 
 without the definite consent of its own government and the 
 authorization of the belligerent as well ; and the belliger- 
 ent which accepts of an offer of such services must notify 
 its opponent of that fact before the services are rendered. 
 
 All sanitary officials who fall into the enemy's hands 
 must not be treated as prisoners of war, but may continue 
 to perform their duties under the enemy's direction and 
 with his compensation. When their services are no longer 
 indispensable, they, together with their private property, 
 instruments, arms, and horses, are to be returned to their 
 own army or country, as soon as military necessities permit. 
 
 The Convention of 1864 contained the broad provision 
 that "evacuations, together with the persons directing them, 
 shall be covered by an absolute neutrality." This protec- 
 tion is recognized by the Convention of 1906, but under 
 limitations designed to give greater freedom to military 
 operations; for example, "a belligerent, intercepting a
 
 WARFARE ON LAND 197 
 
 convoy of evacuation, may arrest it, if military necessities 
 demand, provided that he take care of the sick and wounded 
 which it convoys." 
 
 The "red cross on a white ground," adopted as the dis- 
 tinctive emblem of hospitals, etc., in 1864, was retained in 
 1906; but, in order to emphasize the fact that the use has 
 only a humanitarian, and not necessarily a religious, theo- 
 logical, or ecclesiastical significance, the rule was stated as 
 follows: "Out of respect to Switzerland, the heraldic sign 
 of the red cross on a white ground, formed by the inversion 
 of the federal colors, is retained as the emblem and dis- 
 tinctive sign of the sanitary service of armies." This em- 
 blem is to figure on the flags, arm bands, and all the ma- 
 terial belonging to the sanitary service. It is to be worn 
 on an arm band on the left arm, by the agents of the sani- 
 tary service, who are to carry also a certificate of identifica- 
 tion ; both the arm band and certificate are to be supplied 
 and stamped by the competent military authority. 
 
 The distinctive flag of the Red Cross can be hoisted 
 over only sanitary establishments and with the consent of 
 the military authority. It should be accompanied by the 
 national flag of the belligerent to whom the establishment 
 belongs. But if military hospitals fall into the hands of 
 the enemy, they should hoist no other flag than that of the 
 Red Cross, so long as they are in such situation. The 
 sanitary establishments of neutrals should hoist, with the 
 flag of the convention, the national flag of the belligerent 
 with whom they take service ; and if they fall into the 
 enemy's hands, they should hoist only the convention's 
 flag, so long as they are in such situation. 
 
 The emblem of the red cross on a white ground, and the 
 words Red Cross or Cross of Geneva, can be employed
 
 198 THE TWO HAGUE CONFERENCES 
 
 whether in time of peace or in war time, only to protect 
 or to designate the sanitary establishments, their personnel 
 and equipment, which are protected by the convention. 
 The signatory governments undertake to pass, or propose 
 to their legislatures, laws sufficient to prevent at all times 
 the said emblem and words from being used by individuals 
 or societies other than those to whom the convention gives 
 the right of so doing. This agreement was adopted for the 
 expressed purpose of preventing a commercial use of the 
 red cross emblem or words as a mark of manufacture or 
 trade ; and it was agreed that if the several governments did 
 not secure requisite legislation for this purpose, the con- 
 vention itself would be held to prohibit as illegal such use 
 of the emblem and words. 
 
 Although there was a good deal of debate over the 
 adoption of the thirty-three articles of the convention, the 
 delegates from all the countries represented signed them 
 all, with the exception of the three which forbade the use 
 of the red cross emblem and words for any other purpose 
 than that recognized by the convention. The British 
 delegation alone withheld their signatures from these 
 three articles, and they did so for the twofold reason that 
 five or six years are necessary in Great Britain to pass a law, 
 even a popular one, and that they were unwilling to 
 promise that their government should undertake to pass 
 any law. 
 
 There was one other measure adopted by the conference 
 which lacked unanimity. This was not an article of the 
 convention, but was the expression of the following desire 
 (vosu) : 
 
 "The conference expresses the desire that, for the purpose of 
 securing an interpretation and application as exact as possible of the
 
 WARFARE ON LAND 199 
 
 Convention of Geneva, the contracting powers shall submit to the 
 Permanent Court at The Hague, if the cases and circumstances 
 admit of such a procedure, the differences which, in time of peace, 
 may arise between them in regard to the interpretation of the said 
 convention." 
 
 The original of this proposition was made in the name of 
 the government of Russia by Professor de Martens; it 
 was amended by M. von Bulow, of Germany; and was 
 supported by a number of delegates from other countries. 
 M. von Bulow expressed the prevailing sentiment in the 
 words : 
 
 "I am convinced that we can all adhere to this vczu, and thus 
 give to the world a fine proof of concord and harmony at the end of 
 our humanitarian task. The Convention of Geneva and that of The 
 Hague are sisters, destined to walk together along the path of civili- 
 zation towards the triumph of justice and humanity." 
 
 All of the thirty-six delegations present in the conference 
 voted for this vceu, with the exception of those of Corea, 
 Great Britain, and Japan. 
 
 C. THE RIGHTS AND DUTIES OF NEUTRALS 
 
 a. The Conference of 1899 
 
 When the laws and customs of warfare on land were 
 under discussion in the military subcommission of the II 
 Commission, and the question of belligerents harbored by 
 neutrals came up for consideration, M. Eyschen, of Luxem- 
 burg, seized the opportunity to emphasize the indefinite 
 status of the rights and duties of neutrals in international 
 law. He asserted that a precise definition of these rights 
 and duties would be to the advantage of both neutrals and 
 belligerents, and would facilitate the task in war time of
 
 200 THE TWO HAGUE CONFERENCES 
 
 governments, parliaments, the press, and of every one else 
 concerned. 
 
 A number of delegates gave hearty support to the im- 
 portance and necessity of the task indicated by M. Eyschen, 
 and the subcommission requested him to lay before it a 
 statement of the precise points which might be considered 
 by it with a definite result. 
 
 M. Eyschen performed this task at the next meeting, 
 and in justification of the initiative which he as a representa- 
 tive of Luxemburg had taken in the matter, spoke of the 
 peculiar situation in which Luxemburg had been placed 
 by the Treaty of London of 1867. "That treaty," he 
 said, "had desired to relieve Luxemburg of its former 
 strategic importance. It decreed that Luxemburg should 
 cease to be fortified ; that from being a fortress it should 
 be converted into an open place ; that its fortifications 
 should not be restored in the future ; and that there 
 should be neither maintained nor created in it any military 
 establishment whatever. The country itself can have 
 only the number of troops necessary to preserve good 
 order." 
 
 The subcommission was again greatly impressed by the 
 importance of the subject thus introduced ; but, on con- 
 sideration, it shared the doubts of President de Martens 
 as to the possibility of accomplishing in a few weeks a task 
 which the most eminent jurisconsults, like, for example, 
 those of the Institute of International Law, had been unable 
 to accomplish in the course of a quarter century. It adopted 
 unanimously, however, the desire (vceu) that "the question 
 of the rights and duties of neutrals be inscribed on the pro- 
 gramme of the next conference." This desire was adopted 
 unanimously and without discussion by the commission and
 
 WARFARE ON LAND 201 
 
 the conference in plenary session; and the only phases 
 of the question which were discussed and settled by the 
 first conference had to do with the relation of belliger- 
 ents in occupied territory to the property of railways com- 
 ing into that territory from neutral states, and with the 
 relation of neutral states to sick and wounded belligerents 
 received within their territory. These rules, five in num- 
 ber, are given together with the rules regarding neutral 
 rights and duties which were adopted by the Conference 
 of 1907. 
 
 b. The Conference of 1907 
 
 In compliance with the desire of the Conference of 1899, 
 the Russian government placed upon its programme for 
 1907 the elaboration of a convention stating the rights and 
 duties of neutrals on land. The subject was brought for- 
 ward in a proposition containing four articles by the French 
 delegation, and General Amourel, of that delegation, in 
 presenting it said that it did not of course provide for 
 everything needed, and that the powers would be obliged 
 to add to it some regulations determining all the conditions 
 in which they expected to exercise their neutrality; but 
 that the adoption of the proposed rules would afford a point 
 of departure, a definite basis, the same for all powers, well 
 known in advance, and having the great advantage of 
 originating in a free and calm discussion. 
 
 The convention which was adopted as the result of this 
 discussion is divided into two parts : first, the rights and 
 duties of neutral states, in relation to belligerents in time of 
 war; and, second, the rights and duties of the citizens of 
 neutral states residing within belligerent territory.
 
 202 THE TWO HAGUE CONFERENCES 
 
 i. The Rights and Duties of Neutral States 
 
 The first article adopted was the fundamental assertion 
 that the territory of neutral states is inviolable. This was 
 adopted unanimously, and was intended to emphasize the 
 fact that neutrals have most important rights, in relation 
 to belligerents, as well as duties. 
 
 In pursuance of this fundamental idea, certain acts are 
 first forbidden to belligerents, and then it is stated that a 
 neutral power should not tolerate their performance on its 
 own territory. These acts are : first, to convey across 
 a neutral's territory troops or convoys either of munitions 
 or provisions; second, to install on a neutral's territory a 
 radio-telegraphic station, or any other apparatus designed 
 to serve as a means of communication with belligerent 
 forces on land or sea ; third, to make use of any plant of 
 the kind just mentioned established by belligerents before 
 the war on a neutral's territory for an exclusively military 
 purpose and not opened to the service of the public ; and 
 fourth, to form corps of combatants or open offices of 
 enrollment for the advantage of belligerents on a neutral's 
 territory. 
 
 While stating that the above acts should not be tolerated 
 by a neutral power, the convention proceeds to define care- 
 fully the neutral's responsibility in regard to them. A 
 neutral power is required to punish acts contrary to neu- 
 trality only when such acts have been committed on its 
 own territory ; it is not responsible for the passage of indi- 
 viduals, separately, across its frontier for the purpose of 
 enlisting in the service of one of the belligerents ; it is not 
 required to prevent the exportation or transit, on account 
 of either of the belligerents, of arms, munitions, or anything
 
 WARFARE ON LAND 
 
 203 
 
 which may be useful to an army or a fleet; and it is not 
 required to prohibit or restrict the use, for belligerents, of 
 telegraph or telephone systems, or of wireless telegraph 
 stations, whether they be the property of the neutral state 
 itself or of private companies or individuals. The neutral 
 power may impose restrictions or prohibitions upon the 
 exportation of arms, etc., to belligerents, and upon the use 
 by them of telegraph systems, etc. ; but it is expected to 
 apply such restrictions or prohibitions impartially to each 
 belligerent, and to require private companies or individuals 
 owning telegraphic and telephonic systems to apply regu- 
 lations impartially to each belligerent. 
 
 The convention not only admits the right of a neutral 
 power to repel attacks upon its neutrality, even by force, if 
 necessary, but also expressly states that such repulsion 
 can not be considered a hostile act. 
 
 These important rules were not adopted without debate. 
 The limitation of a neutral's responsibility to acts com- 
 mitted within its own territory was opposed as being insuf- 
 ficient. The Japanese delegation desired to substitute for 
 this the words under its jurisdiction, so that it could be 
 held responsible for acts committed within lands under its 
 protection, — that is, in so-called "protectorates," such as, 
 for example, Manchuria before the recent Russo-Japanese 
 War. The Turkish delegation desired to make the neutral 
 state responsible for the emigration of individuals who, 
 just beyond the neutral frontier, should form a military 
 organization for the purpose of participating in the war. 
 The German delegation desired to require neutral states 
 to prohibit their citizens from enlisting for service in the 
 armies of either belligerent. But the commission rejected 
 all of these restrictions on neutral rights, and made
 
 204 
 
 THE TWO HAGUE CONFERENCES 
 
 neutral states responsible only for acts committed within 
 their own territories. It did, however, concede that their 
 responsibility extended to acts committed within their own 
 territories by aliens, as well as by citizens ; and it informally 
 approved the assertion that, so far as "protectorates" were 
 concerned, "the material reality of facts alone can supply 
 a criterion for determining the neutral state virtually re- 
 sponsible and the extent of its responsibility." 
 
 The commission rejected the Japanese and British prop- 
 osition to require neutral states to restrict or prohibit the 
 use, for belligerents, of telegraphic or telephonic means 
 of communication ; it did so for the reason that no argu- 
 ment based on principle was advanced in support of such 
 a requirement, while arguments of a practical nature, 
 such as interference with the privacy and rapidity of such 
 communication, were advanced against it. On motion 
 of Lord Reay, of Great Britain, however, the commission 
 did adopt the principle that the liberty of a neutral state 
 to transmit dispatches by means of its telegraphic systems 
 on land, its submarine cables, or its radio-telegraphic ap- 
 paratus, does not imply the faculty of using them or per- 
 mitting their use to lend manifest assistance to one of the 
 belligerents. 
 
 The relation of neutral states towards belligerents ad- 
 mitted within their territories, and towards the sick and 
 wounded, is carefully defined. 1 A neutral power which 
 receives within its territory belligerent troops should assign 
 them a place of residence as far as possible from the seat 
 of war ; it can keep them in camps, and even confine them 
 within fortresses or in places suitable to the purpose ; it 
 
 1 Four of the five articles regulating this matter were adopted in 1899, 
 under the Laws and Customs of Warfare on Land.
 
 WARFARE ON LAND 205 
 
 will decide whether or not officers may be set at liberty 
 on promise not to leave the neutral territory without au- 
 thorization ; in default of a special treaty, it will supply 
 such belligerents with food, clothing, and such comforts 
 as humanity prescribes ; and it shall receive compensation 
 for its expenses after peace is made. 
 
 As to prisoners of war, it is provided 1 that a neutral 
 power which receives prisoners of war who have escaped 
 from captivity must leave them at liberty, but can assign 
 them a residence, if it tolerates their stay within its territory ; 
 and the same rule applies to prisoners of war who are 
 brought into neutral territory by troops taking refuge there. 
 
 The sick and wounded soldiers of belligerent armies 
 may be authorized by a neutral power to be brought within 
 its territory, on condition that neither personnel nor ma- 
 terial of war be brought in with them ; and whether they 
 are brought in by their own side or by their enemy, they 
 should be prevented by the neutral power from taking 
 part again in the operations of the war. 
 
 It was admitted without debate that prisoners of war 
 escaping to a neutral territory should be left at liberty; 
 but there was opposition to the application of this rule to 
 those prisoners of war who are brought into a neutral ter- 
 ritory by troops taking refuge there. The Russian dele- 
 gation urged against this measure the arguments that 
 for a neutral state to liberate captives would be to give an 
 advantage to one of the belligerents, and hence be a 
 breach of neutrality; that a neutral state would be able 
 to do for one belligerent what it was unable to do for itself 
 on the field of battle, — that is, release the captive soldiers 
 belonging to it; and that it would be illogical to permit 
 
 1 By Article 13, the additional article adopted in 1907.
 
 206 THE TWO HAGUE CONFERENCES 
 
 able-bodied prisoners of war to go at liberty, while sick 
 and wounded prisoners of war are required to be pre- 
 vented by the neutral power caring for them from partici- 
 pating again in the war. In reply to these arguments, it 
 was urged that the captors who had become fugitives in 
 a neutral territory had probably escaped the necessity of 
 surrendering their prisoners; that a neutral state should 
 not be required or permitted to prevent a victorious bel- 
 ligerent from regaining its soldiers who had been cap- 
 tured ; that a neutral's territory is inviolable, and can not 
 be made the scene of any warlike operation between 
 belligerents, — such as that of keeping soldiers in captiv- 
 ity; and that the sick and wounded soldiers required by 
 the convention to be prevented from participating in the 
 war again are such as are voluntarily confided to the neu- 
 tral power by a belligerent who is not himself a fugitive 
 from the field of battle. The latter arguments were ac- 
 cepted as conclusive, and the rule was adopted by a vote 
 of thirty-one to three, with two abstentions. 
 
 The rule that a neutral power should prevent sick and 
 wounded soldiers from participating in the war again, is 
 based on the assumption that the belligerent who confides 
 them to the neutral's care is thereby enabled to relieve him- 
 self of incumbrances and thus secure the mobility requisite 
 for his military tasks. This relief is permitted for humani- 
 tarian reasons, but it should not be to the ulterior profit 
 of the belligerent to whom the sick and wounded belong. 
 
 2. Neutrals within Belligerent Territory 
 
 The rights and duties of neutrals residing within the 
 territory of belligerents were discussed upon the basis
 
 WARFARE ON LAND 207 
 
 of a series of propositions presented by the delegation of 
 Germany. Baron von Bieberstein, in presenting them to 
 the subcommission, said that they dealt with a kind of ques- 
 tions in regard to which disputes are particularly frequent. 
 
 "In the majority of states," he said, "there are hundreds of thou- 
 sands of inhabitants belonging to another nationality, who, for various 
 reasons, have come to settle for a longer or shorter time in a foreign 
 land. There are others who, while not residing in the foreign coun- 
 try, are interested in some business enterprise, and own lands or other 
 wealth within it. The interests of all these people are affected from 
 the moment when the state which accords them its hospitality becomes 
 engaged in war. 
 
 "What is then their position with respect to the belligerents? 
 What treatment shall they receive ? Can they be enrolled in the ranks 
 of the belligerents' armies, and render to them other personal services 
 in promoting the war? Have they a right to indemnity if, in the 
 course of the hostilities, their lands are devastated, their property 
 destroyed? And should they contribute to the supply of the military 
 wants of the belligerents ? 
 
 "... For the majority of these questions, the principles applied 
 by the various governments are not harmonious, and, in each war, 
 this discord gives rise to disputes between the belligerents and the 
 neutral states protecting the claims of their subjects. 
 
 "It would seem desirable, then, to put an end to this uncertainty 
 by adopting rules which, while not disregarding military necessities, 
 shall recognize the just claims of neutral states." 
 
 Lord Reay, on behalf of the British delegation, said : 
 "We do not believe that the present system produces 
 wrongs or injustices; but we should be ready, if the con- 
 trary be proved, to examine the German propositions 
 again, while reserving the right of submitting a proposi- 
 tion of our own." 
 
 General Davis, of the United States, supported the 
 German propositions in the following address :
 
 2o8 THE TWO HAGUE CONFERENCES 
 
 "The delegation of the United States considers the rules relative 
 to neutrality on land, submitted by the French delegation and adopted 
 by this commission, as in the nature of a general declaration of prin- 
 ciple which conforms with the rules of International Law. For this 
 reason, and because of their excellence, it has warmly supported the 
 rules proposed by the French delegation. . . . The position thus 
 taken has been occupied by the government of the United States for 
 more than a century. 
 
 "But the articles submitted by the German delegation are a little 
 more advanced and establish a status for neutral inhabitants of bel- 
 ligerent territory. The status thus established seems to me to con- 
 form to the conditions of modern commerce. Commercial operations 
 are no longer confined to a single state, but extend to several states. 
 It is not necessary to explain to this commission the extent and im- 
 portance of these relations, nor the importance of preventing their 
 useless interruption in time of war. 
 
 "The rules which have been submitted by the German delegation 
 embrace this point. Moreover, they define the rights, the duties, 
 and the immunities of a neutral inhabitant of a belligerent state in 
 time of war. They accord to him immunity from burdens of a speci- 
 fically military nature, and they exempt his property from military 
 contributions. If there occur the military necessity of confiscating 
 or utilizing his property, he must receive a specific and generous in- 
 demnity. In all other respects his situation is not changed. His 
 property is taxed to support the civil administration, and, if the 
 military administration of civil affairs is more expensive than their 
 ordinary administration, he must pay his share of the increased 
 expense. The rules accord him exemption only from specifically 
 military contributions. 
 
 "The delegation of the United States believes that all this is dis- 
 tinct progress for humanity and for the exact definition of the rules 
 and obligations of neutrals. And for reasons just stated, it is happy 
 to support the propositions of the delegation of Germany." 
 
 The proposed rules, twelve in number, were then 
 taken up one by one for discussion, and four of them were 
 finally adopted. The first one defined neutral persons
 
 WARFARE ON LAND 209 
 
 as "all the subjects ' of a state which does not take part in 
 the war." In defense of this definition, Baron von Bie- 
 berstein argued that the subjects of a neutral state should 
 not be considered as hostile belligerents, no matter what 
 may be their place of abode ; and that the tie of allegiance 
 which unites them with a neutral state creates for them a 
 special status carrying with it rights and duties. 
 
 Lord Reay asserted, on the other hand, that a distinction 
 should be made between the status of a neutral person as 
 regards the belligerent in whose land he resides, and his 
 status as regards the belligerent who invades that land. 
 
 "It would seem to us unquestionable," he said, "that usage estab- 
 lished by International Law now forbids a government to compel 
 a neutral resident within its territory to take up arms; but that it is 
 permitted to treat a neutral, as far as concerns his property or lands, 
 or the payment of taxes, in time of war, in the same manner and to 
 the same extent as it does its own citizens. 
 
 "On the other hand, the invading power has a right to treat all 
 inhabitants of the invaded territory on a plane of equality, and can 
 therefore exact from neutrals the same contributions and the same 
 services as from the citizens of the country. The neutral has no right, 
 then, to privileged treatment, and any special position which may be 
 granted him will be due only to the grace of the invader. 
 
 "The German proposition would result in changing this condition 
 of things and would concede to the neutral a special position and a 
 treatment more favorable than that accorded to the citizens of the 
 country invaded." 
 
 The British delegation later reconsidered its opposition 
 to this first rule, and it was adopted unanimously by both 
 commission and conference. 
 
 The second rule provides that a neutral can not avail 
 himself of his neutrality if he commits hostile acts against 
 
 1 The word nationaux was adopted after the rejection of rcssortissants.
 
 210 THE TWO HAGUE CONFERENCES 
 
 a belligerent, or if he commits acts in favor of a belligerent, 
 especially if he enlists voluntarily in the ranks of the armed 
 force of one of the combatants. But in such case he may 
 not be treated more harshly by the belligerent against whom 
 he has broken his neutrality than can be the citizen of 
 the other belligerent state who has done the same thing. 
 And the third rule provides that "acts committed in favor of 
 a belligerent" do not include the contribution of goods or 
 the lending of money to one of the belligerents, unless the 
 contributor or the lender dwells within the territory owned 
 or occupied by the other belligerent, or unless the goods 
 come from those territories; nor do such acts include 
 the rendering of police or civil services. 
 
 These rules were also adopted unanimously. The pro- 
 viso that a neutral who breaks his neutrality towards one 
 of the belligerents may not be treated with "exceptional 
 severity simply because he was a neutral when he com- 
 mitted the hostile act, was adopted on the initiative of the 
 Swiss delegation. And in reply to a question put by a 
 delegate from Haiti, the conference informally indorsed 
 the statement made by several leading delegates that the 
 writing or publishing of articles criticising the war should 
 not be considered a "hostile act." 
 
 The fourth rule * provided that the property of railways, 
 coming from the territory of neutral powers and owned by 
 those powers or by companies or private persons, and 
 recognizable as such, can be requisitioned and used by a 
 belligerent only in the case and to the extent that an im- 
 perious necessity demands; and it must be returned as 
 soon as possible to the country of its origin. The neutral 
 
 1 A part of this rule was adopted by the Conference of 1899, and formed 
 Article 54 of its Code of Laws relating to Warfare on Land.
 
 WARFARE ON LAND 21 1 
 
 power, on its side, may, if necessary, retain and utilize, to 
 a proper extent, the property coming from the territory 
 of the belligerent power. A mutual indemnity must be 
 paid, in proportion to the amount of property used and to 
 the duration of its utilization. 
 
 The property indicated by this rule is a railroad com- 
 pany's rolling stock, or cars of various kinds, and the rule 
 was adopted on the motion of M. Eyschen, of Luxemburg, 1 
 who argued that large countries as well as small ones, like 
 his own, are interested in its adoption. He advanced 
 three reasons why a distinction should be made between 
 the treatment of this and of other kinds of neutral prop- 
 erty: First, a country might be drained of all its rolling 
 stock, if a belligerent were permitted to requisition freely 
 all that came into its territory. Second, such property 
 is destined to a public service, — to the general interests 
 of an entire body politic ; and if there be a collision in the 
 matter between the interests of a belligerent power and 
 those of a peaceful neutral, why should the neutral's in- 
 terests yield to the belligerent's ? Finally, an injury done 
 to a private individual can be repaired by a just indemnity, 
 but the evil produced by the confiscation of the material 
 of public transportation is incalculable and irreparable. 
 After pointing out in an extended and forceful address the 
 vast importance of unrestricted railway transportation to 
 the economic and other phases of modern life, and the 
 justice of his proposition, M. Eyschen closed with the 
 following appeal : 
 
 "By codifying the laws of warfare, the conference has already 
 imposed its will on fields of battle. But around the theater of war, 
 
 1 That part of the rule adopted in 1899 was advocated by M. Beernaert, 
 of Belgium, and adopted then on his initiative.
 
 212 THE TWO HAGUE CONFERENCES 
 
 many peaceful and eminently respectable interests are sacrificed to it. 
 Certain of these interests threatened by it can be effectually protected. 
 By strengthening the rights of neutrals, the conference will succeed 
 in restricting the economic field and, in circumscribing more narrowly 
 the closed lists of combat. This will be one more of the most efficient 
 means of diminishing the evils of war, and of accomplishing the mis- 
 sion with which the high confidence of the nations has honored us." 
 
 Although General von Giindell, of Germany, and his 
 military colleague from Austria made speeches in reply to 
 M. Eyschen, calling attention to the imperious necessities 
 of generals in the field, the only part of the Luxemburg 
 proposition rejected was the rule that at the beginning of 
 hostilities a sufficient delay should be accorded by each 
 belligerent to neutrals to remove railway rolling stock to 
 their own country. The rest of the Luxemburg propo- 
 sition was adopted as the fourth rule, and with it two 
 desires (vceux), also proposed by M. Eyschen, and ex- 
 pressed as follows : 
 
 "That in case of war the competent military and civil authorities 
 shall make it their especial duty to assure and protect the maintenance 
 of pacific relations, especially commercial and industrial relations, 
 between the inhabitants of the belligerent countries and neutral 
 states. 
 
 "That the high contracting powers shall seek to establish, by 
 treaties with each other, uniform agreements concerning the military 
 obligations which each state shall exact of the foreigners settled on its 
 territory." 
 
 This last desire was proposed and passed in consequence 
 of the failure of eight propositions made by the German 
 delegation with the object of protecting neutral residents 
 in belligerent lands from the exaction of military services 
 (even though " voluntarily " offered) and from unusual 
 military contributions. The eight propositions referred
 
 WARFARE ON LAND 
 
 213 
 
 to were subjected to a long discussion, and were objected 
 to chiefly for the reason that the rules proposed by them 
 should be the subject of national, instead of international, 
 legislation. In support of this reason, the differences 
 between "emigrating and immigrating" countries, and 
 between "colonial and non-colonial" countries, were 
 emphasized with the object of showing that a uniform 
 rule applied to all countries alike would not be just. The 
 commission adopted the rules by a feeble majority; but 
 so many reservations to them were made in the plenary 
 session of the conference that they were referred back to 
 the commission with the result that they were there sup- 
 pressed. In their stead the second desire above quoted 
 was adopted unanimously by both commission and 
 conference. 
 
 D. THE LAWS AND CUSTOMS OF WARFARE ON 
 
 LAND 
 
 The Russian programme for the first conference men- 
 tioned as its seventh topic : "The revision of the Declara- 
 tion concerning the laws and customs of war elaborated 
 in 1874 by the Conference of Brussels, which has remained 
 unratified to the present day." 
 
 The Conference of Brussels met on the invitation of the 
 Russian government, and was composed of representatives 
 from fourteen of the chief governments of Continental 
 Europe and from Great Britain. The spirit in which it 
 did its work was expressed in the preamble to its declara- 
 tion in the words: 
 
 "It has been asserted unanimously that the progress of civilization 
 should have as its result the utmost possible diminution of the calami-
 
 214 THE TW0 HAGUE CONFERENCES 
 
 ties of war, and that the sole legitimate end which states should seek 
 during the war is to weaken the enemy without inflicting useless 
 suffering upon him. . . . War, being thus regulated [by definite 
 laws and customs], would entail fewer calamities, and be less sub- 
 ject to the aggravations caused by the uncertainty, the surprises, 
 and the passions involved in the struggle; it would lead more effec- 
 tually to what should be its final aim, the restoration, namely, of a 
 more substantial and lasting peace between the belligerent states." 
 
 The project which this conference drew up was a com- 
 prehensive one, containing twelve chapters and fifty-six 
 articles. It did not adopt this code, but referred it to the 
 various governments represented, "as a conscientious 
 inquiry, of a nature to serve as the basis of a later exchange 
 of ideas." Just a quarter of a century later, its project 
 became the basis of the code adopted by the first Hague 
 Conference. Its twelve chapters were reduced to ten, 
 and its fifty-six articles were increased to sixty ; while the 
 progress in civilization and in warfare during the quarter 
 century were reflected in the new code in various ways. 
 
 In the course of the discussion of these articles in the 
 Conference at The Hague, M. de Martens, of Russia, took 
 occasion to make the following interesting statement as to 
 the origin and motives of the earlier conference : 
 
 "His Majesty, Alexander II, convinced of the great importance of 
 formulating a code of the laws and customs of warfare in time of peace 
 when minds and passions are not inflamed, took the initiative in con- 
 voking the Conference of Brussels in 1874. The Emperor had in 
 mind well-known facts of history which prove that, in time of war, 
 mutual recriminations and mutual hatred increase the inevitable 
 atrocities of warfare. Moreover, the uncertainty of belligerents as 
 to the laws and customs of war provokes not only hatred, but also use- 
 less cruelties committed on the field of battle. 
 
 "The initiative of my August Sovereign was not due at all to a 
 new idea. Already, during the War of Secession, President Lincoln
 
 WARFARE ON LAND 215 
 
 intrusted to Professor Lieber the task of drawing up instructions for 
 the armies of General Grant. These regulations were a great bless- 
 ing, not only to the troops of the Northern States, but also to those of 
 the Southern Confederates. Such were the circumstances in which 
 the force of events themselves evolved the idea of a regulation of the 
 laws of war. The example was given. The Declaration of Brussels, 
 called forth by Emperor Alexander II, was its logical and natural 
 sequence. 
 
 "The importance of this declaration consists in this: for the first 
 time, an international agreement concerning the laws of war was to 
 be established, really compulsory for the armies of modern states 
 and designed to protect inoffensive, peaceable, and unarmed people 
 from the useless cruelties of warfare and from the evils of invasion 
 which are not required by imperious military necessities." 
 
 1. Belligerents 
 
 a. TIw Conference of i8gg 
 
 The adoption of a code of laws for the regulation of 
 people engaged in warfare necessitates a definition of 
 those to whom the code shall apply. The term belliger- 
 ent is applied to people engaged in warfare; and the 
 Conference of Brussels defined this term to include not 
 only soldiers in regular armies, but also militia and volun- 
 teer corps fulfilling the following conditions: 1. the pos- 
 session of a leader responsible for his subordinates; 2. the 
 possession of a regular, distinctive emblem recognizable 
 at a distance; 3. the bearing of arms openly; 4. the con- 
 duct of warfare in accordance with its laws and customs. 1 
 It further provided that the population of a territory which 
 has not been occupied, who, on the approach of the 
 enemy, spontaneously take up arms to resist the invading 
 troops without having had time to organize themselves in 
 
 1 Article 1.
 
 2l6 THE TWO HAGUE CONFERENCES 
 
 accordance with the conditions above stated, shall be 
 regarded as belligerents, if they respect the laws and 
 customs of war. 1 It also provided that both combat- 
 ants and non-combatants may form a part of the armed 
 forces of belligerents, and that, in case of capture by 
 the enemy, both shall be entitled to the rights of prisoners 
 of war. 2 
 
 When these articles were read for discussion in the first 
 Conference at The Hague, their adoption was opposed by 
 M. Beernaert, of Belgium, who said that, while he recog- 
 nized their object to be the humane one of reducing the 
 evils of war and the sufferings which it entails, yet he 
 believed them to deal with things which can not be made 
 the subjects of international agreement, and which should 
 be left as they were, — under the dominion of that tacit 
 and common law which arises from the principles of the law 
 of nations. " By attempting to restrict war to states alone," 
 he said, "their citizens being left in some sort as simple spec- 
 tators, shall we not run the risk of reducing the elements of 
 resistance, by enervating the powerful strength of patriot- 
 ism? Is not the citizen's first duty the defense of his 
 country, and is it not to the accomplishment of this duty 
 that we all owe the finest pages of our national history? 
 To say to citizens that they must not mingle in struggles 
 on which depends the fate of their country,— is that not 
 to encourage that evil indifference which is, perhaps, one 
 of the worst ills from which our time is suffering? Small 
 countries, above all, need to make use of all their resources 
 in making good their defense. . . . Will it not be better 
 then to leave this matter to the law of nations and to that 
 ceaseless progress of ideas which the present conference 
 
 1 Article 2. 2 Article 3.
 
 WARFARE ON LAND 
 
 !I7 
 
 and the lofty initiative from which it proceeds will so 
 powerfully stimulate ? " 
 
 President de Martens immediately replied to these ar- 
 guments by an address in which he first recalled the 
 origin and purpose of the Conference of Brussels, and 
 then continued as follows : 
 
 "It was said in 1874, and has been said again to-day, that it is 
 preferable to leave such questions in uncertainty and in the exclusive 
 domain of the law of nations. But is this opinion indeed a just one? 
 This uncertainty, is it advantageous to the weak? Does the weak 
 become stronger because the duties of the strong are not determined ? 
 Does the strong become stronger because his rights are defined and, 
 therefore, restricted ? I do not think so. I am profoundly convinced 
 that it is above all in the interest of the weak that his rights, as well 
 as his duties, shall be defined. It is impossible to impose upon the 
 strongest respect for the rights of the weakest, if the duties of the latter 
 are not recognized. 
 
 "... But, gentlemen, the heart has reasons which the brain does 
 not comprehend; and in time of war, there is only one rule recog- 
 nized: the rule of war. I bow respectfully before the great deeds 
 done by the human heart during warfare and on fields of battle ; the 
 Red Cross affords the best examples of them. But, gentlemen, 
 the noble sentiments of the human heart very often and unfortunately 
 remain a sealed book in the midst of battles. 
 
 "Our present task is to remind the nations of their duties, not only 
 in time of peace, but still more in time of war. Our task has been well 
 defined from the commencement of our common labors ; we desire to 
 establish, in a spirit of harmony, humanity, and justice, a uniform 
 basis for the instructions which our governments will agree to give to 
 their armed forces in the field. 
 
 "... To leave an uncertainty hovering over these questions would 
 have the fatal result of causing the interests of force to triumph over 
 those of humanity. In drawing your kind and serious attention to 
 these considerations, gentlemen, I have the sole desire that you shall 
 measure aright the inevitable consequences of sacrificing the vital 
 interests of peaceful and unarmed populations by leaving them to the
 
 2i8 THE TWO HAGUE CONFERENCES 
 
 risks of war and of the law of nations. These consequences will be 
 disastrous in the highest degree, because the Conference at The Hague 
 will have demonstrated, a second time, in the eyes of the civilized 
 world, the inability of governments to define the rights of warfare for 
 the purpose of restricting its cruelties and atrocities. It is for you, 
 gentlemen, to judge of the deplorable result which this fact will have 
 on the public opinion of the civilized world. It is for you to answer 
 the question : To whose advantage will be the doubt and uncertainty, 
 — to the weak or to the strong?" 
 
 In spite of M. de Martens's powerful appeal for the 
 adoption of the rules defining belligerents, the subcom- 
 mission was not entirely reassured as to a country's 
 entire liberty of defense, and at a later meeting General 
 Sir John Ardagh, of Great Britain, proposed the follow- 
 ing article in addition: "Nothing in this chapter shall be 
 considered as tending to diminish or suppress the right 
 which belongs to the population of an invaded country to 
 fulfill its duty of opposing to the invaders, by every legiti- 
 mate means, the most energetic patriotic resistance." 
 
 Colonel Kiinzli, of Switzerland, warmly supported this 
 last article, and proposed in addition the rule that "no 
 reprisals can be made upon the populace of an occupied 
 territory for having taken up arms openly against the in- 
 vader." He advocated these additions in an ardent speech, 
 whose keynote was: "Do not punish the love of country; 
 do not take harsh measures against nations who rise en 
 masse in defense of their soil." 
 
 Again, M. de Martens made an effective reply. He 
 declared that neither the Conference of Brussels nor that 
 of The Hague had any desire or intention of setting bounds 
 to the nations' virtue of patriotism, or contesting their 
 right of defense. "This right is sacred," he said, "but 
 no less sacred is the duty of the governments not to sacri-
 
 WARFARE ON LAND 
 
 219 
 
 fice useless victims to the purposes of war. . . . Heroes 
 are not created by codes, and the only code which heroes 
 have is their self-sacrifice, their good will, and their patri- 
 otism. . . . The rules we are considering leave the door 
 open to the heroic sacrifices which nations will be ready to 
 make for their defense : a heroic nation is, like heroes, 
 beyond codes and rules and facts. . . . But our task is 
 simply to establish by common agreement between states 
 the rights and duties to be observed by those peoples who 
 desire to struggle legitimately for their country, ... to 
 save the lives and property of the weak, the unarmed, and 
 the inoffensive." He then read a statement which, while 
 asserting the great desirability of defining and regulating 
 the usages of war, admitted the present impossibility of 
 providing for every contingency, and declared that "in the 
 cases not included within the agreement of to-day, nations 
 and belligerents will remain under the protection and under 
 the sovereignty of the principles of international law, such 
 as they flow from established custom between civilized 
 nations, from the laws of humanity, and from the de- 
 mands of the public conscience." 
 
 This statement was accepted as satisfactory by M. 
 Beernaert, who exclaimed: "To-morrow as to-day, the 
 rights of the conqueror, far from being infinite, will be 
 restrained by the laws of the universal conscience, and no 
 general will dare to infringe upon them, since that would 
 be to place himself under the ban of civilized nations." 
 The subcommission, also, accepted M. de Martens's 
 statement as a satisfactory supplement to the rules, and 
 it adopted the latter. 
 
 The British and Swiss delegates were still inclined to 
 insist upon their proposed additions to the rules; but
 
 220 THE TWO HAGUE CONFERENCES 
 
 when the military representatives from Germany, Russia, 
 the Netherlands, and other countries began to argue that 
 the rules were already too liberal in recognizing non-sol- 
 diers as soldiers, and when even the rules adopted were 
 thus put in jeopardy, they withdrew their additions, and 
 the long debate came to a sudden end. 
 
 The delegates from the United States took no part in 
 this debate ; but Captain Crozier says in his official report 
 that he considered the withdrawal of the British and Swiss 
 propositions the wise thing to do, since the rules adopted 
 had already granted "the extreme concession to un- 
 organized resistance" by imposing upon it solely the ob- 
 servance of the laws and customs of war. 
 
 The commission and conference adopted unanimously 
 the subcommission's rules in regard to belligerents, and 
 they took their place as Articles 1,2, and 3, of the con- 
 vention adopted, while M. de Martens's statement above 
 referred to was made, as a commentary upon them and, 
 indeed, upon all the rules adopted, the preamble to the 
 entire convention. 
 
 b. The Conference of igoj 
 
 No long debate of fundamental importance, concerning 
 the scope of the term "belligerents," occurred in the Con- 
 ference of 1907. But the German delegates sought to 
 define a little more precisely the meaning of the term, and 
 to restrict a little more closely its use. They introduced 
 two amendments, one providing that a previous notice 
 must be given to the enemy of the "regular, distinctive 
 emblem" worn by militia corps and volunteers; the other 
 providing that a populace rising en masse to resist an in-
 
 WARFARE ON LAND 221 
 
 vader must, to be considered belligerents, not only "respect 
 the laws and customs of war," but also bear arms openly. 
 
 General von Giindell, of Germany, supported the first 
 amendment by the argument that the distinctive signs of 
 militia corps and volunteers are difficult to recognize at a 
 long distance, and that a previous notice of them to bel- 
 ligerents would help to avoid mistakes. General Amourel, 
 of France, opposed the amendment for the reasons that 
 militia, or at least volunteer corps, are generally organized 
 at critical moments when to give such notice would be 
 impracticable ; that distinctive signs must be changed, 
 especially in the course of long campaigns ; that to require 
 notice of all such changes would be excessive ; and that, 
 after all, the true distinctive sign of combatants is the 
 bearing of arms openly, and this requirement is made by 
 the existing rule. 
 
 The representative of Switzerland, who had just an- 
 nounced that his country, after eight years of hesitation, 
 had recently signed the Convention of 1899, opposed the 
 German amendment for the reason that it would be one 
 more restriction on a country's right of defense. 
 
 The amendment was voted down by the subcommission 
 by a vote of twenty-three to eleven ; * and it was not again 
 taken up. 
 
 The second German amendment requiring a people 
 rising en masse against an invader "to bear arms openly " 
 was supported by General von Giindell, who pointed out 
 the grave consequences which would result, in time of 
 war, from the carrying of concealed weapons. He re- 
 called Colonel von Schwarzhoff 's words, in regard to this 
 matter, in the Conference of 1899 : 
 
 1 The United States delegation voted for it.
 
 222 THE TWO HAGUE CONFERENCES 
 
 "And since we are speaking of humanity, it is time to remember 
 that soldiers also are men, and have a right to be treated with hu- 
 manity. Soldiers who, exhausted by fatigue after a long march or a 
 battle, come to rest in a village have a right to be sure that the peace- 
 ful inhabitants shall not change suddenly into furious enemies." 
 
 There was no opposition to this amendment; but 
 Colonel Michelson, of Russia, inquired if it would not 
 cause the part of the population who did not take up arms 
 to be suspected unjustly and thus subjected to the risk 
 of reprisals. M. Beernaert, of Belgium, replied to this 
 question that the new rule could not endanger those who 
 bore no weapons at all, — that it was directed only against 
 the carrying of concealed weapons. 
 
 The amendment was passed by a vote of thirty to three, 1 
 with two abstentions. 2 Switzerland's delegate explained 
 that his abstention from the vote was due to a fear lest the 
 new rule might be considered an aggravation of the present 
 state of affairs. 
 
 The commission and conference adopted the amend- 
 ment without discussion. 
 
 2. Prisoners of War 
 
 a. The Conference of i8gg 
 
 No formal definition of " prisoners of war" is given 
 in the laws and customs codified by the first conference, 
 but this is implied by its rules in regard to belligerents. 
 It was expressly voted, however, that individuals who 
 follow an army without directly belonging to it, such 
 as newspaper correspondents and reporters, sutlers and 
 contractors, who fall into the enemy's hands, and whom 
 
 1 Chili, Cuba, Mexico. 2 Montenegro, Switzerland.
 
 WARFARE ON LAND 
 
 223 
 
 the latter thinks fit to detain, have a right to be treated 
 as prisoners of war, provided that they are supplied with 
 a certificate from the military authorities of the army they 
 were accompanying (Article 13). 
 
 The treatment accorded to prisoners of war is carefully 
 defined. They are in the power of the hostile govern- 
 ment, but not in that of the individuals or corps who 
 captured them ; they must be humanely treated ; all their 
 personal property, except arms, horses, and military papers, 
 remains their own (Article 4). They may be detained in 
 a town, fortress, camp, or any other location and bound 
 not to go beyond certain fixed limits; but they can be 
 confined only as an indispensable measure of safety 
 (Article 5). They must be provided for by the govern- 
 ment into whose hands they have fallen; and, in the 
 absence of a special treaty between the belligerents, they 
 must be treated, as regards food, quarters, and clothing, 
 on the same footing as the troops of the government which 
 has captured them (Article 7). They are subject to 
 the laws, regulations, and orders in force in the army of 
 the state into whose hands they have fallen ; and any act 
 of insubordination justifies the adoption of such measures 
 of severity towards them as may be necessary (Article 8, 
 paragraphs 1 and 2). They shall enjoy untrammeled free- 
 dom in the exercise of their religion, including attendance 
 at their own church services, on the sole condition that they 
 comply with the regulations against disorder and escape 
 prescribed by the military authorities (Article 18). Their 
 wills shall be received or drawn up on the same conditions 
 as for soldiers of the national army ; and the same rule shall 
 be applied in regard to death certificates and to burial, due 
 consideration being given to grade and rank (Article 19).
 
 224 THE TWO HAGUE CONFERENCES 
 
 Certain regulations, quite new and broad in their scope, 
 were also adopted as to their employment and wages. 
 A state may employ its prisoners of war as laborers, 
 according to their military rank and natufal aptitude ; 
 but the tasks set them shall not be excessive, and shall 
 have nothing to do with the operations of the war. They 
 may be authorized to work for the state itself, for private 
 persons, or on their own account. The work they do 
 for the state shall be paid for according to the wages in 
 force for soldiers of the national army employed on similar 
 tasks; the work they do for the non-military departments 
 of the. public service or for private persons shall be ar- 
 ranged and paid for by agreement with the military 
 authorities. Their wages shall be used for the better- 
 ment of their condition, and the balance shall be paid 
 them at the time of their release, after the cost of their 
 maintenance is deducted (Article 6). 
 
 The proposition was made, but rejected, that officers 
 taken prisoner should be permitted to retain their swords. 
 It was provided, on the other hand, that they may be 
 paid their full salary by their captors, if circumstances 
 demanded, and that their own government should repay 
 the sum (Article 17). M. Beernaert, of Belgium, pro- 
 posed that this action should be taken on the mediation - 
 of a neutral power; but Colonel von Schwarzhoff, of 
 Germany, opposed this mediation as being a probable 
 source of international difficulties, and M. Beernaert 
 withdrew the proposition. 
 
 The desirability of extending charitable aid and comfort 
 to prisoners of war was recognized, and such activity 
 was regulated by a few simple rules. Relief societies 
 organized for the purpose of serving as the medium of
 
 WARFARE ON LAND 225 
 
 such charitable aid, and regularly constituted in accord- 
 ance with the laws of their country, shall receive from 
 belligerents, for themselves and their duly authorized 
 agents, every facility compatible with military necessities 
 and administrative regulations, for the effective accom- 
 plishment of their humane task. Delegates of these 
 societies may be permitted to distribute relief within 
 places of detention, as well as within the halting places 
 of prisoners being sent back to their own country, if fur- 
 nished with a personal permit by the military authorities, 
 and on giving a written promise to comply with all the 
 regulations for order and police (Article 15). ^ 
 
 The Conference of 1899 made a notable advance beyond 
 that of 1874 in providing for the establishment of such 
 bureaus of information relative to prisoners of war as 
 had been in partial operation during the wars of 1866 
 and 1870. Such bureau must be established, on the com- 
 mencement of hostilities, in each of the belligerent states 
 and in the neutral countries on whose territory belligerents 
 have been received. Its duty is to reply to all inquiries 
 about prisoners of war ; and it must be supplied from all 
 competent sources with the information necessary to 
 enable it to keep an individual record of each prisoner 
 of war. It must be kept informed of internments and 
 transfers, as well as of admissions into hospitals and of 
 deaths (Article 14, paragraph 1). 
 
 The rule that every prisoner of war, if questioned, is 
 bound to declare his true name and rank (Article 9) was 
 originally intended to aid in according him proper treat- 
 ment ; but it will be of much initial service also to the new 
 bureau of information. 
 
 The new bureau is also charged with the collection of
 
 226 THE TWO HAGUE CONFERENCES 
 
 all articles of personal use, all valuables, letters, etc., 
 found on the battlefields or left by prisoners who have 
 died in hospital or ambulance ; and it must transmit such 
 things to those to whom they belong (Article 14, para- 
 graph 2). 
 
 The rule in regard to the punishment of prisoners who 
 attempt to escape gave rise to considerable difference of 
 opinion. The Brussels rule permitted prisoners in flight 
 to be fired upon, after they had been summoned to halt ; 
 but the Hague rule does not expressly give this per- 
 mission. 
 
 The Brussels rule permitted disciplinary punishment 
 or a more strict confinement for prisoners recaptured in 
 an attempt to escape ; the Hague rule permits only discipli- 
 nary punishment in such cases (Article 8, paragraph 3). 
 Professor Lammasch, of Austria, argued that in view 
 of the conflict of duties which exists for a prisoner of war, 
 he should be subjected to no punishment whatever, 
 even disciplinary punishment, for an attempt to escape. 
 Colonel Gilinsky, of Russia, on the other hand, argued 
 that disciplinary punishment would not be sufficient to 
 repress attempts to escape ; that strong guards can not be 
 spared from the army to watch prisoners of war; that 
 with weak guards it would always be easy for skillful 
 prisoners to escape, and if this could be done with im- 
 punity, or with slight punishment, such individuals would 
 make a practice of getting captured and then of escaping 
 with information for their own army. He therefore 
 advocated the recognition of an attempt to escape as an 
 offense, to be tried and punished by court martial. The 
 conference took the middle ground between these two 
 contentions, and retained disciplinary punishment, while
 
 WARFARE ON LAND 
 
 227 
 
 rejecting closer confinement and trial and punishment by 
 court martial. 
 
 General Order No. 100 of the United States regulations 
 provided for severe penalty, even for death, for conspiracy 
 among prisoners of war to effect a united or general escape, 
 or to revolt against the authority of the captors. But 
 neither the Brussels nor the Hague rules provide expressly 
 for such an offense, although the Hague Conference gave 
 informal assent to the statement made by M. Rolin, of 
 Siam, that crimes associated with attempts to escape, 
 such as the assassination of guards, etc., are recognized 
 and may be punished in accordance with the rule subject- 
 ing prisoners of war to the laws, regulations, and orders 
 in force in the army of the state into whose power they 
 have fallen (Article 8, paragraph 1). 
 
 The Brussels rule provided that prisoners who have 
 succeeded in escaping and are again taken prisoner 
 are not liable to any punishment for their previous flight. 
 Colonel Khuepach, of Austria, said that by permitting 
 no punishment for successful flight, and by permitting 
 disciplinary punishment for unsuccessful flight, the rule 
 would set a premium on cleverness. But the Hague 
 Conference adopted the Brussels rule (Article 8, para- 
 graph 4). 
 
 Finally, certain rules were adopted regarding the release 
 of prisoners on parole. Prisoners of war may be set at 
 liberty on parole if the laws of their own country authorize 
 it, and, in such case, they are bound, on their personal 
 honor, scrupulously to fulfill the promises they have made 
 both to their own government and to the government 
 by whom they were made prisoners. Their own govern- 
 ment is bound to require or accept of them no service
 
 228 THE TWO HAGUE CONFERENCES 
 
 incompatible with the parole given (Article 10). Any 
 prisoner of war, who is liberated on parole and recaptured 
 bearing arms against the government to whom he had 
 pledged his honor, or against the allies of that government, 
 forfeits his right to be treated as a prisoner of war, and 
 may be brought before the courts for trial (Article 12). 
 General Order No. 100, of the United States, prescribed 
 the death penalty for this offense; the Hague rule, fol- 
 lowing that of Brussels, merely provides that the offender 
 shall be subjected to trial; but here, again, the injured 
 belligerent's laws are evidently supposed to operate. 
 
 The rules regarding prisoners of war end, appro- 
 priately, with the requirement (adopted for the first 
 time in the Hague convention) that after the conclusion 
 of peace, prisoners of war shall be sent back to their 
 own country with the shortest possible delay (Article 20). 
 
 b. The Conference of 1907 
 
 The Japanese delegation proposed to define still further 
 the term "prisoners of war," by adding to Article 13 the 
 rule that "the subjects of a belligerent state, residing 
 within the territory of their country's enemy, can not be 
 confined in one place (internes) unless the exigencies 
 of the war impose the necessity of such action." Count 
 Tornielli, of Italy, supported this proposition, but de- 
 manded that the prohibition should apply to the expulsion 
 of such people as well. The Japanese delegation accepted 
 Count Tornielli's amendment, and explained that its own 
 proposition was due to a desire to protect from adverse 
 local laws the persons, goods, and business of subjects 
 of a belligerent state residing within the enemy's territory ;
 
 WARFARE ON LAND 229 
 
 this protection, it claimed, was shown to be necessary by 
 certain cases which have occurred since 1899. It denied 
 the charge that its proposition was really designed to 
 establish, under the cloak of " imperious military necessity," 
 the right of interning non-combatant populations, and 
 declared that it was ready to strike out the words which 
 admit of any exception to the rule. 
 
 The Italian delegation supported its proposition by 
 arguing that, although obnoxious individuals may always 
 be expelled from a country, a belligerent's right to expel 
 the enemy's subjects en masse should be restricted to 
 cases where "military necessity" has caused the enemy 
 to resort to internment en masse.' 
 
 The Japanese proposition was vigorously resisted for 
 the reason that it was opposed to the principle of the 
 convention of 1899, by which war is restricted to bellig- 
 erents, and the civil population is protected from it in 
 every possible way; while the Italian was resisted on the 
 ground that it was opposed to the incontestable right of 
 each state to expel obnoxious residents both in time of war 
 and in time of peace. 
 
 In view of the strong opposition to the two propositions 
 in the subcommission and its committee, they were not 
 pressed to a vote, and both were allowed to lie on the table. 
 
 Several propositions were presented affecting the treat- 
 ment of prisoners of war. The Japanese delegation 
 proposed to include within personal property which might 
 be taken from prisoners, not only arms, horses, and mili- 
 tary papers (Article 4), but also "all other articles per- 
 taining to military usages." Asked if this phrase referred 
 to optical and measuring instruments, the Japanese repre- 
 sentative replied that it had reference especially to maps,
 
 230 THE TWO HAGUE CONFERENCES 
 
 bicycles, and means of transportation for military pur- 
 poses. The proposition was voted upon without further 
 discussion, and was rejected by twenty-nine votes to six. 1 
 
 The Cuban delegation moved an amendment (to Rule 5) 
 providing that prisoners of war can be confined only as 
 an indispensable measure of safety, and only for the dura- 
 tion of the circumstances which necessitate their confine- 
 ment. This amendment was adopted unanimously, and 
 without discussion. 
 
 Several amendments were proposed for the regulation 
 of the work and wages of prisoners of war. The Spanish 
 delegation moved that officers be excepted from the rule 
 that a state may employ its prisoners of war as laborers 
 according to their military rank and natural aptitude 
 (Article 6). The only argument advanced in favor of 
 this exception was that "it would not be suitable to intrust 
 to the mercy of the captor that discretion as to rank and 
 aptitude which, under certain circumstances, might oblige 
 an officer to perform vexatious tasks." The proposition 
 was not opposed, and was adopted unanimously. On 
 the motion of the German delegation, the words "accord- 
 ing to their military rank" were retained in the rule to be 
 applied to under officers. A Japanese amendment was 
 also adopted, providing that where no system of wages 
 is in force for soldiers of the national army, prisoners of 
 war shall be paid according to a rate proportioned to the 
 tasks performed. Another Spanish amendment provided 
 that the cost of maintaining prisoners of war shall not 
 be deducted from the wages paid to them on their release 
 (Article 6). This was advocated on the ground that the 
 
 1 The affirmative votes were those of the United States, Austria, Great 
 Britain, Japan, Panama, and Roumania.
 
 WARFARE ON LAND 231 
 
 clearness of food, often very great in countries engaged in 
 warfare, or other circumstances, might use up all the 
 wages of the prisoners, and thus their captor alone, who 
 is bound to support them in any case, would benefit by 
 their labor. This amendment was opposed for the reason 
 that its adoption might make soldiers better off, financially, 
 when prisoners of war than when at home where a portion of 
 their earnings must go towards their support. The amend- 
 ment was rejected by a vote of twenty-three to twelve. 1 
 
 The Japanese delegation proposed that officers made 
 prisoners of war may be paid a suitable salary by the gov- 
 ernments into whose hands they fall, subject to reimburse- 
 ment by the officers' government (Article 17). This amend- 
 ment was referred to a committee, which adopted the rule 
 — it was believed with the Japanese military delegate's 
 assent — that the government shall pay to officers who 
 are prisoners of war within their hands a salary equal 
 to that paid to officers of the same rank in its own army, 
 subject to reimbursement by their own government. The 
 committee's phrasing of the rule did away with the optional 
 character of the rule of 1899, an d harmonized it with the 
 Geneva Convention's rule in regard to the pay of physicians 
 made prisoners of war. When it was reported to the 
 subcommission, Japan's first delegate said that his mili- 
 tary colleague had not given his assent to it in the com- 
 mittee, and that the Japanese delegation would vote 
 against it. The subcommission adopted it by a vote of 
 thirty- four to one; and at a later session of the commis- 
 sion this vote was made unanimous by the Japanese dele- 
 gation, under instructions from its government, changing 
 its vote to the affirmative. 
 
 1 The United States delegation voted for it.
 
 232 THE TWO HAGUE CONFERENCES 
 
 The bureau of information, provided for in 1899, was 
 made the subject of a Japanese and a Cuban amendment, 
 both of which were unanimously adopted without dis- 
 cussion (Article 14). They charged the bureau with the ad- 
 ditional duty of keeping a record of the prisoner's registra- 
 tion numbers, name and forename, age, place of residence, 
 rank, corps, date and place of capture, confinement, 
 parole, exchange, escape, admission to hospitals, wounds, 
 disease, and "all other particulars," and of forwarding 
 this record to the prisoner's own government after the 
 conclusion of peace. 
 
 3. Means of injuring the Enemy 
 a. The Conference of i8gg 
 
 The conference first established, without opposition 
 or discussion, the general principle that "belligerents 
 have not an unrestricted right of adopting means of 
 injuring the enemy" (Article 22). 
 
 It then recognized the validity of special treaties which 
 prohibit certain of these means, and enumerated seven 
 upon which it placed its own prohibition. These seven 
 are as follows: 1. The use of poison or poisoned arms; 
 2. The treacherous killing or wounding of individuals 
 belonging to the hostile nation or army; 3. The killing 
 or wounding of an enemy who, having laid down his arms 
 or having no longer means of defense, has surrendered 
 at discretion ; 4. The declaration that no quarter will be 
 given; 5. The use of arms, projectiles, or materials of a 
 nature to cause superfluous injury; 6. The improper 
 use of a flag of truce, a national flag, military ensigns, or 
 the enemy's uniform, as well as of the distinctive signs
 
 WARFARE ON LAND 233 
 
 of the Geneva Convention ; 7. The destruction or seizure 
 of the enemy's property, unless imperatively demanded 
 by the necessities of war (Article 23). 
 
 These seven prohibitions were adopted unanimously, 
 and with very little discussion. The Brussels rule used 
 the word "murder " instead of "killing" in the second and 
 third prohibitions; the Hague Conference substituted 
 the milder word, and also added "wounding," which the 
 Brussels rule did not include. General Order No. 100 
 prescribed the death penalty for killing or wounding a 
 disabled enemy; but the Hague convention leaves pen- 
 alties to the belligerent's own laws. The Hague rule in 
 regard to quarter is more drastic than that of the United 
 States, which permitted the declaration of "no quarter" 
 as a retaliatory measure and in the special case where a 
 commander believes himself in such great straits that his 
 own salvation makes it impossible for him to encumber 
 himself with prisoners; the Hague prohibition of the 
 declaration of no quarter is absolute. 
 
 When the prohibition of destroying or seizing the en- 
 emy's private property, except in case of dire military 
 necessity, was adopted, Captain Crozier, of the United 
 States, endeavored to have this rule applied to private 
 property on the sea as well as on land ; but the subcommis- 
 sion decided that its duty was solely to revise the laws of 
 warfare upon land. 1 
 
 The Brussels rule, that "ruses of war and the use of 
 means of procuring information about the enemy and 
 the country are considered legitimate" (Article 24), was 
 adopted without discussion or definition. 
 
 1 An account of the United States delegation's more formal endeavor and 
 its result has already been given on pages 126-133.
 
 234 THE TW0 HAGUE CONFERENCES 
 
 Siege, assault, and bombardment, as means of injuring 
 the enemy, were carefully regulated. It was unanimously 
 agreed to prohibit the attack or bombardment of towns, 
 villages, dwellings, or buildings which are not defended 
 (Article 25). General Poortugael, of the Netherlands, 
 proposed to prohibit also the bombardment of such places 
 by naval forces as well as by armies. Delegates from 
 Belgium and Italy supported this proposition ; and when 
 they were reminded that the subcommission had decided, in 
 the case of the seizure and destruction of private property, 
 that its duty was solely to revise the laws of warfare upon 
 land, they replied that bombardment of a town, even from 
 the sea, pertained to land warfare, as much or more than to 
 naval ; that it is warfare within territorial waters ; that even 
 when it is from the sea its object is to affect land operations ; 
 and that when marines are disembarked they become by 
 that fact land troops. In spite of these ingenious argu- 
 ments, it was decided to consider the question as one per- 
 taining to naval warfare and to refer it to another conference. 
 
 Before commencing a bombardment, except in the case 
 of an assault, the commander of the attacking force is 
 required to do all that he can to warn the authorities; 
 he must take all necessary measures to protect, as far as 
 possible, buildings devoted to religion, art, science, or 
 charity, and hospitals and other places where the sick and 
 wounded are collected ; these buildings are all to be spared, 
 provided they are not used at the time of the bombard- 
 ment for military purposes, and the besieged are expected 
 to indicate them by special signs visible and notified in 
 advance to the besiegers (Articles 26 and 27). 
 
 The pillage of a town or place, even when taken by 
 assault, is prohibited (Article 28).
 
 WARFARE ON LAND 235 
 
 b. The Conference of igoy 
 
 Two more means of injuring the enemy were added to 
 the list of prohibitions adopted in 1899. 
 
 The German delegation proposed to prohibit the re- 
 pudiation (as extinguished, suspended, or non-receivable) 
 of the private claims of the subjects of hostile powers. The 
 argument advanced in favor of this proposition was that 
 its adoption would prevent the passage of laws in time of 
 war which make it impossible for the subject of a hostile 
 state to enforce the execution of a contract by resort to 
 the courts of his country's enemy. The subcommission 
 regarded this proposition as a fortunate expression of one 
 of the results of the principles established in 1899, and 
 adopted it unanimously, with the modification of the 
 use of the words "rights and actions at law" instead of 
 "private claims." It rejected the Russian proposal to 
 make this prohibition conditional on the said subjects 
 not taking part directly or indirectly in the war ; its com- 
 mittee rejected, also, another Russian proposition to per- 
 mit, under certain circumstances, a belligerent to seize 
 an enemy's credits or claims which might be used to 
 prolong the war. 
 
 The second prohibited means of injuring the enemy 
 was proposed by the German delegation. The proposi- 
 tion was adopted and was added to Article 23 under the 
 following form : "A belligerent is also forbidden to compel 
 the subjects of its enemy to take part in the operations 
 of the war directed against their country, even when they 
 have been in the belligerent's service before the war com- 
 menced." The rule of 1899 forbade any compulsion to 
 be exerted upon the population of an occupied territory
 
 236 THE TWO HAGUE CONFERENCES 
 
 to take part in military operations against their country 
 (Article 44) ; while the German amendment of 1907 
 extended this rule to all the subjects of the hostile party, 
 whether residing in their own country, occupied by the 
 belligerent, or residing anywhere else within the bellig- 
 erent's power. The arguments advanced in support 
 of this amendment were that soldiers retained by force 
 within the ranks of an army can be only a source of weak- 
 ness to it; and that, even if this were not true, the de- 
 mands of justice and humanity made upon warfare would 
 prevent such a measure. This principle was admitted 
 without much discussion, and the German amendment 
 was adopted unanimously. 
 
 But when the Austrian delegation proposed to restrict 
 the German amendment to the provision that a bellig- 
 erent should be forbidden to compel its enemy's subjects 
 to take part as soldiers in the operations of the war directed 
 against their own country, and thus made it permissible 
 for a belligerent to exact other services from its enemy's 
 subjects against their country, a long discussion arose. 
 In the course of this discussion, the German amendment 
 itself was imperiled ; and, although the Austrian propo- 
 sition was finally withdrawn, it caused seven delegations 
 to withhold their vote and signature from an amendment 
 which was afterwards adopted in regard to the services 
 rendered to belligerents by the people of the territory 
 occupied by them (Article 44). x 
 
 When the renewal of the declaration of 1899, which 
 prohibited for a term of five years the hurling of projectiles 
 
 1 For an account of this later amendment (Article 44) and the opposition 
 to it (which was practically the support of the Austrian amendment to Article 
 23), see pages 256-259.
 
 WARFARE ON LAND 237 
 
 and explosives from balloons, came up for discussion, 
 the Russian and Italian delegations proposed that it 
 should be forbidden, forever, to bombard undefended towns, 
 etc., either by artillery or by the launching of projectiles or 
 explosives from balloons. The direful results of such 
 bombardment were emphasized, and the injuries it would 
 inflict upon non-combatants and neutrals, and upon 
 useful and beautiful public buildings, were pointed out. 
 M. Renault, of France, declared that the prohibition of 
 the bombardment of undefended towns, etc., adopted in 
 1899, included bombardment from balloons and from 
 every other source. But since no such interpretation had 
 been passed, judicially, upon that rule, and since it had 
 been expressly adopted as applying to warfare on the land 
 and not to warfare on the sea, the commission insisted 
 on amending the rule. This it did by first adopting the 
 Russo-Italian proposition by a vote of thirty-one to one, 
 with three abstentions ; 1 and at the next session by voting 
 unanimously to add to the prohibition of 1899 the 
 words "bombardment by any means whatever.'" 
 
 The commission on naval warfare had already agreed 
 to prohibit the bombardment of undefended towns, etc., 
 by naval forces, 2 and had added to the list of buildings 
 which must be protected in case of the bombardment 
 of defended towns historical monuments. This last 
 measure had been adopted, appropriately, on motion of 
 the delegation from Greece; and when M. Beernaert, 
 of Belgium, proposed its addition to the laws of warfare 
 on land, it was adopted unanimously and without dis- 
 cussion. 
 
 1 Cuba cast the one negative vote; France, Sweden, and Turkey abstained. 
 
 2 Cf. pages 100-104.
 
 238 THE TWO HAGUE CONFERENCES 
 
 4. Spies, Flags of Truce, Armistice, Capitulations 
 a. The Conference of i8gg 
 
 The Brussels rules regarding spies were adopted almost 
 intact. They first define a spy as follows: Only that 
 individual can be considered a spy who, acting clandes- 
 tinely or under false pretenses, obtains or seeks to obtain 
 information in a belligerent's zone of operations, with 
 the intention of communicating it to the hostile party. 
 Thus, soldiers not in disguise who have penetrated into 
 the zone of operations of a hostile army to obtain infor- 
 mation are not considered spies; nor are soldiers or 
 civilians who openly prosecute their mission of conveying 
 dispatches either to their own army "or that of the enemy ; 
 nor are individuals sent in balloons to deliver dispatches 
 and to maintain communication between the various parts 
 of an army or a territory (Article 29). 
 
 The Brussels rule defining a spy used the words "in 
 places occupied by the enemy" instead of "in a bellig- 
 erent's zone of operations." Colonel von Schwarzhoff, 
 of Germany, proposed this change and explained that 
 by "zone of operations" he meant the territory on which 
 is an army either in march or in repose, and including 
 the neighboring districts where this army exercises a certain 
 influence by the reach of its arms, by its patrols, and by 
 short reconnoitering expeditions. M. Beernaert, of Bel- 
 gium, doubted the wisdom of thus enlarging the scope 
 of the definition — and thus increasing the perils of spies, 
 — but withdrew his objection, and the change was adopted. 
 
 Colonel Gilinsky, of Russia, feared that by excluding 
 from the class of spies those civilians who openly convey
 
 WARFARE ON LAND 239 
 
 dispatches, an easy way would be opened to civilians to 
 act as real spies while carrying dispatches as a pretext. 
 He therefore moved to exclude from the class of spies 
 only civilians "attached to armies" who convey dispatches, 
 or better still to strike out the clause entirely. But the 
 commission voted to retain the clause as a safeguard against 
 false interpretations injurious to civilians who, in good 
 faith, carry dispatches; for it believed that those acting 
 on false pretenses could be detected ; and these may be 
 treated as spies. 
 
 The Brussels rule in regard to the trial and punishment 
 of spies was as follows: "The spy taken in the act will 
 be tried and dealt with according to the laws in force in 
 the army which has seized him." General Mounier, of 
 France, demanded the suppression of this rule in the 
 Hague convention, for the reason that it is harsh treat- 
 ment to condemn a spy acting, perhaps, on the orders 
 of his superiors and in virtue of a declaration signed by 
 his own government. This argument had weight with 
 the conference ; for it did not prescribe that a spy should 
 be punished, but changed the rule so as to read : A spy 
 taken in the act can not be punished without previous 
 trial (Article 30). The conference also adopted the 
 Brussels rule that a spy who, after rejoining the army to 
 which he belongs, is captured by the enemy, shall be 
 treated as a prisoner of war and shall incur no responsi- 
 bility for his previous acts of espionage (Article 31). 
 
 The rights and duties of individuals bearing flags of 
 truce are briefly stated. They must be authorized by 
 one of the belligerents to enter into negotiations with the 
 other, and must be accompanied by a white flag. They 
 have a right to inviolability, as have also the trumpeter,
 
 240 THE TWO HAGUE CONFERENCES 
 
 bugler, or drummer, the flag bearer, and the interpreter 
 who may accompany him (Article 32). The commander 
 to whom a flag of truce is sent is not obliged to receive 
 it under all circumstances; he can take all necessary 
 steps to prevent the envoy from profiting by his mission 
 to procure information ; and in case of abuse, he has the 
 right to detain the messenger temporarily (Article 33). 
 The messenger loses his right of inviolability if it is posi- 
 tively and undeniably proven that he has taken advantage 
 of his privileged position to provoke or commit an act 
 of treason (Article 34). 
 
 Thus far the Hague rules follow those of Brussels con- 
 cerning the bearers of flags of truce ; but another Brussels 
 rule provided that a commander may declare in advance 
 that he will not receive such messengers during a specified 
 period, and that if they come to him during that period, 
 and after his declaration had been received, they shall 
 lose their right of inviolability. Colonel von Schwarzhoff, 
 of Germany, proposed the suppression of this rule for the 
 reason that circumstances may occur which make the 
 desirability of negotiating with the enemy superior to the 
 enemy's desire to receive no messengers; Count Nigra, 
 of Italy, advocated the suppression of the rule for the 
 reason that it is opposed to the spirit of international law ; 
 and General Mounier, of France, favored its suppression 
 for the reason that the commander, according to Article t,^, 
 is not obliged, under all circumstances, to receive flags of 
 truce. The rule was accordingly suppressed in the Hague 
 convention, — with the remark made by Colonel von 
 Schwarzhoff that Article 23 should be interpreted to mean 
 that a commander need not receive a flag of truce within 
 his outposts.
 
 WARFARE ON LAND 241 
 
 Armistices were defined and regulated as follows: 
 An armistice is a suspension of military operations by 
 mutual agreement between the belligerent parties. If 
 its duration is not fixed, the belligerent parties may resume 
 operations at any time, provided always that the enemy 
 is warned within the time agreed upon, in accordance 
 with the terms of the armistice (Article 36). An armistice 
 may be general or local. The first suspends all military 
 operations of the belligerent states ; the second, only those 
 between certain fractions of the belligerent armies and 
 within a fixed radius (Article 37). An armistice must be 
 notified officially, and in good time, to the competent 
 authorities and the troops; and hostilities must be sus- 
 pended immediately after the notification, or at a fixed 
 date (Article 38). The contracting parties must settle, 
 in the terms of the armistice, what communications may 
 be held, on the theater of war, with the population and 
 with each other (Article 39). 
 
 The Brussels rules provided that any violation of the 
 armistice by one of the parties gives the other party the 
 right to denounce it. Colonel von Schwarzhoff asserted 
 that a simple denunciation of the armistice is not sufficient 
 in all cases of its violation ; for example, if the violation 
 consists in a sudden attack upon a troop of soldiers, they 
 would not, under the rule, have even the right of defending 
 themselves. This is an extreme case, he admitted ; but 
 other cases demand not only the right of denouncing the 
 armistice, but also of immediately resuming operations. 
 M. Rolin, of Siam, opposed this addition to the rule for 
 the reason that it is desirable now, as it was in 1874, 
 to forbid a resumption of hostilities without previous 
 notice ; and General Zuccari, of Italy, said that the denun-
 
 242 THE TWO HAGUE CONFERENCES 
 
 ciation of the armistice and the resumption of hostilities 
 could not usually be performed by the same person, since 
 the denunciation is intrusted to the commander in chief, 
 while the resumption of hostilities would depend, in the 
 cases referred to, upon subordinate officers. It was con- 
 tended, however, that only the right, to be used at discre- 
 tion, and not the obligation, to resume hostilities immedi- 
 ately, was asked for ; and when Colonel von Schwarzhoff 
 proposed to limit the exercise of this right to "cases of 
 urgency," his proposition was accepted, and the rule 
 adopted as follows : Any serious violation of the armistice 
 by one of the parties gives to the other party the right to 
 denounce it and even, in case of urgency, to resume hos- 
 tilities immediately (Article 40). 
 
 The Brussels rule was adopted, without discussion, that 
 a violation of the terms of the armistice by private in- 
 dividuals acting on their own initiative only confers the 
 right of demanding the punishment of the offenders, and, 
 if losses are sustained, an indemnity for them (Article 41). 
 
 Capitulations were regulated by one of the Brussels 
 rules, and this one was adopted, with slight modification, 
 in 1899. It provides that capitulations agreed on between 
 the contracting parties should take into consideration the 
 rules of military honor; and when once agreed upon, 
 they must be scrupulously observed by both parties 
 (Article 35). Objection was made to this rule on the 
 ground that it is unnecessary and also vague, as it is 
 very difficult, to define the idea of "military honor," — to 
 which, according to the Brussels rule, capitulations 
 should not be opposed. But M. Rolin, of Siam, stated 
 his adherence to the opinion of the delegate of France 
 in 1874, that the rule was highly important and that
 
 WARFARE ON LAND 
 
 243 
 
 emphasis should be laid on the idea of honor. M. Zenil, 
 of Mexico, suggested that capitulations might be required 
 "to conform to the military honor of the conqueror's 
 code" ; but this suggestion was rejected for the reason that 
 the conqueror may not have any code, or that statements 
 as to honor might not be contained in it. Finally, on the 
 suggestion of Turkhan Pacha, of Turkey, the phrase, 
 "should take into consideration the rules of military 
 honor," was adopted. 
 
 b. The Conference of 1 go j 
 
 The rules of 1899 in regard to spies, flags of truce, and 
 armistice were not amended in 1907. The Netherlands 
 delegation proposed the following addition to the rule 
 regarding capitulations: Detachments of an army ca- 
 pitulated to the enemy are not obliged to surrender if 
 they are at such a distance from it as to have retained 
 liberty of action sufficient to continue the struggle inde- 
 pendently of the principal corps. The weight of opinion 
 was against this proposition as dealing with a matter which 
 should be regulated by the terms of each capitulation, and 
 it was withdrawn without being voted on. 
 
 5. Occupation of Hostile Territory 
 
 a. The Conference of i8gg 
 
 On the threshold of the discussion of the rules regulating 
 the occupation of a country by its invader, M. Beernaert, 
 of Belgium, opposed the policy of laying down such rules 
 lest, by so doing, the conference might sanction the right 
 of conquest and organize the regime of defeat. He was
 
 244 THE TW0 HAGUE CONFERENCES 
 
 himself a member of the Conference of Brussels whose 
 rules were taken as the basis of those adopted in 1899, 
 and he said of its rules regulating occupation : 
 
 "The idea which inspired them was, as in the case of the other rules, 
 a wholly humanitarian one. The endeavor was to reduce as much as 
 possible the evils of an invasion by regulating it, or, rather, by canaliz- 
 ing it; but, to secure this end, it was desired that the vanquished 
 should admit in advance the rights of the invader upon their territory, 
 and that it should be in some sort forbidden to populations to mingle 
 in the war. Hence, gentlemen, arose grave difficulties which long 
 arrested the progress of the plenipotentiaries assembled at Brussels 
 in 1874, and which prevented their ultimate success [that is, the adop- 
 tion of their projected rules]. ... It is not that I wish to criticise 
 the facts. Things have always been thus and will continue to be the 
 same, no doubt, so long as humanity will not discard warfare. But, 
 although it is natural that the conqueror should exert his power over 
 the vanquished in the flush of victory, I can not comprehend an inter- 
 national agreement giving him the right to do so. And I think that 
 such an idea would be ill received by the parliaments which have to 
 approve our work. . . . The country invaded submits to the law 
 of the invader; that is a fact; it is might; but we should not legalize 
 the exercise of this power in advance, and admit that might makes 
 right. It is not credible that the conqueror should legislate, adminis- 
 trate, punish, levy taxes, with the previous consent and authorization 
 of the conquered. All that kind of thing becomes regular only on the 
 conclusion of peace ; for then only, if a treaty confirms the conquest, 
 will new legal rights be established. 
 
 "The interest of the country occupied, and especially that of the 
 smaller countries, has been appealed to. Speaking, then, in the name 
 of a small country, often trampled and cruelly trampled by invasion, 
 we prefer to bear the ills we have than fly to those we know not of." 
 
 The commission's president, Professor de Martens, 
 of Russia, who had also been a member of the Brussels 
 Conference, replied to M. Beernaert's address by saying, 
 in part :
 
 WARFARE ON LAND 245 
 
 "If the laws of war exist — and no one disputes that fact — it is 
 absolutely necessary that an agreement should be made for their 
 definition. Animated by a common desire to carry our torches into 
 an investigation of these laws and customs of warfare, we have thus 
 far worked together in that task, and we have been able to solve the 
 majority of the questions submitted to us. Now, when we have 
 arrived at the most important articles of the Declaration of Brussels, 
 it would be a misfortune to leave in utter chaos the questions con- 
 nected with the articles concerning occupation and combatants." ' 
 
 M. Beernaert had previously expressed his opinion that 
 only those rules should be adopted which, admitting the 
 existence, without acknowledging the right, of the con- 
 queror, should embody his agreement to moderate the 
 conditions of conquest. And it was entirely in this spirit 
 that the subcommission, after President de Martens's 
 address, took up the work of regulating the occupation 
 of hostile territory. 
 
 It first adopted a definition of occupied territory as 
 follows: Territory is considered occupied when it is 
 placed de facto under the authority of the hostile army. 
 The occupation applies only to the territory where such 
 authority is established, and is of sufficient strength to 
 assert itself (Article 42). Colonel von Schwarzhoff, of 
 Germany, opposed the second paragraph of this definition 
 on the ground that it was too restrictive and would exclude, 
 for example, territory where a belligerent has pretty well 
 established his authority, but where communications 
 between his occupying corps and the rest of his forces 
 are interrupted and where revolts may arise and tempo- 
 rarily succeed. "Under these circumstances," he said, 
 "it can not be sustained that the territory is not occupied." 
 
 1 Other portions of this impressive address are quoted on pages 217-219.
 
 246 THE TWO HAGUE CONFERENCES 
 
 Colonel Gilinsky, of Russia, emphasized this military 
 point of view by saying that an army considers a territory 
 as occupied when there are present in it either the bulk of 
 the army or some of its detachments, and when its lines of 
 communication are assured ; on this territory the occupy- 
 ing army leaves some troops to protect its communications 
 as it proceeds; these troops are often so few in number 
 that a revolt becomes possible; but the fact that such a 
 revolt may occur can not prevent the occupation from 
 being considered as existing de facto. 
 
 To these military arguments the jurists opposed their 
 reasons for retaining the second paragraph of the definition : 
 that it is necessary to give the definition any meaning; 
 and that when "authority" is not of sufficient strength 
 to sustain itself it is not "established" in the territory, 
 and the territory is in no true sense "occupied." The 
 colonels yielded their opinion in this matter to the juris- 
 consults, and the definition as stated was retained. 
 
 The treatment of occupied territory was regulated by 
 a series of articles, which may be considered under the 
 three heads : Treatment in general ; the exaction of taxes, 
 contributions, etc. ; and the treatment of public property. 
 Under the head of general treatment it was provided that, 
 the power of legal authority having passed de facto into 
 the hands of the occupant, the latter shall take all the 
 steps in his power to reestablish and insure, as far as pos- 
 sible, public order and safety, at the same time respecting, 
 unless absolutely impossible, the laws in force in the country 
 (Article 43). The adoption of this rule from the Brussels 
 code was opposed on the general principle stated in M. 
 Beernaert's address above quoted, and an attempt was 
 made to preserve the country's laws unconditionally;
 
 WARFARE ON LAND 247 
 
 but the rule was voted as stated by a slender majority. 1 
 The subcommission rejected, by a much stronger ma- 
 jority, and for other reasons than M. Beernaert's general 
 principle, the Brussels rule that the officials and employees 
 of every kind, who accept the invader's invitation to con- 
 tinue their services, shall enjoy his protection and shall be 
 dismissed or disciplined only in case they fail in the obliga- 
 tions accepted by them, and delivered up' to justice only in 
 case they are guilty of treason towards those obligations. 
 This rule was first rejected by a vote of fifteen to seven ; 
 but in the next session, Captain Crozier, of the United 
 States, said that although he had voted, provisionally, for 
 its rejection, since it had no value for his own country, 
 which was under no risk of invasion, he would now re- 
 consider his vote and advocate the rule's retention. This 
 statement led to considerable discussion for and against 
 the retention of the rule ; but this discussion was ended 
 and the rule was unanimously rejected, as the result of 
 a remark made by Professor Veljkovitch, of Servia, that 
 the question had been already settled by the rule that the 
 invader shall respect the country's laws, since respect for 
 the laws of a country implies the retention of officials 
 named by virtue of those laws. 
 
 The invader is forbidden to compel the population of 
 an occupied territory to take part in military operations 
 against their own country (Article 44). Colonel Gilinsky, 
 of Russia, desired to make this prohibition apply only to 
 direct participation in military operations on the field of 
 battle ; he feared the rule would prevent a belligerent from 
 compelling an inhabitant to supply him with vehicles, horses, 
 etc. M. Beernaert, of Belgium, advocated the rule as it 
 
 1 The subcommission afterwards adopted this article by unanimous vote.
 
 248 THE TWO HAGUE CONFERENCES 
 
 stands, because it forbids compulsion of both direct and 
 indirect participation in the military operations; but he 
 admitted that belligerents may, under the rule, compel 
 inhabitants to submit to such measures as the requisition 
 of their vehicles and horses. Colonel von Schwarzhoff 
 also advocated the adoption of the rule, which, he said, 
 concerned only populations as a whole and not individuals, 
 and which does not deprive belligerents of the right of 
 exacting from individuals such services as those of a guide. 
 In view of these interpretations of the rule, Colonel Gilin- 
 sky withdrew his opposition to it. 
 
 The rule forbidding any pressure on the population of 
 occupied territory to take an oath of allegiance to the hostile 
 power (Article 45) was adopted unanimously, and without 
 discussion. It was at first thought to be in conflict with 
 the United States General Order No. 100 regarding an 
 oath of allegiance and fidelity on the part of magistrates 
 and other civil officers; but later this was deemed not to 
 be the case, since the Hague rule mentions only "the popu- 
 lation." 
 
 The honor and rights of families, the life of individuals, 
 and private property, as well as religious convictions and 
 freedom of worship, must be respected ; and private prop- 
 erty may not be confiscated (Article 46). Colonel von 
 Schwarzhoff, of Germany, desired to add to this rule the 
 qualification "as far as military necessities permit"; and 
 stated, in behalf of this addition, that a belligerent should 
 have the right, in compelling an individual, to threaten him 
 with death, and that the necessities of war will not always 
 permit respect to all religious convictions. Chevalier 
 Descamps, of Belgium, replied that it would be opposed to 
 the spirit of the code to introduce into its various articles
 
 WARFARE ON LAND 
 
 249 
 
 a special clause for the sake of the "necessities of war"; 
 and that the destruction of individual rights can not be 
 admitted as a juristic thesis, although, necessity arising, 
 recourse must be had to it at times. Colonel von 
 Schwarzhoff responded that he would be satisfied with the 
 rule if that were its interpretation. The rule was then 
 adopted without further comment on its meaning. 
 
 Article 47 states concisely that "pillage is expressly for- 
 bidden." Thus the rule forbidding pillage in captured 
 towns (Article 28) was extended to the entire territory 
 invaded. 
 
 The treatment of occupied territory as regards the collec- 
 tion of taxes and other contributions was dealt with in a 
 series of five articles. The first of these provides that if, 
 in the territory occupied, the occupant collects the taxes, 
 dues, and tolls imposed for the benefit of the state, he shall 
 do it, as far as possible, in accordance with the rules 
 of assessment and distribution in force; and he shall be 
 required in return for such collection to defray the expenses 
 of the administration of the occupied territory on the same 
 scale as that by which the legal government was bound 
 (Article 48). This rule was adopted, with verbal changes, 
 from the Brussels code, and when first proposed eleven 
 delegations voted for it, and eleven against it 5 with two 
 abstentions; after a long debate, chiefly concerning its 
 form, it was adopted by a vote of eighteen to six, which vote 
 was later made unanimous. 
 
 The regulation of exactions over and above the regular 
 taxes was the subject of an animated debate. A half-dozen 
 propositions were made regarding it, and at least three dif- 
 ferent points of view were emphasized. M. van Karne- 
 beek, of the Netherlands, favored the exaction of provi-
 
 250 THE TWO HAGUE CONFERENCES 
 
 sions, or contributions in kind, because "it is a military 
 necessity to subsist one's troops"; but he opposed the 
 exaction of money contributions, except in payment of 
 the regular taxes, because "private property should be re- 
 spected, war should not be permitted to live by war, the 
 inhabitant of occupied territory should not be made to pay 
 the cost of the war, and the spirit of the Conference of 
 1874 was opposed to the evil system, introduced about 
 1800, by which money contributions were exacted for the 
 enrichment of the belligerent." 
 
 On the other hand, Colonel von Schwarzhoff, of Germany, 
 opposed the exaction of provisions, and favored the exac- 
 tion of money. He explained that in an occupied territory 
 there are three ways of getting supplies for the occupying 
 army. First, a community may be ordered collectively to 
 furnish a certain number of rations, or, second, individual 
 inhabitants may be required to deliver directly the live- 
 stock, food, etc., which they possess. Now both of these 
 methods, especially the second, are very distasteful to the 
 inhabitants, are often unjust (because the poor peasant may 
 be compelled to give up the only cow he possesses, while 
 the wealthy townsman gives up only the little food which 
 he may chance to have in his house at the time), and, 
 finally, they are both inefficient. Hence, a third method 
 of procedure has been adopted ; this is to establish public 
 markets in which the officers purchase, for cash and at 
 higher prices than prevail at the time, the products which 
 the inhabitants bring in for sale. This method is more 
 humane, because the poor man receives at once the money 
 for his produce ; and it is more efficient, because the in- 
 habitants bring in their produce willingly, and even bring 
 in that which they have carefully stowed away. Now, to
 
 WARFARE ON LAND 
 
 2 5i 
 
 pursue this last method, money, and much money, is 
 needed, and it must, perforce, be exacted. Professor 
 Lammasch, of Austria, also supported Colonel von Schwarz- 
 hoff 's point of view, but for the very different reason that 
 exactions of money, by exhausting the strength of the ad- 
 versary, would aid greatly in putting an end to the war. 
 "The dead can not be restored to life," he said, "nor can 
 arms and legs be given back to those from whom they have 
 been amputated; but those who have given money con- 
 tributions can be compensated." 
 
 The third point of view was emphasized by the Belgian 
 delegates, M. Beernaert and the Chevalier Descamps, who 
 were opposed to the adoption of any rule at all regarding 
 other exactions than the regular taxes. They recognized, 
 as a fact, the exaction of both money and provisions from 
 the vanquished ; but they opposed a "consecration by law 
 of that which, up to the present, has been only in the realm 
 of fact." Especially did they condemn Professor Lam- 
 masch's argument as particularly dangerous, because it 
 would lead to the entire destruction of commerce. 
 
 In the midst of this serious conflict of opinions and prop- 
 ositions, M. Bourgeois, of France, pointed out that there 
 were two principles on which all parties were in accord : 
 first, that of not conferring the character of right upon 
 what is only a fact, the fact of war; and second, that of 
 diminishing the burdens which this fact of war entails 
 upon the population of invaded territory. He proposed, 
 therefore, that a small committee be appointed to find 
 some rule, embodying these two principles, which would be 
 acceptable to all parties. His proposition was adopted, 
 and the committee reported, unanimously, four rules which 
 were adopted by vote of all the delegations except that of
 
 252 THE TWO HAGUE CONFERENCES 
 
 Switzerland. Switzerland's first delegate had been a 
 member of the committee which reported the four rules, 
 but he explained that since the committee adjourned he 
 had received positive instructions from his government to 
 vote against three of the rules unless the subcommission 
 would adopt the requirement that contributions shall be 
 compensated for at the end of the war. The subcommis- 
 sion declined to do this, for the reason that such a require- 
 ment has to do with the domestic affairs of each state, 
 and an international convention should not interfere be- 
 tween a state and its own subjects. The Swiss delegates, 
 accordingly, obeyed their instructions and cast the single 
 minority vote against the four rules, with the exception of 
 Article 50 and the first two paragraphs of Article 52, which 
 were voted unanimously. 1 
 
 The four rules which had been the subject of so much 
 discussion are as follows: If, besides the taxes mentioned 
 in Article 48, the occupant levies other money taxes in the 
 occupied territory, this can be done only for the needs of 
 the army or for the administration of such territory (Ar- 
 ticle 49). 
 
 No general penalty, pecuniary or other, can be inflicted 
 on the population on account of the acts of individuals for 
 which it can not be regarded as collectively responsible 
 (Article 50). No contribution shall be collected except 
 under a written order and on the responsibility of a com- 
 mander in chief. This collection shall take place, as far 
 as possible, only in accordance with the rules of assessment 
 and distribution in force. A receipt shall be given to every 
 contributor for what he has delivered (Article 51). 
 
 1 The Swiss government did not give in its adhesion to the code of laws 
 adopted in 1899 until the time of the Conference of 1907.
 
 WARFARE ON LAND 
 
 2 53 
 
 Neither contributions in kind nor services can be de- 
 manded from communities or inhabitants, except for the 
 needs of the army of occupation. They must be in pro- 
 portion to the resources of the country, and of such a nature 
 as not to require the population to take part in the opera- 
 tions of the war against their country. These requisi- 
 tions and services shall be demanded only on the authority 
 of the commander in the locality occupied. Contributions 
 in kind shall be paid for, as far as possible, in cash ; if not 
 so paid for, receipts shall be given for them (Article 52). 
 
 The last series of rules adopted for the regulation of the 
 occupation of hostile territory deals with the treatment of 
 public property. They provide that not all public prop- 
 erty, but only such as is of a nature to be used for the 
 operations of the war, may be seized by the army of occupa- 
 tion (Article 53, paragraph 1). The occupying government 
 shall be regarded only as administrator and usufruc- 
 tuary of public buildings, real property, forests, and agri- 
 cultural works belonging to the hostile state and located 
 within the country occupied. It must protect the capital 
 of these properties, and administer it according to the rules 
 of trusteeship (Article 55). 
 
 The property of municipalities, that of religious, char- 
 itable, and educational institutions, and those of arts and 
 sciences, even when state property, shall be treated as 
 private property. 1 All seizure, destruction, or intentional 
 damage of such institutions, historical monuments, and 
 works of art or science, is forbidden and should be pun- 
 ished (Article 59). When this rule was adopted, General 
 Mirza Riza Khan, of Persia, desired to know what was 
 meant by "religious institutions," and if it would be con- 
 
 1 That is, shall be respected and not confiscated ; see Article 46.
 
 254 THE TWO HAGUE CONFERENCES 
 
 sidered to include mosques; the subcommission accepted 
 the statement made in reply, that no distinction whatever 
 must be made between the various religions, and that the 
 expression applies equally to mosques. The Brussels rule 
 in regard to the seizure and damage of religious institutions, 
 and of historical monuments, works of art, etc., merely 
 provided that such seizure and damage "should be pun- 
 ished by the competent authorities." The Hague rule 
 forbids such acts, and also requires their punishment. 
 In this, it goes farther than the United States General 
 Order No. ioo, which permitted the removal of works of 
 art and science, etc., for the benefit of the government of 
 the occupying army and relegated the ultimate settlement 
 of their ownership to the treaty of peace. 
 
 Railroad plants, telegraphs, telephones, steamers and 
 other boats (except when governed by maritime law), as 
 well as depots of arms and all kinds of war material, are 
 admitted to be liable to be used by the occupying army for 
 the operations of the war, even though they are the property 
 of companies or private individuals; but they must be 
 restored and compensated for on the conclusion of peace 
 (Article 53, paragraph 2). M. Beernaert, of Belgium, op- 
 posed this rule on the ground that it was inconsistent with 
 the inviolability of private property, which had already 
 been admitted ; and, since the Belgian constitution also 
 protected the inviolability of private property, except in 
 case of expropriation, it would be all the more difficult, he 
 said, for his delegation to accept it. The subcommission, 
 however, regarded such property, even though in private 
 hands, as quasi-public, or as too obviously useful for military 
 purposes to be made inviolable, and the most it would con- 
 cede to the opposition was to reject the Brussels statement
 
 WARFARE ON LAND 
 
 2 55 
 
 that "it can not be left by the army of occupation at the dis- 
 position of the enemy." The Hague rule added to the list 
 of such property telephones, which were not included in 
 1874; but the conference rejected, after the subcommis- 
 sion, commission, and conference itself had once added to 
 that list, the landing connections of submarine cables. M. 
 de Bille, of Denmark, had advocated this addition, for the 
 reason that submarine cables, which unite the belligerent 
 with other countries, should enjoy the same international 
 protection as that accorded to telegraphs. The Danish 
 delegate to the Brussels Conference had proposed this 
 same addition in 1874; and on both occasions Denmark 
 would like to have moved for the protection of submarine 
 cables throughout their entire length, but refrained from 
 asking for more than their protection within the limits of 
 the maritime territory of the stale, that is, within three 
 marine miles from the shore. The subcommission re- 
 jected the last part of the Danish proposition, but placed 
 the landing connections of submarine cables in the list of 
 protected property. In a plenary session of the conference, 
 Sir Julian Pauncefote, of Great Britain, stated that his 
 government viewed such an addition as a trespass upon the 
 domain of maritime affairs and as being outside the com- 
 petence of the conference. M. de Bille then said that, in 
 a spirit of conciliation, and to secure unanimity in the 
 adoption of the code, he would withdraw his proposition, 
 but that his government would continue its efforts to secure 
 international protection both for the landing connections 
 of submarine cables and for the cables themselves. 
 
 Articles 54, 57, 58, 59, and 60, of the Code of Laws of 
 Warfare on Land, have to do with railways in occupied 
 territory which are owned by neutrals, and with the deten-
 
 256 THE TWO HAGUE CONFERENCES 
 
 tion of belligerents and the care of the sick and wounded 
 in neutral countries. 1 
 
 b. The Conference of igoy 
 
 One of the rules of 1899 forbade any compulsion of the 
 population of an occupied territory to take part in military 
 operations against their own country (Article 44). This 
 prohibition was extended in 1907, on motion of the German 
 delegation, so as to apply to belligerents everywhere and 
 not only in occupied territory (Article 23). The German 
 delegation proposed, therefore, that Article 44 should be 
 suppressed as unnecessary ; this suppression was agreed 
 to, and as a substitute for the suppressed article the Nether- 
 lands delegation proposed the following rule : A belliger- 
 ent is forbidden to compel the population of an occupied 
 territory to give information concerning the army of the 
 other belligerent or its means of defense. 
 
 General Poortugael, of the Netherlands, in advocating 
 this rule, urged that to-day, with networks of railways 
 and tramways and the multitude of roads and canals in 
 every direction, an officer can easily find out where he is 
 and recover his way, even though he be in a desert or in a 
 mountainous country ; that there are excellent topographi- 
 cal charts which every officer and even every sergeant of 
 patrols can possess; that it is not necessary, therefore, as 
 it may have been once, to compel the inhabitants of an 
 invaded territory to act as guides ; that a far better way for 
 the belligerent to gain his end, and in the minimum of time, 
 is to induce the inhabitants of an occupied country to join 
 his forces voluntarily, — a thing which can not be achieved 
 
 1 These articles are discussed on pages 204-206 and 210-212.
 
 WARFARE ON LAND 
 
 2 57 
 
 by forcing them to commit crimes against their own coun- 
 try; and that, after all, if a state has not sufficient means 
 for making war, let it keep the peace, or make peace : it is 
 not for a Peace Conference to facilitate warfare. General 
 Amourel, of France, also emphasized this argument by 
 saying that compulsory guides are often more dangerous 
 than useful to those who employ them, especially when 
 they are drafted from a patriotic or a fanatic population. 
 Colonel Borel, of Switzerland, added his opinion that from 
 the military point of view the advantage obtained from com- 
 pulsory guides is little or none : "To-day, more than ever 
 before, everything in war depends upon the sovereign and 
 fundamental factor of the intellectual and moral strength 
 of men; whence this consequence, that voluntary action 
 alone produces good results." 
 
 Besides this military argument, General Poortugael 
 and Colonel Borel advocated the Netherlands proposition 
 for the reason that to force an inhabitant of an occupied 
 country to reveal to the enemy anything important in re- 
 gard to his fellow-countrymen would be immoral in the 
 highest degree : " It is not for us to raise up Ephialtes ! . . . 
 Let us reflect on the fatal position of such unfortunate in- 
 habitants. . . . On one hand, if they betray their coun- 
 try, they are guillotined, hung, or imprisoned for life; on 
 the other, if they refuse to do so, they are shot." We forbid 
 them to be forced into bearing arms against their country, 
 added Colonel Borel, and yet it is incontestable that in 
 guiding the enemy an individual may do his country an 
 infinitely greater injury, and thus commit a graver crime 
 against it, than if he fought against it in a line of riflemen 
 or artillerists. 
 
 Baron von Gieslingen, of Austria, General Yermolow,
 
 258 THE TWO HAGUE CONFERENCES 
 
 of Russia, and Captain Sturdza, of Roumania, vigorously 
 opposed the Netherlands proposition and the arguments 
 advanced in its favor. They urged the necessity of being 
 sure of the line of march in mountainous countries, such as 
 the Balkan Peninsula, whose passable roads are not found 
 on any map ; they insisted that offensive action is to-day, 
 as always, the basis of success ; that such action is best in 
 the enemy's territory ; that a march into that territory neces- 
 sitates services from the inhabitants, not only to find the 
 way and the enemy, but to build or repair roads and bridges, 
 to throw up fortifications in haste, to conduct baggage and 
 commissary trains, etc. "These necessities of war," said 
 Colonel Sturdza, "are imperative, and commanders respon- 
 sible for success would be placed in the position of choos- 
 ing between the imperative duty and needs of the moment 
 and obedience to the rather theoretical rule proposed. We 
 know that our commanders are ready to sacrifice their lives 
 for their country and that they risk, when it is necessary, 
 that which is even dearer than life, — their honor and good 
 reputation ; we can not, then, paralyze, by rules inapplicable 
 in practice, their means of action. . . . We may have 
 confidence that these officers will themselves be able to 
 judge how far their warlike energy should go and where 
 pity and justice should draw the line. .... We regard 
 war as one of the greatest calamities which can burst upon 
 a country, and we are cooperating with enthusiasm in the 
 great humanitarian task to which this conference is sum- 
 moned. But at the same time we should not conceal from 
 ourselves the fact that, war having once become inevitable, 
 the inexorable necessities of the moment impose themselves 
 in such fashion that they often defy rules whose imprac- 
 ticability can be foreseen at the present moment." Baron
 
 WARFARE ON LAND 259 
 
 Gieslingen, replying to General Poortugael's last argument, 
 said : 
 
 "When one yields to superior force, hie cannot be accused of failing 
 in a patriotic duty, and his guilt is not established by any code if his 
 offense has been committed under the domination of an irresistible 
 compulsion. . . . The existence and the fate of a body of troops, 
 composed of several thousand men, seems to us to merit at least as 
 much consideration as the conscience of a peasant under interroga- 
 tion, — ■ a conscience which will be easily tranquilized by the com- 
 pulsion under which its possessor acts." 
 
 The arguments of the opposition, although urged with 
 much ardor, did not convince either committee or sub- 
 commission, and the rule proposed by the Netherlands 
 delegation was reported to the commission, which adopted 
 it by a vote of twenty-three to nine, with one abstention. 1 
 In the plenary session of the conference, the rule was 
 adopted by a vote of all the delegations except seven. 
 The delegations of Austria, Montenegro, Russia, Rou- 
 mania, and Bulgaria reserved their votes upon it because 
 they had accepted Article 23 only on condition of Article 
 44 being entirely suppressed ; the German delegation 
 reserved its vote on it because it was too specific, and 
 by forbidding some details of warfare it might be con- 
 sidered to permit other pernicious ones; the Japanese 
 delegation reserved its vote until it should see what 
 powers accepted it and how large a majority it secured. 
 
 General Poortugael also proposed an amendment for- 
 bidding the execution of an inhabitant of an occupied 
 territory without a sentence passed by a council of war 
 
 1 Germany, the United States, Austria-Hungary, Bulgaria, Great Britain, 
 Montenegro, Portugal, Roumania, and Russia voted against it; Japan 
 abstained.
 
 260 THE TWO HAGUE CONFERENCES 
 
 and sanctioned by the commander in chief of the army. 
 He advocated this amendment on the ground that it 
 would prevent executions on the spot in the excitement of 
 the moment, and would also afford some little guarantee 
 against judicial errors. But when M. Beernaert, of Bel- 
 gium, and General Amourel, of France, declared that the 
 laws of 1899 already protected the lives of the inhabitants 
 of occupied territory and forbade summary executions even 
 for spies, General Poortugael withdrew his amendment, 
 on the condition that the above declaration, as the cause of 
 its withdrawal, be entered upon the records. 
 
 The Austrian delegation proposed that the respect 
 accorded to private property (Article 46) be accorded in 
 principle. It stated that it did not wish to detract from 
 the rights of private property, but simply wanted to make 
 Article 46 more consistent with the following articles, 
 especially with Article 53, which deals with quasi-public 
 property. But the commission expressed its opinion that 
 the proposed amendment would detract from the rights of 
 private property; and the delegation withdrew it. 
 . The Conference of 1907 tried not only to preserve but 
 to strengthen the rights of private property by adopting an 
 amendment proposed by the Russian delegation to Article 
 52, which provides that the receipts given for contributions 
 in kind shall be redeemed in money as soon as possible. 
 Russia's representative urged that such a measure would 
 be in the interests both of the population, who might 
 suffer great distress if payment for their produce were long 
 delayed, and of the occupying army itself, "which can 
 never be profited by the exhaustion of the country it 
 occupies." He proposed that the receipts should be 
 redeemed even during hostilities, without waiting for the
 
 WARFARE ON LAND 26 1 
 
 return of peace; but this last addition was not deemed 
 necessary to the words "as soon as possible." 
 
 An Austrian and Russian amendment to Article 53 
 proposed to substitute for the list of public or quasi-public 
 property (liable to seizure by an occupying army for its 
 military operations, on condition of restitution and in- 
 demnity) a general statement including all means of com- 
 munication and transportation. This suggestion was 
 adopted, and the rule now includes "all means, on land 
 and sea, and in the air, of transmitting news and transport- 
 ing persons or things, except those regulated by maritime 
 law." The sweeping form of this statement was objected 
 to on the ground that since it protects the enemy's passen- 
 ger boats used for navigating rivers from capture in ports, it 
 interferes with the right of maritime capture ; but it was 
 held that the right of maritime capture would not apply 
 to such a case, and hence there would be no interference. 
 It would naturally be supposed that the broad statement 
 adopted would include the landing connections of sub- 
 marine cables, which the Danish delegation of 1899 had 
 tried so ably to have protected. But, apparently to make 
 assurance doubly sure, the Danish delegation proposed 
 the rule that submarine cables connecting an occupied 
 territory with a neutral territory shall be seized or de- 
 stroyed only in case of absolute necessity; and they shall 
 be restored and an indemnity agreement made for them 
 on the restoration of peace. When this rule was proposed, 
 the British delegation asked for an adjournment of its 
 discussion, so that it might have the opportunity of exam- 
 ining it. At a later session, Lord Reay announced that 
 the British delegation was entirely satisfied with the pro- 
 posed rule. It was then adopted unanimously, and one of
 
 262 THE TWO HAGUE CONFERENCES 
 
 Denmark's objects was attained, but on its adoption, the 
 statement was made and indorsed that it had to do only 
 with land connections, and did not at all affect the seizure 
 or destruction of submarine cables in the open sea. 
 
 This last article was numbered 54, and was put in the 
 place of Article 54 in the 1899 code, which had to do with 
 the property of railways entering an occupied territory from 
 neutral states. The latter article, together with Articles 
 57 to 60, inclusive, were transferred to the convention 
 of 1907 in regard to the rights and duties of neutrals. 
 Thus the code of laws regulating warfare on the land, 
 which comprised sixty articles in 1899, was reduced to 
 fifty-six in 1907. 
 
 6. The Opening of Hostilities 
 The Conference of igoy 
 
 This topic did not form a part of the programme of the 
 first conference; but, because of events which transpired 
 in the course of the next few years, the Russian govern- 
 ment placed it upon the programme for the second con- 
 ference. 
 
 It was presented to the consideration of the second sub- 
 commission of the II Commission in the form of the fol- 
 lowing questions: Should the opening of hostilities be 
 preceded by a declaration of war or an equivalent act? 
 Should a fixed time elapse between the declaration and the 
 opening of hostilities? Should the declaration be an- 
 nounced to the powers, and by whom? 
 
 In response to the above questions, the French dele- 
 gation proposed an agreement between the contracting
 
 WARFARE ON LAND 
 
 263 
 
 powers that "hostilities should not commence between 
 them without a previous and unequivocal warning which 
 shall have the form either of a declaration stating the 
 causes of the war, or that of an ultimatum with a con- 
 ditional declaration of war." 
 
 General Yermolow and Colonel Michelson, of Russia, 
 General Poortugael, of the Netherlands, General Amourel, 
 of France, and Baron von Bieberstein, of Germany, sup- 
 ported this proposition and urged in its favor the following 
 considerations: an international agreement on the sub- 
 ject is desirable because positive international law does not 
 yet require such previous warning; a previous warning is 
 desirable to relieve governments of the necessity of remain- 
 ing fully armed and on the qui vive against sudden attack 
 in time of peace; to enable them to reduce their effective 
 armaments in time of peace, and thus to reduce the finan- 
 cial burden of armies and fleets; to prevent an unex- 
 pected attack upon commerce; to give expression to the 
 modern belief that every war, before it is commenced, 
 should be justified or explained to the family or society of 
 nations by the statement of definite causes ; and to afford 
 an opportunity to neutral governments of offering their 
 good offices to end the dispute, or of persuading the dis- 
 putants to submit their difference to the Permanent Court 
 of Arbitration at The Hague. 
 
 These arguments were accepted as conclusive by the sub- 
 commission, which adopted the French proposition by an 
 affirmative vote of all the delegations save two, with two 
 abstentions. 1 The commission and conference adopted 
 
 1 The Brazilian and Dominican delegations voted no, for the reason, ap- 
 parently, that the proposition did not fax a definite time between the warning 
 and the blow. Cuba abstained because the proposition was regarded as
 
 264 THE TWO HAGUE CONFERENCES 
 
 it by unanimous vote, and it was embodied in a separate 
 treaty (Convention III). 
 
 It will be observed that the French proposition did not 
 include a statement as to the delay which must follow "a 
 previous warning" before hostilities are commenced. The 
 Netherlands delegation moved to fix this delay at "not less 
 than twenty-four hours"; and General Poortugael, in 
 offering this amendment to the French proposition, argued 
 that unless some such definition of "a previous warning" 
 be adopted, the latter might be reduced to a half hour or 
 less and become a mere form ; he also showed by historic 
 examples that even the denunciation of armistices is fol- 
 lowed by a fixed delay before hostilities are resumed. 
 Colonel Michelson, of Russia, supported the Netherlands 
 amendment and urged that the proposed delay, short and 
 insufficient though it was, should be adopted, with the 
 hope that a longer delay may be secured in the future. 
 But the French, German, and Japanese delegations op- 
 posed this amendment, without stating the reasons for 
 their opposition, and when it was put to a vote the sub- 
 commission rejected it by sixteen noes, thirteen ayes, and 
 five abstentions. 1 
 
 The French proposition included the rule that "the 
 state of war should be notified without delay to the neutral 
 powers." This rule was advocated by the Netherlands, 
 French, and Italian representatives for the reasons that 
 
 opposed to the constitutional right of the Cuban congress to declare war; 
 and China abstained apparently because the proposition implied the necessity 
 of the declaration of war being accepted by the power to whom it is sent, and 
 because it did not define " war " which, as the history of China amply shows, 
 has often been made under the guise of " expeditions." 
 
 1 Six of the eight great powers, including the United States, voted against 
 this amendment, Russia voted for it, and Austria-Hungary abstained.
 
 WARFARE ON LAND 265 
 
 war between two states often involves others because of 
 treaties of alliance ; that neutral merchants and navigators 
 at a distance from their homes should be duly notified; 
 that war often causes great annoyance to neutral coun- 
 tries which, having duties to perform in their relations 
 with belligerents, have the right to be promptly informed 
 when their duties begin. 
 
 The Belgian delegation proposed that the notification of 
 the war to neutrals might be made by telegraph or cable, 
 but that it should not take effect as far as they were con- 
 cerned until forty-eight hours after its reception. The 
 French and German delegations opposed this amendment 
 for the reason that the delay might be utilized by neutrals 
 for the commission of acts contrary to the rules of neutrality, 
 — for the sale of war ships to the belligerents, for example. 
 
 The right of neutrals to receive prompt notification of 
 the war was unanimously admitted by the subcommission; 
 but the question of when this notification should go into 
 effect was referred to a special committee 1 with power to 
 report directly to the commission. The committee's re- 
 port was reached after but little discussion and was 
 adopted unanimously by both commission and conference. 
 The rule as reported provides that "the state of war must 
 be notified without delay to the neutral powers, and will 
 go into effect as regards them only after the reception of 
 a notification which may be made by telegraphic means; 
 but the neutral powers can not invoke the lack of notifi- 
 cation if it be proved conclusively that they knew in fact 
 of the state of war." 
 
 1 This committee was composed of eighteen members, representing four- 
 teen countries. The United States representative on it was General G. B. 
 Davis.
 
 266 THE TWO HAGUE CONFERENCES 
 
 When the rule in regard to a previous declaration of war 
 was first proposed, the United States delegation reserved 
 its opinion upon it pending instructions from the home 
 government. At the next meeting of the subcommission, 
 one week later, General Porter stated that the United 
 States Constitution gives to the Congress the exclusive 
 power of declaring war; but that "it is with great satis- 
 faction that this delegation declares that the proposition 
 presented by the French delegation is not in contradiction 
 with the law cited above and, for this reason, the delega- 
 tion of the United States of America takes pleasure in 
 adhering to it. It is proper to add, however, that although 
 this is true as regards offensive military operations, the in- 
 variable policy of the government of the United States 
 of America has been to invest in the President, as com- 
 mander in chief of the constitutional forces on land and 
 sea, the full power of defending the territories and the 
 property of the United States of America in case of in- 
 vasion, and of exercising the right of national defense at 
 all times and in all places." 
 
 The convention was, accordingly, voted for and signed 
 by the United States delegation and ratified by the Senate. 
 The Cuban delegation, because of the same constitutional 
 consideration as that expressed by the United States dele- 
 gation, voted against the rule in the subcommission, but 
 afterwards voted for it in the commission and conference, 
 and signed the convention containing it.
 
 XIII. ARBITRATION 
 
 A. GOOD OFFICES AND MEDIATION 
 
 a. The Conference of 1899 
 
 The last topic on the Russian programme was stated to 
 be "the acceptance, in principle, of the use of good offices, 
 mediation, and voluntary arbitration, in cases adapted 
 to such means, with the object of preventing armed con- 
 flicts between nations; an agreement as to the mode of 
 applying these means; and the adoption of a uniform 
 practice of them." It was assigned to the III (and last) 
 Commission ; and, like many last things, it speedily 
 became first in the minds of both conference and public. 
 
 The discussion of good offices and mediation was based 
 on a series of articles proposed by the Russian delegation. 
 Chevalier Descamps, of Belgium, who, in his capacity of 
 rapporteur of the commission, presented a very able report 
 on the whole subject of arbitration, stated the distinction 
 between "good offices" and "mediation" to be that the 
 former are considered more friendly and less definite than 
 the latter, and are often followed by a "mediation" in 
 which the third power, having extended its good offices, is 
 called upon to act as mediator between the combatants. 
 Both were justified on the ground that all civilized nations 
 are members of one great international society, and that a 
 war between any two members of this society may cause 
 irretrievable injury to one or all of the others. 
 
 267
 
 268 THE TWO HAGUE CONFERENCES 
 
 Before this argument, — and with the thought, doubt- 
 less, of others not expressed, — there was no opposition 
 to the adoption of the agreement that in case of serious 
 dispute or conflict, before an appeal is made to arms, the 
 powers would have recourse, as far as circumstances per- 
 mit, to the good offices or mediation of one or more friendly 
 powers. 
 
 It will be noted that this agreement is qualified by the 
 two clauses "in case of serious dispute or conflict" and 
 "as far as circumstances permit." M. Asser, of the Nether- 
 lands, moved to strike out the latter clause, on the ground 
 that although it was adopted in 1856 by the Treaty of 
 Paris, it had been discarded in 1885 by the Act of Berlin; 
 hence, to retain it in 1899 would be a step backward. 
 Count Nigra, of Italy, supported this motion, on the ground 
 that the clause in question would destroy, to a large extent, 
 the utility of the agreement. The motion was adopted, 
 in committee, and the qualifying clause was omitted. 
 The commission restored it again, on the motion of Sir 
 Julian Pauncefote, of Great Britain, who had voted at 
 first for its omission, but who now moved to restore it for 
 the reason that, the rule being a new one, its application 
 would be facilitated by the qualifying clause. M. Bour- 
 geois, of France, also advocated the retention of the clause, 
 for the reason that the new rule was to be of very wide, 
 almost universal, application, whereas the Act of Berlin of 
 1885 had applied only to disputes localized in Africa; and 
 that to attempt more, at first, than the powers could carry 
 out would be a source of weakness both to the agreement 
 and to the powers who made it. 
 
 No attempt was made, naturally, to define the circum- 
 stances which would, or would not, "permit." Nor was
 
 ARBITRATION 269 
 
 it stated what is meant by a "serious dispute or conflict"; 
 but the rapporteur interpreted this, without contradiction, 
 to mean any grave dispute which puts in danger the main- 
 tenance of peaceful relations ; in other than such disputes, 
 he said, good offices or mediation might constitute unjusti- 
 fiable and dangerous meddling. 
 
 The agreement noted above was that the powers would 
 have recourse to the good offices or mediation of one or 
 more friendly powers; and this was intended to mean 
 that the parties to the dispute would themselves request 
 the services of another. But the further statement was 
 made that "independently of this recourse, the signatory 
 powers consider it useful that one or more powers, stran- 
 gers to the dispute, should, on their own initiative, and as 
 far as circumstances permit, offer their good offices or 
 their mediation to the states at variance with each other." 
 This right to offer good offices or mediation was based 
 upon the independence and, in the eyes of international 
 law, the equality of states; it was also admitted to be, in 
 many cases, identical with the duty of a state to defend its 
 rights and interests as a member of the "peaceful society 
 of nations." On the motion of Count Nigra, this right 
 was stated to belong to "powers strangers to the conflict, 
 even during the course of hostilities." 
 
 The conference ignored the distinction sometimes made 
 between good offices and mediation, from the point of 
 view of friendly feelings, and regarded them both as being 
 offered in a wholly conciliatory spirit. In order to make 
 this entirely plain, and to give additional encouragement 
 to the extension of good offices or mediation, the agree- 
 ment further provides that "the exercise of this right shall 
 never be considered by either of the parties to the dispute
 
 270 THE TWO HAGUE CONFERENCES 
 
 as an unfriendly act." The word "never" was not com- 
 mented upon ; but the place of this proviso makes it apply, 
 not only to such offers made before the war begins, but 
 also to those made "even during the course of hostilities," 
 when one of the combatants may be supposed to be gain- 
 ing an advantage. 
 
 Professor Veljkovitch, of Servia, proposed to add to this 
 last rule the statement that the refusal of an offer of good 
 offices or mediation shall never be considered an unfriendly 
 act. But this proposition was opposed for the reason that 
 it was not desirable to insert what might seem like an in- 
 vitation to refuse mediation in a convention whose object 
 it is to encourage all possible means of preserving the peace. 
 It was stated in the discussion, however, that such a refusal 
 can not be considered an unfriendly act, inasmuch as the 
 right to offer mediation implies a corresponding right to 
 refuse it. On condition that this statement should be em- 
 bodied in the minutes, Professor Veljkovich withdrew his 
 proposition. 
 
 But, in order to prevent any unfair advantage being 
 taken of, or derived from, the offer of mediation, the con- 
 ference adopted the rule that the acceptance of mediation 
 can not result, unless there be an agreement to the con- 
 trary, in interrupting, delaying, or hindering mobilization 
 or other measures preparatory to war; and if its accept- 
 ance occurs after the commencement of war, it shall not, 
 unless there be an agreement to the contrary, cause any 
 interruption in the hostilities commenced. This rule 
 was not proposed by the Russian delegation, but was 
 adopted on motion of Count Nigra, who said that it might 
 be regarded as superfluous, since mediation almost al- 
 ways occurs after a special agreement has been made in-
 
 ARBITRATION 271 
 
 eluding all such details ; or that the rule might even be 
 inverted, and provide that "hostilities shall be delayed or 
 suspended as a result of mediation, unless there be an 
 agreement to the contrary." But, he continued, since 
 there are some large powers — ready for instant warfare — 
 which would not adopt the principle of mediation without 
 the proviso contained in the rule, the proviso should be 
 included in the interests of the utmost possible extension 
 of mediation. 
 
 The role of the mediator is confined to the reconcilia- 
 tion of opposing claims and the appeasement of resent- 
 ments which may have arisen between the states in dispute. 
 The statement of this role would seem to be sufficiently 
 broad to include a very large variety of acts on the part 
 of the mediator ; but, to prevent the act of mediation from 
 being continued indefinitely, it was ruled that the func- 
 tions of a mediator shall cease from the moment when it 
 is declared, either by one of the parties to the dispute, or 
 by the mediating power itself, that the means of reconcilia- 
 tion proposed are not accepted. 
 
 The dread of "intervention" on the part of the large 
 powers or the "concert of Europe" made itself evident, 
 at numerous times during the deliberations of the con- 
 ference, in the words of the representatives of the smaller 
 powers. To remove this fear, so far as good offices and 
 mediation were concerned, it was provided that these, 
 whether at the request of the parties to the dispute or 
 upon the initiative of powers which are strangers to ths 
 dispute, have exclusively the character of advice, and never 
 have binding force. When this rule was adopted, it was 
 stated expressly that good offices and mediation partake 
 not at all of the character of arbitration, of authoritative
 
 272 
 
 THE TWO HAGUE CONFERENCES 
 
 intervention, of so-called "armed mediation," or of a 
 hegemony imposing its will, individually or collectively, 
 upon reluctant recipients. And to make assurance doubly 
 sure on this point, the delegation from Servia made a 
 formal statement to the above effect when it voted for the 
 adoption of the rules proposed. 
 
 A most interesting and promising development of the 
 principle of mediation was pointed out in the committee 
 by Mr. Holls, of the United States, and on his motion was 
 adopted by the conference as Article 8 of the convention. 
 This article is as follows: 
 
 "The Signatory Powers are agreed in recommending the applica- 
 tion, when circumstances permit, of special mediation in the following 
 manner: 
 
 "In case of a serious difference endangering the peace, the states 
 at variance shall each choose a power, to whom they shall intrust the 
 mission of entering into direct communication with the power chosen 
 on the other side, with the object of preventing the rupture of peaceful 
 relations. 
 
 "During the period of this mandate, the term of which, unless 
 otherwise stipulated, can not exceed thirty days, the states in dispute 
 shall discontinue all direct communication on the subject of the dis- 
 pute, which shall be regarded as having been referred exclusively to 
 the mediating powers, who shall use their best endeavors to settle the 
 controversy. 
 
 "In case of a definite rupture of pacific relations, these powers 
 shall remain charged with the joint duty of profiting by every oppor- 
 tunity to restore peace." 
 
 Mr. Holls made this important proposition in the Hague 
 Conference entirely on his own responsibility; but it was 
 not a new one, nor did it originate with himself, and in his 
 book on the first Peace Conference at The Hague (pages 
 188-196) he has given an interesting account of the develop- 
 ment of the idea, both in the field of international warfare
 
 ARBITRATION 
 
 2 73 
 
 and in that of private duelling. He advocated his propo- 
 sition before the committee by arguing that, "although in 
 a case where neither arbitration nor mediation seem to 
 be possible remedies, the chances of avoiding a conflict 
 [by another means] may be characterized as minimal, it 
 is none the less true that in the interests of peace and in 
 the light of experience the attempt should be made, es- 
 pecially if the means proposed are of a nature to be useful 
 even in case peace should after all be broken. ... It is 
 an obvious truth which has found expression in private 
 life by the institution of seconds or witnesses, in affairs of 
 honor between gentlemen, that on the eve of what may 
 be a fatal encounter it is best to leave the discussion of the 
 points in controversy to third parties rather than to the 
 principals themselves. The second enjoys the entire con- 
 fidence of his friend, whose interests he agrees to do his 
 best in defending, until the entire affair may be settled ; 
 yet nevertheless, not being directly interested in the con- 
 troversy, he preserves at all times the liberty of a mutual 
 friend, or even of an arbitrator, but without the slightest 
 responsibility. 
 
 "In the second place, I would respectfully submit that 
 every institution or custom which may receive the approval 
 of the Peace Conference, having for its object the intro- 
 duction of a new element of deliberation into the relations 
 between states when the latter have become strained, 
 certainly marks so much progress, and may conceivably 
 be of vital importance at a critical moment. As a matter 
 of fact, and even with the new guarantees for peace which 
 may be offered by the international court and the most 
 solemn and formal declarations in favor of mediation and 
 good offices, the negotiations between two states in con-
 
 274 THE TW0 HAGUE CONFERENCES 
 
 troversy may arrive at a point when it becomes necessary 
 for the representative of the one to say to the representa- 
 tive of the other, 'One more step means war.' If the 
 proposition which is hereby submitted to you should be 
 adopted, it will be possible to substitute for this formula 
 another: 'One step farther and we shall be obliged to 
 appoint a second.' These words, it is true, will have a 
 grave significance, and yet it would seem that they will have, 
 besides other advantages, that of producing all the good 
 effects of a threat of war without having the aggressive 
 character of a menace, pure and simple, or of an ultima- 
 tum. The amour propre of the two parties will remain 
 inviolate, and yet all will have been said which must be 
 said. . . . 
 
 "Finally, and I hope this point is by no means the least 
 important, it is recommended on account of its utility 
 as an agency for peace even in time of war. It is not 
 necessary to enlarge upon this idea. It is admitted that 
 there are many circumstances where the intervention of 
 mediatory powers with recognized authority would suffice 
 to convince one of the belligerent states, if not both, that 
 satisfaction has been obtained, and thus to save many lives 
 and much suffering." 
 
 This proposition was received very favorably by the 
 committee, and recommended to the commission for 
 adoption, with the additional argument — made by Chev- 
 alier Descamps — -that this form of "concerted media- 
 tion" has the great advantage of doing away with the 
 necessity of an agreement, often very difficult to secure, 
 as to the choice of one common mediator. It was also 
 explained that the mediating seconds are left free to enter 
 into negotiations on the subject of the controversy with
 
 ARBITRATION 275 
 
 other powers, a course which may often result in simple 
 mediation and even in arbitration. The commission 
 and conference adopted the proposition unanimously; 
 but Professor de Martens, of Russia, pointed out the fact 
 that, while the first seven articles on good offices and 
 mediation had been agreed upon, this article on special 
 mediation had been recommended. On the demand of 
 M. Vasconcellos, of Portugal, it was also expressly ad- 
 mitted that the rule in regard to the cessation of hostilities 
 or preparation for them, as a result of mediation, should 
 be applicable also to special mediation. 
 
 b. The Conference of 1907 
 
 The Russian programme for the Conference of 1907 
 mentioned first on its list, "Improvements in the rules 
 of the Convention of 1899 regulating the Settlement of 
 International Disputes"; but it specified among these 
 only the Court of Arbitration and the International Com- 
 missions of Inquiry. At an early meeting of the subcom- 
 mission on arbitration, however, Ambassador Choate, 
 of the United States, offered an amendment to the state- 
 ment made in 1899 that the signatory powers consider 
 it useful that one or more powers, strangers to the dispute, 
 should, on their own initiative, and as far as circumstances 
 will allow, offer their good offices or mediation to the states 
 at variance with each other. The amendment was an 
 attempt to increase the frequency of such offers, and pro- 
 vided that after the word useful in the above article should 
 be added the words and desirable. This amendment was 
 adopted without discussion, and was the only amendment 
 proposed to the first seven articles of 1899 which dealt 
 with good offices and ordinary mediation.
 
 276 THE TWO HAGUE CONFERENCES 
 
 The delegation from Haiti proposed to amend the article 
 on special mediation by the requirement that the two 
 seconding powers, selected respectively by the two com- 
 batants, should not act directly, but should choose "a 
 mediator, charged with the duty of preventing the rupture 
 of peaceful relations." It supported this amendment 
 by the argument that special mediation would have more 
 chance of success if, instead of being confided to two 
 powers, it should be referred to a single state chosen under 
 conditions which would insure complete impartiality ; 
 that if the seconding powers are themselves charged with 
 the mediation, they would have, unconsciously perhaps, 
 a certain tendency to consider themselves bound above 
 all to present under the best possible aspect the cause of 
 the states which chose them ; and that not having a third 
 power to decide between them, they would have but 
 little chance of arriving at an agreement, while their dis- 
 agreement would incur the grave risk of giving to the 
 parties in dispute the impression that they were not at all 
 in the wrong ; a third power, on the other hand, not holding 
 its appointment directly from the parties interested, would 
 succeed more easily in making them listen to reason, — 
 or, at least, its decision would seem less partial. 
 
 This amendment was referred to a subcommittee, w ich 
 rejected it on the twofold argument, advanced by M. 
 Asser, of the Netherlands, and Professor de Martens, 
 of Russia : that the rule proposed in 1899 by Mr. Holls 
 had, most unfortunately, not yet been put into practice, 
 and hence its utility could not yet be passed upon ; and 
 that in case of acute conflict, two seconding states friendly 
 to the disputants might possibly render to them signal 
 services, but that little or nothing could be expected of a
 
 ARBITRATION 277 
 
 third power not chosen by the disputants themselves, 
 since, in the midst of a conflict, its voice would not be 
 listened to. This view of the question was supported by 
 the representatives of Germany, Italy, Austria, Great 
 Britain, and the United States, and the committee decided 
 to retain Article 8 intact. 
 
 B. INTERNATIONAL COMMISSIONS OF INQUIRY 
 
 a. The Conference of 1899 
 
 The introduction of International Commissions of 
 Inquiry among the means of preserving the peace led to 
 one of the longest and warmest debates of the conference. 
 They were proposed by the Russian delegation, and were 
 urged by Professor de Martens, of that delegation, who 
 said that they were not an innovation in the law of nations ; 
 that they had already proven their efficacy, especially in dis- 
 putes arising on or near international boundaries; that 
 their utility is twofold : first, they seek out and make 
 known the truth about a dispute arising suddenly and from 
 obscure or unknown causes; and, second, they afford time 
 for the subsidence of passions and for the transition of the 
 acute stage of the dispute. 
 
 The Russian proposal was that the conference should 
 bind the signatory powers to establish such a commission 
 for the purpose of ascertaining and declaring the circum- 
 stances which give rise to a dissension, and of clearing up 
 all the questions of fact by an impartial and thorough 
 examination on the spot. The committee, in the absence of 
 Professor dc Martens, and on the advice of Professor Lam- 
 masch, of Austria, and Mr. Holls, of the United Stales,
 
 278 THE TWO HAGUE CONFERENCES 
 
 decided that for the conference to agree to the establish- 
 ment of such commissions would be going too far in the 
 direction of obligatory arbitration and an infringement 
 upon national sovereignty; it agreed, therefore, that an 
 article should be adopted recommending to the govern- 
 ments concerned in the dispute to establish such com- 
 missions. At the next meeting of the committee, Professor 
 de Martens was present, 1 and after stating the advantages 
 of commissions of inquiry, as mentioned above, he pointed 
 out the fact that their role is solely to make a report and 
 not to render decisions in any way binding upon the parties 
 in dispute; and that in accordance with the Russian 
 proposal they were to act only when the dispute could 
 not be settled by diplomatic means, and when "neither 
 the honor nor the vital interests of the states at variance 
 are involved." For the conference to establish these 
 commissions, then, he argued, would not be obligatory 
 arbitration, nor an attack upon national sovereignty; 
 whereas, for it to confine itself to expressing a platonic 
 desire — ■ to recommending the appointment of these com- 
 missions — would result in their entire neglect. 
 
 A general discussion followed Professor de Martens's 
 animated speech, in the course of which a compromise 
 was agreed upon, namely, that the conference should 
 bind the signatory powers to establish commissions of 
 inquiry, in so far as circumstances will permit. A motion 
 was made to omit the other qualifying clause, namely, 
 "neither the honor nor the vital interests of the states 
 at variance are involved." But in view of the facts that 
 
 1 His absence had been due to the necessity of his going to Paris to act 
 as President of the High Court of Arbitration between Great Britain and 
 Venezuela.
 
 ARBITRATION 279 
 
 some delegations had manifested much anxiety as to the 
 commissions and their power, and that one of them had 
 proposed to add still another qualifying clause, namely, 
 "if the powers find it advantageous to do so," it was 
 decided to retain the clause in regard to "honor and vital 
 interests," as well as that in regard to "circumstances 
 permitting." 
 
 The anxiety of various delegations in regard to the com- 
 missions of inquiry, which had become evident to the 
 committee, had expressed itself in several arguments 
 against them. It was said, on the one hand, that they 
 were a long step in the direction of obligatory arbitration ; 
 on the other, that, if the report made by them on a dispute 
 should prove unfavorable to a large power at variance 
 with a small one, the large power would not consent to 
 arbitration, and thus they would be an obstacle to the 
 extension of voluntary arbitration ; again, that they were 
 only the prelude to a series of acts which would bind the 
 powers tightly together, to the disadvantage of the smaller 
 ones. "The delegates who fear commissions of inquiry," 
 said Baron d'Estournelles, of France, "advance fears, 
 and not arguments, against them, and that is why they 
 can not be convinced. Their fears are both moral and 
 material. They are afraid, first, of seeing the amour 
 propre of their country wounded, for these commissions 
 would reveal defects of administration, — a humiliation 
 which they dread. Besides, they fear that as a result of 
 these revelations they will incur the resentment of public 
 opinion. There is, then, a kind of natural coalition be- 
 tween states more or less badly administered. This is 
 the eternal struggle of darkness with daylight, and it is 
 precisely for that reason that we shall have the utmost
 
 280 THE TWO HAGUE CONFERENCES 
 
 difficulty in triumphing over the resistance opposed to the 
 commissions. It is necessary to make up our minds to 
 that fact, and to make concessions for the sake of success." 
 The committee accepted this view of the situation ; but 
 at the instigation of its chairman, M. Bourgeois, of France, 
 decided that it would yield only in the last extremity, 
 and after a debate which should serve the purpose of en- 
 lightening public opinion as to the motives of both sides. 
 In the subcommission's debate on the committee's 
 report, M. Beldiman, of Roumania, was the leader of the 
 opposition to the commissions of inquiry, and in a long 
 and earnest address stated some of the reasons for this 
 opposition and strove to justify Roumania, Servia, and 
 Greece for giving voice to it. After stating the desires 
 and the needs of Roumania for peace, he opposed the 
 proposed commissions of inquiry as a means of preserving 
 it, for the reasons, first, that a resort to them would be 
 practically compulsory, since it is not always suitable or 
 honest to invoke on every occasion a country's "honor and 
 vital interests," in order to prevent an inquiry into matters 
 of grave political importance ; second, that an estimate 
 of "honor and vital interests" would vary greatly as 
 between different states, and some would be always willing 
 to use this qualification as a pretext for escaping investiga- 
 tion; third, that the three small powers referred to have 
 gained their complete independence at the price of many 
 hardships and sacrifices, and it would not become an 
 international conference of the nations, some of which 
 aided so greatly in securing that independence, to make 
 their position less favorable than it is at present when 
 commissions of inquiry may be resorted to or not entirely 
 at will.
 
 ARBITRATION 281 
 
 M. Veljkovitch, of Servia, added to the above argu- 
 ments the statement that at the bottom of every request 
 for an international commission of inquiry there is a kind 
 of doubt as to the impartiality of the investigation made 
 by the national authorities of the other state, while the 
 acceptance of the proposal to name an international com- 
 mission of inquiry implies a willingness to subject the 
 action of its own authorities, at least in a given case, to 
 a kind of international control. M. Veljkovitch argued 
 also that in a dispute between a large power and a small 
 one, the large power would not always be disposed to 
 concede to the small power the same susceptibilities in 
 the matter of "honor and vital interests" which it would 
 certainly not fail to claim for itself; hence the smaller 
 powers would sometimes be led into humiliating dis- 
 cussions as to whether their national honor was really 
 concerned in any given case, while it would usually suffice 
 for the larger powers to invoke the argument of "national 
 honor" in order to place the smaller powers in the moral 
 impossibility of decently provoking a discussion on the 
 subject. The same argument held true, he asserted, — 
 the same inequality between the larger and the smaller 
 powers would exist as a result, — of the other qualifying 
 clause, "as far as circumstances permit." The smaller 
 and weaker states are sometimes compelled to submit 
 to inequality which exists in fact, he added; "but it is 
 absolutely impossible for us to consecrate this inequality 
 by law and to seal it by our signatures in an interna- 
 tional convention. . . . An institution which would only 
 strengthen the strong as against the small and the feeble 
 would be directly opposed, not only to the tendency of 
 international law, but also to every idea of justice and
 
 282 THE TWO HAGUE CONFERENCES 
 
 equity in general." The representative of Greece added 
 no argument to the above, but stated emphatically his 
 adhesion to them, and his opposition to the proposed com- 
 missions of inquiry. On the other hand, the representa- 
 tives of two other small powers, Bulgaria and Siam, 
 warmly advocated their adoption, in the interests of truth, 
 of international peace, and of the smaller powers them- 
 selves. 
 
 But it was obvious that unanimity, so greatly to be 
 desired and, indeed, so necessary in effective international 
 agreements, could not be secured on the articles as pro- 
 posed ; and it was generally believed that the opposition 
 of the three smaller powers was secretly supported by one 
 or more of the larger powers. The skilled diplomatists 
 of the conference, accordingly, first made an appeal for 
 harmony and unanimity, and then made concessions. 
 Chevalier Descamps appealed to that sincere devotion 
 to the cause of international peace and good-fellowship 
 which he said he believed was strong in the mind of every 
 delegate present, and which was not at all inconsistent 
 with the ardent love of country that had been expressed. 
 Professor de Martens made a masterly defense of inter- 
 national commissions of inquiry, and then an eloquent 
 appeal in behalf of internationalism as opposed to nation- 
 alism, humanity as opposed to selfishness, the future as 
 opposed to the present and the past. 
 
 "Gentlemen," he said, "if in private life he is happy who sees 
 everything rose-colored, in international life he is great who sees 
 everything in the large. One must not remain in the lowlands when 
 one wishes to enlarge his horizon ! Why has little Holland played 
 so great a role in history? Why are its ships and commerce found 
 on every ocean ? It is because the Hollanders did not remain behind
 
 ARBITRATION 283 
 
 their dunes : they climbed to their tops ; they breathed in the air of 
 the open sea; they saw before them a vast horizon, and they boldly 
 entered upon the paths which opened before them and which placed 
 them in direct communication with all the nations of the world. This 
 is the explanation of that spirit of universality which has always dis- 
 tinguished the painters, the authors, and the statesmen of this small 
 country. 
 
 "But, gentlemen, Holland has done still more. In its struggle 
 against the invasion of the sea, it made canals by whose means its 
 territorial waters and those of the sea are intermingled and assimilated, 
 just as the ideas, the institutions, and the manners of the Dutch nation 
 have been developed, clarified, and crystallized by their international 
 relations. May it not be said, to continue the comparison, that before 
 the common horizon of humanity, their national ideas have been en- 
 larged and harmonized? Let us, then, follow the example of Hol- 
 land : let us climb upon our dikes, enlarge our horizon, open our canals, 
 and prove that they were not constructed with a selfish object or in a 
 spirit of exclusiveness. Let us tear down the barriers erected by 
 prejudice, and then we shall see, prevailing in every discussion, a spirit 
 of harmony and of mutual confidence. Concord, gentlemen, should 
 be the motto and the aim of our labors ! " 
 
 M. Beldiman was at first inclined to resent this appeal 
 as too personal to himself and as a reflection on his country ; 
 but he was assured by M. Bourgeois, president of the sub- 
 commission, that it was meant solely as an appeal to all 
 the members of the conference to rise above their own 
 frontiers and to consider only the bounds of humanity. 
 And when M. Bourgeois invited the delegates of Rou- 
 mania, Servia, and Greece to attend the next meeting of 
 the special committee and suggest amendments to the 
 proposed rules, the opposition to the adoption of inter- 
 national commissions of inquiry under any conditions 
 was entirely disarmed. The three members of the op- 
 position attended the next meeting of the committee, and 
 were met in such a cordial spirit of conciliation that two
 
 284 THE TWO HAGUE CONFERENCES 
 
 of them, the delegates from Servia and Greece, soon 
 reported the adhesion of their governments to the com- 
 mittee's revised statement. This statement was a return 
 towards the one first adopted by the committee, namely, 
 that " the signatory powers judge it useful that international 
 commissions of inquiry shall be established"; and since 
 this left their establishment purely voluntary on the part 
 of the powers in dispute, the committee omitted the two 
 qualifying clauses, "involving neither the honor nor the 
 vital interests of the powers concerned," and "in so far as 
 circumstances permit." 
 
 But Roumania still held out, and at the next meeting 
 of the subcommission, M. Beldiman, instead of reporting 
 his government's adhesion to the committee's new state- 
 ment, presented one drafted by the Roumanian govern- 
 ment itself. In doing this, he said that the Roumanian 
 proposition did not differ essentially from the committee's 
 revised statement, except that it restored the two quali- 
 fying clauses; and he hinted that the acceptance of inter- 
 national commissions of inquiry under any conditions was 
 as much of a concession as his government would make. 
 
 In the interest of unanimity, and to secure any agreement 
 on the vexed subject, Sir Julian Pauncefotc and Count 
 Nigra promptly moved that the Roumanian proposition 
 be adopted ; and this motion was carried by unanimous 
 vote. Thus, international commissions of inquiry were 
 admitted to the Convention of 1899 for the Peaceful 
 Adjustment of International Differences, under the fol- 
 lowing conditions : In differences of an international 
 nature involving neither honor nor essential interests, 
 and arising from a difference of opinion on matters of 
 fact, the signatory powers judge it useful that parties
 
 ARBITRATION 285 
 
 who have not been able to come to an agreement by 
 diplomatic negotiations should institute, as far as circum- 
 stances permit, an International Commission of Inquiry, 
 charged with aiding in the settlement of disputes by an 
 impartial and thorough investigation and statement of 
 the facts (Article 9). 
 
 The rules regulating these commissions of inquiry, 
 when once resorted to, were condensed within five articles, 
 which caused but little discussion or opposition. They 
 provide, first, that commissions shall be constituted by a 
 special agreement between the parties to the controversy, 
 which shall specify also the facts to be examined, the 
 extent of the powers of the commissioners, and the method 
 of procedure ; if this last is not provided for in the agree- 
 ment, the commission itself shall determine it. 
 
 M. Eyschen, of Luxemburg, proposed this rule in regard 
 to the method of procedure. His first proposition was that 
 the rules of procedure adopted for international arbitra- 
 tion should be applied also to international commissions of 
 inquiry. But this proposition was rejected, for the reason 
 that the function of commissions of inquiry, being simply 
 to ascertain and declare facts, is very different from that 
 of arbitration, which is to pass upon both law and fact. 
 But M. Eyschen insisted that some regulation for the 
 procedure of commissions should be given or indicated, 
 if they were to render the services justly to be expected 
 of them, and that this is especially true in the frequent case 
 where the commissions would be, not jurisconsults, ac- 
 customed to technicalities of procedure, but men who hap- 
 pen to be on the distant scene of the dispute, and who 
 must act quickly so as to prevent traces of the truth of the 
 matter from being lost. The justice of these observations
 
 286 THE TWO HAGUE CONFERENCES 
 
 was admitted, and the simple rule as to procedure stated 
 above was adopted, together with the express proviso 
 that the inquiry shall take place contradictorily ; that is, 
 each party shall be informed of all the statements made 
 by its opponent, and both sides shall be heard in the 
 inquiry. 
 
 The method adopted for choosing the commissioners 
 of inquiry was the same as that adopted for the choice 
 of arbitrators. This permits the disputants themselves 
 to agree upon a method of selection. But, in default of 
 such agreement, it is provided that each party shall ap- 
 point two commissioners and these shall together choose 
 an umpire ; in case of an equal division of votes, the choice 
 of an umpire shall be intrusted to a third power, selected 
 by the parties by common accord ; if no agreement is 
 arrived at on this point, each party shall select a different 
 power, and the choice of an umpire shall be made by 
 agreement between the powers thus selected. Mr. 
 Holls proposed that instead of having only one umpire, 
 supposedly neutral and impartial, selected by the four com- 
 missioners appointed by the two disputants, there should 
 be three such umpires. In support of this proposition, 
 he argued that, in case of a tie vote between the four com- 
 missioners, the deciding vote of one neutral umpire would 
 not be so influential as would that of three, or two out of 
 three. But the proposition was not accepted, chiefly 
 because a commission of seven would seem rather elab- 
 orate and expensive for the settlement of many minor 
 difficulties. 
 
 The Russian rules included one binding the parties in 
 dispute to furnish the commission of inquiry with "all 
 the means and all the facilities necessary for a profound
 
 ARBITRATION 287 
 
 and conscientious study of the facts in the case." This 
 was objected to on the ground that a commission might 
 demand, innocently or with hostile intent, information 
 relating to the security of one of the states in dispute. 
 It was therefore stated that "the powers in dispute agree 
 to supply the commission, to the largest extent that they 
 consider it possible, with all the means and all the facilities 
 necessary to a complete understanding and exact judg- 
 ment of the facts in question " 
 
 It is further provided that the commission of inquiry 
 shall present to the parties in dispute its report, signed 
 by all the members of the commission ; and that this 
 report, limited to a statement of the facts, shall in no way 
 have the character of an arbitral award, and shall leave 
 to the powers in dispute entire liberty as to the action 
 which shall follow the said statement of facts. 
 
 This last clause of the rule was purposely left indefinite 
 so as to emphasize again the purely voluntary character 
 of international commissions of inquiry. The clause as 
 proposed by the Russian delegation left the powers in 
 dispute entire liberty "either to conclude an amicable 
 agreement based on the said report, or to agree to proceed 
 to arbitration, or, finally, to resort to acts of force usual in 
 mutual relations between nations." Baron d'Estournelles 
 moved to retain only the first two alternatives and to 
 reject the last, for the reason that it was unnecessary and 
 unsuitable to reserve explicitly the right of war in a con- 
 vention adopted by a conference of peace. Professor de 
 Martens replied that the last alternative did not imply 
 war, but only reprisals ; but the committee adopted Baron 
 d'Estournelles's motion. In the discussion in the sub- 
 commission, Dr. Stancioff, of Bulgaria, proposed to make
 
 288 THE TWO HAGUE CONFERENCES 
 
 the two alternatives: "either to conclude an amicable 
 agreement based on the said report, or to consider the 
 report null and void." The subcommission decided, 
 however, that there was no reason for emphasizing thus 
 forcibly a liberty which was not at all contested ; and on 
 the suggestion of M. Odier, of Switzerland, all definite 
 alternatives were omitted, and the rule was given its present 
 indefinite ending. 
 
 b. The Conference of 1907 
 
 The Russian programme for 1907 specified the rules 
 of 1899 concerning international commissions of inquiry 
 as needing revision ; and at the first meeting of the sub- 
 commission in July, 1907, amendments to them were 
 offered by the delegations of France, Great Britain, Italy, 
 the Netherlands, Russia, and Haiti. 
 
 Haiti's proposition, that the signatory powers should 
 "equally suggest to the parties in dispute a recourse to 
 international commissions of inquiry," was rejected by 
 the committee of examination for the nominal reason that 
 it presupposed the adoption of Haiti's amendment to 
 Article 8, concerning special mediation ; but why this 
 reason should have been advanced, except because of the 
 word "equally," which could have been readily discarded, 
 is not apparent. Haiti's argument in support of its prop- 
 osition was that two powers in dispute might hesitate, 
 for highly commendable reasons, to suggest, themselves, 
 the appointment of a commission, but would welcome 
 the suggestion when coming from one or more disinterested 
 third parties; moreover, Article 27 of the Convention of 
 1899 authorizes the signatory powers to remind powers
 
 ARBITRATION 289 
 
 in dispute that the court of arbitration is open to them. 
 Despite this reasoning, Haiti's proposition was rejected, 
 and the real reason therefor would seem to have been a 
 determination that commissions of inquiry should not 
 become one whit more obligatory than they were in 1899. 
 
 The Russian and Netherlands delegations proposed that 
 the signatory powers should "agree to establish" inter- 
 national commissions of inquiry, instead of merely de- 
 claring that they judged their establishment to be useful. 
 This was a return to the rejected proposal of 1899, and at 
 once called forth vigorous and general opposition. Pro- 
 fessor de Martens, of Russia, urged in support of the 
 proposition that it retained the two qualifying clauses "in- 
 volving neither honor nor independence" and "if cir- 
 cumstances permit"; that it added no element of juristic 
 obligation, but merely recommended emphatically the 
 use of such commissions whenever possible ; and that 
 the rule of 1899 would positively exclude, by its phrase- 
 ology, cases in which honor and essential interests were 
 involved, whereas his proposition would permit, though 
 not require, such cases to be settled by the commissions. 
 M. de Beaufort, of the Netherlands, supported the Russian 
 view of the question, and desired that the rule should be 
 so phrased as to favor the use of commissions in every 
 possible case, without, however, making them compulsory. 
 
 The opposition to the Russian proposal was very em- 
 phatic. Sir Edward Fry, of Great Britain, insisted that 
 it would give an obligatory character to them under cer- 
 tain conditions, and that only by preserving their purely 
 voluntary character could their usefulness be increased or 
 even retained ; he also said that the case of the Hull fish- 
 ermen, in 1905, proved that the rule as at present stated
 
 290 THE TWO HAGUE CONFERENCES 
 
 does not prevent a resort to international commissions of 
 inquiry for cases of grave import and even for those 
 which affect national honor and essential interests. Baron 
 von Bieberstein, of Germany, opposed the Russian propo- 
 sition for the reason that its adoption would seem to give 
 an obligatory character to the commissions, since the 
 Conference of 1899 had rejected the same proposition 
 because it desired to emphasize their purely voluntary 
 character; and that it would in fact, from the juristic 
 point of view, create a juris vinculum, that is, a formal 
 engagement which would be binding in all cases where 
 honor and independence are not involved and where 
 circumstances permit. M. Beldiman, of Roumania, the 
 champion of absolute freedom in 1899, again asserted, 
 very briefly, but emphatically, his opposition to any 
 rule even seemingly obligatory. Delegates from Turkey, 
 Greece, Austria, and Servia voiced their opposition to 
 any appearance of obligation. M. Ruy Barbosa, of 
 Brazil, objected to the Russian proposition's substitution 
 of the qualifying clause, "involving neither honor nor in- 
 dependence," for "involving neither honor nor essential 
 interests"; and he, too, insisted upon the retention of the 
 purely voluntary character of the commissions. 
 
 After this almost universal opposition in the subcom- 
 mission, the Netherlands delegation withdrew its propo- 
 sition in the committee of examination ; but Professor 
 de Martens made another attempt to secure the adoption 
 of the Russian proposition. He insisted that the present 
 wording of the rule can paralyze all action on the part of 
 mediating powers which may judge it useful for inter- 
 national commissions of inquiry to be resorted to by con- 
 flicting states. But the fears of the smaller powers, as
 
 ARBITRATION 291 
 
 manifested in 1899 and again in the recent subcommis- 
 sion's debate, were recalled, and the large powers, too, were 
 a unit in opposing the Russian amendment. Admitting 
 the impossibility of securing his first amendment's adop- 
 tion, Professor de Martens next moved to add to the 
 commissions' duty of "aiding in the settlement of dis- 
 putes by an impartial and thorough investigation and 
 statement of the facts," the further duty of "fixing, if 
 necessary, the responsibility for the facts." He explained 
 that he did not desire to identify commissions of inquiry 
 with courts of arbitration, but merely to have the com- 
 missions state the responsibility which was logically 
 evolved from an impartial statement of the facts in the 
 case. But here, again, he met with the emphatic oppo- 
 sition of the representatives of five of the great powers, and 
 the Russian amendments to Article 9 were withdrawn. 
 
 The only amendment which the committee would accept 
 for the much disputed Article 9 was to add to the phrase 
 "the signatory powers judge it useful" the words "and 
 desirable" — that international commissions of inquiry 
 should be resorted to. These two words (" and desirable") 
 had been adopted unanimously, as we have seen, as an 
 addition to the rule regarding good offices and mediation 
 (Article 3), and it was agreed that they should be added 
 wherever in the convention occur the words "judge 
 it useful." 
 
 The other amendments to the articles on international 
 commissions of inquiry had nothing to do with questions 
 of principle, but only with practical arrangements. Amend- 
 ments were offered to each of the other five original articles 
 (Nos. 10 to 14), and twenty-two new articles were adopted 
 for the purpose of supplying a ready-made code of pro-
 
 292 
 
 THE TWO HAGUE CONFERENCES 
 
 cedure which commissions might make use of, and which 
 might facilitate both the work of commissions and the 
 resort to them. 
 
 The French and British propositions were so much 
 alike that they were combined in one project, which was 
 made the basis of discussion and revision. Professor 
 de Martens, and M. Fusinato, of Italy, criticised the 
 Franco-British amendments as being too numerous, — 
 an entire code of procedure, in contrast to the two or three 
 rules adopted in 1899; they argued, too, that so many 
 rules would endanger a commission's report being declared 
 null and void because of the infraction of one of them. 
 But the committee accepted Sir Edward Fry's view that 
 experience, in the case of the Hull fishermen before the 
 Commission of Paris, had shown the necessity of all the 
 rules proposed, and the loss of precious time at a critical 
 period in drawing them up and agreeing upon them; 
 that these rules were not to be imposed upon commissions 
 of inquiry, but merely recommended to them. Moreover, 
 added M. Bourgeois, of France, the infraction of one of 
 the rules made by a treaty instituting a commission of 
 inquiry could quite as readily be made a pretext for nul- 
 lifying the commission's report as could the infraction of 
 one proposed by the conference. 
 
 The few rules of procedure adopted in 1899 were only 
 slightly modified. The former method of appointment 
 of commissioners was retained ; but to it was added the 
 rule that the umpire shall preside over the commission, or, 
 when the commission does not include an umpire, it shall 
 appoint its own presiding officer. 
 
 To the former statement that the powers in dispute agree 
 to supply the commission, as fully as they may consider
 
 ARBITRATION 293 
 
 it possible, with all means and facilities necessary to a 
 complete understanding and exact judgment of the facts 
 in question, the further statement was added that the 
 powers in dispute agree to use the means at their disposal, 
 in accordance with their domestic legislation, to procure 
 the appearance of witnesses or experts living upon their 
 territory and cited before the commission, and that, if 
 such witnesses and experts can not appear before the 
 commission, the powers will have them examined before 
 the competent authorities. This agreement gives no 
 authority in regard to the compulsion of witnesses and 
 experts to the commission, but leaves it all to the powers 
 on whose territory they may be living (se tronvant) ; but, 
 on the other hand, whatever be their nationality, and 
 although they be merely temporary residents or exiles on 
 the territory of one of the powers, that power is not only 
 authorized, but is held to be morally and juristically bound, 
 to provide for their appearance and testimony. 
 
 One of the rules of 1899 provided that the international 
 commission should present to the powers in dispute its 
 report, signed by all the members of the commission. 
 This rule was revised so as to provide that the report shall 
 be adopted by majority vote, and signed by all the members 
 of the commission ; if one of the members refuses to sign, 
 the fact will be mentioned, but the majority's report will 
 be considered valid. 
 
 The Russian delegation proposed, and the United States 
 delegation supported, the revision of the rule of 1899 
 which provided that the commission's report, limited to a 
 statement of the facts, shall in no way have the character 
 of an arbitral award, but shall leave the powers in dispute 
 entire liberty as to the action which shall follow the said
 
 294 THE TWO HAGUE CONFERENCES 
 
 statement of fact. The proposed revision provided that 
 the powers in dispute, having taken cognizance of the 
 statement of facts and responsibilities issued by the com- 
 mission, are free either to conclude an amicable arrange- 
 ment, or to resort to the Permanent Court of Arbitration 
 at The Hague. This proposition was opposed by the 
 committee of examination for the reason that it would 
 leave arbitration as the only alternative to an amicable 
 settlement of the dispute, and this semi-compulsory fea- 
 ture, it was feared, would prevent a frequent resort to 
 commissions of inquiry. 
 
 The twenty-two new rules adopted by the conference 
 met with very little opposition or discussion. One of these, 
 that the questioning of witnesses shall be conducted by 
 the president of the commission, or, for supplementary 
 information, by its members, met with the suggestion from 
 Sir Edward Fry, and Dr. Scott, of the United States, that 
 the Anglo-Saxon system of direct questioning of witnesses 
 by the agents of the parties to the dispute should be sub- 
 stituted for it. But the committee decided that an Anglo- 
 Saxon, would be but little embarrassed by being ques- 
 tioned by the president of a commission, while a French, 
 Austrian, or German witness might be very much dis- 
 concerted by having to reply to questions put directly by 
 an advocate, since the system of " cross-examination " was 
 foreign to continental usage. The agents are permitted, 
 however, to request the president to ask the questions 
 they desire. 
 
 One of the new rules which gave rise to some discussion 
 provides that the sessions of the commission shall not be 
 public and the minutes and documents shall not be pub- 
 lished, unless so decided by the commission with the con-
 
 ARBITRATION 
 
 2 95 
 
 sent of the parties in dispute. This non-publicity was 
 justified for the reason that witnesses might sometimes 
 be annoyed as a result of publicity, and that it would be 
 always easier for a commission to decide upon public 
 sessions, if so desired, than to make its sessions secret. 
 
 Among the new rules adopted with no, or but little, dis- 
 cussion may be noted the following : The designation of 
 The Hague as the place of meeting for all international 
 commissions of inquiry, unless some other place is agreed 
 upon by treaty between the parties in dispute ; the desig- 
 nation of the International Bureau of the Permanent 
 Court of Arbitration as the secretariat for all commis- 
 sions which meet at The Hague, and as the depositary of 
 the archives after the inquiry is ended ; and the permis- 
 sion to commissions to remove temporarily to those places 
 where more information may be secured, and to apply 
 directly to neutral powers for permission to come upon 
 their territory if necessary. 
 
 The articles reported by the committee and subcommis- 
 sion to the commission and conference were adopted 
 unanimously and without discussion. But on their adop- 
 tion by the commission, M. Beldiman said that on the eve 
 of a wider debate upon the principle of obligation in the 
 matter of international arbitration, it seemed to him "<fe- 
 sirable" to complete, by a simple statement of facts, the 
 history of the article which introduced among agencies 
 for peace international commissions of inquiry (Article 
 9). He then recalled the famous debate of 1899 and 
 Roumania's part in it, and said : 
 
 "The report addressed to their government by the delegates of the 
 French Republic, whom we are happy to see with us to-day also, con- 
 tained an echo of the lively debate which preceded the adoption of this
 
 296 THE TWO HAGUE CONFERENCES 
 
 article, and, according to the text published in the 'yellow book,' 
 this report explains the attitude taken in the matter by Greece, Rou- 
 mania, and Servia in these words: 'They (that is to say, the delegates 
 of those states) plead in fact the cause of bad government.' ... It 
 is proper to state simply for the sake of historic truth that the attitude 
 taken in 1899, in this question of principle, by Greece, Roumania, and 
 Servia, could have been interpreted at that time as having its source 
 rather in the special conditions which exist in our Eastern countries. 
 "To-day this principle has been unanimously admitted, and it has 
 not even been seriously discussed by the present conference. From 
 the first, the propositions of France and Great Britain relative to 
 international commissions of inquiry have retained, without a single 
 modification, the text of Article 9, just as it was voted in 1899. The 
 delegation of Russia has come to its support, and it has been stated 
 that there is complete unanimity on the purely voluntary character 
 which has been retained for this international institution. It is 
 proper, then, to assert that, as far as this matter is concerned, it can not 
 be said that there has been progress during the last eight years in 
 the principle of obligation." 
 
 M. de Martens, in reply to this speech, reaffirmed the 
 unanimity of the conference on the purely voluntary 
 character of international commissions of inquiry, but 
 said that this very fact made even plainer the defective 
 phraseology of Article 9. "The powers are sovereign," 
 he declared, "and their right of having recourse to these 
 commissions is not subject to a single limitation. But 
 Article 9 is formulated in such a way as to seem to forbid 
 recourse to these commissions in cases where honor and 
 essential interests are involved. ... Is this phraseology 
 really true? Does it reflect accurately the condition of 
 affairs before the Commission of Paris on the incident at 
 Hull, in which the 'essential interests,' if not 'the honor,' 
 of two great powers were involved ? The conference has 
 profited by the experience of the Commission of Paris
 
 ARBITRATION 
 
 297 
 
 only to elaborate a code of procedure which, in my opinion, 
 is really too detailed ; but, on the other hand, it seems to 
 have desired to ignore the most remarkable historic les- 
 son which is taught by this celebrated case : for, in spite 
 of the Inquest of Hull, it has not been willing to declare 
 'useful and desirable' the recourse to international com- 
 missions of inquiry in every occurrence." In conclusion, he 
 said that he had no proposition to make at that late date 
 in the conference's labors; that he merely desired to ex- 
 press once more his point of view, which he believed to 
 conform to the teachings of history. 
 
 C. OBLIGATORY ARBITRATION 
 
 1. Arbitration in General 
 a. The Conference of i8gg 
 
 The Russian Emperor's rescript of August, 1898, con- 
 tained the oft-quoted words : 
 
 "The maintenance of general peace, and the possible reduction of 
 the excessive armaments which weigh upon all nations, present them- 
 selves, in the existing condition of the world, as the ideal towards 
 which the endeavors of all governments should be directed. ... In 
 the course of the last twenty years the longings for a general peace 
 have become especially pronounced in the consciences of civilized 
 nations. The preservation of peace has become the object of inter- 
 national politics; in its name, great states have made powerful alli- 
 ances; for the better guarantee of peace, they have developed, in 
 proportions hitherto unprecedented, their military forces, and still 
 continue to increase them without shrinking from any sacrifice. 
 All these efforts, however, have not yet been able to bring about the 
 beneficent results of the desired pacification."
 
 298 THE TWO HAGUE CONFERENCES 
 
 The Czar therefore proposed the meeting of an interna- 
 tional conference, which, he said, "should be, by the help 
 of God, a happy presage for the century which is about to 
 commence," and which should have, as one of its prime 
 objects, the discussion of mediation and voluntary arbi- 
 tration as means of preventing armed conflicts between 
 nations. 
 
 M. Staal, of Russia, president of the first conference, 
 asserted in his opening address that the prevention of 
 conflicts by generalizing, by codifying, the practice of 
 arbitration and mediation was the very essence of the con- 
 ference's task. "Diplomacy," he said, "long ago ad- 
 mitted, among the means of preserving peace, a resort to 
 arbitration and mediation ; but it has not defined the con- 
 ditions of their employment, nor determined the cases to 
 which they are applicable. It is to this high task that we 
 are about to devote our efforts, sustained by the conviction 
 that we are laboring for the welfare of all mankind and 
 in the path marked out for us by preceding generations." 
 
 At the first meeting of the Arbitration Commission, 
 the Russian delegation presented a series of eighteen 
 articles, six of which were to regulate good offices and 
 mediation, five were to be applied to international com- 
 missions of inquiry, and seven were to provide for the 
 scope of arbitration and for arbitral procedure. 1 In 
 presenting these articles and an explanatory note attached 
 to them, the delegation pointed out the difference in scope 
 between voluntary and obligatory arbitration. Volun- 
 tary arbitration, it said, is applicable to every kind of 
 international dispute whatsoever, for it is resorted to only 
 
 1 The court of arbitration was proposed later, as we shall see, by the British 
 delegation,
 
 ARBITRATION 299 
 
 after an agreement between the parties in dispute to sub- 
 mit the case in question to this method of settlement. 
 Obligatory arbitration, on the other hand, does not 
 depend upon the special consent of the parties concerned. 
 Hence it goes without saying that obligatory arbitration 
 can not be applied to all cases and to all kinds of disputes. 
 There is no government which would consent to accept 
 in advance the obligation of submitting to the decision of 
 a tribunal of arbitration every difference arising within 
 the international domain, if it affected the national honor 
 of the state, its superior interests, and its imprescriptible 
 welfare. At present, the mutual rights and duties of 
 states are determined, to a noteworthy extent, by the sum 
 of what are called "political treaties," which are nothing 
 else than the temporary expression of casual and transi- 
 tory relations between diverse national forces. . . . The 
 conflicts which arise within the field of political treaties 
 are connected, in the majority of cases, not so much with a 
 difference of interpretation of such or such law, as with 
 amendments to it or with its complete abrogation. The 
 powers which take an active part in the political life of 
 Europe can not, then, submit conflicts arising within the 
 field of political treaties to examination by a tribunal of 
 arbitration in whose eyes the law established by treaty 
 would be quite as obligatory, quite as inviolable, as a law 
 established by legislation would be in the eyes of any na- 
 tional tribunal. From the point of view of practical poli- 
 tics, then, the impossibility of universal obligatory arbi- 
 tration would appear to be evident. But from another 
 point of view, it is beyond doubt that international differ- 
 ences often arise, to whose solution arbitration can be 
 always and absolutely applied ; these are differences which
 
 300 
 
 THE TWO HAGUE CONFERENCES 
 
 concern exclusively special points of law, and which touch 
 neither the vital interests nor the national honor of states. 
 It can not but be hoped that the Peace Conference will 
 prescribe arbitration as the permanent and obligatory 
 means of settlement for this latter class of differences. 
 
 This Russian point of view was shared by the conference 
 as a whole; universal obligatory arbitration was con- 
 sidered utterly impossible under existing conditions, and 
 no delegation so much as proposed it. On the other hand, 
 the conference, almost unanimously, shared the desire to 
 relegate certain classes of disputes to the invariable solu- 
 tion of arbitration ; but the twofold question, as to which 
 classes of disputes these should be, and as to the obliga- 
 tory character of the arbitration, proved to be one of much 
 difficulty and diversity of opinion. 
 
 The esteem in which the conference held arbitration as 
 a solution of international differences was evident on nu- 
 merous occasions and in several articles adopted by it. 
 
 Chevalier Descamps, of Belgium, said in his report on 
 arbitration, which was adopted unanimously, that arbi- 
 tration belongs par excellence to the organic institutions of 
 juristic peace between nations. "It has proved its value," 
 says the report ; "it has increased more and more in inter- 
 national usage. It has all the sympathies of the present ; 
 it has the richest promises for the future. The time 
 seems to have come for giving it, together with a broader 
 scope and a firmer organization, the place in international 
 law assigned it by the progress of international relations 
 and the juristic conscience of civilized peoples. . . . Ar- 
 bitral justice does not have in international law the charac- 
 ter which it has in national law. In the latter, it would 
 seem like a kind of derogation from the public organization
 
 ARBITRATION 301 
 
 of justice; in international law, it supplies the place of all 
 jurisdiction and it tends directly to prevent a recourse to 
 force. Arbitral justice is not a thoughtless abdication, 
 but on the contrary an enlightened use, of the sovereignty 
 of states. It presents itself to us as the procedure most 
 consistent with reason, humanity, and the true interests of 
 the parties in dispute. . . . The farther law progresses 
 and penetrates within the society of nations, the more arbi- 
 tration is shown to be united to the structure of that 
 society. A solution, at once pacific and juristic, of inter- 
 national differences, it presents itself to us as the proper 
 instrument for assuring the right of each while safeguard- 
 ing the dignity of all." 
 
 The preamble of the Convention for the peaceful 
 Adjustment of International Differences, which was also 
 adopted unanimously, emphasizes the opinion of the 
 conference as to the value of arbitration, in the following 
 phrases : 
 
 "Animated by a strong desire to cooperate for the maintenance of 
 general peace ; Resolved to advance by their best efforts the friendly 
 settlement of international disputes; Recognizing the solidarity 
 which unites the members of the society of civilized nations ; Desirous 
 of extending the empire of law and of strengthening the sentiment of 
 international justice; Convinced that the permanent institution of a 
 court of arbitration in the midst of independent powers and accessible 
 to all of them can contribute effectively to this result ; Having regard 
 for the advantages attending the general and regular organization of 
 arbitral procedure. . . ." 
 
 Several of the articles of the convention were of a general 
 character and, instead of laying down specific rules, em- 
 phasized the desirability of arbitration. 
 
 The first article, which has in view good offices and medi-
 
 302 THE TWO HAGUE CONFERENCES 
 
 ation as well as arbitration, states that, with a view to 
 preventing as far as possible recourse to force in relations 
 between states, the signatory powers agree to put forth all 
 their efforts to insure the pacific settlement of international 
 differences. 
 
 Articles 15 to 18, which, together with Article 19, 1 form 
 the introductory chapter ("On Arbitral Justice") to the 
 subject of international arbitration proper, state both the 
 desirability and the voluntary character of the arbitra- 
 tion agreed upon. The object of international arbitration 
 is declared to be the settlement of controversies between 
 states by judges of their own choice and upon the basis 
 of respect for law (Article 15). The signatory powers rec- 
 ognize arbitration, in questions of a judicial character, and 
 especially in questions regarding the interpretation or 
 application of international treaties, to be the most effi- 
 cacious and at the same time the most equitable method 
 of deciding controversies which have not been settled by 
 diplomatic means (Article 16). 
 
 When this last article was reported to the commission, 
 M. Beldiman, of Roumania, made the following declara- 
 tion : "The Royal Government of Roumania, acquiescing 
 entirely in the principle of voluntary arbitration, whose 
 whole importance in international relations it appreciates, 
 does not understand, however, from this article an en- 
 gagement to accept arbitration in all the cases anticipated 
 by it ; it can vote for this article, therefore, only under 
 this reserve.'' With this exception, the artigle was agreed 
 to unanimously ; for it was recognized that the sovereignty 
 of each state was left unimpaired by it, since each state 
 would retain the right of deciding whether or not any given 
 
 1 Article 19 is discussed under Specific Cases of Arbitration, pages 330-331.
 
 ARBITRATION 
 
 303 
 
 case was of a judicial character, or was connected with the 
 interpretation or application of treaties; and such cases 
 they were all, except Roumania, entirely willing to submit 
 to arbitration. 
 
 Article 16, it must be noted, has to do with cases of a 
 judicial character or connected with treaties; that is, 
 questions of law or those based on documents, which 
 questions can alone be decided by judges properly so called. 
 General arbitration, or arbitration of differences as to 
 political, territorial, or commercial interests, was not 
 agreed to by the powers collectively ; but they adopted the 
 statement that an agreement of arbitration may relate to 
 every kind of controversy or solely to controversies of a 
 particular character, and may be made with reference to 
 disputes already existing or to those which may thereafter 
 arise (Article 17). Baron de Bildt, of Sweden and Nor- 
 way, thought this article superfluous, and asked, "Why 
 inscribe a law which all the world has already?" Cheva- 
 lier Descamps, Count Nigra, of Italy, and Professor Lam- 
 masch, of Austria, answered the question by saying that 
 it was desirable to call attention to the great number of 
 treaties of arbitration which had already been concluded, 
 to give the indorsement of the conference to them, and to 
 encourage the nations to push on farther and faster in the 
 good work of concluding more of them. 1 
 
 A treaty of arbitration may obviously apply to differences 
 of the past, present, or future, as the parties making the 
 treaty may determine. This fact was recognized by the 
 
 1 Chevalier Descamps prepared at the request of the III Commission 
 a summary statement of the large number of arbitration agreements which 
 had been entered into between the various governments represented at the 
 conference; this statement was printed and distributed to the members, and 
 is published with the records of the conference.
 
 304 THE TWO HAGUE CONFERENCES 
 
 above article ; but at the time of its adoption, M. Beldiman 
 stated that his government would accept the article only 
 under the reserve that it did not apply to any differences 
 or disputes which had arisen "before the conclusion of the 
 present convention." 
 
 The statement that a treaty of arbitration implies the 
 obligation of submitting in good faith to the decision of 
 the arbitral tribunal (Article 18), was also objected to for 
 the reason that it was superfluous ; but it was defended 
 and adopted on the express ground that it emphasized 
 the characteristic feature of arbitration, which is not that 
 of an attempt at conciliation, but the mutual submission 
 of states to judges of their own choice, with the natural 
 consequence that a repudiation of the arbitral award is no 
 more admissible than is the violation of contracts. In 
 regard to this article, also, M. Beldiman made the" reserva- 
 tion that his government accepted it only on the under- 
 standing that it implied no agreement in the nature of 
 obligatory arbitration. 
 
 One other article, of noteworthy character and interest, 
 was adopted by the conference for the purpose of pro- 
 moting the utmost possible resort to arbitration. This 
 was a statement that "the signatory powers consider it 
 their duty, in case a serious dispute threatens to break 
 out between two or more of them, to remind the latter 
 that the Permanent Court of Arbitration 1 is open to them. 
 Hence they declare that the act of reminding the parties 
 in dispute of the provisions of the present Convention, and 
 the advice given to them, in the higher interests of peace, 
 to have recourse to the permanent court, can only be 
 considered as an exercise of good offices" (Article 27). 
 
 1 See page 370.
 
 ARBITRATION 
 
 305 
 
 The French delegation presented this proposition, and 
 M. Bourgeois and Baron d'Estournelles, of that delegation, 
 urged in its favor that sometimes a point of honor causes 
 each party to the dispute to hesitate to suggest arbitration 
 to its opponent ; and that public opinion is easily led to 
 consider such a suggestion as an act of weakness rather 
 than as an evidence of confidence in its own good cause 
 and of moderation founded on a spirit of justice ; hence 
 each party waits for the other to take the initiative. Several 
 delegations supported this proposition, but the practical 
 question arose as to the agency which should act as inter- 
 mediary between the powers in general and the powers 
 in dispute. M. Bourgeois suggested, in reply, the inter- 
 national bureau or the diplomatic council 1 established 
 at The Hague in connection with the Permanent Court 
 of Arbitration ; but Professor de Martens, of Russia, ob- 
 jected that the bureau would not possess sufficient moral 
 authority, while the diplomatic council would be bound by 
 the instructions of each of its members, and hence could 
 not act with sufficient independence. Baron d'Estour- 
 nelles then proposed that the secretary-general of the 
 international bureau should act as the agent of the powers, 
 and on the express demand of one or more powers, in 
 calling the disputants' attention to the Permanent Court 
 of Arbitration. With the powers behind him, it was 
 urged, the secretary-general would have sufficient moral 
 authority, while his modest character of an agent could 
 give no affront to the disputants. To this suggestion it 
 was objected that the secretary-general might intervene 
 with his invitation at an unfortunate moment and thus 
 aggravate the dispute, and that especially he might thus 
 
 1 See pages 375~378-
 
 306 THE TWO HAGUE CONFERENCES 
 
 cause the permanent court itself to fall into disrepute. 
 Baron d'Estournelles's proposition was put to vote in the 
 committee and rejected by a vote of five to three, with two 
 abstentions. 
 
 But, on the other hand, the committee was unanimous 
 in its desire that in some way the powers should encourage 
 disputants to have recourse to the Permanent Court of 
 Arbitration. The proposition was made that the secre- 
 tary-general might appeal to one or more neutral powers 
 to extend the invitation to arbitrate; and also that the 
 judges of the permanent court, scattered as they are 
 among all the nations, should appeal to their respective 
 governments to act. These propositions did not meet 
 with favor, however, and the committee at last adopted 
 unanimously the statement that it is the duty of the powers 
 to suggest arbitration to disputants, leaving the powers 
 themselves to find the best practical method of making the 
 suggestion. 
 
 When this article was presented to the commission, 
 M. Beldiman repeated his statement that his government 
 would subscribe to absolutely nothing but voluntary 
 arbitration, and suggested that the words "consider it 
 their duty " be replaced by "judge it useful." This 
 suggestion caused Baron d'Estournelles to make a vig- 
 orous defense of the use of the word duty and to assert 
 positively that the article was preeminently to the advan- 
 tage of the smaller and weaker states. But Professor Velj- 
 kovitch, of Servia, insisted that it was "a kind of invitation 
 for the larger powers to initiate measures injurious to 
 the justifiable amour propre and dignity of the smaller 
 states, while the latter would never be permitted, in prac- 
 tice, to fulfill the duty stated by the article in regard to the
 
 ARBITRATION 307 
 
 former. The surest method of establishing the asserted 
 equality, he said, would have been to adopt the principle 
 of obligatory arbitration. This caused Professor Zorn, 
 of Germany, to assert that although there was undoubtedly 
 in the committee of examination a powerful current in 
 favor of obligatory arbitration, the German government 
 would not have been in a position to adopt it. The 
 reason for his government's objection to it he stated 
 to be as follows : 
 
 "It is true that there exists quite a series of particular cases of ar- 
 bitration, and that arbitration is no longer a thing unknown. But 
 the experiments which have been made within the field of arbitration, 
 up to the present time, are not of a kind sufficient to permit my gov- 
 ernment to agree to obligatory arbitration in the future. To proceed 
 in this important matter without sufficient experience, would seem to 
 be dangerous and might lead to discord rather than to harmony. . . . 
 On the other hand, the German government has been impressed with 
 the belief, held in common by all the governments represented here, 
 that every endeavor tending to preserve peace and good relations be- 
 tween nations deserves most earnest attention. Hence my govern- 
 ment has made no objections, up to the present moment, to Article 
 27, although, perhaps, the expression of duty would appear to go a 
 little too far. But there would seem to be no insurmountable difficul- 
 ties to this moral duty being expressed and emphasized. . . . The 
 object of our task is to create a solid basis for the widest possible use 
 of peaceful means in putting an end to international differences." 
 
 M. Odier, of Switzerland, appealed to his colleagues 
 from the other smaller states to accept the article as not 
 only advantageous to the smaller states, but also as a 
 proper recognition of the attitude of neutrals towards 
 belligerents. "We have sought," he said, "to open a 
 new era in international relations. Until the present day, 
 the condition of war has been left to the decision of nations
 
 308 THE TWO HAGUE CONFERENCES 
 
 in dispute, and neutral powers have not done all they could 
 to prevent it. Now, it must be recognized that corre- 
 sponding to this new era there are new duties. Neutrals 
 have these duties to fulfill. They may no longer content 
 themselves with maintaining a more or less disapproving 
 silence ; they may no longer permit two powers to appeal 
 to arms without putting forth their best efforts to prevent 
 such a calamity. One of our colleagues has tried to 
 characterize the role of neutrals in such a contingency, 
 and he has invented for it the happy word 'peace-manag- 
 ing' (pacigerant). This characterization will be conse- 
 crated by the Conference of The Hague. That is why 
 I approve heartily of the proposition presented by the 
 French delegation, which I regard as the consecration of a 
 duty of neutral states." 
 
 Mr. Holls, of the United States, added his approval 
 of the article and an appeal for its unanimous adoption ; 
 but still the Servian and other Balkan delegates were 
 obdurate, until M. Bourgeois, president of the commission, 
 addressed to them a powerful and conciliatory appeal. 
 "Since the opening of this conference," he said, "we have 
 more than once succeeded in reaching a unanimous agree- 
 ment on questions which, at first, seemed to divide us. 
 It would be an important achievement, and one whose 
 moral significance is, to my mind, beyond expression, if 
 on this Article 27, which is one of the essential factors 
 in our plan of arbitration, we could succeed in giving to 
 the world the spectacle of our unanimity. . . . The 
 disputes indicated by Article 27 are indeed only those 
 which imperil peace; it is indeed for them alone that we 
 consider legitimate a friendly summons to arbitration 
 made by the signatory powers to powers in dispute. . . .
 
 ARBITRATION 
 
 309 
 
 The moral utility of this article lies wholly in the fact that 
 by it the common duty of maintaining peace among men 
 is recognized and affirmed by the nations. Think you 
 that it is a thing of small importance that in this conference 
 — that is to say, not in a gathering of theorists and phi- 
 losophers, discussing without restrictions and on their 
 own personal responsibility, but in an assembly where 
 the governments of nearly all the civilized nations of the 
 earth are officially represented — that here, the existence 
 of this international duty has been proclaimed, and that 
 the idea of this duty, implanted from this time forth within 
 the consciences of the peoples, is imposed upon the future 
 acts of governments and nations? ... I will repeat the 
 words of Count Nigra : ' There are here neither large nor 
 small powers ; all are equal before the work to be accom- 
 plished.' But if this work should prove more useful to 
 some than to others, is it not to the weakest that it will 
 certainly bring more benefit? As I said yesterday to our 
 colleagues of the minority in the committee of examination : 
 Every time a court has been established in the world, 
 and a deliberate and impartial decision has been thereby 
 enabled to rise above the struggle of interests and pas- 
 sions, is it not one more guarantee to the weak against the 
 abuse of power? Gentlemen, it will be the same between 
 nations as it is now between men. International institu- 
 tions like this will be the guarantee of the weak against 
 the strong. In conflicts of brute force, where soldiers of 
 muscle and steel are arrayed, there are the large and the 
 small, the weak and the strong; when into the two scales 
 of the balance swords are thrown, one may be heavier and 
 the other lighter. But when rights are weighed in them, 
 inequality ceases, and the rights of the smallest and the
 
 310 THE TWO HAGUE CONFERENCES 
 
 weakest press down upon the scales of the balance with 
 a weight as great as do those of the largest and strongest. 
 It is this conviction which has guided our work, and it is 
 of the weak, above all, that we have thought in pursuing it. 
 May they understand our thought and respond to our hope 
 by allying themselves with this endeavor to bring the 
 future of Humanity more and more under the control 
 of Law!" 
 
 In the prolonged applause which followed M. Bour- 
 geois's peroration, the objections of the Balkan delegates 
 faded away, and the article was adopted unanimously. 
 It was this article in particular, however, which called 
 forth an important declaration from the delegation of the 
 United States. Mr. Holls, of that delegation, had sup- 
 ported the article both in the committee and in the com- 
 mission, where he had said that the omission of Article 27 
 would have been fatal to the convention, for without this 
 article it would incur the probability of never being put 
 into practice and of remaining wholly illusory ; it was 
 necessary, he thought, to express this idea of the moral 
 duty of states. "This idea, this simple word," he con- 
 tinued, "will inaugurate a new era, in which the peoples 
 will recognize their bonds of solidarity and the imperious 
 obligation of interesting themselves not only in their own 
 peace, but in that of their neighbors. On the other hand, 
 this article does not imply an obligation in the juristic 
 sense of the word, but an obligation of a moral kind. . . . 
 As for me, I rejoice that such an idea has been formulated, 
 for I consider it the crown of our whole work." 
 
 But the American delegation's cordial support of this 
 article, and of the convention as a whole, did not cause 
 them to lose sight of the traditional policy of the
 
 ARBITRATION 
 
 3 11 
 
 United States which is expressed in the Monroe Doctrine 
 and its later developments. Accordingly, when the con- 
 vention on arbitration was adopted in plenary session of 
 the conference, the delegation presented the following 
 declaration : 
 
 "Nothing contained in this Convention shall be so construed as 
 to require the United States of America to depart from its traditional 
 policy of not entering upon, interfering with, or entangling itself in the 
 political questions or internal administration of any foreign state, nor 
 shall anything contained in the said Convention be so construed as 
 to require the relinquishment, by the United States of America, of its 
 traditional attitude toward purely American questions." 
 
 b. The Conference of igoy 
 
 The subject of obligatory arbitration was brought 
 before the Conference of 1907 in the introductory address 
 of M. Bourgeois, of France, president of the I Commission. 
 He referred to the long discussion of the subject in 1899; 
 to the treaties between Denmark and Italy, Denmark 
 and Holland, and Chili and Argentina, providing for 
 obligatory arbitration without restriction ; to the nu- 
 merous treaties between various powers providing for 
 the obligatory arbitration of certain classes of cases; 
 and to the prophecy of Professor Zorn, of Germany, in 
 1899, that the opportune moment would arrive when, 
 after experiments between pairs of states, there could be 
 enumerated cases of arbitration obligatory for all. In 
 conclusion, he asked if that opportune moment had now 
 arrived, and if it would not be of considerable moral sig- 
 nificance to consolidate by a general agreement the treaties 
 already concluded separately between various nations and
 
 312 THE TWO HAGUE CONFERENCES 
 
 to consecrate by a common signature the agreements already 
 signed by most of the governments in pairs. 
 
 The question was then referred to the first subcom- 
 mission, which devoted five of its sessions to a general 
 discussion of it. In the course of this discussion, the rep- 
 resentatives of seventeen powers expressed their govern- 
 ments' attitude towards a general treaty of obligatory 
 arbitration. Thirteen of these were "smaller powers," and 
 every one of them advocated a general treaty for the obli- 
 gatory arbitration of certain classes of cases ; four of them 
 were "large powers," and two of these favored a general 
 treaty for the obligatory arbitration of certain classes of 
 cases, one favored such a treaty "in theory," but re- 
 served its decision on the treaty actually proposed, and 
 the fourth opposed a general treaty while advocating 
 heartily the making of obligatory arbitration treaties 
 between separate states. 
 
 Baron Marschall von Bieberstein, of Germany, was the 
 spokesman of this last-named power, and his speech was 
 noteworthy for several reasons. It was the first and only 
 one, in the preliminary discussion, which frankly opposed 
 a general treaty of obligatory arbitration even for a very 
 restricted number of cases; and yet its opposition was 
 based on an advocacy of the extension of obligatory 
 arbitration itself. 
 
 "At the first Peace Conference," said the Baron, "the German 
 delegate declared in the name of his government that experience in 
 the field of arbitration was not of a kind to permit an agreement at 
 that time in favor of obligatory arbitration. Eight years have passed 
 since that declaration, and experience in the field of arbitration has 
 accumulated to a considerable extent. The question has been, on 
 the other hand, the subject of profound and continuous study on the
 
 ARBITRATION 313 
 
 part of the German government. In view of the fruits of this ex- 
 amination, and under the influence of the fortunate results flowing 
 from arbitration, my government is favorable to-day, in principle, 
 to the idea of obligatory arbitration. It has confirmed the sincerity 
 of this opinion by signing two treaties of permanent arbitration, one 
 with the British government, the other with that of the United States 
 of America, both of which include all judicial questions or those 
 relative to the interpretation of treaties. We have, besides, inserted 
 in our commercial treaties concluded within recent years an arbitra- 
 tional agreement for a series of questions, and we have the firm inten- 
 tion of continuing to pursue the task in which we are engaged in 
 concluding these treaties. 
 
 "In the course of our debates, the fortunate fact has been men- 
 tioned that a long series of other treaties of obligatory arbitration 
 have been concluded between various states. This is genuine prog- 
 ress, and the credit of it is due, incontestably, to the first Peace 
 Conference. 
 
 "It would be an error, however, to believe that a general arbitra- 
 tional agreement concluded between two states can serve purely and 
 simply as a model or, so to speak, a formulary for a world treaty. 
 The matter is very different in the two cases. Between two states 
 which conclude a treaty of general obligatory arbitration, the field 
 of possible differences is more or less under the eyes of the treaty 
 makers ; it is circumscribed by a series of concrete and familiar factors, 
 such as the geographical situation of the two countries, their financial 
 and economic relations, and the historic traditions which have grown 
 up between them. In a treaty including all the countries of the world, 
 these concrete factors are wanting, and hence, even in the restricted 
 list of juristic questions, the possibility of differences of every kind is 
 illimitable. It follows from this that a general arbitrational agree- 
 ment which, between two states, defines with sufficient clearness the 
 rights and duties which flow from it, might be in a world treaty too 
 vague and elastic, and hence inapplicable. 
 
 "Now, if we raise before the world the flag of obligatory arbitra- 
 tion, we must surely have an arbitrational agreement which would do 
 honor to this flag and define clearly and precisely the character of the 
 obligation. Without that we should expose ourselves to the reproach 
 of making promises which can not be kept and of offering a formula
 
 314 THE TWO HAGUE CONFERENCES 
 
 instead of a fact. Further, there would be danger that instead of 
 smoothing away a difficulty, there would be added to it an additional 
 quarrel as to the interpretation and application of the treaty itself. . . . 
 As to universal obligatory arbitration, it is not sufficient for its suc- 
 cessful application to assert the principle ; it is necessary to arrange 
 practical details. To use a metaphor: it is not sufficient to build a 
 cosmopolitan dwelling, with a fine facade ; it is necessary to furnish 
 it in such a manner that the nations of the earth may live in it com- 
 fortably and on good understanding." 
 
 Austria's representative, M. de Mercy, stated his gov- 
 ernment's belief in the principle of the obligatory arbi- 
 tration of certain classes of difficulties, even under a 
 general treaty, but said that he would reserve his decision 
 until he knew precisely what classes would be included 
 within the treaty proposed. 
 
 Sir Edward Fry, of Great Britain, alluded to the various 
 treaties of general arbitration which his government had 
 made, and stated its belief that the time had come to take 
 one step farther in the path which leads to the conclusion 
 of a general agreement for the settlement by means of 
 arbitration of every question admitting of such a solution. 
 
 "I foresee," he continued, "that we shall be told that any agree- 
 ment which we may be able to reach can have only an insignificant 
 result, since the legal bond (vinculum juris) which it will create, will 
 be, from the juristic point of view, feeble and indefinite. But nations 
 are not governed solely by juristic conceptions, nor united with each 
 other only by legal bonds. For my part, I believe that the treaty 
 which we are considering will have a great importance in history as 
 being the collective expression of the conscience of the civilized 
 world." 
 
 Ambassador Choate, of the United States, was the first 
 representative of the larger powers to speak, and his speech 
 was a powerful argument and appeal for a general treaty
 
 ARBITRATION 
 
 315 
 
 providing for the obligatory arbitration of certain classes 
 of disputes. After alluding to the work of the first 
 conference, and to the court of arbitration established 
 by it as "one of the greatest advances that have yet been 
 made in the cause of civilization and peace," Mr. Choate 
 continued : 
 
 "But, Mr. President, great events have happened since the close 
 of the first Peace Conference which have attracted the attention of 
 the world and convinced it of the necessity of taking another long step 
 forward and of making arbitration as far as human ingenuity can do 
 it a substitute for war in all possible cases. Two terrible wars have 
 taken place, each productive of an incalculable- amount of human 
 suffering and misery, and these wars have been followed by a steady 
 increase of armaments, which offer a convincing proof that the evils 
 and mischiefs which the Russian Emperor and Count Mouravieff 
 deplored [in 1898] are still threatening the peoples of all the countries, 
 and that arbitration is the only loophole of escape from all those evils 
 and mischiefs. So thoroughly have all the nations, great and small, 
 been convinced of this proposition that many of them have made 
 haste to interchange with other individual nations agreements to settle 
 the very questions for which arbitration was recognized by the last 
 conference as the most efficacious and equitable remedy, by that peace- 
 ful method instead of by a resort to war. I believe that some thirty 
 treaties have been thus exchanged among the nations of Europe alone, 
 all substantially to the same purport and effect. 
 
 "In 1904 the United States of America, beholding from a distance 
 the disastrous effects of those terrible conflicts of arms from which 
 they were happily removed, proposed to ten of the leading nations to 
 interchange treaties with them of the same nature and effect. Their 
 proposition was most cordially welcomed and ten treaties were ac- 
 cordingly negotiated and exchanged, but failed of ratification by 
 an internal domestic question which arose between the different 
 branches of the treaty-making powers of the United States. But 
 all parties were of one mind that all the questions for which arbitra- 
 tion had been recommended by the former conference should be 
 settled by that method rather than by resort to arms, and that The
 
 316 THE TWO HAGUE CONFERENCES 
 
 Hague Court should be the tribunal to which they should be sub- 
 mitted. 
 
 "In 1 901, at the Second International Conference of the American 
 States held in Mexico, to which the United States was a party, an 
 obligatory convention was entered into and signed by all the parties 
 taking part in the conference, by which they agreed to submit to 
 arbitration all claims for pecuniary loss or damage which may be 
 presented by their respective citizens and which can not be amicably 
 adjusted through diplomatic channels, when said claims are of suffi- 
 cient importance to warrant the expenses of arbitration, and that The 
 Hague Tribunal should be the court for the trial and disposition of 
 all such controversies unless otherwise specially agreed. And in 
 case, for any cause whatever, the Permanent Court of The Hague 
 should not be open to one or more of the high contracting parties, 
 they obligated themselves to stipulate in a special treaty the rules 
 under which the tribunal shall be established for taking cognizance 
 of the questions to be submitted. This convention was for five years 
 and was ratified by eight of the parties, including the United States of 
 America. 
 
 "Later still, at the Third International Conference of the Ameri- 
 can States held at Rio in 1906, for the holding of which this meeting 
 of the second Conference at The Hague was by the courtesy of the 
 signatory parties postponed until the present year, the Mexican treaty 
 was renewed for a further period of five years by all the parties that 
 had ratified it and by all the other countries in the conference, and 
 is now being ratified by them one after the other. 
 
 "At the Rio conference the subject of a still further extension of 
 obligatory arbitration was again considered, and at that time all the 
 parties to that conference had been invited to take part in this second 
 Conference at The Hague. And in view of that fact, and of a general 
 desire on their part to defer to the judgment of this present conference, 
 the committee to whom the matter was referred, reported a resolution 
 to ratify adherence to the principles of arbitration and, to the end that 
 so high a purpose may be rendered practicable, to recommend to the 
 nations represented that instructions be given their delegates to the 
 second conference to be held at The Hague to endeavor to secure by 
 the said assemblage of world-wide character the negotiation of a 
 general arbitration convention so effective and definite that, meriting
 
 ARBITRATION 317 
 
 the approval of the civilized world, it shall be accepted and put in 
 force by every nation. The conference unanimously ratified the 
 report of the committee, and the United States was a party to the 
 ratification. 
 
 "It is under these circumstances that the delegation of the United 
 States of America comes here instructed by its government to ad- 
 vocate the adoption of a general treaty of arbitration substantially 
 of the tenor and effect of the treaties which it entered into in 1904, 
 to which I have already referred and which became abortive by the 
 circumstances already mentioned. 
 
 "... There seems to be no intelligent reason why nations, hav- 
 ing at stake grave interests from which may arise possible differ- 
 ences with other nations, and who have already separately agreed to 
 submit such differences to arbitration before The Hague Tribunal, 
 should not all together agree to exactly the same thing, and why other 
 nations should not follow them in the paths of peace so happily in- 
 augurated. . . . We believe that it [the American plan] will satisfy 
 a world-wide demand for such a general treaty, and will go far to pro- 
 mote the cause of arbitration which all the nations are every year 
 expecting more and more confidently as a substitute for the terrible 
 arbitrament of war." 
 
 This address of Ambassador Choate, excellent in itself 
 and coming after the representatives of eight of the smaller 
 powers had advocated obligatory arbitration of a more 
 or less restricted kind, and before any of the larger powers 
 had expressed themselves upon it, made a great and favor- 
 able impression. Among the noteworthy addresses made 
 by representatives of the smaller powers may be mentioned 
 those of the Marquis de Soveral, of Portugal, M. Milo- 
 vanovitch, of Servia, M. Castro, of Uruguay, and Samad 
 Khan, of Persia. Marquis de Soveral asserted his belief 
 that the "opportune moment" had arrived for conse- 
 crating at The Hague a state of things which since 1899 
 has more and more distinguished international relations. 
 "The simple fact of the convocation of this conference by
 
 318 THE TWO HAGUE CONFERENCES 
 
 our governments," he said, "means that they believe that 
 the moment has arrived for giving a new impulse to the 
 cause of peace. We bear this responsibility before the 
 world; I am sure, gentlemen, that we shall honor it." 
 "Without lulling ourselves by ,the illusive belief that 
 in the present state of mankind," said M. Milovanovitch, 
 " it would be possible either to abolish all the causes 
 of warfare or even to foresee and provide for the causes of 
 future wars, nothing prevents us from defining the causes 
 which can and ought to be submitted to a peaceful solu- 
 tion. This will undoubtedly aid in making wars less 
 frequent; and it will develop the sentiment of justice 
 in dealings between nations and inspire a greater trust 
 in the principles and rules of international law. Then 
 only, when differences arise, will the states, the small 
 states above all, be able to say: 'There are judges at The 
 Hague!'" M. Castro referred to cynics, outside of the 
 conference, who would probably remark that, with one or 
 two praiseworthy exceptions, the partisans of obligatory 
 arbitration are found only among the small states, whence 
 they would conclude that the tendency of these same states 
 would be quite the reverse if might were on their side. 
 "Perhaps so," he continued, "since it accords with the 
 imperfections of human nature, — which we are sum- 
 moned to aid in correcting; but what can not be doubted 
 is that the presumptio juris of seeking the rule of justice is 
 an aid to the least strong, since in their conflicts with the 
 powerful they can count only on right and justice." 
 Samad Khan, in the flowery language of the Orient, said 
 that "the new treaty of international arbitration should 
 be the loveliest wreath of flowers which, in leaving this 
 hospitable land, we can offer to the nations who have
 
 ARBITRATION 
 
 319 
 
 sent us here. . . . Though we may not attain this time 
 our sacred goal [of assuring general peace], we should at 
 least strive ardently for it and desire it with all our heart : 
 Seek, and thou shalt find ! . . . The day must come 
 when we can exclude from our vocabularies the historic 
 motto : If you desire peace, prepare for war." 
 
 At the end of the long general discussion, the many prop- 
 ositions concerning arbitration were referred to a committee 
 of examination. The committee examined them one by 
 one, commencing with that which gave the largest scope 
 to obligatory arbitration and ending with that which 
 was most restrictive. 
 
 The Dominican Republic was the only state which actu- 
 ally proposed universal obligatory arbitration "without 
 restriction," although Denmark "called the attention" of 
 the conference to its three treaties, made with the Nether- 
 lands, Italy, and Portugal, which provide for obligatory 
 arbitration without reserve. The Dominican delegation 
 based its proposition on the desire for arbitration expressed 
 by the representatives of nineteen American powers at 
 the Conference of Rio Janeiro. But the committee de- 
 cided unanimously that it was useless to discuss a proposi- 
 tion which was certain to be rejected by the conference. 
 
 The proposition which appeared to be of widest scope 
 next to the Dominican was Brazil's, which provided 
 for the arbitration of all questions which can not be 
 settled by diplomacy, good offices, or mediation, except 
 those which affect independence, territorial integrity, 
 essential interests, domestic laws or institutions, or the 
 interests of third parties. M. Ruy Barbosa, of Brazil, 
 defended all of these exceptions as necessary or desirable ; 
 but they were objected to by several delegates for the reason
 
 320 THE TWO HAGUE CONFERENCES 
 
 that, since in accordance with the proposition they were 
 to be interpreted solely by the parties to the disputes, they 
 would leave absolutely nothing of obligatory arbitration 
 except the name. Professor de Martens, of Russia, op- 
 posed the proposition for the reason that it would have 
 excluded the majority of the questions which were the 
 object of fifty-five arbitral awards during the Nineteenth 
 Century. Dr. Drago, of Argentina, remarked that it 
 would be more practical to enumerate the cases of obli- 
 gatory arbitration possible or desirable, instead of making 
 vague and sweeping exceptions to a general rule ; and the 
 committee accepted this view of the matter and turned to 
 a consideration of propositions suggesting specific classes 
 of cases. 
 
 The preamble and articles of 1899 which had to do 
 with arbitration and obligatory arbitration in general 
 were all retained, in 1907, in their form as first adopted, 
 with only one important modification. This modifica- 
 tion was an addition to Article 27, and was proposed by 
 M. Candamo, of Peru, in the following words : 
 
 "Article 27 declares that the signatory powers consider it their duty 
 to remind parties in dispute that the Permanent Court is open to them. 
 This article provides a means of setting arbitration in motion. It 
 was one of the successes of the first conference, and it marked the 
 triumph of a great juristic idea. But why can we not take one step 
 farther ? Why should one of the parties in dispute wait to be reminded 
 that the affair could be submitted to arbitration? And if it be dis- 
 posed to have recourse of itself to this means of peaceful solution, 
 why should it not voluntarily come before the organization in The 
 Hague which represents the signatory powers? 
 
 "Although it is often difficult for one power to make towards 
 another one with whom it is in dispute an advance which might be 
 considered an act of weakness, or as indicating a lack of confidence in
 
 ARBITRATION 32 1 
 
 its own good cause, it would not be the same with a declaration made 
 before the bureau officially charged by the powers to secure the func- 
 tioning of the Permanent Court's and all other arbitral jurisdiction. 
 Such a declaration would imply neither weakness nor condescension ; 
 on the contrary, it would constitute an assurance, on the part of 
 the power from whom it emanated, of the good basis of its contention. 
 "The International Bureau of The Hague would in this way be 
 made more active and more efficacious. Though it would not be 
 charged, as M. Bourgeois and the Baron d'Estournelles desired in 
 1899, with taking the initiative, it would at least act in pursuance of 
 the declaration received, and would bring it to the attention of the 
 adverse party. This would be another means of serving as a medium 
 between the two parties and of aiding in their reconciliation, — to the 
 great advantage of the cause of international peace and justice." 
 
 When the Peruvian proposition came up for considera- 
 tion at a subsequent meeting of the subcommission, M. 
 Candamo advocated it in another address, in which he 
 pointed out the fact that the large number of disputes 
 affecting essential interests, independence, or honor, and 
 not being subject to obligatory arbitration, might be 
 settled by voluntary arbitration if the latter could be 
 promoted in the way proposed. 
 
 "There is absolutely no reason," he said, "why differences, how- 
 ever great they may be, may not find their settlement in arbitration ; 
 and it would be in contradiction to the very object of this conference 
 to appear to admit that there may be cases where arbitration would be 
 inadmissible. It is proper to extend, as far as it can be done, the 
 means of facilitating the spontaneous and voluntary recourse to arbi- 
 tration, to stimulate and encourage pacific regulations. Arbitration 
 must always be possible; arbitration should always take the place 
 of war." 
 
 M. Gana, of Chili, cordially supported the Peruvian 
 proposition, with the amendments, first, that no account of 
 the dispute and its causes should be given to the Inter-
 
 322 THE TWO HAGUE CONFERENCES 
 
 national Bureau, but that the latter should act merely 
 as an agent for transmitting the offer and the response, 
 and for informing all the signatory powers of the offer, 
 so that they might perform the duty stated in the article; 
 and, further, that the new rule should apply only to dif- 
 ferences arising after the date of its adoption. 
 
 Baron d'Estournelles, of France, after referring to the 
 history of Article 27 in 1899, said: 
 
 "Unfortunately, this rule has hitherto remained almost a dead 
 letter. The propositions before us may permit us to perfect it by sup- 
 plying the parties themselves with the means of appealing to arbitra- 
 tion, without being stopped by the point of honor, and by inviting 
 them, so to speak, in advance, to address themselves, when occasion 
 arises, to the International Bureau of The Hague. A simple decla- 
 ration will suffice to show that one of the parties, having confidence in 
 its good cause, is ready to submit to justice. This declaration, being 
 no more than purely and simply the execution of a treaty, will require 
 not the least sacrifice of amour propre; public opinion can not consider 
 it an inadmissible humiliation." 
 
 Ambassador Choate also warmly advocated Peru's 
 proposition, with Chili's amendments, saying that while 
 he agreed with Baron d'Estournelles that the rule of 1899 
 had not rendered the important services which were right- 
 fully expected of it, its efficacy and its very considerable 
 importance had been put to the proof in America. 
 
 "No one, doubtless, has- forgotten how a happy application of its 
 principle has succeeded several times in preventing wars which 
 threatened to break out between several South American states, or in 
 shortening such wars. The opportunity afforded by this article to 
 third parties has a great importance; but the proposed addition to it 
 is perhaps still more important. It offers, in effect, to the parties in 
 dispute themselves an easy means — the only practicable one, per- 
 haps — of having recourse to arbitration, at very embarrassing times. 
 We know how difficult, and sometimes how dangerous, it is for a
 
 ARBITRATION 323 
 
 government when it is forced more or less in spite of itself into the 
 clash of arms, to make concessions, in the face of public opinion, even 
 though only seeming concessions, to its adversary; and we know how 
 prudently it must take the initiative in a recourse to arbitration which 
 is often very ill received. At such times hesitation may prove fatal 
 and everything be lost. But according to the very simple system which 
 has just been explained the task will be notably facilitated. The sys- 
 tem proposed by Peru and Chili opens a new door to conciliation ; 
 it means a decided progress, and is indeed a great benefit to mankind. 
 The United States delegation gives its warm and hearty support to 
 the authors of the proposition." 
 
 Sir Edward Fry, Professor de Martens, and M. Ruy 
 Barbosa also supported the proposition, and it was referred 
 to the committee of examination for report to the com- 
 mission. 
 
 The committee reported, by a vote of thirteen to four, 
 with two abstentions, 1 an addition to Article 27, as follows : 
 "In case of dispute between two powers, one of them may 
 always address to the International Bureau at The Hague 
 a note containing its declaration that it will be disposed 
 to submit the difference to arbitration. The International 
 Bureau will immediately bring the declaration to the knowl- 
 edge of the other power." M. Candamo objected to the 
 Chilian amendment applying the rule only to disputes 
 arising after its adoption, and the committee rejected 
 the amendment, but for the reason that it was unneces- 
 sary, since the arbitration would be entirely voluntary, 
 and also for the reason that no convention can have 
 retroactive effect, unless expressly so stipulated. On this 
 last ground, the Chilian delegation expressed its adherence 
 to the article as reported to the commission. 
 
 1 Germany, Austria, Belgium, and Sweden voted against it; Greece and 
 
 Switzerland abstained.
 
 324 THE TWO HAGUE CONFERENCES 
 
 But M. Tsudzuki, of Japan, opposed the addition to 
 the article for the reason that "the intervention of a third 
 power in a dispute between two states is not at all cal- 
 culated to lessen the tension of their relations." M. 
 von Merey also opposed it, with the statement: "In 1899 
 the delegation of Austria-Hungary accepted Article 27 
 without conviction. It never surrendered itself to the 
 optimism of some other delegations in regard to this 
 article. I assert that in the eight years which have passed 
 since the conclusion of the convention of 1899 this article 
 has never been put into practice. We all know that 
 occasions for it have not been lacking. There have been 
 controversies, differences, and even great wars between 
 states, and never, a single time, has the article been 
 applied. The reason is very simple. Every power thinks 
 twice before putting its finger between the anvil and the 
 hammer. Now, if I am consoled for the existence of this 
 article by the fact that it has not been applied, I find it 
 none the less inopportune to develop it by adding the 
 Peruvian amendment. The latter seems to me, moreover, 
 sufficiently serious and dangerous, for it would create 
 for one or other of the parties in dispute a temptation to 
 grant [sic: octroyer] to the other recourse to arbitration." 
 M. von Merey then asserted that the simpler and better 
 way of securing arbitration would be by the usual diplo- 
 matic negotiations, and concluded by saying: 
 
 "For one of the powers to choose a means so far-fetched as the 
 agency of the International Bureau at The Hague would be, in my 
 opinion, to put a pistol to the breast of the other and coerce it. I be- 
 lieve that such a manner of proceeding would not aid in improving 
 the relations between states, nor render recourse to arbitration more 
 desired or more frequent."
 
 ARBITRATION 325 
 
 Baron d'Estournelles replied immediately to M. von 
 Merey as follows: "Permit me, my dear colleague, to 
 respond with a few words in the name of those who pro- 
 posed Article 27 eight years ago. I am one of those who 
 advocate it in its new form, but without deluding myself 
 in the way suggested by M. von Merey. I never expected 
 a miracle of it, above all in so short a time. What my 
 colleagues of Peru and Chili have desired is that our labors 
 shall not result solely in a convention on paper, but that 
 this convention shall become a reality. After having 
 made it a duty to remind states in dispute that the court 
 at The Hague is open to them, it is desired to give to the 
 latter a practical means of having recourse to it. M. 
 von Merey has very justly remarked that up to the present 
 'not a single power has ventured between the anvil and 
 hammer.' Precisely, we wished to do away with the 
 anvil and hammer!" After pointing out the superiority 
 of the proposed plan to the usual diplomatic negotiations 
 in periods of tension, Baron d'Estournelles concluded by 
 saying: "Instead of obliging the parties in dispute to 
 extend each other their hands, which is very difficult, we 
 say to them : ' Simply address yourself to the neutral 
 Bureau at The Hague, which is . . . the international 
 letter box.' It is in this view of the question that none 
 of us — if he really desires the progress of arbitration - 
 can refuse to vote the proposition of Peru." This reply 
 was greeted with much applause, and the commission 
 adopted the article as proposed, by a vote of thirty-four to 
 seven, with three abstentions. 1 
 
 In the plenary session of the conference, this article was 
 
 1 The negative vote was cast by Germany, Austria, Belgium, Japan, Rou- 
 mania, Sweden, and Turkey; Greece, Luxemburg, and Montenegro abstained.
 
 326 THE TWO HAGUE CONFERENCES 
 
 adopted without dissenting voice, except for those of 
 Japan and Turkey. Dr. Hill, of the United States, made 
 the same declaration in regard to it as had been made by 
 the United States delegation in 1899. 1 
 
 2. Specific Cases 
 a. The Conference of i8gg 
 
 The proposals in regard to arbitration submitted to 
 the conference by the Russian delegation included five 
 articles dealing with the obligatory arbitration of certain 
 specified classes of cases. These articles were accom- 
 panied by an explanatory note, in which it was stated that 
 "the recognition of obligatory arbitration, were it only 
 within the narrowest limits, would assert the principles 
 of law in international relations and would guarantee 
 them against infractions and attacks ; it would neutralize, 
 as it were, vast domains of international law. Obliga- 
 tory arbitration would be a convenient means of eliminat- 
 ing the misunderstandings between states which are so 
 numerous and so troublesome, even though not very 
 serious, and which sometimes embarrass most unneces- 
 sarily diplomatic relations. Thanks to obligatory arbi- 
 tration, states could more readily enforce their legitimate 
 claims, and, what is still more important, free themselves 
 from unjustifiable demands. 
 
 "Obligatory arbitration would serve the cause of 
 universal peace to an incalculable extent. Of course, the 
 questions of secondary rank, to which alone it is appli- 
 cable, constitute very rarely a cause of war. Neverthe- 
 
 1 See page 311.
 
 ARBITRATION 327 
 
 less, frequent disputes between states, even though due 
 to questions of minor importance, and not acting as a 
 direct menace to the maintenance of peace, alter friendly 
 relations between them and create an atmosphere of dis- 
 trust and hostility in which a war may be more readily 
 provoked by some incident or chance spark. Obligatory 
 arbitration, having the result of absolving the interested 
 states from all responsibility in regard to the solution of 
 the question between them, should aid in the preservation 
 of their friendly relations and thus facilitate the peaceful 
 solution of the most serious differences which can arise 
 on the plane of their highest interests. 
 
 "In recognizing thus the high importance of obligatory 
 arbitration, it is indispensable above all to define precisely 
 the sphere of its application ; it is necessary to indicate 
 in what cases obligatory arbitration is applicable." 
 
 The delegation accordingly proposed as its first rule 
 on the subject that "the contracting powers agree to have 
 recourse to arbitration in questions pertaining to the classes 
 mentioned below, in so far as they concern neither the 
 vital interests nor the national honor of the parties in 
 dispute." It proposed, secondly, that each state shall 
 remain the sole judge of the question whether such or 
 such a case should be submitted to arbitration, — with 
 the exception of those cases, enumerated in the next arti- 
 cle, which the signatory powers agree to submit to ob- 
 ligatory arbitration. The next article enumerated a list 
 of cases to be submitted to obligatory arbitration ; and 
 the next two articles were united and adopted as Article 19, 
 which will soon be referred to again. 
 
 The third article (Article 10 in the list of Russian propo- 
 sitions), enumerating as it did the classes of cases to be
 
 328 THE TWO HAGUE CONFERENCES 
 
 submitted to obligatory arbitration, was the backbone 
 of the system, and around it centered the debate in the 
 committee of examination. It enumerated, first, disputes 
 or claims relating to pecuniary damages incurred by a 
 state or its citizens as the result of the illegal actions or 
 the negligence of another state or its citizens. 1 The 
 second class of disputes enumerated were those relating 
 to the interpretation or application of treaties having to 
 do with the following subjects: postal and telegraph 
 systems, railways, the protection of submarine cables, 
 means of preventing collisions of ships on the high seas, 
 the navigation of international rivers and interoceanic 
 canals, the protection of literary and artistic copyrights 
 and of commercial patents, trade-marks, and titles, mone- 
 tary and metrical systems, sanitary and veterinary rules 
 and regulations in regard to phylloxera, inheritance, extra- 
 dition and mutual judicial assistance, and boundaries 
 (in so far as these last relate to purely technical and non- 
 political questions). 
 
 Chevalier Descamps, of Belgium, proposed to add com- 
 mercial and consular treaties to the above list ; but Pro- 
 fessors de Martens, of Russia, and Zorn, of Germany, 
 opposed this for the reason that an arbitration clause 
 could be inserted in all such treaties, — a measure, said 
 Count Nigra, of Italy, which the Italian government has 
 already decided to adopt. Count Nigra also proposed 
 the addition of treaties relating to the free, reciprocal 
 aid of the sick and indigent, which was adopted. M. 
 Asser, of the Netherlands, proposed the addition of treaties 
 relating to the aid of the sick and wounded in time of war; 
 
 1 This class of cases will be considered under "The Forcible Collection 
 of Debts," pages 349-350.
 
 ARBITRATION 329 
 
 but Professor Zorn opposed this addition for the reason 
 that it would result in dangers and insurmountable dif- 
 ficulties, and would subject even military operations to 
 obligatory arbitration; and after considerable debate 
 this proposition was rejected. One other addition to the 
 list was suggested, and adopted, namely, treaties providing 
 for rules concerning epizooty and for prophylactic meas- 
 ures against phylloxera and other scourges of agriculture. 
 
 The list now included eleven classes of treaties; but 
 Mr. Holls, of the United States, demanded the exclusion 
 of those relating to international rivers and interoceanic 
 canals, and to monetary systems. He said that his govern- 
 ment would regard the navigation of such rivers as the 
 St. Lawrence, Rio Grande, or Columbia, and the control 
 of the Isthmian Canal, as preeminently American ques- 
 tions, and would not consent to their arbitration by a 
 court composed mostly of Europeans; while the mere 
 classing of monetary with metrical systems would affront 
 a great American political party, whose leading men look 
 upon the fixing of a monetary standard as a most impor- 
 tant function of a sovereign state, and who would undoubt- 
 edly defeat the ratification of the proposed agreement 
 in the United States Senate. This danger of non-ratifica- 
 tion by the United States was reluctantly admitted by the 
 committee, and the treaties referred to were stricken from 
 the list, while the others were approved unanimously on 
 the first reading, but subject to the proviso that they be 
 taken up later for final settlement after instructions had 
 been received in regard to them by the various delegations. 
 
 The second reading of the list of treaties was taken up 
 four weeks later, on the fourth of July, and Professor 
 Zorn immediately proposed the suppression of the entire
 
 330 THE TWO HAGUE CONFERENCES 
 
 article containing them. He said that the German govern- 
 ment was not in a position to accept obligatory arbitra- 
 tion, and felt that it had already conceded much in accept- 
 ing the Permanent Court of Arbitration. Professor de 
 Martens proposed as a compromise for the article in ques- 
 tion that the words " obligatory arbitration " be sup- 
 pressed, and that the four classes of cases introduced by 
 the German government in its separate arbitration treaties 
 be substituted for the list previously agreed upon. But 
 Professor Zorn, in refusing the compromise, said that 
 " when the Permanent Court should be put in operation, 
 the opportune moment might come when, after individual 
 experiments, a list of cases could be agreed upon obli- 
 gatory for all. But to force this development unduly 
 would be to compromise the principle of arbitration itself, 
 with which we all sympathize." 
 
 A determined effort was then made by some members 
 of the committee to have a majority recommendation of 
 the disputed article reported to the commission; but the 
 representatives of Great Britain, the United States, Italy, 
 and Austria were opposed to departing from the rule of 
 unanimity which had thus far been observed. The first 
 three articles proposed by the Russian delegation were 
 therefore withdrawn, and the fourth and fifth united to 
 form one article, which was adopted unanimously. This 
 article is a statement that, independently of existing gen- 
 eral or special treaties which impose on the signatory 
 powers the obligation to have recourse to arbitration, these 
 powers reserve the right to conclude, either before the 
 ratification of the present convention, or subsequent to 
 that date, new agreements, general or particular, with 
 the object of extending obligatory arbitration to all cases
 
 ARBITRATION 
 
 331 
 
 which they may consider possible to submit to it. The 
 only opposition or comment which this article encoun- 
 tered was in the commission, where M. Beldiman, of Rou- 
 mania, and Professor Veljkovitch, of Servia, accepted it 
 under the reserve that it should imply no engagement on 
 the part of the signatory powers to enter into the treaties of 
 arbitration referred to. The president of the commission 
 remarked that there was no possibility of such an implica- 
 tion being contained in the article ; and there was a general 
 recognition of the fact that its adoption marked the final 
 and definite abandonment of all plans for obligatory arbitra- 
 tion, however limited, so far as the first conference was con- 
 cerned. But it was also generally believed that this aban- 
 donment was wise, since it was the sine qua non of the 
 acceptance by Germany, and probably by several other 
 states as well, of the Permanent Court of Arbitration. 
 
 b. The Conference of 1Q07 
 
 When the committee of examination turned from the 
 question of obligatory arbitration in general to a con- 
 sideration of the specific classes of cases proposed for 
 submission to obligatory arbitration, it took up first the 
 list submitted by the delegation from Portugal. Marquis 
 de Soveral stated that this list was based on the treaties 
 concluded by various powers since 1899, and on the model 
 treaty adopted by the Interparliamentary Union at Lon- 
 don in 1906, this latter treaty, in turn, being based on the 
 Russian propositions submitted to the Conference of 1899 
 and discussed and provisionally adopted by that confer- 
 ence's committee of examination. 
 
 The British delegation added a number of cases to the
 
 332 THE TWO HAGUE CONFERENCES 
 
 Portuguese list, and the Swedish and Servian delegations 
 one each. The classes of cases voted upon numbered 
 twenty-four, and they are enumerated below according to 
 the number of votes they received in the committee, com- 
 mencing with the six which received the largest majority 
 (twelve votes to four, with two abstentions, for each of the 
 six classes). The list comprised disputes relating to the 
 interpretation and application of treaties concerning the fol- 
 lowing cases : free, reciprocal aid to sick indigents ; inter- 
 national workingmen's protection ; means of preventing 
 collisions on the sea ; systems of weights and measures ; the 
 gauging of ships ; wages and estates of deceased sailors ; 
 governmental claims for pecuniary damages, when respon- 
 sibility is admitted by the parties concerned ; literary and 
 artistic copyrights ; regulations for commercial and industrial 
 associations; pecuniary claims resulting from military oper- 
 ations, civil war, the arrest of foreigners or the seizure of 
 their goods ; sanitary laws ; the exaction of taxes and im- 
 posts from foreigners, equal to those exacted from citizens ; 
 customs duties ; rules concerning epizooty, phylloxera, and 
 other similar pests ; monetary systems ; * the acquisition 
 and ownership of wealth by foreigners ; civil or commercial 
 procedure; pecuniary disputes arising from the interpre- 
 tation of treaties of every kind ; repatriation ; postal, 
 telegraph, and telephone systems; dues levied on ships 
 (for wharfage, lighthouse service, and pilotage), and sal- 
 vage dues imposed on damaged or shipwrecked vessels; 
 private international law ; geodetic questions ; emigration ; 
 patents, trade-marks, and commercial names. 2 
 
 1 The United States delegation and seven others voted against this class, 
 while eight delegations voted for it, and two abstained. 
 
 2 The last class of cases received the least favorable vote: four in favor, 
 nine against, and four abstentions.
 
 ARBITRATION 333 
 
 In addition to the above twenty-four classes, there were 
 six others proposed, but not voted upon. These were 
 treaties in regard to : commerce and navigation ; the pro- 
 tection of submarine cables; railways; extradition; dip- 
 lomatic and consular privileges; and the fixing of ter- 
 ritorial boundaries determined by treaties, in so far as 
 they do not concern inhabited lands. 
 
 Some of these classes received long and earnest con- 
 sideration, while many of them were not discussed at all, 
 and some were neither discussed nor voted upon. Trea- 
 ties in regard to commerce and navigation, although not 
 voted on, received the longest consideration. The chief 
 point of difficulty in regard to them was to decide upon 
 some method of determining which of them are purely 
 judicial, and neither political nor economic (judicial 
 ones alone being subjected to obligatory arbitration, in 
 accordance with the proposition) and which of them 
 do not affect the essential interests or the independence of 
 the parties in dispute (this reserve also being included 
 in the proposition). It was deemed impossible to define 
 "commercial treaties" in such a way as to distinguish 
 between those which were judicial, political, etc., and the 
 effort was made to classify them according to the matters 
 dealt with by them ; but even here, as Dr. Drago, of Argen- 
 tina, pointed out, a treaty dealing with a single matter, im- 
 port duties, for example, might be either or both judicial 
 and political; and as Baron von Bieberstein, of Germany, 
 observed, matters which are in theory judicial may be- 
 come political in time of controversy. A subcommittee 
 was appointed to analyze and classify the various kinds of 
 commercial treaties, and it presented a report enumerating 
 seven kinds. But each of these kinds was considered to
 
 334 THE TWO HAGUE CONFERENCES 
 
 be liable to the above mentioned objections to the general 
 group of commercial treaties. 
 
 This debate on commercial treaties illustrates the 
 kinds of objections made to all of the classes of cases in the 
 proposed list. The authors of the list, especially M. 
 d'Oliveira, of Portugal, and Sir Edward Fry, of Great 
 Britain, did their best to defend it. But Baron von Bie- 
 berstein, the author of most of the objections, voiced what 
 seemed to be the dominant belief of the committee when 
 he declared that "the question is decidedly not yet ripe, 
 and it would be imprudent to try to answer it before it is 
 so. . . . In prematurely voting obligatory world arbi- 
 tration, we should only scatter seeds of discord among 
 the nations." 
 
 The utmost that could be accomplished, as far as the list 
 was concerned, was to force it, item by item, to a vote, 
 which proved to be an indecisive one in every instance. 
 Of the twenty-four classes voted on, only the first eight 
 received a majority of the votes of the committee; of the 
 eighteen countries represented on the committee, from 
 four to nine cast adverse votes in each case. Two dele- 
 gations (Germany and Austria) voted against every one 
 of the classes; and two others (Belgium and Greece) 
 either voted against every one, or asbtained from voting 
 at all ; while only five (France, Norway, the Netherlands, 
 Portugal, and Servia) voted for all of them. 1 
 
 Before proceeding to a vote on the list, sixteen of the 
 eighteen delegations represented made explanatory decla- 
 rations from which it appeared that there was a unanimous 
 
 1 The countries represented on the committee were: Germany, the United 
 States, Argentina, Austria, Belgium, Brazil, France, Great Britain, Greece, 
 Italy, Mexico, Norway, the Netherlands, Portugal, Russia, Servia, Sweden, 
 and Switzerland.
 
 ARBITRATION 335 
 
 and ardent desire for the progress of obligatory arbitra- 
 tion in some form, whether under that of a general treaty 
 or of special treaties, or under that of a list of definite 
 classes of cases or that of a general rule. 
 
 Side by side with this four weeks debate in the commit- 
 tee of examination on what classes of cases should be 
 included within a general treaty, a twofold struggle pro- 
 gressed, on the one hand, to prevent the adoption of any 
 general treaty whatever and, on the other hand, to secure 
 the adoption of a treaty embodying a general rule. This 
 struggle continued through four weeks in the committee 
 of examination, and through seven meetings of the I 
 Commission. 
 
 The ideal of obligatory arbitration by means of sep- 
 arate treaties, instead of by a general treaty adopted by 
 the conference, was foreshadowed, as has been seen, in 
 Baron von Bieberstein's address before the first subcommis- 
 sion in the course of the preliminary discussion. It was 
 taken up in earnest, in the committee of examination, by 
 Dr. Kriege, of Germany, who stated emphatically that the 
 German delegation would vote against every proposition 
 to establish obligatory arbitration by means of a world 
 treaty. With the same emphasis and frankness, Dr. 
 Kriege stated the delegation's reasons for this opposition 
 to be, first, that the reservations accompanying these 
 propositions, such as the exemption of those questions 
 which concern the honor, independence, and vital interests 
 of states, reduce the propositions merely to the name of 
 obligatory arbitration; second, that the necessity of each 
 dispute being passed upon by a legislative body, such as 
 the United States Senate, still further reduces the chance 
 of any real arbitration ; third, the fact that the authors of
 
 336 THE TWO HAGUE CONFERENCES 
 
 these propositions deem it necessary to hedge the agree- 
 ment around with such precautions shows only a mediocre 
 confidence even on their part in the vitality or utility of 
 the institution ; and, finally, the adoption of a world 
 treaty would seriously jeopardize the devolopment of gen- 
 uine obligatory arbitration by barring the path of gov- 
 ernments which would be disposed to engage themselves 
 by separate treaties with other states to have recourse to 
 arbitration for differences where this would be possible as 
 between only two states. 
 
 On the other hand, the United States proposition for a 
 world treaty couched in general terms was championed 
 by those who were determined to have obligatory arbi- 
 tration adopted by the conference of all the world. This 
 proposition was that "differences of a judicial kind, and 
 before all those relating to the interpretation of treaties 
 existing between two or more of the contracting states, 
 which may arise between the said states in the future, and 
 which shall not have been settled by diplomatic means, 
 shall be submitted to arbitration, on the condition that 
 they affect neither the vital interests nor the independence 
 or honor of either of the said states, and that they do not 
 affect the interests of other states not parties to the con- 
 troversy." The decision as to the relation of any case to 
 vital interests, independence, and honor is left by the 
 proposition to each of the signatory powers. 
 
 The advocates of this proposition argued that its reser- 
 vations were desirable in themselves and necessary to its 
 adoption ; that they existed in most separate treaties, and 
 would not prevent all arbitration in a general treaty any 
 more than they had done in separate treaties; and that 
 a general treaty would not hinder the conclusion of
 
 ARBITRATION 337 
 
 separate treaties side by side with it, but would give the 
 sanction of the whole civilized world, in a very emphatic 
 form, to the principle of obligatory arbitration, and thus 
 aid greatly its progress in the submission of more and 
 more cases under the general treaty, and in the conclusion 
 of more and more separate treaties as well. 
 
 The American general proposition was united with the 
 Anglo-Portuguese list of specific cases, and was cham- 
 pioned in the committee by the advocates of both. On the 
 other hand, the entire frankness of Dr. Kriege was re- 
 placed by the skill in diplomacy and debate of Baron von 
 Bieberstein, who was ably seconded by the energy and 
 determination of M. Merey, of Austria. Under the 
 lead of the Baron, the opposition took the form of sug- 
 gesting problems whose solution was found to be most 
 difficult. These problems were : What would be the force 
 of an arbitral award under a general treaty as far as the 
 powers not parties to the dispute are concerned : would 
 it have the binding force of a precedent upon them also? 
 Again, suppose that an arbitral award required the passage 
 of certain legislative measures : how can the executive 
 power in such countries as Great Britain, France, the 
 United States, etc., enforce the award if the legislative 
 power is opposed to the enactment of the requisite laws? 
 Again, how can such a distinction be made between cases 
 coming under the jurisdiction of national courts and those 
 subject to international arbitration, which will not reduce 
 the latter class of cases to almost nothing? And, finally, 
 how can the United States government enter into any 
 world treaty of genuine obligatory arbitration if the 
 United States Senate must exercise the right of approving, 
 not only the world treaty itself, but also a special treaty
 
 338 THE TWO HAGUE CONFERENCES 
 
 determining the object, scope, etc., of the arbitration for 
 every individual dispute ? ' 
 
 Each one of these problems, except the last, was pushed 
 by Baron von Bieberstein and his allies through from three 
 to five meetings of the committee, and each one, except 
 the last, had to be referred to a special subcommittee for 
 solution ; while the last question was the subject of 
 an animated debate between Count Tornielli, of Italy, 
 M. Merey, of Austria, and Dr. Scott, of the United 
 States. On the other hand, the majority of the committee, 
 who were in favor of the general proposition and a list of 
 specific cases, showed great fertility of resource in sug- 
 gesting possible solutions of knotty problems ; in insisting 
 that these problems exist and must be met in separate 
 treaties as well as in a general one ; in emphasizing the 
 demands of public opinion in every civilized country for 
 obligatory arbitration under some general form ; in forc- 
 ing every proposition to a vote which should reveal the 
 exact position of each government ; and in proposing new 
 plans or combinations of plans, one of which might secure 
 a decided majority. 
 
 The general proposition of the United States, above 
 noted, received a vote in the committee of fourteen against 
 two, with two abstentions. 2 The committee also adopted 3 
 an article providing that the signatory powers agree to 
 submit to arbitration, without reserve, some list of definite 
 classes of disputes ; but no larger majority could be secured 
 for the proposed list on the second reading than had been 
 secured on the first. 4 And with these results of its four 
 
 1 The provision in Article 4 of the United States proposition. 
 
 2 Germany and Austria voted against it; Belgium and Greece abstained. 
 
 3 By a vote of thirteen to five; Switzerland here joined the minority of 
 four just noted. 4 See pages 332. and 334.
 
 ARBITRATION 
 
 339 
 
 weeks discussion, the committee reported to the com- 
 mission. 
 
 The commission devoted seven sessions to the considera- 
 tion of the report, and first listened to twenty-three ad- 
 dresses on the general subject. These addresses were 
 made by the representatives of nearly a score of countries 
 and showed an apparently irreconcilable divergence of 
 opinion as to the desirability or possibility of adopting a 
 general treaty of obligatory arbitration. The opposition 
 to the report was commenced with a pessimistic speech 
 by M. Beldiman, of Roumania, who was answered in an 
 optimistic one by the Marquis de Soveral. Belgium, 
 Switzerland, Greece, and Turkey were the other "small 
 powers" whose representatives also voiced the opposition, 
 chiefly for the reason that they were opposed to giving up 
 the reserves of honor, independence, and essential interests 
 for any cases whatsoever; Argentina, Servia, Persia, 
 Denmark, China, and Siam were the other "small powers" 
 who furnished spokesmen in favor of the report. The brunt 
 of the opposition was borne chiefly by the Baron von 
 Bieberstein, assisted by M. Merey; and their arguments 
 were answered by Ambassador Choate and Dr. Scott, 
 Dr. Drago, M. Bourgeois and Professor Renault of France, 
 Sir Edward Fry, and Professor de Martens of Russia. 
 
 All of the arguments of the opposition in the committee 
 were again advanced in new form and emphasis, in the 
 truly titanic debate in the commission, and were again 
 answered from the standpoint of jurists, diplomatists, and 
 statesmen. Together with profound and subtle discus- 
 sions of international and constitutional law, some of the 
 addresses were replete with clever retorts and sparkling 
 passages.
 
 34o 
 
 THE TWO HAGUE CONFERENCES 
 
 "In a world treaty of obligatory arbitration," said the Baron 
 " the obligation shines on paper, but is eclipsed at the moment when 
 it should be put into practice. . . . This project has a defect which, 
 according to my opinion, is the worst of all in legislation and the con- 
 clusion of treaties: it makes promises which it cannot fulfill. It calls 
 itself obligatory, and is not so. It boasts of being a step in advance, 
 and is not so in the least. It vaunts itself as an efficient means of 
 settling international disputes, and in reality it enriches our inter- 
 national law with a series of problems of interpretation which will 
 very often be more difficult to solve than the original disputes, and 
 which will even be of a kind to embitter the disputes. It has been said 
 that this project wins for the world the principle of obligatory ar- 
 bitration. No ! For this principle has already been won in theory 
 by the unanimous desire of the nations, and in practice by a long 
 series, ever increasing, of separate treaties. Germany, which hesitated 
 eight years ago, has concluded, on the separate system, treaties of 
 obligatory arbitration both in general terms and on specified sub- 
 jects; it will follow the same course in the future. . . . The great 
 ideas destined to rule the world hew their way by their own strength; 
 they flourish and triumph in the sunshine of individual liberty, and 
 they can not endure the shade of general principles, of lists and cate- 
 gories. This is a belief which in our day, it seems, is old fashioned 
 and out of date ; but experience is in its favor. . . . The long and 
 assiduous labor which we have devoted to the question of arbitration 
 has had only a partial success. But we have entered the domain of 
 obligatory arbitration, we have explored it in its entire extent, and 
 we have reported on the difficulties to be overcome. And if we do 
 not take with us from The Hague a world treaty, we shall present to 
 our governments the fruits of our toil which will aid them to continue, 
 in full appreciation of it, their journey towards the noble ideal of 
 general and universal obligatory arbitration. It is true that the 
 method which I extol will be less brilliant, but we can console our- 
 selves with the certain knowledge that we are traversing a sure route, 
 and that our disinterested labor will serve the great cause which is 
 dear and common to us all." 
 
 "... The matters which compose this list," said Dr. Drago, 
 "however inconsiderable they may appear when studied singly, apart 
 from the series which they form, have nevertheless a great significance
 
 ARBITRATION 
 
 341 
 
 when considered all together, as the first sign of life in the principle 
 which we have all accepted. They are the first shoots of the sapling 
 which should grow into the great king of the forest. They appear to 
 have a very slender value ; but if you crush them, the sapling will per- 
 ish and all will be lost. ... In the experimental affairs of govern- 
 ment and politics, it is only rarely that things attain at one leap the 
 goal of our aspirations ; they are much more often the result of indirect 
 growth than of the incarnation of a theoretical conception, — and are 
 more perfect because of that very fact. . . . The probable difficul- 
 ties are certainly not those which we may imagine at present. Here, 
 as in all things, the unexpected must be allowed for. Some time ago, 
 the eminent English jurist, Mr. Bryce, published an admirable study 
 to show that not one of the anticipations and fears of the authors of 
 the Constitution of the United States and of their contemporaries, not 
 one of the disadvantages which the great talent of M. de Tocqueville 
 foresaw later, have appeared in the long experience of much more 
 than a century; and that American statesmen have had to struggle 
 with wholly different difficulties than could have been foreseen or 
 imagined in advance. Do not let us then be paralyzed by the fear 
 of the subjunctive, by imagining what might happen but which happens 
 rarely. . . . Hence it is that the project of to-day, incomplete as it 
 may seem, plays a role which is eminently practical ; it prepares the 
 way, it clears the field, it saves time for those who follow us. . . . To 
 the civilization which is supported by weapons shall succeed, in a 
 more or less distant time, a civilization founded on arbitration and 
 justice, a superior civilization which is neither force, nor power, nor 
 riches, but rather the tranquil triumph of justice for the weak as 
 well as for the strong." 
 
 Dr. Drago and Professor Renault made a searching 
 analysis of, and a powerful answer to, the objections ad- 
 vanced by Baron von Bieberstein, while Ambassador 
 Choate, who spoke after them, contented himself with 
 more general observations and turned upon the Baron, with 
 entire good nature, in this fashion : 
 
 "I desire to reply to the important discourse of Baron von 
 Bieberstein with all the deference and consideration due to the potent
 
 342 THE TWO HAGUE CONFERENCES 
 
 Empire which he represents and to his own devotion and rare per- 
 sonal merits. It seems to me that there exist in this conference two 
 first delegates from Germany, with two different voices. Baron 
 von Bieberstein is, on one side, an ardent admirer of obligatory ar- 
 bitration in the abstract, but, on the other, when this idea is to be put 
 into practice, he becomes its most formidable opponent. It is for him 
 an image which he adores in the sky, but which loses all its charm on 
 touching the ground ; he regards it in his dreams as a celestial vision, 
 but when it approaches him, he turns towards the wall and will not 
 look at it. 1 
 
 "... According to our opponents," Mr. Choate continued, 
 "we must content ourselves with these separate treaties, and halt be- 
 fore the idea of a general world treaty. They accept our proposal for 
 an agreement, but solely on condition that it be not a universal agree- 
 ment. And why? A nation which can come to an agreement with 
 a score of other nations, can it not agree with two score if such is the 
 imperious desire of all the nations? . . . Every power, great or 
 small, must bow before the will of public opinion, which has declared, 
 and will declare more and more decidedly from this time forth, that 
 every useless war must be avoided, and that every war is useless when 
 recourse to arbitration is possible." 2 
 
 Sir Edward Fry replied to Baron von Bieberstein's 
 "subtle and minute critique" by saying that he had 
 succeeded in proving the uselessness of the identical pro- 
 vision in the treaty of obligatory arbitration concluded 
 between Germany and Great Britain in the month of 
 July, 1904. He admitted that in view of the reservations 
 in the proposed treaty, its obligatory character is not 
 very pronounced and the "vinculum juris" can be broken 
 without difficulty. 
 
 1 Baron von Bieberstein, in a very brief and friendly reply to this sally, 
 insisted that the minutes would prove the entire consistency of his devotion 
 to the right kind of obligatory arbitration. 
 
 2 Mr. Choate's address was made in English, and immediately repeated 
 to the commission in French, without any preparation or forewarning, by 
 Baron d'Estournelles de Constant, of France.
 
 ARBITRATION 343 
 
 "But," he repeated, "the nations of the world are not con 
 trolled solely by juristic ideas or bound solely by 'vincula juris,' and 
 I believe that the treaty, however weak it may be from the legal point 
 of view, will have none the less a very great moral value as being the 
 expression of the conscience of the civilized world. A law passed by 
 a people is inseparable from the moral ideal which has inspired it; 
 we can not pronounce a divorce between the moral conception and the 
 law which is its expression. It is certain that, just as a law can be 
 of any utility only when it rests on general consent, a moral ideal 
 gains by being expressed in terms of law." 
 
 M. Merey commenced his speech in opposition to the 
 treaty by declaring that he was, up to a certain point, 
 a partisan of obligatory arbitration properly so-called, 
 that is to say, without restriction or reserves, and that he 
 was not a purely Platonic partisan of it. He asserted that 
 the adoption of the proposed treaty would contribute noth- 
 ing to the peace of the world or to the satisfaction of the 
 demands of humanity; and that, like certain modest and 
 inoffensive family medicines, obligatory arbitration would, 
 if applied to all maladies indiscriminately, exaggerate some 
 and produce others even worse. The members of the con- 
 ference, he said, not being specialists in regard to the various 
 matters in the proposed list, would not escape the evils 
 from which they suffered at present, but would fly to those 
 they knew not of. 
 
 M. Bourgeois, presiding over the commission and sum- 
 ming up its long debate, expressed appreciation of the work 
 of both the progressive majority and the conservative 
 minority in opposition: "For it is by this 'contradictory 
 collaboration' that all the light is produced." He then 
 pointed out the points on which all were united, namely, the 
 acceptance of the principle of obligatory arbitration, re- 
 joicing over the thirty-three treaties of permanent obli-
 
 344 THE TW0 HAGUE CONFERENCES 
 
 gatory arbitration concluded since 1899, and the convic- 
 tion that obligatory arbitration can be applied to all 
 juristic differences and those relative to the interpretation 
 of treaties. The two points of divergence he stated to be : 
 whether obligatory arbitration should be established by 
 a general treaty, under the reserves of independence and 
 vital interests, for judicial disputes and those relating to the 
 interpretation of treaties; and whether, for some of these 
 disputes, obligatory arbitration without reserves should be 
 established by a general treaty. The opposition seemed to 
 him to be more pronounced against the first point than 
 against the second. After stating what appeared to him to 
 be some of the advantages of a general treaty over separate 
 treaties of obligatory arbitration, M. Bourgeois concluded 
 his address with the words : 
 
 "By thus establishing in their midst a realm open alike to every 
 civilized state and subject exclusively and by obligation to the rule 
 of law, the powers represented at The Hague will not only promote, 
 decisively and more rapidly than by any other means, the great 
 cause of arbitration, but they will also declare, as they could not do 
 in any other way, a common good will and respect for international 
 law, a common feeling of moral obligation for international duty. 
 And this will be, perhaps, the highest lesson which can be given to 
 men." 
 
 The general discussion having ended, the commission 
 considered and voted upon the various parts of the plan. 
 Two features of this consideration may be noted. One 
 of the items gave occasion to M. Merey to make one 
 more vigorous criticism of the part played by the United 
 States Senate in the ratification of treaties, and he was 
 again answered concisely but emphatically by Dr. Scott and 
 Professor Renault. Another item which provided for the
 
 ARBITRATION 345 
 
 exemption from obligatory arbitration of disputes in re- 
 gard to the interpretation or application of extraterri- 
 torial rights, caused the delegations from China, Persia, 
 and Siam to declare that they would not sign the treaty 
 with this item in it. Thereupon the delegations from the 
 United States, Germany, and Russia moved to strike out 
 the item as offensive and unnecessary, and the motion was 
 carried by a vote of thirty-six to two, 1 with five abstentions. 
 
 When the commission proceeded to a vote on the various 
 parts of the plan for obligatory arbitration, it was found 
 that the minority was only a trifle less strong, numerically, 
 than it had been in the committee. The American propo- 
 sition of obligatory arbitration for judicial disputes and 
 those relating to the interpretation and application of trea- 
 ties, under the reserves of vital interests, independence, 
 honor, and the interests of third parties, received a vote of 
 thirty-five to nine in the commission, as against fourteen 
 to four in the committee; obligatory arbitration, without 
 any reserves, for some list of cases, received a vote of thirty- 
 three to eleven in the commission, as against thirteen to 
 five in the committee ; and obligatory arbitration, without 
 any reserves, for the proposed list of cases, received a vote 
 of thirty-one to thirteen in the commission, as against 
 thirteen to six in the committee. 2 
 
 No sooner had the vote shown the strength of the minority 
 than it began to propose the passage of resolutions (vceux) 
 designed to shelve the whole question. M. Merey 
 
 1 Great Britain and France voted for the retention of the provision. 
 
 2 The minority in the commission included the delegations of German}', 
 Austria, Greece, Roumania, and Turkey, which invariably voted in the nega- 
 tive; the delegations of Belgium, Bulgaria, and Switzerland, which usually 
 voted in the negative ; and the delegations of Japan, Luxemburg, and Mon- 
 tenegro, which invariably abstained.
 
 346 THE TWO HAGUE CONFERENCES 
 
 had proposed a resolution in the committee and urged its 
 adoption as the committee's report ; he now renewed in 
 the commission the motion of his resolution, which stated 
 that the conference, being convinced that certain strictly 
 defined matters are capable of being submitted to obliga- 
 tory arbitration without any restriction whatever, but being 
 unable to decide upon those matters because of their tech- 
 nical character and its own lack of special knowledge and 
 experience regarding them, resolved to invite the govern- 
 ments themselves to enter upon a profound study of the 
 said matters, after the adjournment of the conference, and 
 to inform each other, through the medium of the Nether- 
 lands government, of those which they may be ready to 
 make the subjects of a treaty of obligatory arbitration. 
 
 Sir Edward Fry opposed this resolution for the reason that 
 the vote had shown the readiness of a number of govern- 
 ments to enter at once into such a treaty. And Ambassa- 
 dor Choate objected vigorously to a small minority of states 
 preventing a large majority from accomplishing their desire 
 and their duty. This caused M. Merey to reply that, 
 since the conference was a diplomatic and not a parlia- 
 mentary body, there could be no question of minority and 
 majority. M. Nelidow, of Russia, president of the con- 
 ference, and Baron von Bieberstein confirmed M. Merey's 
 view of majority and minority, and said that if the rule 
 of unanimity on all important measures and approximate 
 unanimity on subordinate measures were not strictly 
 adhered to by the conference, all future international con- 
 ferences would be jeopardized. But the commission would 
 not "stultify itself" by adopting the Austrian resolution, 
 and rejected it by a vote of thirty to fourteen. 
 
 Having reached this apparent cul-de-sac, the commission
 
 ARBITRATION 
 
 347 
 
 yielded to the persuasive diplomacy of Count Tornielli, 
 who had nearly always voted with the majority. It was 
 no time, he said, for long speeches, but there were some 
 statements of fact as to the work accomplished which should 
 be made. Let these statements be embodied in a resolu- 
 tion. "And then," he continued, "let us wisely stop there. 
 We have done a good day's work. Let us be satisfied 
 with the work accomplished, and leave it to time to ripen its 
 fruit. If, in looking back, some of us experience some 
 regret at seeing certain tasks unaccomplished, in turning 
 our eyes towards the future, we are all filled with con- 
 fidence, and not the least discouragement weighs on our 
 spirits." Members of the minority heartily approved this 
 suggestion, as did M. Bourgeois, on behalf of the majority 
 and the commission. "It must be known to the world," 
 said the latter, "that the cause of obligatory arbitration 
 issues from the second Peace Conference victorious and not 
 vanquished." 
 
 M. Bourgeois and M. Nelidow were accordingly ap- 
 pointed a committee to report a resolution, which they 
 did in the following words : 
 
 "The commission, in accord with the spirit of harmony and of 
 mutual concessions, which is the very soul of the Peace Conference, 
 has resolved to present to the conference the following declaration 
 which, while reserving to each of the states represented the credit of 
 its votes, permits them all to affirm the principles which they consider 
 to be unanimously recognized. The commission is unanimous, first, 
 in recognizing the principle of obligatory arbitration; second, in 
 declaring that certain differences, and especially those relating to the 
 interpretation and application of international treaties, are capable 
 of being submitted to obligatory arbitration without any restriction 
 whatever. It is unanimous, finally, in proclaiming that, though it 
 has not been able to conclude at present a convention of this tenor, the 
 diversities of opinion which have been revealed have not exceeded the
 
 348 THE TWO HAGUE CONFERENCES 
 
 bounds of a juristic controversy, and that, in laboring here together 
 during four months, all the states of the world have not only learned 
 to understand and approach each other more closely, but have re- 
 vealed in the course of their long collaboration a very exalted feeling 
 for the common welfare of humanity." 
 
 When this resolution was presented, the representatives 
 of Belgium and Roumania at once accepted it in the spirit 
 of conciliation. But Mr. Choate, on behalf of the Ameri- 
 can delegation, opposed its adoption, "not," he said, "be- 
 cause we are not in favor of the principle of obligatory 
 arbitration, for that is what we have struggled for from the 
 beginning; but because it is in reality a surrender by the 
 commission of the advanced position which, by a vote so 
 decisive, it has already attained." Sir Edward Fry, on 
 the other hand, said : "I regret with all my heart that the 
 project will not be presented to the conference. I regret 
 equally that the United States of America does not feel 
 able to give an affirmative vote on the declaration pre- 
 sented to us. But I regard this declaration as a state- 
 ment of things already accomplished by the commission 
 and not as a surrender of its results." M. Nelidow then 
 made a short appeal for unanimity, and the president put 
 the resolution to a vote, with the result that it was adopted 
 unanimously, except for four abstentions (the United 
 States, Haiti, Japan, and Turkey 1 ). 
 
 At a subsequent plenary session of the conference, the 
 above resolution was adopted, without discussion, by an 
 affirmative vote of forty-one, with three abstentions (the 
 United States, Japan and Turkey). 
 
 1 The Japanese delegation stated, as its reason for abstaining from the 
 vote, the fact that it had taken no part in the discussion of the question of 
 obligatory arbitration; and the Turkish delegation said that it abstained 
 because of lack of instructions.
 
 ARBITRATION . 349 
 
 3. The Forcible Collection of Debts 
 a. The Conference of i8gg 
 
 One of the classes of cases proposed by the Russian dele- 
 gation for submission to obligatory arbitration was that 
 which includes differences or claims relating to pecuniary 
 damages suffered by one state or its citizens as the result 
 of the illegal action or the negligence of another state or 
 its citizens. 
 
 Professor de Martens explained that this was not meant 
 to apply to disputes between the citizens of one state and 
 the citizens of another, except when a government takes 
 up the cause of its citizens. M. de Staal, of Russia, pro- 
 posed to add the words "in so far as they are not within 
 the competence of the local authorities." But on the mo- 
 tion of Sir Julian Pauncefote, of Great Britain, the word- 
 ing adopted by the committee, on the first reading, was 
 simply "differences or claims relating to pecuniary dam- 
 ages." 
 
 It was found on further consideration, however, that at 
 least three distinct questions were connected with this simple 
 phraseology. First, shall the arbitration have to do with 
 the responsibility of the state against whom or whose citizens 
 the claim is made? The committee answered this ques- 
 tion in the negative by a vote of six to four. 1 Second, the 
 responsibility is admitted, shall the arbitration have to do 
 with the amount of the damages claimed ? This question 
 was answered unanimously in the affirmative. Third, 
 shall the arbitration cease to be obligatory when the dam- 
 
 1 The majority vote was cast by the representatives of France, the United 
 States, Austria, Great Britain, Russia, and Germany.
 
 350 THE TWO HAGUE CONFERENCES 
 
 ages awarded are above a certain sum ; in other words, 
 shall a maximum limit of indemnity be fixed in cases of 
 obligatory arbitration? The committee answered this 
 question in the negative by a vote of seven to three. 1 
 
 After these preliminary votes, the article was so stated 
 as to include "differences or disputes relating to the deter- 
 mination of the amount of pecuniary damages, when the 
 responsibility for the damages has been previously ad- 
 mitted." But although the article as thus stated was agreed 
 to unanimously by the committee, it was later discarded, 
 together with all the other specific cases proposed for obli- 
 gatory arbitration. Its failure was much regretted, both 
 because of the frequency and troublesome character of 
 such disputes and because, as shown by Professor de Mar- 
 tens in the course of the debate, they have formed the large 
 majority of disputes submitted to arbitration, and hence 
 have proven themselves especially adaptable to such solu- 
 tion. 
 
 b. The Conference of igoj 
 
 On the list of cases proposed by Great Britain's dele- 
 gation for submission to obligatory arbitration without 
 any reserve were included "pecuniary claims for the prin- 
 cipal of damages when the right of indemnity is recognized 
 by the parties to the case." This proposition had been 
 made in 1899 by Russia, had been carefully discussed and 
 unanimously passed by the committee of examination, and 
 discarded, together with all cases proposed for obliga- 
 tory arbitration. In 1907 it was submitted to a vote, with- 
 out discussion, in the committee of examination, and 
 
 1 The minority vote was cast by the representatives of the United States. 
 Great Britain, and Germany.
 
 ARBITRATION 351 
 
 was adopted by a vote of eleven to four, with three ab- 
 stentions. 
 
 The Swedish delegation also proposed as an addition 
 to the British list "pecuniary controversies relating to the 
 interpretation or application of treaties of every kind," 
 and also "pecuniary controversies caused by military 
 operations, civil war, or so-called 'peaceful' blockade, or 
 by the arrest of strangers or seizure of their goods." The 
 committee adopted, without discussion, the first of these 
 propositions by a vote of nine to six, with ' three absten- 
 tions; and, after striking out (by a vote of six to two, with 
 ten abstentions) the words "or so-called peaceful blockade," 
 as not pertaining to its work, the committee adopted the 
 second proposition also by a vote of seven to six, with five 
 abstentions. 
 
 The three propositions above stated were again voted, 
 on the second reading, by the committee of examination, 
 and with about the same feeble majorities. But only the 
 British proposition was voted on by the commission, which 
 adopted it, also without discussion, by a vote of thirty-one to 
 eight, with five abstentions ; and when the commission de- 
 cided not to report the proposed list of cases for obligatory 
 arbitration, this proposition also failed with the others. 
 
 The propositions made in 1899 and 1907 in regard to 
 obligatory arbitration for pecuniary claims, which have 
 thus far been referred to, had to do only with controversies 
 in regard to damages, and not with pecuniary claims aris- 
 ing from the contracted indebtedness of states to individ- 
 uals. This latter class of claims was made the subject of 
 a most important proposition in 1907, presented by the 
 delegation of the United States and known as the " Porter 
 Proposition."
 
 35 2 
 
 THE TWO HAGUE CONFERENCES 
 
 At the second plenary session of the conference, on the 
 19th of June, and at the first meeting of the I Commission, 
 three days later, General Horace Porter announced on 
 behalf of the United States delegation that he would pre- 
 sent a proposition for "an agreement to observe some re- 
 strictions on the subject of the use of force in the collection 
 of ordinary public debts arising from contracts." 
 
 This proposition was duly presented and, with a slight 
 amendment made by the United States delegation itself, 
 read as follows : 
 
 "With the object of preventing between nations armed conflicts 
 of a purely pecuniary origin, arising from contractual debts {dettes 
 contractuelles), claimed by the government of one country as due to 
 its citizens, the Signatory Powers agree not to have recourse to armed 
 force for the collection of such contractual debts. However, this 
 stipulation is not to be enforced when the debtor state refuses or leaves 
 unanswered an offer of arbitration ; or, if accepting it, makes impos- 
 sible the establishment of the compromise ; ' or, after the arbitration, 
 fails to comply with the terms of the award. It is further agreed that 
 the arbitration referred to will be suitable for the procedure de- 
 scribed in Chapter III of the Convention for the Peaceful Settlement 
 of International Differences adopted at The Hague, and that it will 
 determine, unless agreement has been made to the contrary, the jus- 
 tice and the amount of the debt and the time and manner of its 
 payment." 
 
 When the subcommission took up the consideration of 
 this proposition, on the 16th of July, General Porter opened 
 the discussion by a clear and forceful address. 
 
 "There exists," he said, "a general and a growing belief that the 
 use of armed force for the collection of a contractual debt from a debtor 
 nation, unless it is restrained by some general international agreement, 
 
 1 The compromis is an agreement as to the precise question to be arbi- 
 trated, the time, place, and mode of the arbitration, etc.
 
 ARBITRATION 
 
 353 
 
 may become the most prolific source of conflicts, or may at least 
 occasion peaceful blockades, threats of hostilities, or rumors of warlike 
 intentions well adapted to the disturbance of commerce, the unfavor- 
 able depression of markets and the creation of a feeling of uneasiness, 
 and thus disturb not only the countries interested in the quarrel, but 
 even those who are strangers to it. 
 
 "If the debtor nation resists, war becomes inevitable. If, to en- 
 force payment, recourse is had to what is called "a peaceful blockade," 
 there is a growing tendency on the part of neutral commercial nations 
 to disregard it, and war must be declared in order to render it effective. 
 It may be, in addition, that other states have claims to assert against 
 the same country; they will not fail to protest against arbitrary seizure 
 practiced by a single creditor upon the property of their common 
 debtor. 
 
 "The case most frequently in evidence is that of a capitalist or 
 speculator who, depriving his own country of his services and money, 
 goes to make an adventure in a foreign land with the sole object of 
 increasing his private fortune. If he gains millions, he will not divide 
 his profits with his government; but if he loses, he will go to it to 
 demand that war be made to secure for him the sums which he pre- 
 tends are due him and which are often enormously exaggerated. 
 The onerous conditions imposed on the loan prove that the lender 
 recognizes the greatness of the risk which he runs. Very often he 
 buys on the market at a low price certificates of indebtedness issued 
 by the debtor state in question, and demands that they be paid to him 
 at par. In fact, in the game which he plays, he counts on putting 
 into practice the principle of 'Heads, I win; tails, you lose.' 
 
 "The minister of foreign affairs in his own country, to whom he 
 appeals, has usually not adequate means at his. disposal of making a 
 complete investigation of the matter, of procuring and examining all 
 the necessary documents, of ascertaining the evidence of the adverse 
 party, and of forming an exact idea of the true merits of the case sub- 
 mitted to him. He has no jury to establish the facts, no competent 
 and impartial court to pass on the question of jurisprudence, no tri- 
 bunal to decide on the equity of the claim. If he makes a decision, 
 he will know that he is violating one of the fundamental principles of 
 the administration of justice by admitting that a sentence may be 
 rendered by one alone of the parties interested in the dispute.
 
 354 THE TWO HAGUE CONFERENCES 
 
 "If the amount of the claim is collected by a means as severe as the 
 use of armed force, the taxpayers of the nation resorting to force must 
 pay for the enrichment of a capitalist or speculator who desired to run 
 the risk of winning or losing in a foreign country, even though the 
 expense of the collection is a hundred times as great as the amount 
 of the claim. 
 
 "Among the questions with which a minister of foreign affairs may 
 have to be engaged, there is perhaps none more annoying or more 
 perplexing than the pecuniary claims of individuals against a foreign 
 government when they are formulated according to the estimates of 
 the interested parties themselves, and for which payment is demanded 
 even though this may entail the terrible consequence of military 
 operations. If capitalists or speculators, engaging in financial transac- 
 tions with a foreign government, could be told that they must act 
 according to the principle of caveat emptor ; or if they could be given 
 to understand, at least, that the government of their country would 
 not put its means of coercion at the service of their claims, except in 
 so far as the latter have been legalized by a judicial decision, or a 
 competent court or arbitral tribunal has established their true value 
 and the debtor nation has then arbitrarily refused to submit to the 
 decision, — if such a stand could be taken, state departments would 
 be relieved of one of their most vexatious and difficult duties. 
 
 "History establishes the fact that the majority of such claims pre- 
 sent a truly astonishing exaggeration of the sums due. Statistics 
 show that during the last sixty years mixed commissions and arbitral 
 tribunals have examined thirteen of the most important demands 
 for damages, indemnities, or unpaid contractual debts, claimed by 
 the subjects or citizens of one country as due by the government 
 of another country. The largest sum allowed in any single case 
 was only eighty per cent of the total claim, while in some cases 
 the percentage fell to the ridiculous amount of three quarters of one 
 per cent. 
 
 "One of our American citizens some time ago made a contract 
 with a foreign government permitting him to manufacture materials 
 of construction. Difficulties arose in the execution of the contract, 
 and it was cancelled. The grantee took advantage of this to demand 
 an indemnity of about 450,000 francs, which was refused him. He 
 secured the aid of the United States government for his cause, and
 
 ARBITRATION 
 
 355 
 
 after long correspondence, proceedings, and negotiations, the govern- 
 ment sent a fleet of nineteen war ships to support the American claim. 
 Finally, after sixteen years of effort, our government was not able to 
 recover a single centime, and it had spent more than twelve millions 
 [of francs] to reach this conclusion. We consider this lesson instruc- 
 tive, but also expensive. To use a current expression: 'The game is 
 not worth the candle.' 
 
 "It sometimes happens that the citizens of one power procure a 
 decision from their government to send a fleet to constrain another 
 government because of a default in the payment of interest on notes 
 held by them. The report of such a measure causes a rise of prices. 
 The citizens referred to profit by this to sell their notes at a profit, in 
 foreign markets, so that after the claimant power has incurred expense 
 and effort to enforce payment, the profit of it goes chiefly to foreigners. 
 
 "These examples alone should forever deter civilized nations from 
 resorting to arbitrary measures of coercion to impose on a foreign 
 government the payment of a debt (that is to say, of a contractual 
 debt) which has not been definitely ratified by an impartial tribunal. 
 
 "Such coercitive measures are equivalent to the practice once in 
 vogue of imprisoning individuals for debt, except that this constraint 
 could not be enforced upon a debtor unless a competent tribunal had 
 regularly given a judgment in favor of the creditor. Just as the 
 maintenance of the debtor became an expense to the state, and as his 
 confinement prevented him from earning something to pay his debt 
 and even to provide for the needs of his family, so the blockade of a 
 port of a debtor nation and the destruction of its wealth through the 
 interruption of its foreign commerce by means of hostile fleets and 
 armies, deprive it of the revenues which it derives from its customs 
 duties, and may even oblige it to incur expense for opposing force to 
 force. This results only in decreasing its means of paying its debts. 
 Imprisonment for debt, in the case of individuals, came to be regarded 
 as illogical, cruel, and ineffective, and was generally abolished. The 
 analogous practice employed by nations against a debtor state should 
 be likewise abandoned. 
 
 "Forced collections may occasion a demand for immediate pay- 
 ment at a time when the debtor nation, having had to suffer, perhaps, 
 from an insurrection, a revolution, the failure of its crops, an inunda- 
 tion, an earthquake, or some other calamity which it could not pre-
 
 356 THE TWO HAGUE CONFERENCES 
 
 vent, has not the means of immediate payment, although it could 
 honor its obligations if accorded a reasonable delay. Numerous 
 examples could be cited of states which at one time found themselves 
 unable to pay their debts at maturity, but which, having procured a 
 suitable delay, paid in full, interest included, all their obligations, and 
 now enjoy good credit in the family of nations. 
 
 "Neither the prestige nor the honor of a state can be considered 
 as brought into question, if it refuse to compel by force the payment 
 of a contractual debt due, or claimed as due, to one of its citizens from 
 another government. Nor have its citizens the slightest right to 
 demand that a private contract be converted into a national obli- 
 gation. If such were the case, it would be nearly equivalent to their 
 having, from the beginning, their own government as guarantor of 
 the payment. 
 
 "The most eminent writers on international law are of opinion 
 that the state has not the least obligation in this matter towards its 
 subjects or citizens, and that its action in such cases is purely optional. 
 Although these authors differ as to the utility of intervention, re- 
 searches show that the majority of them admit that the duty of inter- 
 vention does not exist." 
 
 General Porter here quoted from a number of eminent 
 statesmen, diplomatists, and jurisconsults to prove this asser- 
 tion. Among them were Lord Palmerston (1848), Lord 
 John Russell (1861), Lord Salisbury (1880), Alexander 
 Hamilton (1787), Hamilton Fish (1871), James G. Blaine 
 (1881), Secretary Bayard (1885), and President Roosevelt 
 (1906). 
 
 "We see," he continued, "that modern public opinion is resolutely 
 opposed to the collection of contractual debts by force. . . . Among 
 modern jurisconsults best versed in questions of international law who 
 deny the right of intervention, or admit the principle of noninterven- 
 tion with or without reserves, may be cited De Martens, Bonfils, 
 Heffter, Woolsey, Wilson and Tucker, Walker, De Floecker, Liszt, 
 Despagnet, Rivier, Nys, Merignac, and others. It is unnecessary to 
 recall the consideration and profound study of this subject by the
 
 ARBITRATION 357 
 
 Argentine Republic, and the complete discussion of this question, 
 and of various others relating to it, contained in the works of the former 
 Secretary of State of that Republic, at present one of our highly es- 
 teemed colleagues in this conference. . . . 
 
 "Expeditions undertaken for the purpose of collecting debts have 
 rarely been successful. It would be to assume a grave responsibility 
 in our era to relegate contested pecuniary claims to the domain of 
 force, instead of placing them under the regime of law, and thus to 
 substitute the science of destruction for the fruitful arts of peace. 
 
 "The principle of nonintervention by force would be an inesti- 
 mable blessing to all the parties interested. First, to the nation whose 
 citizens have become creditors of a foreign government ; for this would 
 be a warning to a class of persons too prone to speculate on the neces- 
 sities of a weak and embarrassed government, and who count on their 
 own for the success of their operations. . It would permit their gov- 
 ernment to continue to entertain normal relations with the foreign 
 government; it would avoid incurring its ill will and, perhaps, the loss 
 of its commerce. It would free it also from the risk of complications 
 with neutral powers. 
 
 "Secondly, the recognition of this principle would be a genuine 
 relief to neutrals; for blockades and hostilities, by arresting all 
 traffic, are a serious menace to their foreign commerce. 
 
 "Thirdly, debtor states would be benefited by it; for it would pre- 
 vent lenders of money from counting, as a basis of their operations, 
 on anything but governmental good faith, national credit, the justice 
 of local tribunals, and the economy pertaining to the administration of 
 public affairs. It would deliver these states from the importunities 
 of adventurous speculators who tempt them by the offer of great loans, 
 which are often the prelude to national extravagance, and finally 
 threaten to seize their property and violate their sovereignty. The 
 certainty that all disputed pecuniary claims would be submitted to 
 the valuation of an impartial tribunal would be calculated to make 
 great financiers, great promoters, understand that their claims would 
 be promptly passed upon, without serious difficulty in the country's 
 administration of its public affairs, and without their being personally 
 obliged to assume the task of inducing their own government to charge 
 itself with collecting their dues by force of arms. Under such condi- 
 tions, foreign financiers and financial establishments, supplied with
 
 358 THE TWO HAGUE CONFERENCES 
 
 every guarantee, would be more disposed to negotiate loans, and would 
 make easy and reasonable terms. . . . 
 
 "One of the significant features of this conference is the fact that, 
 for the first time in history, the creditor and debtor nations of the 
 world have come together in friendly counsel. The occasion seems, 
 then, to be the most auspicious possible for a serious effort to come to 
 an agreement on some regulations as to the treatment of contractual 
 debts, — regulations which, having received the approval of this 
 assembly, may form a general treaty on the subject between the nations 
 here represented, for the true interests and peace of the world." 
 
 The project thus ably launched did finally reach the 
 haven of a general treaty adopted by the conference; but 
 its voyage was a long and somewhat stormy one. At least 
 ten threatening dangers, in the shape of opposing argu- 
 ments, had to be passed through or avoided. These dan- 
 gers loomed up both in the subcommission, the committee 
 of examination, the commission, and the plenary session 
 of the conference ; and it was only by persistent, diplomatic, 
 and fearless skill that success was finally achieved. While 
 the conference was almost unanimous in indorsing the prin- 
 ciple of the proposition, its opponents on the one side claimed 
 that it went too far, and its opponents on the other side 
 claimed that it did not go nearly far enough. The latter 
 class were the more numerous, and among them were most 
 of the American republics. 
 
 Dr. Drago, of Argentina, to whom General Porter had 
 gracefully referred, expounded the well-known "Drago 
 Doctrine" in a statesmanlike and careful address. The 
 three objections which he urged to the "Porter Proposi- 
 tion" were, first, that it did not restrict the arbitration of 
 debts arising from ordinary contracts solely to those cases 
 in which the courts of the debtor country had been pre- 
 viously appealed to and had refused justice; second, that
 
 ARBITRATION 
 
 359 
 
 it seemed to include public debts as subject to arbitration ; 
 and, third, that it did not absolutely exclude military 
 aggression, or the occupation of American soil, as the result 
 of disputes in regard to public debts. 
 
 The first of these objections was adhered to by the rep- 
 resentatives of Mexico, Venezuela, Uruguay, Nicaragua, 
 Paraguay, Peru, Ecuador, Guatemala, and Switzerland. 
 It was supported by Dr. Drago on the ground that "No 
 real difficulty exists [in exhausting local means of collect- 
 ing debts, before proceeding with diplomatic measures], 
 because there are everywhere tribunals or courts of claims 
 with the jurisdiction necessary to take cognizance of this 
 class of disputes. In the Argentine Republic, as well as 
 in most of the South American states, the government can 
 be made party to a suit without the necessity of obtaining its 
 previous consent. In this respect we have gone farther 
 than the United States, which is inspired by the principles 
 proclaimed by Hamilton, one of the authors of the Federal- 
 ist, according to whom the nation can not, any more than 
 the states which form it, be summoned before the courts 
 (Chapter 81)." "The fact that one state can not intervene 
 in the affairsof another state," said M. LaBarra,of Mexico, 
 "unless it be under the exceptional circumstances deter- 
 mined by international law, is a natural consequence of 
 the sovereignty and independence of states." "The 
 states of Europe," said M. Castro, of Uruguay, "should 
 not apply to America other rules of conduct than those of 
 international law, which regulates their relations with each 
 other. America has a good right to such treatment, for 
 it is entirely civilized." "When a government dealing 
 with foreigners," said M. Candamo, of Peru, "has specified 
 in the contract that differences which may arise shall be
 
 360 THE TWO HAGUE CONFERENCES 
 
 settled by the judges and tribunals of the country, it is be- 
 fore them that the affair must necessarily be brought." 
 
 Dr. Drago's second objection to the Porter Proposition 
 was adhered to by the representatives of Uruguay, Nicara- 
 gua, Colombia, Paraguay, Peru, Guatemala, and Servia. 
 It was supported by Dr. Drago for the reason that public 
 debts are very different from other classes of indebtedness 
 and should not be treated like them in being subjected to 
 arbitration. "They are put into circulation," he said, 
 "by virtue of legislative authorization which proceeds di- 
 rectly from national sovereignty and is inseparable from it. 
 The issue of bonds or public funds, like that of money, is 
 in fact a positive manifestation of sovereignty. It is by 
 an act of sovereignty that a state ordains the payment of 
 coupons on maturity, and it is quite obvious that it is by 
 an act of the same character that it determines, in some 
 exceptional cases, the suspension of the payment of the 
 debt. On the other hand, there is no individual creditor 
 who has contracted directly with the government ; it is an 
 indistinct, unnamed person, who acquired its certificates 
 at their actual market value, which is more or less variable ; 
 but the certificates bear always, from the beginning, their 
 risks and their certainties, which are perfectly indicated 
 by their quotation. ... It is certainly a fact that, though 
 the juristic distinction between ordinary contracts and cer- 
 tificates constituting the public debt were not clearly estab- 
 lished, as it is, from the point of view of principles, we may 
 always arrive at this conclusion in a practical manner, 
 since everywhere tribunals exist for the first class, while 
 there are nowhere any to adjudicate the second class." 
 The representatives of the other South American states 
 mentioned above did not attempt to argue this phase of the
 
 ARBITRATION 361 
 
 Drago Doctrine, but contented themselves with express- 
 ing their acceptance of it. M. Ruy Barbosa, of Brazil, 
 on the other hand, in a very learned and ample address, 
 frankly rejected, for himself and for every thinker and pub- 
 licist in Brazil, the Drago Doctrine in its entirety. He 
 attacked the heart of the doctrine by denying that the 
 sovereignty of a state is a legitimate barrier to compelling 
 it to pay its bonded indebtedness. 
 
 That sovereignty which in the United States, Dr. Drago 
 said, had been made impeccable, M. Barbosa declared has 
 been restricted by the federal courts. 
 
 "The most original and the most commendable trait of the United 
 States Constitution," said the latter, "... is that justice has been 
 placed as a sacred limit and impassable barrier to sovereignty. . . . 
 What is it, then, which is lacking in sovereignty to place it, in the 
 domain of justice, on the same plane as individuals, in this matter 
 of civil obligations? Solely the seizability of its goods. 1 ... It is 
 the first time that between nation and nation, between sovereignty and 
 sovereignty, an appeal has been made to the internal, domestic rule of 
 the nonscizability of the state's goods, to establish the illegitimacy of 
 war. War is never considered unjust because the patrimony of a 
 sovereignty is inaccessible to military seizure ; what makes wars un- 
 just, is the injustice of their motives. ... In this system, then, a 
 government's certificate would not be a juristic agreement, but an act 
 of confidence. . . . But, truly, the theory once consolidated in law 
 that states in borrowing contract no coercitive obligation whatever, 
 that is to say, that their creditors are entirely disarmed towards them, 
 can any one believe that there would still be capitalists foolish 
 enough to intrust their wealth to such privileged beings? . . . This 
 theory is not the theory of the right of sovereignty; it is the theory 
 of the abuse of sovereignty. Applied in the internal affairs of states,- 
 it would nullify the organization of justice, even as it would destroy 
 it if admitted to international dealings. . . . This is why, gentle- 
 
 1 M. Barbosa said that in Brazil, unlike the case in the United States, 
 the government can be summoned to court and proceeded against.
 
 362 THE TWO HAGUE CONFERENCES 
 
 men, we have not subscribed, and do not subscribe to this doctrine. 
 In the juristic field, it seems to us seriously questionable. In the 
 humanitarian field, it could not wholly exclude the sanction of force- 
 In the political field, by making a high appeal to the Monroe Doctrine, 
 it would compromise that doctrine; because, on the one hand, it 
 would draw upon it the antipathy of the world, and, on the other, it 
 would place upon it crushing responsibilities." 
 
 No one attempted to answer this reasoning of M. Bar- 
 bosa concerning a state's bonded indebtedness ; but Argen- 
 tina and her adherents still insisted that the Porter Prop- 
 osition should not apply to such indebtedness, and Dr. 
 Drago, and M. Milovanovitch, of Servia, endeavored in the 
 committee of examination to induce General Porter so to 
 define " contractual debts" as to exclude the debts of a state 
 itself. General Porter declared, however, that it was not 
 within his competence to enter into definitions which it 
 would be almost impossible to formulate, and the proposi- 
 tion was adopted with the much-disputed term unde- 
 fined. 
 
 As an offset to Dr. Drago's contention that the Porter 
 Proposition should be restricted, so as, to exclude public 
 debts from arbitration, M. Matte, of Chili, objected to the 
 proposition because it was restricted only to disputes aris- 
 ing from contractual debts and did not include all kinds 
 of pecuniary disputes. He referred to the Treaty of Mexico, 
 which was signed January 30, 1902, by seventeen American 
 states and provided for the submission to arbitration of 
 "all claims for damages and interest of a pecuniary kind," 
 and said that Chili's delegation would take one step 
 farther and propose obligatory arbitration, not only for 
 all claims for damages and interest of a pecuniary kind, but 
 also for those which arise from pretended infractions of 
 contracts. It was apparent that this step was too long for
 
 ARBITRATION 363 
 
 the conference, — Chili's proposition was not discussed, 
 and its delegation accepted the Porter Proposition as the 
 utmost that could be gained. 
 
 The third objection stated by Dr. Drago, and supported 
 by the representatives of Venzuela, Dominica, Nicaragua, 
 Paraguay, Colombia, Bolivia, Sweden, Greece, and Servia, 
 was that the Porter Proposition admitted the use of force 
 after the failure of arbitration. Dr. Drago acquiesced in 
 the use of force after the failure of arbitration in the case 
 of ordinary contractual debts; but he opposed both "mili- 
 tary aggression and the material occupation of American 
 soil" under any circumstances in the case of public 
 bonded indebtedness. His argument was : 
 
 "War is not justifiable in the absence of causes sufficient to en- 
 danger or to affect profoundly a nation's destiny, and among these 
 causes can never be placed the nonpayment of bond coupons to 
 their eventual holders. ... By accepting that part of the proposi- 
 tion of the United States which makes appeal to force for the execu- 
 tion of disregarded arbitral sentences [in the case of bonded public 
 debts], we should take a long step backward, we should recognize war 
 as an ordinary resort of law, we should establish one more case of 
 lawful warfare: a thing which would surely be a contradiction in a 
 Peace Conference which has, as the very object of its existence, the 
 prevention of the causes of war, or at least their diminution." 
 
 As to the use of war as a last resort in the case of ordinary 
 contractual debts, Dr. Drago said : 
 
 "The denial of justice established by arbitration constitutes a 
 common offense in international law, and must give occasion for 
 reparation. A denial of justice, like an act of piracy, is a fact which 
 destroys the equilibrium of the world community and endangers that 
 community itself, and because of that very fact it falls within the imme- 
 diate domain of the international repression which is foreseen, ac- 
 cepted, and made applicable by the general consensus of all nations."
 
 364 THE TWO HAGUE CONFERENCES 
 
 But the other delegations which accepted Dr. Drago's 
 argument against war as a last resort in the case of public 
 bonded indebtedness did not indorse his admission of war 
 as a last resort in the case of other contractual debts. 
 M. Perez Triana, of Colombia, made the most extended 
 and the most ardent address against the admission of war 
 in any case of pecuniary dispute and under any circum- 
 stances. 
 
 "The collection of debts by force," he said, "necessarily interests 
 the countries of Latin America whose territory is vast and the exploi- 
 tation of whose natural wealth will continue to demand in the future, 
 as it has done in the past, capital which must be sought for abroad and 
 which will be secured in many cases either directly by the governments 
 of the respective countries, or with their guarantee. 
 
 "The principle of collection by force can be applied only when 
 the creditor is strong and the debtor is weak. When, as can very well 
 be the case, a creditor is weak in military resources as compared with 
 a great military power which can not pay its debts, the right of forcible 
 collection would become ridiculous. 
 
 "In the case of debtor nations, it is possible that in spite of the 
 greatest prudence, the government may find itself wholly unable to 
 meet its financial obligations. This may arise from internal revolu- 
 tions, from international wars, from the cataclysms of nature, which 
 destroy in an incalculable manner the public revenues; it may 
 arise from bad harvests during several successive years, or the sus- 
 tained and ruinous fall in prices of national products. All this is 
 of exceptional gravity in new countries which, unlike the old coun- 
 tries of Europe, do not possess the wealth accumulated for centuries. 
 
 "... The state finding itself, then, in the situation described will 
 be attacked by the naval and military forces of its creditor, and a war 
 will commence in which the debtor state shall have been already con- 
 demned in advance before the conscience of the world, as the author 
 of a war unjustifiable according to its own declaration. 
 
 "... The decision rendered by the arbitral court can neither 
 change the situation of the debtor country nor augment its resources. 
 Yet, according to this decision, the debtor country, being unable to
 
 ARBITRATION 365 
 
 pay its debts, must endure the armed aggression of the creditor, who 
 can bombard its forts and invade its territory. And still the blows 
 will not fall on the guilty or the responsible, but on innocent victims 
 who must bear the burden of all the faults or errors of those who 
 govern them. This indirect method of collecting debts partakes of 
 the methods of the Inquisition ; it is no more acceptable, morally, 
 than the application of torment to wring confessions of guilt from 
 innocent lips. 
 
 "I understand perfectly that these ideas are very different from 
 those of creditors. But each one of us speaks here from his own point 
 of view, and with his own arguments. The spirit of Shylock is still 
 almost all powerful in our modern civilization. Once, the insolvent 
 debtor could be sold as a slave or imprisoned at will. We have pro- 
 gressed a little ; but Shylock will always continue to demand his pound 
 of flesh and to take it whenever he can. It is his role. Now, as M. 
 de Brunetiere said, I do not accuse, I affirm. In the case of an indi- 
 vidual creditor, the debtor can expect some distant ray of human 
 charity. But the collective creditor is pitiless; the sentiment of 
 humanity is lost in the collective soul, as smoke is in space : crowds, 
 like water, seek and find their lowest level. 
 
 "If a man loses his wealth without having had it insured, by ship- 
 wreck, fire, or the failure of a corporation, he must be resigned; but 
 here is a demand, on behalf of the creditor finding himself before a 
 state which has no means of paying him, for a recourse to force 
 which will increase with bloody violence the distress of the debtor 
 state. 
 
 "... The establishment of a recourse to force entails a new dan- 
 ger to the world's peace. Adventurous financiers in league with ava- 
 ricious governments will constitute a dangerous household ; the cour- 
 tiers can say to their client, 'This claim is quite safe, we have the 
 navy and army at our service for assuring its payment.' 
 
 "It is the appeal to force that we reject. You ask, 'What shall 
 be done?' I reply, 'If you can not solve the problem satisfactorily 
 and justly, let things take their course.' It must be remembered that 
 nations are, so to speak, immortal, and that there is no limit of pre- 
 scription for national debts: what one generation does not pay, is 
 paid by the next. This Peace Conference, despite the good will of 
 all its members and the undoubted ability of the illustrious men who
 
 366 THE TWO HAGUE CONFERENCES 
 
 preside over its deliberations, can not work miracles ; and it would be 
 a miracle to insure international creditors against all possibilities of 
 loss. And, I venture to say, it would not be a miracle, but a great 
 error to place in the hands of financiers — some of whom are not 
 angels — the means of promoting wars, more or less avowedly im- 
 perialistic in their tendencies, against weak nations. From such 
 sparks may spring conflagrations of incalculable import. 
 
 "I must not conclude without adding that Colombia, my country, 
 has a well-established credit, that its revenues are visibly increasing, 
 and that Peace reigns over it without cloud or shadow." 
 
 M. Ruy Barbosa, who was the chief exponent of the 
 opposition to the first part of the Drago Doctrine, at- 
 tacked also both its second part and the Colombian 
 extension of it. 
 
 "Our credit, always intact," he said, "is a structure carefully 
 erected, and we do not wish to expose it to the attacks of malevolence 
 which is as watchful in dealings between nations as in those between 
 individuals. We were, we are debtors, and we may still need to have 
 recourse to foreign markets [for our bonds]. We do not wish, then, 
 to incur the suspicion of those whom we have so often found ready 
 to cooperate in the development of our prosperity ; for God has per- 
 mitted us to remain unacquainted with usury, and never to meet with 
 that ferocity of capital against which pretense of defense is made. 
 Our creditors have been intelligent and reasonable co-workers in 
 our progress. 
 
 "... Our impression as to this matter is very vivid. We fancy 
 that when one owes, and has the misfortune to be unable to repay, 
 he may not simply discard his embarrassments with impunity. We 
 believe that the danger and the fear of consequences may act, some- 
 times, as a healthy check upon imprudent borrowing. 
 
 "... It has been thought that there is a kind of legalization of 
 war in this measure proposed to the Peace Conference. But there is 
 not the least legalization in it. It is the legal admission of a necessity 
 which can not be destroyed. . . . The American formula, if it were 
 less sincere, might be silent on the final use of force in cases of dis- 
 regarded arbitration. But the difference then would be solely that
 
 ARBITRATION 367 
 
 there would have to be read into the text what is now expressed in it. 
 For it is quite obvious that, even though only the stipulation, pure and 
 simple, of obligatory arbitration is expressed, as soon as this is evaded 
 or its verdict is not respected, the hypothesis of the intervention of 
 arms returns as the only possible corrective of the rejection of an ar- 
 bitral agreement or of disobedience to its award. This is what the 
 ordinary arbitral agreement passes over in silence, and what the 
 American proposition affirms. The two things differ only in appear- 
 ance ; one is more clever, the other more frank. 
 
 "It is sad that we are obliged always to leave war behind what we 
 do for peace. But so long as war exists and men make of it a means 
 of reinstating law, we know not how to prevent the melancholy spec- 
 tacle — of which we ourselves are necessarily parts — of consider- 
 ing it as the last court of appeal for those who, while believing them- 
 selves possessors of a law, or having an arbitral decision in their favor, 
 see it flouted by those in rebellion against measures of conciliation 
 and forms of justice. . . . Nothing could show us in a more impres- 
 sive manner how our mission is circumscribed by the essence of facts 
 and what a universe of impossibilities is opposed, outside of certain 
 limits, to our most ardent wishes and our most heroic efforts." 
 
 M. Milovanovitch renewed in the committee of exami- 
 nation the effort to strike out the part of the proposition 
 which refers to the use of armed force, at the same time 
 admitting that a recourse to violent means must always 
 be understood as a last resort. But General Porter replied 
 that it was impossible to do this, and that from what he had 
 heard from the jurisconsults, the substitution of the appar- 
 ently milder, but more equivocal, words "coercive meas- 
 ures" would be defeated. Sir Edward Fry, of Great Brit- 
 ain, also said that the term "coercive measures" might be 
 equivocal, since it is employed in domestic law to designate 
 all the modes of execution in use for national sentences. 
 
 In the Porter Proposition as first presented, no reference 
 was made to the use of force in case the debtor state makes 
 "impossible the establishment of the compromise" (i.e.
 
 368 THE TWO HAGUE CONFERENCES 
 
 an agreement as to the precise question to be arbitrated, 
 the time, place, and mode of the arbitration, etc.). When 
 it was presented to the subcommission without this pro- 
 viso, Count Tornielli, of Italy, while expressing his strong 
 desire to vote for the proposition, was opposed to it without 
 such proviso. He evidently had in mind, in this case as 
 well as in other cases of obligatory arbitration, the fear 
 lest the United States Senate and other similar bodies 
 might prevent the resort to arbitration even after the offer 
 had been accepted. Count Tornielli also drew the infer- 
 ence from General Porter's speech that the United States 
 was unwilling to arbitrate any claims for pecuniary dam- 
 ages in cases where the State courts had failed to award 
 them to Italians injured in American cities. His objec- 
 tions to the proposition were supported by the representa- 
 tives of Japan, Spain, Norway, Servia, Bulgaria, and Persia. 
 But the proviso as to the compromise was included in the 
 amended proposition, and General Porter stated in the 
 committee of examination that "the purpose of the prop- 
 osition is not, directly or by implication, to attempt to 
 justify, in cases of debts or claims of any kind, any procedure 
 which is not based on the principle of the settlement of 
 international differences by arbitration, of which, in its 
 widest application, the United States of America is to-day 
 more than ever a sincere advocate." Thereupon Count 
 Tornielli expressed himself as entirely satisfied, and with- 
 drew his objections ; and the other delegations, objecting 
 on the same ground, followed his example. 
 
 On the other hand the representatives of the Dominican 
 Republic and Haiti objected to the compromise clause 
 being included in the paragraph recognizing force as the 
 last resort, and based their objection on Article 53 of the
 
 ARBITRATION 369 
 
 Convention of 1907 for the Peaceful Settlement of Inter- 
 national Differences which provides that the Court of 
 Arbitration shall determine the compromise in case the 
 parties in dispute are agreed that it should do so. But 
 this objection was yielded by Haiti, in order to secure the 
 votes of the delegations making the directly opposite 
 objection; while the Dominican Republic voted for the 
 proposition with the reservation of this clause. 
 
 In reply to a probable objection of Professor de Martens, 
 of Russia, General Porter stated in the committee that the 
 application of the rule was intended to be restricted abso- 
 lutely to the interventon of a government in behalf of its 
 citizens, and not of the citizens themselves. 
 
 One final objection was urged against the proposition 
 by the representatives of Roumania, Switzerland, and Tur- 
 key in regard to the place which it was to occupy among 
 the acts of the conference. The representatives of France 
 and Portugal welcomed the proposition for the expressed 
 reason that it was a shining example of obligatory arbitra- 
 tion; the representatives of Germany and Austria, while 
 supporting the proposition throughout, denied that they 
 were thus advancing the cause of obligatory arbitration. 
 And the delegations of Roumania, Switzerland, and Tur- 
 key opposed the proposition lest it should be placed in the 
 Convention for the Peaceful Settlement of International 
 Differences, in association with the articles referring to 
 arbitration, and thus be made an example of obligatory 
 arbitration. General Porter stated his entire willingness, 
 from the first, however, that his proposition be made the 
 subject of a separate convention, and this plan was 
 adopted. This concession resulted in Turkey's voting for 
 the proposition, and in abstention from the vote on the
 
 370 THE TWO HAGUE CONFERENCES 
 
 part of Roumania and Switzerland, instead of their nega- 
 tive vote. 
 
 Although the Porter Proposition had to run this long 
 gauntlet of objections, it was hailed and followed through- 
 out by the applause of many of the delegations, including 
 those of the large and "the creditor powers; noteworthy 
 among these were Great Britain, France, Germany, Rus- 
 sia, Austria, and Brazil. Even those who made objections 
 to its form in the various ways noted above, had many and 
 warm words of praise for its general principle ; and in the 
 end it received the affirmative vote of thirty-nine delega- 
 tions, while those of Belgium, Roumania, Sweden, Switzer- 
 land, and Venezuela did not vote against it, but abstained 
 from voting at all. It should be noted, however, that nine 
 of the American republics, while casting an affirmative 
 vote for the proposition as a whole, made certain reserva- 
 tions as to its interpretation or application. Eight of these, 
 Argentina, Colombia, Ecuador, Guatemala, Nicaragua, 
 Paraguay, Peru, and Uruguay, made the reservations in- 
 cluded in the Drago Doctrine ; and the Dominican 
 Republic adhered to its reservation in regard to the com- 
 promise. 
 
 D. INTERNATIONAL COURTS 
 
 i. The Permanent Court of Arbitration 
 
 a. The Conference of i8gg 
 
 The Russian plans for the peaceful settlement of inter- 
 national difficulties included proposals in regard to good 
 offices and mediation, international commissions of in- 
 quiry, obligatory arbitration in certain classes of cases,
 
 ARBITRATION 37 j 
 
 and a code of arbitral procedure ; but they did not at first 
 include a plan for a court of arbitration. The honor and 
 credit of proposing this famous institution belong to Sir 
 Julian Pauncefote, of Great Britain, who made the propo- 
 sition at the second meeting of the III Commission, on 
 the 26th of May. He presented his plan in the following 
 short address : 
 
 " Permit me, Mr. President, to inquire if, before going farther into 
 this matter, it would not be useful and suitable to sound the commis- 
 sion on the question which in my opinion is the most important of all, 
 that is, the establishment of a permanent tribunal of international 
 arbitration, on which you have touched in your discourse. 
 
 " Many codes of arbitration and rules of procedure have been drawn 
 up, but the procedure has been regulated, up to the present, by the 
 arbitrators or by general or special treaties. Now, it seems to me, 
 that new codes and rules of arbitration, whatever their merit may 
 be, do not much advance the great cause which has called us to- 
 gether. 
 
 " If it be desired to take a step in advance, I am of opinion that it 
 is absolutely necessary to organize a permanent international tribunal 
 which could assemble immediately on the request of the nations in 
 dispute. This principle once established, I believe that we shall not 
 have much difficulty in agreeing upon details. The necessity of such 
 a tribunal and the advantages which it would offer, as well as the 
 encouragement and even the strong impulse which it would give to 
 the cause of arbitration, has been shown with as much eloquence as 
 force and clearness by our distinguished colleague, M. Descamps, 
 in his interesting ' Essay on Arbitration,' an extract from which is 
 to be found among the ' Acts and Documents ' so graciously supplied 
 to the conference by the Netherlands government. Nothing more 
 remains for me to say, then, upon this subject; and I shall much ap- 
 preciate it, Mr. President if, before proceeding further, you would 
 consent to draw out the thoughts and feelings of the commission on 
 the proposition which I have the honor to submit to you regarding 
 the establishment of a permanent tribunal of international arbitra- 
 tion."
 
 372 THE TWO HAGUE CONFERENCES 
 
 The great idea contained in this short and simple speech, 
 like many another great idea in the world's history, did 
 not meet with an immediate and visible response. In fact, 
 it met first with an objection, on the part of two members, 
 that it should not be allowed to displace the regular order 
 of business ! But before the end of the meeting, M. de 
 Staal announced that the Russian delegation also had a 
 proposition to present concerning a court of arbitration ; 
 and both the British and Russian plans were referred to the 
 committee of examination. 1 
 
 At the third meeting of the committee, May 31, Mr. 
 Holls presented, on behalf of the United States delegation, 
 a plan for a permanent tribunal of arbitration; but both 
 he and M. de Staal agreed that Sir Julian Pauncefote's 
 plan should be taken as the basis of the committee's discus- 
 sion. This discussion occupied seven meetings, held at 
 intervals from the 9th of June to the 18th of July; and 
 these five weeks were devoted, not only to discussion within 
 the committee, but also to consultations on the part of 
 members of the whole conference with each other and with 
 their respective governments, and to one important diplo- 
 matic mission in behalf of the proposed tribunal. 
 
 The preliminary discussion of the question was opened 
 by M. Bourgeois, of France, with the statement that his 
 delegation would gladly accept the proposition for a per- 
 manent tribunal, on the twofold guarantee, first, that there 
 
 1 This very important committee was composed of the following members: 
 Messrs. Asser of the Netherlands, Descamps of Belgium, D'Estournelles of 
 France, Holls of the United States, Lammasch of Austria, De Martens of 
 Russia, Odier of Switzerland, and Zorn of Germany; M. Bourgeois of France 
 presided over the committee ; Count Nigra of Italy and Sir Julian Paunce- 
 fote of Great Britain were regular and active attendants on its meetings, 
 and various other delegates were sometimes present.
 
 ARBITRATION 373 
 
 should be entire liberty in having recourse to the tribunal 
 proposed, or to any other method of arbitration ; and, sec- 
 ond, that there should be entire liberty of choice among 
 the members of the court to act as arbitrators in any 
 given case. Sir Julian Pauncefote followed this state- 
 ment with an expression of appreciation for the con- 
 sideration shown to the British plan and for the Russian 
 and American amendments to it. Chevalier Descamps, 
 of Belgium, then said of the importance of the proposed 
 tribunal, and the demand for it, that it " responds to the 
 juristic conscience of civilized peoples, to the progress 
 achieved in national life, to the modern development of 
 international litigation, and to the need which compels 
 states in our days to seek a more accessible justice in a 
 less precarious peace. It can be a powerful instrument 
 in strengthening devotion to law throughout the world. 
 And it is a fact of capital importance that three projects 
 of this kind have been presented by three great powers. 
 . . . The difficulties which the realization of the mag- 
 nanimous views of the Emperor of Russia has encountered 
 in other fields are another reason for us to urge forward 
 the organization of mediation and arbitration. We must 
 develop and consolidate the organic institutions of peace. 
 There is on this point a general expectancy in every 
 land, and the conference can not, without serious disad- 
 vantages, disappoint it. The proportions which we shall 
 give to the work that we are about to undertake will 
 be, without doubt, modest; but the future will develop 
 whatever fertility this work has for the welfare of the 
 nations and for the progress of humanity. As for the 
 delegates to this conference it will be, without doubt, one 
 of the greatest joys of their lives to have cooperated in
 
 374 THE TW0 HAGUE CONFERENCES 
 
 the achievement of this great result, — the fraternal ap- 
 proach of the nations and the stability of general peace." 
 
 Dr. Zorn, of Germany, then took the floor and said that 
 he had listened with the greatest attention and with a pro- 
 found emotion to the above declarations, and that he had 
 recognized the solemnity of that hour when the represen- 
 tatives of the civilized states had spoken on one of the 
 gravest problems which could be discussed. "For my 
 part," he said, "I hope that the day will come when the 
 noble desire of the Emperor of Russia can be wholly ful- 
 filled, and when differences between nations shall be 
 brought, for the most part, in so far as they concern neither 
 vital interests nor national honor, before a permanent 
 international tribunal. But, filled though I am, personally, 
 with this hope, I can not, I must not, surrender myself to 
 illusions ; and such is, I am sure, the opinion of my gov- 
 ernment also. . . . The German government can not pro- 
 nounce upon the organization of a permanent tribunal, 
 before having had satisfactory experience with an occa- 
 sional court of arbitration." He thereupon moved the 
 previous question, which was the Russian proposition as 
 to arbitral procedure. 
 
 To remove this fatal objection on the threshold of the 
 discussion of a permanent tribunal, M. Asser, of the 
 Netherlands, endeavored to convince Dr. Zorn that the 
 necessary experiments in occasional arbitration had been 
 satisfactorily made, and that those which yet remained to 
 be tried were precisely those which the proposed plan had 
 in view, and which could be tried in no other way. But 
 Dr. Zorn adhered to his motion, for the reasons that a per- 
 manent tribunal had not figured in the original Russian 
 programme submitted to the powers, and that "in reality,
 
 ARBITRATION 375 
 
 it is quite probable that the permanent temporary tribu- 
 nal, as it has been called, will not be long in becoming 
 altogether permanent." The veteran diplomacy, of Count 
 Nigra, of Italy, was then brought into play, and he made a 
 direct appeal to his German colleague not to make "too 
 absolute a decision on a question which interests so deeply 
 all mankind. The impatience," he continued, "with 
 which public opinion awaits the results of our labors has 
 become so great that it would be dangerous to renounce the 
 acceptance of an arbitral tribunal. If the conference 
 should respond to that impatience with a non possumus, or 
 insufficient results, the disappointment would be bitter. 
 The conference would incur, in such case, a grave respon- 
 sibility towards history, towards the world, and towards 
 the Emperor of Russia." Chevalier Descamps added his 
 persuasion to Count Nigra 's, and Dr. Zorn consented to 
 withhold a categorical refusal for a time, and to refer the 
 question to his government. 
 
 This first danger temporarily avoided, Professor de 
 Martens, of Russia, ontinued the general discussion of the 
 plan, and said that the establishment of a permanent tri- 
 bunal was only the natural development of Russia's pro- 
 posals as to arbitration and arbitral procedure. M. Odier, 
 of Switzerland, representing the smaller powers, said : 
 
 "More than one hope, more than one expectation, of arbitration 
 has dawned on the world; and popular opinion has the conviction 
 that in this direction, above all, important steps will be taken by the 
 conference. No one can deny, in fact, that we are able at this mo- 
 ment to take a new and decisive step in the path of progress. Shall 
 we draw back, or reduce to insignificant proportions the importance 
 of the innovation expected of us ? If so, we should arouse a universal 
 disappointment, the responsibility for which would press heavily upon 
 us and our governments."
 
 376 THE TWO HAGUE CONFERENCES 
 
 Professor Lammasch, of Austria, next expressed his dele- 
 gation's willingness to examine the Pauncefote plan, but 
 its determination, at the same time, to give neither direct 
 nor implied indorsement of it. 
 
 Finally, Mr. Holls closed the discussion by the following 
 heartily applauded address : 
 
 "I have listened with the greatest attention to the important ex- 
 change of opinion which has just taken place between the represen- 
 tatives of different great European states. It has seemed proper 
 to me, representing, as it were, a new power, that precedence in the 
 discussion should naturally be given to the delegates of the older 
 countries. This is the first occasion upon which the United States 
 of America takes part under circumstances so momentous in the de- 
 liberations of the states of Europe, and having heard, with profound 
 interest, the views of the great European powers, I consider it my duty 
 to my government, as well as to the committee, to express upon this 
 important subject the views of the government of the United Slates 
 with the utmost frankness. I join most sincerely and cordially in the 
 requests which have been addressed to the honorable delegate of the 
 German Empire. 
 
 "In no part of the world has public opinion so clearly and unmis- 
 takably expressed its adherence to the noble sentiments of His Maj- 
 esty the Emperor of Russia, which have led to the calling of this con- 
 ference, as in America, both North and South. Nowhere do more 
 sincere wishes, hopes, and prayers ascend to heaven for the success of 
 this conference. The delegation of the United States of America 
 has received hundreds of expressions of sympathy and support, not 
 only from the United States, but from the entire American continent ; 
 and these manifestations come, not only from individuals, but from 
 secular organizations of the highest standing and the widest influ- 
 ence, and from great and powerful churches — some of them repre- 
 senting millions of members. In consequence, we, the members of 
 this conference, are bound, so to speak, by a most solemn moral 
 obligation, incurred, not between the governments, but between the 
 peoples of the civilized world. As it was most fittingly expressed in a 
 great national crisis of my own country by its greatest modern states-
 
 ARBITRATION 377 
 
 man, Abraham Lincoln, 'We can not escape history.' We, of this 
 conference and of this committee, will be remembered in spite 
 of ourselves — no personal significance or insignificance can spare 
 one or another of us. 
 
 "Let me ask the honorable members of this committee to approach 
 the question before us in a practical spirit, such as is generally attrib- 
 uted to us Americans; let us observe the true state of public opinion. 
 Public opinion, all over the world, is not only eagerly hoping for our 
 success, but it should be added that it has become uneasy and anxious 
 about it. The powers of unrest and discord are even now exulting 
 over what they hope will prove to be our ignominious failure. 
 
 "On the other hand, the fear is abroad, most unmistakably, even 
 among our friends and well-wishers, that by reason of conflicting 
 interests of a political nature, or for other causes which can not be dis- 
 cussed openly, the results of this conference may turn out to be purely 
 platonic, inadequate, unsatisfactory, perhaps even farcical; and, 
 moreover, it should be clearly recognized and remembered that public 
 anxiety on this point is based upon recent experience in a case pre- 
 senting many analogies to the situation before us. A conference was 
 called not many years ago upon the noble and generous initiative 
 of His Majesty the German Emperor, upon a subject profoundly 
 interesting to mankind; namely, the protection of the interests of 
 labor; and it met at Berlin, having a most distinguished and repre- 
 sentative membership. But what was the result? Resolutions of a 
 purely academic character were adopted, and that conference is 
 even now almost forgotten. 
 
 "Civilized, educated, progressive public opinion, which is beyond 
 all question the most potent and the one irresistible moral influence in 
 the world to-day, remembering former failures, will not pardon 
 us if we offer it a new acute rebuff, and the very hopes which are now 
 concentrated upon us and our work will be the measure of the disap- 
 pointment which would follow our failure. Moreover, the estab 
 lishment of a permanent international court is the one great success 
 which is hoped for, not only as being brilliant and striking, but also 
 as being attainable, — in fact, within our very grasp. Without doubt 
 the honorable delegate from the German Empire is correct, when he 
 regards even the Russian project [of mediation and arbitral procedure] 
 as a decided step in advance over the present condition of affairs
 
 378 THE TWO HAGUE CONFERENCES 
 
 as regards arbitration; but from the point of view of the practical 
 man — the point of view of efficient and critical public opinion all 
 over the world — I venture to say most emphatically that we shall 
 have done nothing whatever if we separate without having estab- 
 lished a permanent tribunal of arbitration." 1 
 
 Under the stimulus of these earnest preliminary ad- 
 dresses, the committee took up the discussion of the articles 
 proposed for the establishment of the tribunal, with those 
 of Sir Julian Pauncefote as a basis. 
 
 The name given to the new institution was the Perma- 
 nent Court of Arbitration, and the first article 2 concerning 
 it contained the following statement : With the object of 
 facilitating an immediate recourse to arbitration for inter- 
 national differences which have failed to be settled by diplo- 
 matic methods, the Signatory Powers agree to organize a 
 Permanent Court of Arbitration, accessible at all times 
 and acting, unless otherwise stipulated by the parties, in 
 accordance with the rules of procedure included in the 
 present convention. 
 
 The only debated point in this article was the name 
 given to the new institution. Sir Julian Pauncefote pro- 
 posed the name of Permanent Tribunal of Arbitration ; this 
 seemed rather strong, and the committee at first adopted 
 the word Institution; but as the work grew beneath their 
 hands, they frankly changed it for Court. Dr. Zorn ob- 
 jected to both Tribunal and Court as giving rise to illusions 
 or misunderstandings; and since, as he remarked, "there 
 exists only a list, whose members enter on their function 
 
 1 This translation is taken from Mr. Holls's own book on the first con- 
 ference. There is an excellent summary of the address, in French, in the 
 Proceedings of the Conference, Part VI, pages 20-21. 
 
 2 This is Article 20, in Chapter II, Title IV, of the Convention for the 
 Peaceful Settlement of International Differences.
 
 ARBITRATION 
 
 379 
 
 only after having been chosen for a specific case," he sug- 
 gested the name of Permanent List of Arbitrators. Other 
 members of the committee defended the word Court, Mr. 
 Holls saying that it is used in the same sense for the Supreme 
 Court of New York, whose judges, elected by different dis- 
 tricts, have never been all assembled at once; and Pro- 
 fessor de Martens saying that the term adopted corre- 
 sponds with the usage in France, England, and the United 
 States. 
 
 The competence of the court was stated as follows: 
 The Permanent Court shall be competent for all cases of 
 arbitration, unless there shall be an agreement between the 
 parties for the establishment of a special tribunal. Count 
 Macedo, of Portugal, desirous of emphasizing the fact that 
 the court was intended to be the regular organ of arbitra- 
 tion, and tribunals specially established for individual 
 cases only the exception to the rule, proposed an amend- 
 ment to that effect. But the amendment was rejected for 
 the express reason that the article as it stood emphasized 
 the regular character of the court. The committee was 
 unanimous in hoping that the nations would recognize the 
 regularity of the court established at The Hague and grow 
 more and more in the habit of resorting to it, but feared to 
 appear to exert any pressure upon them to select it. The 
 competence of the court for any case of arbitration, whether 
 voluntary or obligatory, and the liberty left to the powers 
 to select it or some other tribunal, were believed to justify 
 the proud term applied to it, "A free tribunal in the midst 
 of independent states." 
 
 In order that the court should be something more than 
 a list of judges scattered in different lands, and be ready 
 for immediate operation when called upon, the British
 
 380 THE TWO HAGUE CONFERENCES 
 
 plan proposed the establishment of a bureau, with a local 
 habitation, a secretary, and other officials, and with definite 
 tasks to perform. It left the place of its establishment 
 undetermined ; but the committee agreed unanimously 
 upon The Hague as its seat, and M. Asser, on behalf of 
 the Netherlands government, expressed appreciation of the 
 honor thus conferred. It was decided not to provide for a 
 secretary or otfher officials of the International Bureau, but 
 to leave this to a council, provided for later; but Dr. 
 Zorn insisted that whatever name should be given to the 
 head of the bureau, he should remain a secretary in fact, 
 and not become "a center of international government, a 
 kind of cosmopolitan administrator." The duties assigned 
 to the bureau are : to serve as the record office of the court ; 
 to be the medium of all communications relating to the 
 meetings of the court ; to have custody of the court's ar- 
 chives and take charge of all its administrative affairs. The 
 signatory powers, on their part, agreed to furnish the bureau 
 with a certified copy of every treaty of arbitration made by 
 them, of every arbitral award concerning them rendered by 
 special tribunals, and of the laws, rules, and documents 
 declaring the final execution of the judgments rendered by 
 the court. By these provisions it was intended to make 
 The Hague a rich center of the most important and useful 
 documents relating to arbitration tribunals, both general 
 and special. Mr. Holls proposed a rule providing for the 
 publication of this material ; but it was deemed better to 
 leave this matter in the hands of the council and the states 
 concerned. M. Bourgeois said, in accepting the proposed 
 bureau, that he believed it would not only perform the use- 
 ful tasks directly assigned to it, but would be a visible and 
 respected sign constantly recalling to the minds of all
 
 ARBITRATION 381 
 
 peoples the noble conception of international law and 
 peace. 
 
 For the purpose of increasing the prestige of the Inter- 
 national Bureau, of keeping the powers in close touch with 
 it and the court, and thus of promoting a resort to arbi- 
 tration, it was agreed that a Permanent Administrative 
 Council should be constituted at The Hague as soon as 
 possible after the ratification of the convention by at least 
 nine powers. This council is composed of the diplomatic 
 representatives of the signatory powers accredited to The 
 Hague, with the Netherlands minister of foreign affairs 
 acting as its president. It was at first proposed that the 
 members of this council should be only the diplomatic 
 representatives resident in The Hague ; but Baron de Bildt, 
 of Sweden and Norway, objected that this would exclude 
 ministers who, like Sweden and Norway's, are accredited 
 to The Hague, but who reside elsewhere, — at Brussels 
 or Paris, for example. It was therefore agreed to substi- 
 tute accredited to for resident in The Hague ; but it was also 
 voted that the diplomats referred to should have all their 
 communications, as members of the council, addressed to 
 some place in The Hague. 
 
 The duties assigned to the Permanent Administrative 
 Council are: to establish, organize, and supervise the Inter- 
 national Bureau, with entire control over the appointment, 
 suspension, or dismissal of its officials and employees, over 
 their allowances and salaries, and overthe general expendi- 
 ture; to notify the powers of the constitution of the 
 Permanent Court and to provide for its installation ; and 
 to decide all questions of administration which may arise 
 in connection with the operations of the court. It was 
 given the right to make its own by-laws and all other
 
 382 THE TWO HAGUE CONFERENCES 
 
 necessary regulations ; but it was provided that at meetings 
 duly summoned five members shall constitute a quorum, 
 and that all decisions shall be made by a majority of 
 votes. Count Welsersheimb, of Austria, objected to the 
 council that it was given a liberty of action equivalent to a 
 kind of sovereignty, and proposed that its decisions should 
 be submitted to the various governments for ratification 
 before their execution ; but the reply was made to this ob- 
 jection and proposal that the duties of the council were 
 purely administrative and not at all political or judicial, 
 and that the necessity of awaiting governmental ratifica- 
 tion would greatly hinder the council's work. It was 
 agreed, however, that the council should communicate, 
 without delay, to each signatory power the by-laws and 
 regulations adopted by it, and shall address to them an- 
 nually a report of the proceedings of the court, of the ad- 
 ministration of the council and bureau, and of the bureau's 
 expenses. It was further provided that the expenses of 
 the bureau shall be borne by the signatory powers in the 
 proportion established for the International Bureau of the 
 Universal Postal Union. 1 The expenses of each case of 
 arbitration will be spoken of later. 2 
 
 The important question of the appointment of judges 
 for the new court was settled with but relatively little 
 discussion. Sir Julian Pauncefote proposed that each 
 signatory power should appoint two judges ; but Dr. Zorn 
 advocated the increase of this number to a maximum of 
 four, for the reason that it would enable a country — espe- 
 cially a large country — to select men from the ranks of 
 
 1 The members of this Union are grouped in classes according to their size 
 and presumptive wealth, and the members of each class bear an equal share 
 of the expenses apportioned to that class. 
 
 2 Under Arbitral Procedure, page 402.
 
 ARBITRATION 383 
 
 diplomacy and the army or navy as well as jurisconsults. 
 Several delegations were strongly opposed to this increase, 
 for the reason that it would decrease the moral authority 
 of the court. But the German delegation insisted on the 
 increase, and the larger number was adopted in the spirit 
 of conciliation, and with the consoling reflection that a 
 larger number of judges might be calculated to keep the 
 court more in the public mind. 
 
 The United States delegation urged the selection of 
 judges by the highest judicial body in each country, in 
 order that their appointment might be removed from po- 
 litical influence and intrigue; but the other delegations 
 were opposed to this, partly because of the uncertainty as 
 to the highest judicial body in some countries in Europe, 
 and partly because they were opposed to investing their 
 judiciary with any appointive power. The rule as adopted 
 merely provides that "each signatory power shall select not 
 more than four persons" ; but in order to secure the impar- 
 tiality of their appointment so greatly desired by the Ameri- 
 can delegation, it adds the words "of recognized compe- 
 tence in questions of international law, enjoying the highest 
 moral reputation, and disposed to accept the duties of 
 arbitrators." 
 
 The bureau is to communicate the list of judges thus 
 selected, and any changes in it, to the signatory powers. 
 Liberty is accorded to two or more powers to unite in the 
 selection of one or more members of the court; and the 
 same person may be selected by different powers. The 
 term of the judges is limited to six years, but their appoint- 
 ment may be renewed. In case of the death or resigna- 
 tion of a member of the court, his place shall be filled in 
 accordance with the method of his appointment.
 
 384 THE TWO HAGUE CONFERENCES 
 
 For the formation of the arbitral tribunal, for the arbi- 
 tration of specific cases, it was readily agreed that each 
 party to the dispute should choose two arbitrators from the 
 list of members of the Permanent Court ; but the question 
 of how the umpire, or sur-arbiter, should be chosen was 
 one of considerable difficulty. One suggestion was that 
 the umpire should be chosen from the list of judges by lot; 
 but this was opposed on the ground that the lot might 
 fall upon some one unsatisfactory to the parties. Pro- 
 fessor Lammasch then proposed that the choice of the 
 umpire should be left to the neutralized powers, Bel- 
 gium, Switzerland, and Luxemburg; but Mr. Holls ob- 
 jected to this as being too exclusively European. It was 
 finally agreed that the plan adopted for commissioners of 
 inquiry should be adopted for the arbitration tribunal as 
 well. That is, that the arbitrators chosen by the parties 
 shall choose the umpire; if they can reach no agreement, 
 the choice shall be left to a third power selected by the 
 parties ; if the parties can not agree on the third power, each 
 one shall select a power, and the powers so selected shall 
 choose the umpire. Baron de Bildt, of Sweden and Nor- 
 way, advocated the amendment that the parties to the dis- 
 pute should be given the right of confirming or rejecting 
 the umpire ; but as indefinite rejection might prevent 
 arbitration, and confirmation of the umpire might de- 
 tract from his absolute impartiality, this amendment was 
 not adopted. The great desirability of all the parties to 
 the dispute being satisfied with the umpire was strongly 
 emphasized in the discussion, however, and it was generally 
 considered that the two arbitrators selected by each party 
 should be regarded as the agents of the parties they repre- 
 sented in the choice of the umpire, and thus enable the par-
 
 ARBITRATION 385 
 
 ties to exercise an influence in that choice. But the fact 
 was also emphasized that from the moment the arbitration 
 begins, all the arbitrators should cease to be agents, and 
 should act only as impartial judges. 
 
 It should be noted that the parties in dispute are left at 
 liberty to agree upon any other method than the above 
 of selecting the members of the arbitral tribunal ; but if 
 they adopt this method, the arbitrators selected must all 
 be members of the Permanent Court. The British plan 
 permitted the selection of other arbitrators than those on 
 the list ; but this was considered to be derogatory to the 
 prestige of the court. As another means of preserving or 
 increasing the court's prestige, it was agreed that the mem- 
 bers of the court, while in the discharge of their duties, 
 and outside of their own country, shall enjoy diplomatic 
 privileges and immunities. 
 
 The tribunal of arbitration being constituted, the par- 
 ties must communicate the fact to the bureau, which shall 
 make arrangements for the meeting of the tribunal at a time 
 agreed upon by the parties. Its usual place of meeting 
 shall be at The Hague ; and, except in cases of necessity, 
 the place of its meeting shall be changed by the tribunal 
 only with the assent of the parties. 
 
 Sir Julian Pauncefote, with the desire of having the 
 court "utilized to the utmost possible extent," proposed an 
 article providing that the International Bureau at The 
 Hague be authorized to put its offices and its staff at the 
 disposal of the signatory powers for the performance of the 
 duties of any special tribunal of arbitration. Professor de 
 Martens supported this proposition in the hope that "The 
 Hague may become the center of international arbitrations, 
 and the habit be contracted of taking the road to the Perma-
 
 386 THE TWO HAGUE CONFERENCES 
 
 nent Court." This proposition was unanimously adopted, 
 as was also the further provision, moved by Sir Julian 
 Pauncefote and supported by Professor Renault, of France, 
 that the jurisdiction of the Permauent Court may be ex- 
 tended, under conditions prescribed by its rules, to contro- 
 versies existing between nonsignatory powers, or between 
 signatory powers and nonsignatory powers, if the parties 
 agree to submit to its jurisdiction. It will be observed that 
 this article does not extend to nonsignatory powers the in- 
 vitation to make use of the International Bureau for special 
 tribunals of arbitration, but only for the jurisdiction of the 
 Permanent Court. As an additional encouragement to 
 nonsignatory powers to make use of the Permanent Court, 
 the proposition to have the council decide on the fees to be 
 charged them for the use of the International Bureau was 
 rejected, and Count Nigra's suggestion was adopted, in 
 accordance with which nonsignatory powers may utilize 
 the bureau without money and without price. 
 
 Sir Julian Pauncefote also desired to extend the facili- 
 ties of the International Bureau to international commis- 
 sions of inquiry, but withdrew his motion to that effect in 
 face of the opposition of Professor Zorn, of Germany. 
 
 It has been seen that in the preliminary discussion which 
 preceded the committee's first reading of the Pauncefote 
 Plan for an arbitral court, Germany's anxiety in regard to 
 it threatened to place an insuperable obstacle upon its very 
 threshold, but that Professor Zorn's instructed opposition 
 was temporarily postponed until he could have an oppor- 
 tunity of going to Berlin to consult with the German gov- 
 ernment in regard to the details of the plan. After the 
 first reading of the plan, the committee adjourned for nine 
 days to afford this opportunity; and to assist Professor
 
 ARBITRATION 387 
 
 Zorn in his important mission, Count Minister and Am- 
 bassador White, first delegates of Germany and the United 
 States, respectively, suggested that Mr. Holls should go 
 with him. This suggestion was cordially approved by the 
 rest of the committee, and Mr. Holls gladly consented. His 
 article in regard to special mediation had been peculiarly 
 acceptable to German ideals, and his course during the 
 debate and his genial personality had helped to make him 
 persona grata at the German capital. The two messengers 
 carefully explained the details of the plan to Prince von 
 Hohcnlohe, the chancellor, and Count von Biilow, the 
 minister of foreign affairs, who, after communication 
 with the Emperor, absent at Kiel, gave Germany's consent 
 to the general plan, with some special instructions as to 
 details. Accordingly, when the committee took up the 
 second reading of the articles, Professor Zorn was able to 
 report, much to his own and the committee's gratification, 
 that his government "has accepted the principle of this 
 innovation in the form suggested by Sir Julian Paunce- 
 fote, and solely by reason of the latitude which it leaves to 
 the governments to select their arbitrators from a list." 
 He stated also that his government "recognizes the im- 
 portance arid grandeur of this new institution." 
 
 b. The Conference of iqo? 
 
 The Conference of 1907 agreed unanimously to main- 
 tain the Permanent Court of Arbitration, "such as it was 
 established by the first Peace Conference." The effort 
 to supplement it by another court will be described later; 
 but a few changes in regard to it will be noted here. 
 
 Dr. Kriege, of Germany, referred to the desirability of
 
 388 THE TWO HAGUE CONFERENCES 
 
 having the povvers send promptly to the International 
 Bureau reports of the special arbitrations and treaties 
 entered into by them, and proposed to add to the agree- 
 ment to that effect the words "as soon as possible." This 
 proposition was adopted. M. Fromageot, of France, pro- 
 posed also that the bureau be authorized to send out, peri- 
 odically, a circular letter to all the powers to remind them 
 of this agreement ; but Dr. Kriege objected to giving the 
 bureau "the right of reminding the powers of their duty," 
 and this proposition was rejected. 
 
 The filling of vacancies in the court gave rise to the ques- 
 tion whether the vacancy should be filled by the selection 
 of a new member to serve for the remainder of the former 
 member's term, or for a new period of six years. The 
 latter solution of the question was adopted. 
 
 The choice of arbitrators from among the members of 
 the Permanent Court, to constitute the arbitral tribunal, 
 was the subject of two amendments. It was decided, 
 first, that only one of the two arbitrators selected by each 
 party to the dispute may be a citizen of the country which 
 selects him or among the members of the court appointed 
 by it. This decision was in line with the suggestion made 
 by the United States delegation in 1899, when Mr. Holls 
 moved that in cases where the tribunal consisted of no more 
 than three members, none of them should be citizens of the 
 countries in dispute. He based his motion on the argu- 
 ment that when two of the three arbitrators were citizens 
 of the two countries in dispute, there would be only one 
 genuine and impartial judge. His motion was defeated, 
 however, on the ground that, while it is an axiom of civil 
 law that no one can be a judge of his own cause, in inter- 
 national law sovereign and independent states would not
 
 ARBITRATION 389 
 
 abdicate their sovereign claim to be represented on the 
 tribunal trying their cause. The system of having two 
 arbitrators appointed by each of the parties was adopted 
 then, as an intermediate step between diplomatic negotia- 
 tions and judicial procedure. In 1907 one step further 
 was taken by providing that only one of the five possible 
 arbitrators should be a citizen of each of the countries at 
 variance. 
 
 The second amendment to the method of choosing arbi- 
 trators had to do with the choice of the umpire, or sur- 
 arbiter. The plan adopted in 1899 did not provide for 
 the case where the neutral powers, selected by the parties 
 in dispute to choose the umpire, can not agree on a choice. 
 This omission was filled in 1907 by the provision that if, 
 after a delay of two months, the neutral powers have been 
 unable to agree, each of them shall present two candidates 
 from the list of members of the Permanent Court, — ■ the 
 said candidates not to be the same as either of those chosen 
 by the countries at variance, or citizens of them; it shall 
 then be determined by lot which of the candidates thus 
 presented shall be the umpire. This resort to lot was 
 proposed by the German delegation, and was adopted in 
 default of a better one, although Professor Lammasch, of 
 Austria, objected to it for the reason that, even if so hap- 
 hazard a method may be necessary in affairs which require 
 speedy solution, it would be very dangerous when applied 
 to an arbitral tribunal, as it would greatly diminish the 
 confidence which should be perfect in such a tribunal. 
 The method of taking the lot is left to the parties in 
 dispute, and may be left by them to the International 
 Bureau. 
 
 Professor de Martens, of Russia, reported that at the
 
 390 THE TWO HAGUE CONFERENCES 
 
 time of the Venezuela Arbitration, the arbitrators arrived 
 at The Hague and found nothing arranged for the work 
 of the tribunal, which had no resources of its own, — not 
 even a cent for the purchase of paper ! The conference 
 therefore adopted a rule requiring the International Bureau 
 to make all necessary arrangements for the installation of 
 tribunals. Diplomatic privileges and immunities were 
 restricted to "members of a tribunal in the exercise of 
 their functions and outside of their own country." 
 
 It is stated in an earlier article that the Permanent Court 
 will have its seat at The Hague, and it is therefore taken 
 for granted that the tribunals will hold their sessions at 
 The Hague. The former rule as to this point (Article 25) 
 was accordingly omitted. 1 
 
 In view of the fact that a number of states had adhered 
 to the convention since 1899, it was proposed that such 
 states should be charged with their proportion of the ex- 
 penses of the International Bureau from the date of its 
 establishment ; but this was rejected and the more liberal 
 rule adopted that states adhering to the convention shall 
 pay their portion of the said expenses from the date of 
 their adherence. 
 
 2. Arbitral Procedure 
 
 a. The Conference of i8gg 
 
 The Russian delegation presented, together with its 
 plans for mediation and arbitration, a code of rules for 
 arbitral procedure. They were intended to be used in all 
 
 1 A later article, under Arbitral Procedure, deals with this point; see page 
 394-
 
 ARBITRATION 39 1 
 
 cases of special arbitration, for which the parties to the 
 arbitration did not themselves provide a code ; but after the 
 institution of the Permanent Court of Arbitration, on the 
 initiative of the British delegation, they were adopted 
 especially with a view to application by that court. They 
 were based on the rules of procedure adopted by the tri- 
 bunal which arbitrated the question of the boundary line 
 between Venezuela and Great Britain, and the latter were 
 drawn up by Professor de Martens, of Russia, who was 
 president of that tribunal, Justice Brewer, of the United 
 States Supreme Court, and Lord Justice Collins, of the 
 British High Court of Judicature. - 
 
 The code adopted by the conference comprised twenty- 
 eight article (Nos. 30 to 57 of the Convention for the 
 Peaceful Settlement of International Differences), and 
 were introduced by the general statement that, with the 
 object of encouraging the development of arbitration, 
 the signatory powers have adopted the following rules, 
 which shall be applicable to arbitral procedure, unless the 
 parties themselves shall agree upon other rules. It was 
 recognized as a matter of course that each special treaty of 
 arbitration may provide the rules of procedure in the ar- 
 bitration agreed upon ; but it was recognized as a matter 
 of fact that negotiations for agreement upon the necessary 
 rules had been a fruitful source of delay, uncertainty, and 
 embarrassment, and a menace to the successful result of 
 various arbitral tribunals. The increasing number of 
 arbitrations, on the other hand, had developed a wide and 
 undesirable diversity of practice ; for the code of 1899 was 
 the first successful attempt to procure international sanc- 
 tion of even the most fundamental rules of procedure. 
 While providing these fundamental rules, the conference
 
 392 THE TWO HAGUE CONFERENCES 
 
 sought to avoid the other extreme of adopting rules so 
 detailed and inelastic that they would in their turn prove an 
 embarrassment and a danger. 
 
 The sovereignty of states is recognized both in the volun- 
 tary character of the recourse to arbitration and in the rule 
 concerning the agreement, or compromise, providing for it. 
 The rule prescribes that the powers which resort to arbi- 
 tration shall sign a special act (compromis), in which the 
 question in litigation shall be precisely defined, as well as 
 the extent of the powers of the arbitrators; but it also 
 prescribes that the making of the compromise shall imply 
 an agreement by each party to submit in good faith to the 
 award. 
 
 The terms of the compromise, as well as citations from 
 other treaties, and from international law, which are 
 quoted in regard to the jurisdiction of the tribunal of arbi- 
 trators, shall be interpreted by the tribunal itself. M. 
 Asser, of the Netherlands, desired that the powers of the 
 arbitrators might be given an even greater extension than 
 this. For example, in the arbitration between Holland 
 and France relating to the boundaries of Guiana, the 
 question arose whether the arbitrator, the Emperor of 
 Russia, would be required to decide upon the Dutch line or 
 the French line, or whether he could award still another 
 line ; the Emperor demanded, and received from the parties, 
 the right to give an unrestricted award. While the con- 
 ference admitted the force of the argument thus illustrated, 
 it decided that the compromise and not the general con- 
 vention should foresee and provide for such contingencies. 
 On the other hand, the right of the tribunal to interpret its 
 own powers was regarded as necessary to enable arbitra- 
 tion to take place at all ; while the sovereignty of states was
 
 ARBITRATION 393 
 
 deemed to be sufficiently safeguarded by their entire lib- 
 erty in the making of the compromise. 
 
 The tribunal is also given the right of determining such 
 administrative details of the arbitration as the manner and 
 time in which each party must conclude its argument, and 
 the regulations for the admission of evidence. 1 
 
 The constitution of the tribunal was carefully provided 
 for. It may consist of one arbitrator, or of more than one, 
 and may be selected or not from the Permanent Court, 
 as the parties to the dispute may decide. If the parties 
 fail to agree on its constitution, it shall be formed as 
 follows : Each party shall appoint two arbitrators, and 
 these shall together choose an umpire, or sur-arbiter; in 
 case of an equal division of votes, the choice of the um- 
 pire shall be intrusted to a third power, agreed upon by 
 the parties ; if a third power can not be agreed upon, each 
 party shall select a different power, and the choice of the 
 umpire shall be made by agreement between the powers 
 thus selected. The umpire is to preside over the tribunal ; 
 and if the parties constitute a tribunal without an umpire, 
 then the tribunal shall elect its own presiding officer. M. 
 Papiniu, of Roumania, desired some rule adopted which 
 should regulate the case where the parties constitute a tri- 
 bunal without an umpire and with an even number of 
 arbitrators; for under such conditions, he said, an award 
 might be impossible. The conference declined, however, to 
 make provision for such an abnormal case, and contented 
 itself with a warning against it. 2 
 
 1 When a sovereign, or executive head of a state, is selected as arbitrator, 
 the conference recognizes his right, "for reasons of high consideration," to 
 determine the arbitral procedure to be followed. 
 
 2 An even number of arbitrators was provided for in the proposed treaty 
 of arbitration between the United States and Great Britain.
 
 394 THE TW0 HAGUE CONFERENCES 
 
 In case of the death, resignation, or absence, for any 
 cause, of one of the arbitrators, his place is to be filled in 
 the manner provided for his appointment. This rule was 
 substituted, after a long discussion, for the Russian propo- 
 sition, which, in case of the death, resignation, or absence 
 of one of the arbitrators, made the compromise null and 
 void, and required the arbitration and agreement for it to 
 be taken up anew. 
 
 Professor de Martens and Mr. Holls supported the 
 Russian proposition, for the reason that arbitration is 
 above all a question of personal confidence in the arbi- 
 trators; it is by virtue of this personal confidence that 
 the arbitral tribunal is constituted and forms a veritable 
 organism; and the personality of the arbitrators consti- 
 tutes one of the chief guarantees of the tribunal's im- 
 partiality. The reply was made to this argument that it 
 might perhaps apply to a sur-arbiter, but not to the other 
 arbiters; that the government which has confided in one 
 arbitrator may also confide in another chosen by it ; that, 
 very often, arbitrators are old men and may die before the 
 end of a long arbitration, and in such case the fruit of 
 long labor should not be lost simply because of the death 
 or removal of one man ; and that, in general, a rule should 
 be favorable to the success of arbitration. This reason- 
 ing secured a majority vote, though a small one, for the 
 rule as stated above. It was recognized, of course, that 
 states could make a specific, and different, agreement in 
 regard to this matter. 
 
 In case the parties do not agree on the place where the 
 tribunal is to sit, The Hague is designated ; and it is pro- 
 vided that the place of session shall not, except in case of 
 overwhelming necessity, be changed by the tribunal with-
 
 ARBITRATION 395 
 
 out the consent of the parties. The tribunal is given the 
 right to decide on the languages l to be used by itself, or 
 authorized to be used before it. 
 
 The desirability of having the parties to a dispute repre- 
 sented by agents, and their rights and interests defended by 
 counselors or solicitors, before the tribunal, is recognized, 
 and their appointment is vested in the parties themselves. 
 The only question raised in regard to this rule was that of 
 Mr. Low, of the United States, who inquired as to the de- 
 sirability of permitting members of the Permanent Court, 
 who are not selected as members of special tribunals, to 
 serve as agents, counselors, or advocates before the tri- 
 bunals. This question was made the subject of a long 
 discussion, in the course of which the United States dele- 
 gation proposed that no member of the court, during the 
 term of his appointment, should act as agent, counselor, or 
 advocate for any government except his own or the one 
 which appointed him a member of the court. In pre- 
 senting this proposition, Mr. Holls said that his delegation 
 would have preferred the more stringent English rule of 
 "once a judge, always a judge" ; but since the term of the 
 members of the court is only six years, and since it is desir- 
 able not to restrict unduly the liberty of states in appoint- 
 ing their representatives, the delegation had proposed the 
 less strict rule. The argument for this rule was that, since 
 the judges are recommended by one government to all the 
 other governments, it is in the interests of all that they 
 should be not only independent and impartial, but above 
 suspicion. There was general agreement that no member 
 
 1 The rule of 1899 used the word languages; but as the tribunal [tself uses 
 only one language officially, the word language was substituted in 1907, 
 although the use of more than one language before the tribunal is authorized.
 
 396 THE TWO HAGUE CONFERENCES 
 
 of the court, during the exercise of his functions as member 
 of the arbitral tribunal, should accept an appointment as 
 agent or advocate before another arbitral tribunal. But 
 even this opinion was not embodied in a rule, and the 
 American proposition also was rejected, for the reasons 
 that every disqualification would restrict the liberty of 
 appointment by the states ; that the matter could safely be 
 left to the good sense of the states themselves, their bench, 
 and bar ; and that, probably, experience would evolve the 
 proper rule. 
 
 Ten articles were devoted to rules of procedure before 
 the arbitral tribunal itself. They provided that the pro- 
 cedure shall comprise, as a general rule, two distinct 
 phases : preliminary examination and discussion. Pre- 
 liminary examination is stated to mean the communication, 
 by the agents of the parties, to the members of the tribunal 
 and to the opposing party, of all printed or written acts, 
 and of all documents containing the arguments to be in- 
 voked in the case; while discussion is defined as the oral 
 development of these arguments before the tribunal. 
 
 Every document produced by one party must be commu- 
 nicated to the other party; the tribunal decides upon the 
 method and time of such communications, and when the 
 preliminary examination is concluded, it may refuse to 
 admit any new acts or documents which one party may 
 desire to submit to it, if the other party objects to such 
 admission ; and the tribunal may also require from the 
 agents of the parties the production of all papers and 
 demand all necessary explanations, and in case of the 
 agents' refusal the tribunal shall take note of the fact. 
 
 The discussions, under the direction of the president, 
 shall be public only in case it shall be so decided by the
 
 ARBITRATION 397 
 
 tribunal, with the assent of the parties. They shall be 
 recorded in the official minutes drawn up by the secretaries 
 appointed by the president. The agents and counsel of the 
 parties are authorized to present orally to the tribunal all 
 the arguments which they may deem to be expedient in sup- 
 port of their cause, and to raise objections or make inci- 
 dental motions. The tribunal shall decide on these objec- 
 tions or motions, and its decisions shall be final and not 
 subject to any subsequent discussion. The members of 
 the tribunal are given the right to question the agents or 
 counsel of the parties, and to demand explanations on 
 doubtful points; but neither the questions nor the inci- 
 dental remarks of the members of the tribunal are to be 
 regarded as an expression of opinion by the tribunal in 
 general, or by its members in particular. When the agents 
 and counsel have presented all the arguments and evidence 
 in support of their case, the president shall declare the 
 hearing closed. 
 
 The procedure described above is the form familiar in 
 American and British courts, and needs no special com- 
 ment here. The only feature of it which received special 
 comment in the conference was the rule authorizing the 
 members of the tribunal to demand documents and ex- 
 planations of the agents or counsel. While there was a 
 general agreement that a state, through its representatives, 
 can not be compelled to produce documents and answer 
 questions, it was also unanimously agreed that the tribunal 
 should be given the right to demand them and to take 
 note {prendre acte) of their refusal; and, of course, such 
 refusal may influence the award rendered. 
 
 Three articles prescribe the following rules in regard 
 to the award: the tribunal's deliberations shall take place
 
 398 THE TWO HAGUE CONFERENCES 
 
 behind closed doors; every decision shall be made by a 
 majority vote, and the refusal of any member to vote shall 
 be noted in the official minutes ; the award shall be made 
 by a majority of votes, and shall be accompanied by a 
 statement of the reasons upon which it is based ; it must 
 be drawn up in writing and signed by each member of the 
 tribunal; the minority members may, in signing it, state 
 their dissent ; it shall be read in a public sitting of the tri- 
 bunal, the agents and counsel of the litigants being present 
 or having been duly summoned. 
 
 The rule that the award shall be accompanied by a 
 statement of the reasons upon which it is based was op- 
 posed by Professor de Martens, who argued that while 
 the arbitrators might recognize the fact that their govern- 
 ments were in the wrong and would vote for an adverse 
 award, they would not do so if obliged to sign a statement 
 criticising their governments' policies and measures; 
 and that a full and impartial arbitration would thus be 
 prevented. 1 To this argument it was replied that a 
 statement of the reasons for the award constitute a funda- 
 mental guarantee of its justice; that some questions 
 can not be answered by a simple yes or no ; that the tri- 
 bunal may adopt any form and scope of such statement 
 that it may deem advisable; that arbitral awards should 
 be judicial sentences, and these are unimaginable without 
 a statement of reasons ; that the force of an award resides 
 rather in its reasons than in the decision itself; and that 
 it would be impossible to found a complete international 
 jurisprudence upon arbitral sentences alone, without the 
 reasons supporting them. 
 
 1 Professor de Martens cited the Alabama and Behring Fisheries arbitra- 
 tions as cases in which arbitrators refused to sign the award because of the 
 statement of reasons on which it was based.
 
 ARBITRATION 399 
 
 Another proposed amendment to the above rule was that 
 the reasons for the vote of the minority should also be 
 stated, and this not only in justice to, or as a check upon, 
 the minority, but because their reasons would inevitably 
 be published, either in their reports to their governments 
 or in the press, and thus the disagreement between the 
 judges would be greatly accentuated. But this amend- 
 ment was rejected on the ground that it would imply 
 two awards in each case, and that it would oblige the tri- 
 bunal itself to accentuate in the public mind its difference 
 of opinion. 
 
 The question of an appeal and a rehearing was the sub- 
 ject of two articles and of a prolonged debate. It was 
 decided that the award, duly pronounced and notified 
 to the agents of the parties in litigation, shall decide the 
 dispute finally and without appeal; and that a rehearing 
 of the case may be permitted only when the right to demand 
 it has been reserved by the parties in their agreement to 
 arbitrate, and, in the absence of any stipulations to the 
 contrary, only under the following conditions : first, the 
 demand must be addressed to the tribunal which has pro- 
 nounced the judgment ; second, it may be based only on 
 the discovery of a new fact, of such a kind as would have 
 exercised a decisive influence on the award, and which 
 at the end of the discussion was unknown to the tribunal 
 itself and to the party demanding the rehearing; third, 
 the tribunal itself must decide on the existence and impor- 
 tance of the new fact ; and, finally, the agreement of arbi- 
 tration must have determined the time within which the 
 demand for a rehearing shall be made. 
 
 Mr. Holls began the discussion of these two articles 
 by moving to strike out in the first one the words " without
 
 400 THE TWO HAGUE CONFERENCES 
 
 appeal," and to substitute the words "every litigant shall 
 have the right to a second hearing, before the same judges 
 and within a period of three (or six) months." Professor 
 de Martens opposed this motion for the reason that, by 
 opening the door in advance to the possibility of revision, 
 the conference "would tear down with one hand what it 
 builds up with the other": would deprive arbitration of 
 a part of its value and eternalize disputes instead of ending 
 them. Mr. Holls admitted that the sentence should be 
 final and without appeal, but said that his idea was not 
 to permit an appeal, from one court to another, but a 
 revision, by the same judges, and that only in case of the 
 discovery of a new and important fact. 
 
 But this interpretation was also opposed by several 
 members, in both the committee and the commission, 
 their reasons being: the difficulty of defining and appre- 
 ciating the importance of a new fact ; the possibility of 
 one of the judges dying before the revision, which would 
 necessitate practically a new trial ; the attacks upon the 
 first award by the public press and by members of legis- 
 lative bodies, which would be encouraged by the hope of a 
 revision ; the suspension of the execution of the award 
 until after the revision ; the possibility of discovering an 
 important new fact within a few days after the lapse of 
 the three or six months prescribed as the limit for the re- 
 vision ; the possibility that the important new fact may 
 not be discovered until years after the award, — until 
 the examination of the posthumous papers, for example, 
 of one of the persons interested in the dispute ; the diminu- 
 tion of that sense of responsibility which judges feel 
 when called upon to pronounce an absolutely final verdict ; 
 the fact that all human justice is liable to err, and that, for
 
 ARBITRATION 401 
 
 the sake of redressing a few exceptional errors, the entire 
 system of arbitration should not be put in jeopardy. 
 
 These objections were answered one by one in the 
 following way : the tribunal itself should decide on the 
 existence and importance of the "new fact"; there is a 
 possibility of one of the judges dying before the end of the 
 arbitration itself, as well as before the end of the revision, 
 and the vacancy must be filled in one case as in the other ; 
 the "attacks" of irresponsible parties upon an award in 
 the hope of a revision would be more than counterbalanced 
 by the enlightened opinion of the civilized world ; the 
 award should not be executed until substantial justice is 
 assured ; the close scrutiny and criticism of the case, 
 immediately after the rendering of the award, will make 
 it entirely probable that within three months, if ever, the 
 important "new fact" will be found; 1 the moral respon- 
 sibility of the judges would not be lessened, but rather 
 increased, — as would be also the moral authority of the 
 award, — if a provision for correcting errors on their part 
 exists; and, finally, there is a limit to the principle that 
 the chief end of arbitration is to settle promptly and for- 
 ever international disputes, the limit, namely, imposed by 
 justice and stated in Abraham Lincoln's famous saying : 
 "Nothing is settled until it is settled right." 
 
 Mr. Holls and Professor de Martens were the cham- 
 pions, respectively, of the American and the Russian view 
 of the question of revision, and each of them made able 
 and eloquent arguments in both the committee and the 
 
 1 The American delegation proposed as an amendment to its original 
 proposition that the period within which the revision must occur shall be 
 determined by agreement between the parties when the treaty for arbitration 
 is made; this amendment was accepted.
 
 402 
 
 THE TWO HAGUE CONFERENCES 
 
 commission. The warm and long debate ended, as is 
 almost inevitable in an international as opposed to a 
 parliamentary assembly, in a compromise between the two 
 extremes. The principle of revision was adopted, but not 
 as a general rule, and only under the well-defined excep- 
 tional circumstances stated above. 
 
 The last two articles in the code of arbitral procedure 
 provided for the scope of the award and the expenses of 
 the arbitration, and gave rise to but little comment. 
 The award is obligatory only upon the parties who have 
 concluded the arbitration agreement. When there is a 
 question of the interpretation of a treaty participated in 
 by other powers besides the parties in litigation, the 
 parties shall notify these other powers of the arbitration 
 agreement which they have concluded. Each of these 
 powers has the right to take part in the arbitration ; and 
 if one or more of them exercises this right, the interpreta- 
 tion of the treaty contained in the award shall be equally 
 obligatory upon them also. 
 
 Each party shall bear its own expenses and an equal 
 share of the expenses of the tribunal. 
 
 b. The Conference of igoj 
 
 The code of arbitral procedure adopted in 1899 was 
 referred to a special committee of examination in 1907. 
 Its twenty-eight articles were increased to forty-one, and 
 a few of these additions were of considerable impor- 
 tance, but only a few changes were made in the original 
 ones. 
 
 It was provided that the arbitration agreement, or 
 compromise, shall define not only the question in litigation
 
 ARBITRATION 403 
 
 and the powers of the arbitrators, but also the date before 
 which the arbitrators shall be appointed; the form, order, 
 and time of the preliminary examination and discussion; 
 the sum of money to be deposited in advance by each party 
 for the expenses of the arbitration ; the method of appoint- 
 ing the arbitrators ; and the place of meeting and language 
 of the tribunal. This extended rule in regard to the com- 
 promise was proposed by Dr. Kriege, of Germany, in 
 order, as he said, to prevent delay and uncertainty in 
 regard to the tribunal. But the danger lest a fulfillment 
 of all these conditions by the parties in dispute might have 
 the reverse of the desired result, caused the adoption of 
 the further provision that the Permanent Court may 
 establish the compromise if the parties agree to refer 
 it to it. The German delegation proposed also a com- 
 mission of five members (to be chosen from the Permanent 
 Court, in the same manner as was provided for the choice 
 of arbitrators) to establish the compromise when the 
 parties so agree ; and this proposition, too, was adopted 
 after a long debate and considerable opposition. It was 
 agreed that when a commission to establish the compromise 
 is resorted to, it shall itself constitute the arbitration 
 tribunal, unless otherwise stipulated by the parties. 
 
 The Austrian delegation, seconded by the delegation 
 from China, renewed the proposition of Mr. Holls in 
 1899 to prevent members of the Permanent Court from 
 being appointed to serve on an arbitration tribunal by 
 their own governments, or the governments which ap- 
 pointed them members of the court, when the tribunal 
 is composed of only three members ; and when the tribunal 
 is composed of five members, to permit one of them to be 
 the citizen or appointee on the court of each of the parties.
 
 404 THE TWO HAGUE CONFERENCES 
 
 This rule was adopted, but in the form already adopted 
 for the formation of the tribunal. 1 
 
 The Russian delegation proposed that the tribunal 
 should always choose its own president, even when a 
 sur-arbiter is one of its members; and Professor de Martens 
 advocated this proposition for the reason that experience 
 since 1899 has shown that a sur-arbiter may possess all 
 the qualities valuable for casting a deciding vote on judicial 
 questions, but may at the same time have no noteworthy 
 qualifications of a presiding officer. But this proposition 
 was rejected for the reasons, stated by Professor Lam- 
 masch, of Austria, that if the sur-arbiter is not given the 
 presidency ex officio, it might be regarded as a certain lack 
 of confidence in him; that the arbitrators may often be 
 unknown to each other, and hence can not make a good 
 choice ; and that in the choice of a presiding officer, the 
 tribunal might indicate a preference for his country and 
 his cause. 
 
 The Russian delegation proposed the rule, advocated by 
 the American delegation in 1899, that members of the 
 Permanent Court should not be permitted to plead before 
 the tribunal in the capacity of counsel or advocate, or 
 to act as agents before it. The American, British, and 
 Austrian delegations warmly supported this proposition; 
 but it was still considered too drastic, and the conference 
 adopted the more moderate German proposal that members 
 of the Permanent Court may perform such services only 
 for the power which has appointed them to the court. 
 It was believed that this rule will not only enable each 
 party to the dispute to be represented on the tribunal, and 
 to utilize its best men as both arbitrators and advocates, 
 
 1 See page 384.
 
 ARBITRATION 405 
 
 but will also protect the good name of a judge from the 
 suspicion of partiality which would attach to it in conse- 
 quence of undue practice as a counselor or advocate 
 before arbitration tribunals. 
 
 A rule of 1899 prescribed that the arbitration tribunal 
 shall determine the period within which the parties must 
 present their case in writing (the "preliminary examina- 
 tion " or instruction). Dr. Kriege, of Germany, moved 
 to amend this rule so as to have this period determined 
 in the compromise. The amendment was adopted for 
 the reason that, as shown in the California Pious Funds 
 case, the old rule required long and expensive journeys 
 on the part ot the arbitrators solely for the purpose of 
 determining this preliminary point of procedure. It was 
 also provided, however, on the motion of Sir Edward Fry, 
 of Great Britain, that the period fixed by the compromise 
 may be prolonged by common consent of the parties, or 
 by the tribunal when the latter deems a longer time neces- 
 sary for arriving at a just decision. 
 
 The German delegation proposed also the rule that 
 the tribunal shall not meet until after the close of the in- 
 struction. But M. Fromageot, of France, showed by ref- 
 erence to the Behring Fisheries case that a question of 
 procedure may suddenly assume capital importance and 
 require the tribunal's decision before further progress 
 can be made ; also that the instruction may require the 
 hearing of certain witnesses, the formation of a commission 
 of inquiry, and the like. It was accordingly decided to 
 adopt the rule that, except under special circumstances, 
 the tribunal will not meet until after the close of the 
 instruction. 
 
 The parties agree to furnish the tribunal, to the largest
 
 4 o6 THE TWO HAGUE CONFERENCES 
 
 extent they judge possible, the means necessary to decide 
 the dispute; and when it becomes necessary for the tri- 
 bunal to make investigations on the territory of a third 
 power, it must conform to the rule adopted for Inter- 
 national Commissions of Inquiry. 1 
 
 To the rule that the deliberations of the tribunal shall 
 take place behind closed doors were added the words 
 "and shall remain secret." 
 
 Dr. Kriege, of Germany, endeavored to secure a provi- 
 sion that when an arbitral decision requires execution, the 
 tribunal shall determine the period within which its execu- 
 tion shall occur. But Sir Edward Fry and Mr. Crowe, 
 of Great Britain, strongly opposed this rule, and it was 
 rejected on the ground that the tribunal has no power 
 to enforce its sentences, and since their execution depends 
 solely on the good faith of the parties, all appearance of 
 coercion should be carefully avoided. 
 
 The rule of 1899, which required the minority members 
 of the tribunal to sign the award, but permitted them, 
 in signing, to state their dissent to it, was vigorously 
 attacked by M. Loeff, of the Netherlands. He asserted 
 that it was in flagrant opposition to one of the great funda- 
 mental principles of arbitral procedure, the principle, 
 namely, which requires that the award shall be final, not 
 only in the sense that it may not be appealed to another 
 court, but also in the other sense that it should end all 
 further discussion, especially outside of the tribunal's 
 chamber. "We all know," he said, "the saying, 'Rome 
 has spoken, the thing is. finished ' ; it seems to me of the 
 last importance that this same saying should be applied 
 to an arbitral award and that it might be truly said, ' The 
 
 1 See page 295.
 
 ARBITRATION 407 
 
 tribunal has spoken, the affair is ended.' " Professor de 
 Martens said in reply that it was an old established custom 
 in arbitral awards to permit the minority members, who 
 may be placed in the minority solely by the deciding vote 
 of the sur-arbiter, to state their dissent to the majority 
 award ; but that he admitted the force of M. Loeff's 
 argument, and was quite willing to have the matter con- 
 sidered by the committee of examination. As a result of 
 this consideration, it was decided that the arbitral award 
 shall mention the names of the arbitrators, but that it 
 shall be signed only by the president and clerk of the 
 tribunal. The former statement that the award shall be 
 made by a majority vote is not retained, although it is, 
 of course, implied ; but the former provision, that a state- 
 ment of the reasons upon which the award is based shall 
 accompany the award, is retained in the new rule. 
 
 The finality of the award, in the sense of the inadmis- 
 sibility of an appeal to another court, was reasserted; 
 but, on the motion of the Italian delegation, it was pro- 
 vided that any difference which may arise between the 
 parties concerning the interpretation or execution of the 
 award shall be submitted, unless otherwise stipulated, 
 to the decision of the tribunal which rendered it. 
 
 No change was made in the much-debated rule of 1899 
 concerning the revision of the arbitral award. Professor 
 de Martens moved the suppression of the rule as being 
 opposed to the essence of arbitration; he recalled the 
 debate of 1899, and said that he had continued a firm 
 opponent of revision ever since, that the Arbitration Tri- 
 bunal of 1902 had joined unanimously in the expression 
 of a desire to abolish the privilege of resorting to it, and 
 that not one of the four arbitral awards rendered by the
 
 408 THE TWO HAGUE CONFERENCES 
 
 Hague tribunals had given rise to a demand for revision. 
 Ambassador Choate, of the United States, and the rep- 
 resentatives of Belgium, Brazil, Germany, the Nether- 
 lands, Persia, and Roumania all opposed Professor de 
 Martens's motion and replied to his arguments in very 
 much the same way that the debaters of 1899 had done, 
 with the additional reason that, since the rule as adopted 
 represented an accepted compromise between very pro- 
 nounced opinions, it would be best not to alter it in any 
 way. 
 
 The code of 1899 having been discussed and amended, 
 the French delegation proposed a series of additional 
 rules which should regulate what it called "the summary 
 procedure of arbitration." Professor Renault, in present- 
 ing the proposed rules, said that they were designed to be 
 applied to the most frequent cases of arbitration — tech- 
 nical questions and those of secondary importance — 
 which demand prompt solution. "We believe," he said, 
 "that it is possible in such cases to apply the arbitral 
 procedure adopted in 1899 in a simpler and more practical 
 form, and our plan is inspired by the arbitral agreements 
 already included in several treaties, notably in those be- 
 tween Switzerland and Germany, France, and Italy. 
 The fundamental idea of our plan is the simplification 
 of the arbitral tribunal's organization and its specializa- 
 tion." Baron von Bicberstein, of Germany, cordially 
 indorsed the French propositions as well calculated to 
 simplify arbitral procedure and to facilitate its use. 
 
 The five rules based upon the French propositions 
 caused but very little discussion, and were unanimously 
 adopted. They are prefaced by the statement that, with 
 the object of facilitating the operation of arbitral justice
 
 ARBITRATION 409 
 
 in controversies adaptable to summary procedure, the 
 contracting powers have adopted the following rules, 
 which will be observed in the absence of other stipulations 
 and in subordination to the application of the foregoing 
 rules. 
 
 Each of the parties to the dispute shall name an arbi- 
 trator. The French plan proposed that these should be 
 chosen from among the citizens of the parties at variance, 
 but on the motion of Sir Edward Fry this limitation was 
 stricken out. The two arbitrators thus appointed shall 
 elect a sur-arbiter. If they can not agree upon a sur- 
 arbiter, each one shall present two candidates from the 
 list of members of the Permanent Court, other than the 
 appointees or citizens of the parties in dispute ; the sur- 
 arbiter shall then be selected by lot from the candidates. 
 The sur-arbiter shall preside over the tribunal, which will 
 render its decision by a majority vote. In default of 
 previous arrangement the tribunal shall determine, as 
 soon as it is formed, the period within which the two 
 parties shall submit to it their respective memorials. 
 Each party shall be represented before the tribunal by 
 an agent to serve as an intermediary between the tribunal 
 and the government which has appointed him. 
 
 The arbitral procedure shall comprise an examination 
 of documents only; but each party shall have the right 
 to demand the hearing of witnesses and experts, and the 
 tribunal shall have the privilege of demanding oral ex- 
 planations from the agents of the parties, as well as from 
 the experts and witnesses whom it shall deem desirable to 
 summon.
 
 410 THE TWO HAGUE CONFERENCES 
 
 3. The Court of Arbitral Justice 
 The Conference of 1 go 7 
 
 The proposition of the United States of America for 
 the establishment of a court of arbitral justice was sub- 
 jected to a preliminary discussion in four sessions of the 
 first subcommission of the I Commission, to a detailed 
 examination in eight meetings of a subcommittee (Com- 
 mittee B), to a final discussion in three sessions of the I 
 Commission, and to a vote in the ninth plenary session of 
 the conference itself. 
 
 Both the Russian and the United States delegations 
 presented plans, in the early part of the conference, for 
 the establishment of such a court ; but the American 
 plan was taken as the basis of the discussion. This plan 
 was presented, the delegation stated, with the object of 
 facilitating an immediate recourse to the judicial decision 
 of international differences which diplomatic means have 
 been unable to settle ; and the proposed court was designed 
 to be a permanent one, accessible at all times, and con- 
 forming, unless otherwise stipulated, to the rules of pro- 
 cedure adopted by the two conferences. 
 
 The eminent jurisconsult of the Netherlands, M. Asser, 
 opened the preliminary discussion of the subject by a 
 speech in the course of which he praised highly the Per- 
 manent Court of 1899 as being the pioneer stage in the 
 progress of international justice, but pointed out its inad- 
 equacy for changed conditions and larger demands. 
 
 "Instead of a permanent court" M. Asser said, "the Convention 
 of 1899 gave only the phantom of a court, an impalpable specter or, 
 to speak more precisely, it gave a secretariat and a list. And when
 
 ARBITRATION 41 1 
 
 two powers, having a difference to settle, . . . demand that the doors 
 of the court at The Hague be opened to them, the Secretary-General, 
 thanks to the munificence of Mr. Carnegie, can show them a splendid 
 hall, but instead of a court he can only present to them a list on which 
 they may find a large number of names of persons 'of a recognized 
 competence, etc' . . . You remember, gentlemen, how a great 
 monarch, — who was not only a famous general but a philosopher as 
 well, trained in the French school of the Eighteenth Century, — on 
 the point of committing an injustice, was struck by the exclamation 
 of a simple miller, who reminded him that 'There are judges at Ber- 
 lin !' ; and how, ' Charmed that beneath his sway justice was be- 
 lieved in,' he submitted to the simple miller's suit. Then, gentlemen, 
 when some day a tribunal truly permanent shall sit here ... it will 
 not be without practical result that the nations shall invoke the 
 famous article inspired by France — the article of Duly ' — and shall 
 say to a state on the point of committing an injustice, 'There are 
 judges at The Hague !'" 
 
 Baron von Bieberstcin, of Germany, in his memorable 
 address on arbitration, followed M. Asser's indorsement 
 of the proposed court by saying : 
 
 "The ideal of arbitration between nations will undoubtedly be 
 advanced if we can succeed in improving and simplifying the proced- 
 ure established by the Convention of 1899 for resort to the tribunal 
 of The Hague. But the most important reform would be that which 
 is indicated by the propositions of the United States of America and 
 Russia, and which would consist in giving to the tribunal of The 
 Hague the character of a really permanent tribunal. We indorse 
 completely the praise which has been accorded to the work of the 
 Hague tribunal ; but we can not shut our eyes to its defects. I do not 
 desire to criticise it, but quite the contrary. It is the great merit of 
 the first conference to have pointed out the road for us to follow. A 
 veritable permanent court, composed of judges who by their character 
 and competence will enjoy universal confidence, will exert an attrac- 
 tion, automatic, so to speak, on judicial differences of every kind. 
 And such an institution will secure for arbitration a more frequent 
 
 1 Article 27; see page 304.
 
 412 THE TWO HAGUE CONFERENCES 
 
 and more extended use than a general arbitration agreement which 
 must be hedged in by exceptions, reserves, and restrictions. We are 
 ready to exert all our efforts in working for the accomplishment of this 
 task. By continuing thus the work of 1899, the second Peace Con- 
 ference will not be inferior to the first ; and it will justify the hope that 
 its labors may contribute to the preservation of peace, by extending the 
 empire of law and by fortifying the sentiment of international 
 justice." 
 
 The third and fourth addresses on the subject were 
 delivered by Ambassador Choate and Dr. Scott, of the 
 United States. Mr. Choate spoke in English, but a 
 resume of his address, in French, was immediately read 
 by Baron d'Estournelles de Constant, of France. He 
 began by quoting from a letter of President Roosevelt 
 to Mr. Carnegie, written at the time of the Peace Congress 
 held in New York City in April, 1907, and expressive of 
 the President's hope that the Permanent Court would be 
 greatly increased in power and permanency by the ap- 
 proaching Peace Conference. He next touched upon 
 what was to prove the supreme obstacle to the adoption 
 of the American plan, the selection of judges. 
 
 "Our instructions are to secure, if possible," he said, "a plan by 
 which the judges shall be so selected from the different countries that 
 the different systems of law and procedure and the principal languages 
 shall be fairly represented, and that the court shall be made of such 
 dignity, consideration, and rank that the best and ablest jurists will 
 accept appointments to it and that the whole world will have absolute 
 confidence in its judgments." 
 
 Referring to the importance of the work of the first 
 conference, Mr. Choate spoke of the fact that seventeen 
 of its members, and about the same number of members 
 of the Permanent Court, were members also of the second 
 conference, and to them he made an especial appeal for
 
 ARBITRATION 
 
 413 
 
 support in "building upon their work a still nobler and 
 more commanding structure." As to the incompleteness 
 of the court of 1899, he said that it had not proved ade- 
 quate to meet the progressive demands of the nations or 
 to draw to the decision of the Permanent Court any great 
 part of the arbitrations agreed upon, — its inadequacy 
 being shown by the fact that in the eight years of its exist- 
 ence only four cases have been submitted to it, and that of 
 the sixty judges, more or less, who were named as members 
 of the court, at least two thirds have not, as yet, been called 
 upon for any service. He did not point out in detail the 
 causes of the insufficiency of the existing court, but referred 
 to the expense of resort to it, and described what he evi- 
 dently considered its chief defect as follows : 
 
 "The fact that there was nothing permanent or continuous or con- 
 netted in the sessions of the court, or in the adjudication of the cases 
 submitted to it, has been an obvious source of weakness and want of 
 prestige in the tribunal. Each trial it had before it has been wholly 
 independent of every other, and its occasional utterances, widely 
 distant in point of time and disconnected in subject-matter, have not 
 gone far towards constituting a consistent body of international law 
 or of valuable contributions to international law, which ought to 
 emanate from an international tribunal representing the power and 
 might of all the nations. In fact it has thus far been a court only in 
 name, a framework for the selection of referees for each particular case, 
 never consisting of the same judges. It has done great good so far as 
 it has been permitted to work at all, but our effort should be to try 
 to make it the medium of vastly greater and constantly increasing bene- 
 fit to the nations and to mankind at large. 
 
 "Let us, then, seek to develop out of it a Permanent Court which 
 shall hold regular and continuous sessions, which shall consist of the 
 same judges, which shall pay due heed to its own decisions, which shall 
 speak with the authority of the united voice of the nations and gradu- 
 ally build up a system of international law, definite and precise, which 
 shall command the approval and regulate the conduct of the nations."
 
 414 THE TWO HAGUE CONFERENCES 
 
 Mr. Choate then sketched in broad outline the court 
 as planned by the American proposal, prefacing his sketch 
 with the statement that his delegation had not attempted 
 to fill in all the details, since these should be the result 
 of consultation and conference among all the nations; 
 he stated emphatically, too, that the proposed court was 
 not intended to destroy but only to supplement the exist- 
 ing court, and that any nations who desired it might 
 still resort to the method of selecting arbitrators provided 
 in 1899. 
 
 His final appeal was an impressive one,' and was greeted 
 by hearty applause. 
 
 "Mr. President," he said, "with all the earnestness of which we are 
 capable, and with a solemn sense of the obligations and responsibili- 
 ties resting upon us as members of this conference, which in a certain 
 sense holds in its hand the fate and fortunes of the nations, we com- 
 mend the scheme which we have thus proposed to the careful con- 
 sideration of our sister nations. We cherish no pride of opinion as to 
 any point or feature that we have suggested in regard to the constitu- 
 tion and powers of the court. We are ready to yield any or all of them 
 for the sake of harmony; but we do insist that this great gathering of 
 all the nations will be false to its trust, and will deserve that the seal 
 of condemnation shall be set upon its work, if it does not strain every 
 nerve to bring about the establishment of some such great and per- 
 manent tribunal which shall, by its supreme authority, compel the 
 attention and deference of the nations that we represent, and bring to 
 final adjudication before it differences of an international character 
 that shall arise between them, and whose decisions shall be appealed 
 to as time progresses for the determination of all questions of inter- 
 national law. Let us then, Mr. President, make a supreme effort to 
 attain, not harmony only, but complete unanimity in the accomplish- 
 ment of this great measure, which will contribute more than any- 
 thing else we can do to establish justice and peace on everlasting 
 foundations. . . . 
 
 "Gentlemen, it is now six weeks since we first assembled. There
 
 ARBITRATION 
 
 415 
 
 is certainly no time to lose. We have done much to regulate war, but 
 very little to prevent it. Let us unite on this great pacific measure and 
 satisfy the world that this second conference really intends that here- 
 after peace and not war shall be the normal condition of civilized 
 nations." 
 
 Dr. Scott began his address by quoting Lord Salisbury's 
 explanation of why arbitration was not more generally 
 resorted to before 1899 — the nations' lack of confi- 
 dence, namely, in arbitrators' impartiality — and Secre- 
 tary Root's argument at the New York Peace Congress in 
 favor of strengthening the court established in 1899. He 
 then pointed out the strength and weakness of the latter 
 court, and took up a detailed explanation of the proposed 
 court, emphasizing especially the feature which he called 
 its most important one, the selection of its judges. "It 
 would appear at first sight," he said, "that to be truly 
 international, a court must represent not one or several 
 nations, but all of them. It is no less evident that, com- 
 posed of a representative of each independent and sover- 
 eign state, it would be impracticable. Forty-five judges, 
 sitting together, may form, indeed, a judicial assembly ; 
 it can not be said that they would constitute a court." 
 The American plan accordingly proposed a court of not 
 more than seventeen judges, nine of whom should make a 
 quorum. Taking up the great problem of how to choose 
 these seventeen judges, Dr. Scott first insisted emphatically 
 upon the absolute equality of nations in the view of inter- 
 national law, and then showed how, in the adjudication 
 of international differences, this absolute equality should 
 be modified by differences in population and material 
 interests. The American plan recognized, however, he 
 said, that the composition of the court should not be based
 
 416 THE TWO HAGUE CONFERENCES 
 
 strictly on differences in population and material interests, 
 but should take into consideration the differences in 
 judicial systems and in languages throughout the world. 
 Professor de Martens, in presenting the Russian plan 
 for strengthening the existing court, said that he was in 
 entire accord with Mr. Choate "on the essential and in- 
 disputable fact that the existing Permanent Court is not 
 organized as it should be. An improvement is requisite, 
 and it is our task to accomplish it, — a task the most im- 
 portant, in my opinion, of all those imposed upon us." 
 He then referred to the relatively small use of the Per- 
 manent Court and to the Russian plan for requiring all 
 its members to meet periodically and choose a permanent 
 tribunal to be composed of three of its members. This 
 tribunal would always be ready to arbitrate international 
 differences ; but it could be disregarded by the powers in 
 dispute, and other arbitrators be chosen from the court, 
 or it could be enlarged to five, seven, or nine members. 
 M. de Martens stated the readiness of the Russian dele- 
 gation to retire its proposition, as it had done in 1899, in 
 favor of another plan as the basis of discussion; "for," 
 he said, "when one is working for the triumph of justice 
 and the welfare of humanity, every consideration of na- 
 tional and personal pride or ambition should disappear." 
 He concluded his oration in these words : 
 
 "Allow me a few words more from the bottom of my heart. There 
 have always been in history epochs when grand ideals have domi- 
 nated and enthralled the souls of men ; sometimes it was religion, 
 sometimes a system of philosophy, sometimes a political theory. The 
 most shining example of this kind was the Crusades. From all coun- 
 tries arose the cry, 'To Jerusalem ! God wills it ! ' To-day the great 
 ideal which dominates our time is that of arbitration. Whenever 
 a dispute arises between the nations, even though it be not amenable
 
 ARBITRATION 417 
 
 to arbitration, we hear the unanimous cry, ever since the year 1899, 
 'To The Hague! To The Hague!' If we are all agreed that this 
 ideal shall take body and soul, we may leave The Hague with up- 
 lifted head and peaceful conscience; and History will inscribe within 
 her annals: 'The members of the second Peace Conference have de- 
 served well of humanity.'" 
 
 This inspiring appeal was greeted with prolonged ap- 
 plause, which was renewed when Baron von Bieberstein 
 repeated briefly but emphatically that it was his country's 
 desire to "accept the generous principles defended so 
 eloquently by the delegates of the United States of Amer- 
 ica." M. de la Barra, of Mexico, and Sir Edward Fry, 
 of Great Britain, then spoke briefly, the first offering a 
 minor amendment to the American plan, but expressing 
 his "enthusiastic adherence to every proposition designed 
 to give more prestige to the Permanent Court and to 
 facilitate access to it" ; and the second saying, in six lines, 
 that the British delegation did not hesitate to give its 
 cordial support to the principle of the American proposal. 
 
 Two delegates from Argentina spoke next ; one ad- 
 vocated the resolution offered by his delegation requesting 
 the executive heads of governments not to accept the 
 office of arbitrator until after a recourse to the Hague 
 court has been rejected, and illustrated his argument by 
 the example of President Roosevelt at the time of the 
 dispute between Venezuela and Germany, Great Britain, 
 and Italy; the other indorsed, in principle, the American 
 proposition as to a permanent court and suggested that 
 in the method of selecting its judges William Penn's 
 plan of apportioning representation according to the 
 amount of the foreign commerce of each state should 
 be adopted, for the reason that "commerce and production
 
 418 THE TWO HAGUE CONFERENCES 
 
 are certainly the best exponents of the vitality, intelligence, 
 industry, and progress of nations." 
 
 At the opening of the next meeting of the subcommission, 
 Mr. Choate accepted not only the spirit but the letter of 
 the Mexican amendment to the American plan, and said 
 that it indicated clearly the design of that plan, which was 
 to leave the states free to apply either to the existing court 
 of arbitration, or to the proposed court, or to any other 
 means of settling their differences in a peaceful manner. 
 
 M. Beernaert, of Belgium, a distinguished jurisconsult 
 and influential member of the first Peace Conference, 
 and a representative from one of the "smaller powers," 
 then arose and struck the first public note of opposition 
 to the proposed court. In reply to the criticisms of the 
 existing Permanent Court, especially those of Professor 
 de Martens, he praised that court highly, and frankly 
 expressed his preference for it as against the one proposed. 
 The question at issue, he said, was the same as that "long 
 debated in 1899," namely, "Is it better to establish a truly 
 permanent international tribunal, in which judges few 
 in number, and immovable or nearly so, will have to 
 decide the disputes of the various states of the whole 
 civilized world?" The proposition to answer this ques- 
 tion in the affirmative he considered in line with those " vast 
 projects, according to which the reorganized world shall 
 form henceforth a single state, or at least a federation of 
 states, having a single parliament, a single executive, 
 a single superior court of justice. ... In my opinion, 
 this is the lamentable exaggeration of ideas which are 
 true in themselves and which do honor to our century. 
 They are moving across the world at this moment in 
 great waves of fraternity and solidarity. Men of different
 
 ARBITRATION 419 
 
 races know each other now, and are no longer enemies. 
 An assembly like this, of which our fathers did not even 
 dream, astonishes no one. This is the result of the 
 enormous progress of all the sciences, which have anni- 
 hilated distance, intertwined interests, and mingled the 
 races. But, on the other hand, never has the feeling of 
 nationality been more alive, and old nations and old 
 tongues, which were believed to be asleep, have been 
 seen to arise and demand again their place in the sun- 
 shine. None of us would wish to renounce his country, — 
 his country, fond and dear, and none of us would consent 
 to be governed from a great distance. We must, then, I 
 believe, discard as a mere Utopia the dream of a world 
 state or a universal federation, of a single parliament 
 and a court of justice superior to the nations." 
 
 M. Beernaert then took up the knotty question of the 
 method of selecting the judges and struck the keynote 
 which was destined to be harped upon constantly until 
 the end of the discussion. "The larger number of na- 
 tions," he said, "would not have a judge of their own on 
 the tribunal, and how can it command their confidence?" 
 
 M. Beernaert's address was greeted with prolonged 
 and repeated applause, and the representatives of the 
 smaller powers arose one after the other to express their 
 doubts and make their reservations, especially that based 
 on absolute international equality. The representatives 
 of Mexico, Servia, Haiti, Venezuela, Brazil, Bulgaria, 
 Portugal, Roumania, and Uruguay all voiced the deter- 
 mination of the smaller powers to secure, by one method 
 or another, international equality in the selection of judges, 
 or, failing this, to reject the plan of a new tribunal. Some 
 of these representatives suggested plans by means of
 
 4 20 THE TWO HAGUE CONFERENCES 
 
 which they believed the desired equality could be secured, 
 and the Russian proposal that the Permanent Court 
 should select the arbitral tribunal was indorsed by the 
 delegates from Haiti, Venezuela, and Bulgaria. M. Ruy 
 Barbosa, of Brazil, made a long argument against the 
 establishment of a tribunal which would supersede all 
 other arbitral tribunals, and insisted on the principle of 
 international equality in the constitution of the new 
 tribunal itself. 
 
 Panama and Persia * were the only small powers that 
 tried to stem the tide of anxiety and dissent. Sir Edward 
 Fry, speaking after M. Barbosa, stated in his character- 
 istically short and decisive manner that there was not the 
 slightest intention to supplant the court of 1899 or any 
 other: "The choice of the nations will remain free," he 
 said, "and it is very sure that the most efficient court will 
 be chosen." M. Bourgeois, of France, whose words of 
 praise for the existing court had been quoted by several 
 speakers in opposition to the proposed tribunal, also made 
 one of his characteristically conciliating and eloquent ap- 
 peals in behalf of the American proposition. While em- 
 phasizing the praise he had bestowed upon the existing 
 court, which he believed would continue to be most useful 
 for the settlement of grave political differences, he insisted 
 upon the great desirability of the proposed court for the 
 settlement of many important differences of a judicial 
 nature. 
 
 "We shall hope for, and we shall greet with joy," he said, "the 
 day when, beside the court of 1899, or better, at 'its own fireside and 
 perhaps created by itself, there shall exist a permanent tribunal for 
 
 1 The Persian delegation later protested to the committee of examination 
 against the " judicial inequality " of the proposed court.
 
 ARBITRATION 421 
 
 affairs of a judicial kind, under such conditions that the smallest as 
 well as the largest states shall find in it equal guarantees for the 
 definition and security of their rights. . . . 
 
 "The world desires peace. For centuries it clung solely to the 
 motto, 'If you desire peace, prepare for war'; that is to say, it con- 
 fined itself to the military organisation of peace. We are no longer 
 at that stage of progress ; but we must not be content with promoting 
 the more humane organization, the peaceful organization of war 
 [That is, in the other commissions of the conference, to whose work 
 he had just alluded]. The words which have been uttered here have 
 showed us the progress of education in this respect, the feeling, new 
 and each day more urgent, of the solidarity of men and nations in the 
 struggle with the fatalities of nature. We have confidence in the 
 growing activity of these great moral forces, and we hope that the 
 Conference of 1907 will take a decisive step beyond the work under- 
 taken in 1899 by insuring practically and really the judicial organi- 
 zation of peace." 
 
 Under the influence of this appeal, the commission re- 
 ferred the American proposition to the committee of exami- 
 nation by a vote of twenty-eight (including seven of the 
 delegations which had made reservations), with twelve 
 abstentions (including three of the delegations which had 
 made reservations). 
 
 Ten days after this reference the committee entered upon 
 the discussion of the plan, and devoted five weeks to its 
 consideration. This committee (B) was composed of 
 twenty-three members, representing sixteen countries, 1 
 and was presided over by M. Bourgeois, with Dr. Scott 
 as reporter. 2 The American plan, amended in such manner 
 by the delegations of Great Britain and Germany that it 
 
 1 Seven of these were "large powers," and nine were small. 
 
 2 Dr. Scott presented an able report on the articles adopted by this com- 
 mittee under the motto, "Inter leges silent arma"; but, in practical applica- 
 tion of this motto, it is silent on the conflict of opinions regarding the constitu- 
 tion of the court.
 
 422 
 
 THE TWO HAGUE CONFERENCES 
 
 was called by the name of all three of these powers, was the 
 basis of the committee's discussion. Many of the most 
 eminent members of the conference took part in this dis- 
 cussion, and as a result of it thirty-five articles were agreed 
 upon which were adopted by the commission and the con- 
 ference. These articles provide for the qualifications, term 
 of office, privileges, and salary of the judges, the name, place 
 of meeting, sessions, reports, jurisdiction, and procedure 
 of the court, and for the assistance to be rendered to it 
 by the Administrative Council and International Bureau, 
 created in 1899, and by a new special delegation of three 
 of the judges elected annually. 
 
 So carefully and thoroughly were the various needs of the 
 new court provided for by these articles that Dr. Scott said 
 in his report of the committee which formulated them : 
 "We have not only wished to erect the fine facade of the 
 Palace of International Justice; we have built and even 
 furnished the structure in such fashion that the judges 
 have only to take their seats." 
 
 But, important though these articles may become in the 
 future and interesting though they are in themselves at 
 present, it would be out of place to discuss them here; 
 for, although they were adopted in the commission by a 
 vote of thirty-eight to three, with three abstentions, and in 
 a plenary session of the conference by a vote of thirty- 
 eight ayes, with six abstentions, 1 they are only, as various 
 delegates called them, a building without foundations, a 
 locked door without a key, a machine without power. 
 They provide, in fact, a court without judges. For the 
 
 1 In the commission, the negative vote was cast by Belgium, Roumania, 
 and Switzerland, while Denmark, Greece, and Uruguay abstained; and from 
 the conference vote all of these six powers abstained.
 
 ARBITRATION 423 
 
 number and method of selection of the judges could not 
 be agreed upon ; and these features of the proposed court 
 both its advocates and opponents agreed in calling its 
 capital, its fundamental, its essential ones. 
 
 The intense struggle, on the one hand, to find some method 
 of solving these two problems, and, on the other hand, to 
 prevent their solution on any other basis than that of the 
 absolute equality of sovereign states, began in the first 
 meeting of the committee and was carried through to its 
 last. It was marked by learned speeches and dramatic 
 appeals, and by the entire abstention on the part of some 
 of the members from any discussion of the project in the 
 absence of a satisfactory solution of these fundamental 
 problems. Mr. Choate, ably seconded by Dr. Scott's 
 profound knowledge of international law, was the persist- 
 ent, eloquent, resourceful champion of the progressive 
 majority which was determined to find some way out ; and, 
 while proposing a plan on behalf of the American delega- 
 tion, showed and proved his willingness to discuss and adopt 
 any other plan which seemed applicable to the purpose in 
 view. The plan he proposed was that each power should 
 appoint one judge ; that the eight judges selected by the eight 
 "large powers" should sitas membersof the courtduring the 
 entire term of twelve years; that the judges appointed by 
 the other powers should sit for periods of one, two, four, or 
 ten years, so that the court should be composed of only 
 seventeen judges at any one time. The classification of 
 the "other powers" into four divisions (the one-, two-, 
 four-, and ten-year divisions) was a very ingenious one and 
 was based on the differences in population, language, and 
 jurisprudence, etc., to which Mr. Choate and Dr. Scott had 
 referred in the subcommission.
 
 424 THE TWO HAGUE CONFERENCES 
 
 M. Ruy Barbosa was the insistent, learned, passion- 
 ate opponent of this plan and the recognized champion 
 of the absolute equality of sovereign states. At one time 
 during the committee's deliberations he proposed, as a com- 
 promise plan, the reduction of the number of judges sitting 
 at any one time to fifteen, thus enabling one third of the 
 forty-five judges elected to sit for four years, the judges to 
 alternate according to the alphabetical arrangement of the 
 countries appointing them. But he later withdrew this 
 plan and avowed his preference for the old court as against 
 any new one, and his determination to reject every plan not 
 based on the absolute equality of sovereign states. 
 
 M. Barbosa 's thoroughly conscientious and able opposi- 
 tion was supported by various other members of the com- 
 mittee, and, although none of the numerous plans sug- 
 gested by Mr. Choate were really discussed, some of the 
 advocates of the new court began to despair of arriving at 
 any conclusion whatever. At last Sir Edward Fry moved 
 a resolution that, "The conference deems it desirable that 
 the signatory powers adopt the project for the establish- 
 ment of a Court of Arbitral Justice, with the exception of 
 the rules which have to do with the nomination of the 
 judges and their rotation in office." Mr. Choate. opposed 
 this as the counsel of despair, and made one more proposi- 
 tion providing for the election of fifteen judges by the forty- 
 five powers, each having one vote ; but this proposition 
 was voted down, and Mr. Choate then submitted to the 
 inevitable by accepting Sir Edward Fry's resolution. This 
 resolution, however, he moved to amend in a radical fashion 
 by substituting for the words, "The conference deems it 
 desirable that the signatory powers adopt the project," 
 the words, "The conference adopts the project, and recom-
 
 ARBITRATION 425 
 
 mends to the powers to make an agreement on the means 
 of choosing the judges and constituting the court." The 
 latter part of this motion was adopted, and on the suggestion 
 of M. Nelidow, the first part of the resolution was phrased, 
 "The conference recommends to the signatory powers the 
 adoption of the project voted by it, . . ." and in this form 
 it was adopted by the committee, commission, and con- 
 ference. 
 
 When the committee's report was presented to the com- 
 mission, it became the subject of another animated debate, 
 or rather was made the opportunity of emphasizing the 
 absolute equality of sovereign states in the view of inter- 
 national law, and a refusal to adopt the proposed court on 
 any other basis. The delegations of Mexico, the Dominican 
 Republic, Brazil, Guatemala, Norway, China, Persia, Siam, 
 Chili, and Haiti stated their willingness to vote for the com- 
 mittee's report on that basis; the delegations of Switzer- 
 land, Belgium, and Roumania stated that they would vote 
 against the report even on the basis of equality; while 
 those of Denmark, Uruguay, Venezuela, and Greece em- 
 phasized the equality, but said they would abstain from 
 the vote. 
 
 M. Barbosa, in another long and forceful address, em- 
 phasized the universal acceptance and the justification of 
 the theory of the absolute equality of sovereign states in the 
 eyes of international law ; he also denied " the quarrelsome 
 humorand political imbecility "attributed in thenewspapers 
 to Latin America in its alleged "hostility to the United 
 States of America," and dwelt upon the friendship which 
 existed especially between the United States of America 
 and the United States of Brazil, reminding the conference 
 that the Brazilian delegation had cordially supported the
 
 426 THE TWO HAGUE CONFERENCES 
 
 American delegation in its efforts to secure immunity for 
 private property on the sea, arbitration for contractual debts, 
 obligatory arbitration, and the periodical meeting of the 
 Peace Conferences, while it had opposed it only on the ques- 
 tion of the Court of Arbitral Justice and the International 
 Prize Court. 
 
 M. Barbosa's statesmanlike address was put in a still 
 more favorable light by the ironical and triumphant speech 
 of M. Beldiman, of Roumania, who insisted that the pro- 
 ject for the court had met with entire failure and who 
 exulted over the defeat of the American delegation in 
 regard to it. 
 
 Mr. Choate made one short final appeal to the small 
 minority that had voted against the project itself, to make 
 the vote for the resolution unanimous, and M. Nelidow, 
 president of the conference, added his plea as well ; but 
 the vote was maintained as before, — thirty-eight to three, 
 with three abstentions, although in the plenary session of 
 the conference the negative votes were changed, as in the 
 vote on the project, to abstentions. 
 
 One final slight victory was secured for the court in 
 the commission which decided that the recommendation of 
 it should be called in the Final Act, not a "Desire" (vceu), 
 as the minority wished, but a "Declaration," as was done in 
 the first conference in the case of the resolutions relating 
 to the use of "dumdum" bullets, asphyxiating gases, and the 
 launching of projectiles from balloons. But this triumph 
 was only a temporary one, for, in accordance with precedent, 
 it could figure only as a "Desire" in the Final Act if 
 any power objected to its being called a "Declaration," and 
 this objection was made by Switzerland,
 
 ARBITRATION 427 
 
 4. The International Prize Court 
 The Conference of igoy 
 
 At the second plenary session of the conference — the 
 first business one — Baron Marschall von Bieberstein, of 
 Germany, electrified the members by declaring that his 
 government had instructed him to present to the confer- 
 ence propositions concerning the establishment of an inter- 
 national court to decide on the legality of captures made 
 in naval war, the said court to be a high court of justice 
 functioning as a court of appeal, while national tribunals 
 should deliberate in the first instance. Sir Edward Fry, 
 of Great Britain, immediately arose and expressed the great 
 satisfaction with which he had listened to the statement of 
 his German colleague, and said that the British delegation 
 had received instructions of the same kind. General Por- 
 ter, of the United States, before submitting the American 
 proposition concerning the forcible collection of debts, also 
 cordially indorsed the German suggestion. 
 
 At the first session of the I Commission, the German 
 and British plans for the proposed court were presented, 
 and were referred to the commission's second subcom- 
 mission, whose sole duty it was to deliberate and decide 
 upon this question. 
 
 The two plans were found to have the common object 
 of permitting an appeal from the decision of national prize 
 courts, but each sought to attain this object in a different 
 way. A committee of three members ! was accordingly 
 appointed to draw up a list of questions based on the differ- 
 
 1 Sir Edward Fry, Dr. Kriegc, of Germany, and Professor Renault, of 
 France.
 
 428 THE TWO HAGUE CONFERENCES 
 
 ences in the two plans, these questions to be answered by 
 the subcommission, and the answers to form the basis of a 
 common agreement. 
 
 The first question, Shall an international court of appeal 
 for prizes be established, was answered by the Baron von 
 Bieberstein, in his opening speech before the subcommis- 
 sion, as follows: 
 
 "According to a principle universally admitted in the law of na- 
 tions, every maritime prize must be confirmed by a judicial decision. 
 At present, this decision proceeds exclusively from the jurisdiction of 
 the captor's government. It is this government which establishes the 
 tribunals and usually the procedure. Whatever may be the organiza- 
 tion of this jurisdiction in the various countries, it can not be denied 
 that this state of things is not satisfactory and is associated with grave 
 inconveniences from the point of view both of the principles of jus- 
 tice and equity, and of the interests of individuals, as well as from that 
 of the interests of neutral states and of the belligerents themselves. 
 
 "Prizes are made in the name of the state and, in principle, for 
 the account of the state. Hence, in the inquest as to the validity 
 of the prize, the role of the captor state is that of the defendant. Its 
 interest is engaged in having the prize declared valid; it is a question 
 of securing for the state the profit of the prize ; the state must dread, 
 quite naturally, to see the military acts of its armed forces nullified and 
 declared illegal. The prize tribunals established by the captor state 
 act involuntarily more or less under the influence of these interests of 
 their country. At all events, these national tribunals do not enjoy 
 that high judicial authority which is based on confidence in the entire 
 independence and impartiality of judges. 
 
 "It is a natural consequence of this state of things that the national 
 adjudication of prizes gives rise to constant disputes between the bel- 
 ligerents themselves, and with neutral nations; and these disputes 
 do not cease to envenom international relations. 
 
 "It is, then, highly desirable that an international jurisdiction be 
 established, whose impartiality can not be doubted. Its purpose is 
 twofold : first, to protect the rights of individuals ; second, — and 
 this is a very important one, — to relieve the captor state from re-
 
 ARBITRATION 429 
 
 sponsibility for the adjudication of prizes, which can thenceforth be- 
 come no longer the subject of diplomatic claims. It is this twofold 
 purpose which is sought by the German project now within your 
 hands, which proposes to internationalize jurisdiction over prizes 
 by the establishment of an International High Court, composed of 
 representatives of the belligerent powers and of neutral states, and 
 summoned to pass, in the second and last instance, on the legality of 
 prizes adjudged, in the first instance, by the national tribunals of 
 belligerent powers. . . . 
 
 "We have confidence that the conference will succeed in finding 
 the right solution of the problems connected with the jurisdiction of 
 prizes. And we shall be happy to cooperate in a spirit of conciliation 
 with our colleagues in the achievement of this noble task. The good 
 reception which has been accorded to our plan by two of the largest 
 maritime powers confirms our confidence." 
 
 Sir Edward Fry, in replying Yes to the first question, 
 said that, "in the present state of things, each nation pro- 
 claims for itself what it believes to be international law ; 
 the courts of each country thus feel bound by their national 
 system of jurisprudence in regard to prizes. In order that 
 an international court may apply the veritable international 
 law, its members must be free from all prejudice and from 
 all partiality." 
 
 M. Ruy Barbosa, of Brazil, inquired why the proposed 
 court should be one of appeal only; but, while expressing 
 the hope of a future agreement which would establish both 
 original and appellate jurisdiction, he also answered Yes 
 to the first question. M. Tsudzuki, of Japan, while ex- 
 pressing his cordial indorsement of the proposed court as 
 an ideal to be striven for, said that his delegation would 
 abstain from voting for such a court until a clear and pre- 
 cise code of international prize law should be agreed upon. 
 This objection had already been anticipated by Baron von 
 Bieberstein in his opening speech, and had been answered
 
 43° 
 
 THE TWO HAGUE CONFERENCES 
 
 by the statement that the Declaration of Paris of 1856 
 and certain treaties had already become the basis of a con- 
 ventional law on the subject, and that he had strong hopes 
 that the conference would complete or amplify the code. 
 M. Hammarskjold, of Sweden, indorsed the proposed court 
 as "One of the greatest steps of progress, and one of the 
 richest in its promise for the future," and begged that the 
 plan be not halted by difficulties of a rather doctrinaire 
 character. 
 
 At a little later stage of the discussion, Ambassador 
 Choate expressed the American delegation's cordial in- 
 dorsement of the project by saying: 
 
 " Representing as we do a widely extended maritime nation, and a 
 nation which hopes and confidently expects always in the future to be 
 a neutral nation, we deem the establishment of an international court 
 of prize by this conference to be a matter of supreme importance. . . . 
 It will certainly be a tremendous triumph of justice and peace if this 
 conference, before it dissolves, shall succeed in creating such an arbiter 
 between the nations. . . . One great international court will be a 
 marked advance in the progress of the world's peace, and will go far 
 to satisfy the universal demand which presses upon us so strongly 
 from every section of the world." 
 
 Mr. Choate 's address was designed to secure a compro- 
 mise between the divergent features of the German and 
 British plans, and he moved to refer the two plans to a com- 
 mittee of examination to decide upon this compromise. 
 This motion was adopted, but not until the divergence of 
 view had been plainly revealed. 
 
 The question, Whether the court should have juris- 
 diction only between two governments or between one gov- 
 ernment and individual citizens of another, was answered 
 by Sir Edward Fry in the first sense, for the reason that in
 
 ARBITRATION 43 1 
 
 an international court it is logical that only governments, 
 and not individuals, should be suitors. Dr. Kriege, of 
 Germany, on the other hand, argued that injured individ- 
 uals and not their government should come before the court, 
 and for the following reasons : this would prevent a dispute 
 between two governments, and would prevent a prize case 
 from being exaggerated into an arbitration ; it would pre- 
 vent a claimant state from being forced into the embarrass- 
 ing position of either neglecting the defense of its citizens' 
 interests, where it was impossible to make a careful exami- 
 nation of their claims, or of supporting ill-founded claims ; 
 it would enable individuals to apply to the court without 
 difficulty, and yet, by requiring them to bear the expense 
 of unsustained suits, they would be deterred from presenting 
 ill-founded claims. M. Hagerup, of Norway, and Colonel 
 Borel, of Switzerland, in adopting the German view of this 
 question, added the arguments that small powers would 
 often be stopped by political considerations from making 
 an appeal on behalf of their citizens, and that individual 
 appeal is in line with the progress of international law. 
 
 M. Bustamente, of Cuba, proposed as a compromise to 
 permit both individuals and their governments to apply to 
 the court ; and Mr. Choate, while favoring the right of 
 individual suitors, suggested that the question might be 
 left to the determination of each country. The compro- 
 mise actually adopted was that governments could institute 
 the suit in some specified classes of cases, and that indi- 
 viduals could do so in other specified classes, unless for- 
 bidden to do so by their own governments. 
 
 The next question, Whether the court should have 
 jurisdiction over all cases of capture, or over only those in 
 which neutrals are concerned, was answered by Sir Ed-
 
 432 THE TWO HAGUE CONFERENCES 
 
 ward Fry in the latter sense, for the reasons that a state of 
 war suspends certain relations of law between belligerents 
 and that there are certain questions between belligerents 
 which can not be submitted to an international court. Dr. 
 Kriege, on the other hand, favored the opening of the court 
 to the citizens of belligerent states, as well as to neutrals, 
 because this would conform to the modern idea of war, 
 according to which the inhabitants of the enemy's territory 
 are not placed outside of law ; and because an international 
 application is desirable for such international conventions 
 as the Declaration of Paris that the "neutral flag covers the 
 enemy's goods," and America's proposed rule abolishing 
 the capture of the enemy's private property. Mr. Choate 
 admitted the resort of both neutrals and belligerents to the 
 court, but emphasized the impossibility of permitting the 
 citizen of a belligerent power to appeal to the international 
 court from the decision of the courts of his own country 
 condemning him for a violation of its own laws, such as, for 
 example, its foreign enlistment act, or for an attempt to vio- 
 late a blockade established by it. 
 
 The compromise adopted in this case provided for the 
 appeal both of neutrals and of belligerents in certain classes 
 of cases. Thus the right of appeal of both neutral states 
 and citizens is fully admitted, in recognition of the fact that 
 the court is established preeminently in the interests of neu- 
 trals ; while the right of both belligerent states and citizens 
 is admitted under carefully defined conditions. 
 
 The next question was, When shall the role of the inter- 
 national court commence : directly after the national prize 
 courts of first instance have rendered their decision, or not 
 until the highest national court has rendered its decision ? 
 Sir Edward Fry recalled the fact that certain large maritime
 
 ARBITRATION 433 
 
 states possess prize courts of long standing and high renown, 
 for example, the Supreme Court of the United States and 
 the British Committee of the King's Privy Council; and 
 for this reason argued that the international court should 
 not have jurisdiction over cases until such national courts 
 had passed upon them. This course also, he said, would 
 give the international court the benefit of the nation's 
 brightest legal lights. Dr. Kriege admitted the theoretical 
 justice of Sir Edward Fry's proposal, but claimed that it 
 would give rise to practical and political difficulties; for 
 example, it would render the procedure singularly slow and 
 expensive, the examination of evidence and the rendering 
 of sentence often requiring several years; and hence the 
 amount of capital represented by the ship and cargo seized, 
 which is often very considerable, would be paralyzed, in- 
 stead of speedily released, as the modern condition of 
 commerce requires. Moreover, the well-known political 
 interests of the captor state require that only the decisions 
 of its lower, and not of its highest, courts should be reviewed 
 by an international court. Mr. Choate expressed his 
 opinion very decidedly in favor of the British answer to 
 this question, "because," he said, "our people, by history 
 and tradition, are so much in love with the Supreme Court 
 of the United States, which they so believe to be the tribunal 
 in which the gladsome light of jurisprudence rises and sets, 
 and to be a court which commands the almost equal re- 
 spect and admiration of other nations, that we could hardly 
 go home in safety with the report that we had unnecessarily 
 consented to any plan which would leave that court out of 
 the administration of prize law. I think we may state, 
 without contradiction, that in the last hundred years it 
 has taken a very considerable part in the making of the
 
 434 THE TWO HAGUE CONFERENCES 
 
 prize law which now constitutes a portion of the established 
 international law of the world, and that its decisions in prize 
 are in substantial conformity with the decisions of all the 
 maritime jurisdictions which have dealt with the subject, 
 so that we are as firmly wedded to it as an indispensable 
 factor in the future adjudication of prize law as our col- 
 leagues of the British delegation are to their court of last 
 resort. It was to the decisions of the great Lord Stowell 
 that our great jurists Marshall and Story looked for 
 light and leading on such questions, and it is not too much 
 to claim that together they settled the law for the world." 
 But despite this attachment to the Supreme Court, Mr. 
 Choate said that the United States Congress might re- 
 ciprocally consent to an appeal by aliens in prize cases from 
 the courts of first instance to the international court, "in 
 view of the enormous benefits to be derived by the whole 
 world from the successful establishment of an international 
 prize court," and that it would be sustained in so doing by 
 the popular judgment. 
 
 M. Hagerup, of Norway, said that the question and the 
 answers to it illustrated the need of an international court 
 which should replace all national prize courts; but that 
 since this is impossible at present, he would propose that 
 no more than two national courts be resorted to, and that 
 the parties should always have the right of renouncing one 
 of them. General Poortugael, of the Netherlands, sup- 
 ported this proposition and cited the case of Jarndyce 
 versus Jarndyce in Dickens's "Bleak House" as indicative 
 of the delay and expense involved in multiplied jurisdiction. 
 
 The conference decided against an exclusively interna- 
 tional jurisdiction in prize cases, for the practical reason 
 that national courts can dispose more simply and more
 
 ARBITRATION 435 
 
 rapidly of a great many cases which would never be taken 
 to the international court at all. But it adopted M. 
 Hagerup's suggestion that national jurisdiction should be 
 exercised in no more than two classes of courts. Each 
 country may decide, by its own legislation, whether a case 
 shall be appealed from a court of first instance directly to 
 the international court, or be subjected to the jurisdiction 
 of one higher national court. For this reason, the inter- 
 national court is not called a " Court of Appeal" or a "Su- 
 preme Court," but merely the " International Prize Court." 
 And to prevent undue delay, it is provided that if the na- 
 tional courts fail to render a definitive decision within two 
 years after the date of the capture, the international court 
 may entertain a suit in original jurisdiction. 
 
 The fifth question, Shall the international jurisdiction 
 have a permanent character, or be constituted only on the 
 occasion of each war, was answered by the British plan in 
 favor of a permanent court; and Sir Henry Howard, of 
 Great Britain, urged in favor of such a court that it would 
 have the stability, tradition, contiguity of procedure and 
 continuity of principles, the judicial prestige and moral 
 authority which would be wanting in temporary tribunals 
 created for special occasions. Dr. Kriege admitted the 
 force of this reasoning, and said that the German plan had 
 at first provided for a permanent court, but had later dis- 
 carded it because of the practical consideration that pub- 
 lic opinion would not understand why a permanent court 
 should be established, if simply called upon to function in 
 the abnormal event of a war ; and also because of the diffi- 
 culty of deciding upon the composition of a permanent court 
 which should necessarily be small, but in which forty-five 
 states would have a right to be represented.
 
 436 THE TWO HAGUE CONFERENCES 
 
 M. Ruy Barbosa advocated the British plan of a per- 
 manent court, and urged in its support the argument that 
 permanence of function alone gives to a court stability, 
 material and moral independence, an inflexible application 
 of the law, and that entire confidence of the interested 
 parties and of the world in general which is absolutely 
 necessary to the success of such an institution; the ap- 
 pointment of judges on the outbreak of a war would be 
 exposed to disadvantageous influences, and even neutral 
 judges appointed at such a time would be partial towards 
 one or the other belligerent, especially if the belligerents 
 are large powers. 
 
 Mr. Choate stated the strong preference of the American 
 delegation for a permanent court, "lasting not for each 
 war, which might make it almost an annual affair, because 
 wars are so numerous, but a court which should last for all 
 time, and should gradually settle all international differ- 
 ences in prize law and establish an international jurispru- 
 dence which should cover all cases and command and 
 satisfy the confidence of all nations." But here again Mr. 
 Choate suggested as a middle ground a court whose juris- 
 diction should be permanent, but whose judges should be 
 added to in case of war by the appointment of another 
 judge by each belligerent. 
 
 This compromise was adopted and provided that the 
 judges should be appointed for a term of six years, and be 
 eligible to reappointment; that the judges appointed by 
 the eight "large powers" should sit continuously, while 
 the judges appointed by the other powers should sit in turn 
 for portions of the term of six years; and that each bel- 
 ligerent should be represented on the court in time of war 
 by its appointee.
 
 ARBITRATION 
 
 437 
 
 The sixth question had to do with the constitution of the 
 court, the number of judges, their appointment and quali- 
 fications. 
 
 Sir Henry Howard urged the British plan of requiring 
 that judges should be chosen from among those persons 
 whose special competence would seem to mark them out 
 for the service ; but both he and Sir Edward Fry expressed 
 their willingness that naval officers should act as assessors 
 of the court and should be consulted on technical matters. 
 The German plan proposed that the court be composed of 
 five members, two of whom should be admirals appointed 
 by the two belligerents ; and Dr. Kriege argued that their 
 knowledge of facts and their technical experience would 
 make them most useful members, while the possession of a 
 deliberative, instead of only a consultative, right would 
 render them more impartial. Professor de Martens, of 
 Russia, approving of the German plan, said that the two 
 admirals could explain the laws and regulations of their 
 own countries, and would afford a visible guarantee that 
 the rights of the belligerents would be respected. Mr. 
 Choate favored the British plan, and said that "a court is 
 a court and a jurist is a jurist," and the introduction of 
 any other element than jurists would tend to detract to that 
 extent from the true judicial character which the court 
 should possess; on the other hand, if the two admirals 
 sitting at either end of the court are designed merely to 
 represent their own countries and "to neutralize or kill 
 each other off, why have them at all ? Will it not simply 
 end in their mutual slaughter without adding any new- 
 life, strength, or vigor to the court ? " The Anglo-American 
 answer to the question as to qualification was adopted, and 
 the rule provides that all the judges appointed shall be
 
 438 THE TWO HAGUE CONFERENCES 
 
 jurisconsults of recognized competence in questions of 
 international maritime law and enjoying the highest moral 
 consideration. 
 
 The question as to the number and appointment of the 
 judges gave rise to the same kind though not to the same 
 length or intensity of debate, as it did in connection with 
 the Court of Arbitral Justice. The German plan proposed 
 the appointment of five judges, two of whom were to be 
 appointed by the two belligerents, two others by two neu- 
 tral powers chosen by the two belligerents, and the fifth by a 
 third neutral selected, by lot, if necessary, by the other two 
 neutrals. Dr. Kriege advocated this plan for the reason 
 that it gave representation to both belligerents and neutrals, 
 and by requiring the three neutral judges to be selected 
 from the members of the Permanent Court of The Hague, 
 it would closely unite the two international courts. 
 
 Sir Henry Howard, opposing this plan, said that it re- 
 quired a temporary court, appointed on the outbreak of 
 a war ; and that it would perpetuate the chief defect of the 
 existing system, which gives to belligerents the exclusive 
 power of determining the rights of neutrals ; for the Ger- 
 man plan would give the appointment of the court to bel- 
 ligerents, their friends, and the friend of their friends, 
 and no matter how great the hostility between the belliger- 
 ents, they will always have common interests to defend 
 against neutrals. 
 
 The British plan provided that "each of the signatory 
 powers whose merchant marine, on the date of the signa- 
 ture of this convention, is more than 800,000 tons, shall 
 designate one" judge; ' but if any of these powers should 
 
 1 This plan would have made the court consist of eight judges, appointed 
 by Great Britain, the United States, Germany, Norway, France, Japan, 
 the Netherlands, and Italy.
 
 ARBITRATION 439 
 
 be a party to a suit, its appointee was to take no part in the 
 decision of the case. Sir Henry Howard urged in favor 
 of this plan that it provided for the appointment of judges 
 not by belligerents as belligerents, but by all states having 
 a considerable share in maritime commerce ; and that it 
 insured impartiality by excluding the judges appointed 
 by the powers interested in the case before the court. He 
 added that his delegation was willing to take one step 
 further and exclude the appointees of any powers who 
 enter on a war during the continuance of the war. Dr. 
 Kriege, while admitting the impracticability of having a 
 court of forty-five judges, so that each nation could be 
 represented on it, objected to the British plan because it 
 was liable to the "reproach of lacking in equity," and 
 permitted the possession of a few ships more or less to 
 determine the right of appointment, while it did not dis- 
 tinguish between those powers which have far more than 
 800,000 tons of merchant marine and those which had no 
 or only a little more. 
 
 The British plan would have excluded from the court 
 appointees of two of the eight "large powers," Russia and 
 Austria, and put the appointees of Norway and the Nether- 
 lands in their places. The delegations of the two "large 
 powers" excluded did not oppose the plan in the sub- 
 commission, Professor de Martens simply remarking that 
 " since Russia does not possess the minimum of merchant 
 marine necessary, according to the English plan, to be 
 represented in the International High Court, its delegate 
 will confine himself to presenting some purely academic 
 observations," — -on the qualification of the judges. 1 
 
 1 M. Merey briefly expressed Austria's approval of the court and its prefer- 
 ence for the German plan, but said that he had no doubt of a committee 
 readily reaching an agreement on its details.
 
 440 THE TWO HAGUE CONFERENCES 
 
 M. Ruy Barbosa, however, did not at all confine him- 
 self to such observations, but expressed himself vigorously 
 against the British plan. His arguments were, in brief, as 
 follows : no provision is made by the plan for the admis- 
 sion to representation of those powers whose merchant 
 marine reaches the requisite minimum after "the date of 
 the signature of this convention"; the interests of the 
 large powers are alone considered, or at least made su- 
 preme, by it, and the weak will have to submit to the 
 justice of the strong, whose common interests may not in- 
 cline them to respect sufficiently the rights of the weak, 
 especially since it is usually the most powerful who have 
 the least reason for obeying the law ; the function of the 
 court is designed to be strictly judicial, and for the fulfill- 
 ment of this function, the possession of a minimum amount 
 of marine tonnage is no proper qualification ; an impor- 
 tant mass of tonnage, possessed by countries, each with a 
 small amount, but larger in the aggregate than that of sev- 
 eral of the powers represented on the court, is not given 
 any share in the appointment of the judges; a world 
 court is desired, and yet the British plan would bar out 
 many states from having recourse to it by depriving them 
 of the confidence which they would have in it if they were 
 given a share in the appointment of its judges; finally, the 
 plan is particularly objectionable because it differs utterly 
 in principle from the Permanent Court of Arbitration, 
 which provides for general representation. 
 
 While stating these objections emphatically, M. Barbosa 
 admitted that since the court must in practice be much 
 smaller than one of forty-five members, and since it would 
 have to do with disputes concerning merchant marine, it 
 was only natural that a restriction of its members should
 
 ARBITRATION 441 
 
 be based on the importance of the merchant marine pos- 
 sessed by each of the powers. He proposed, therefore, that 
 the nations whose merchant marine was inferior to the 
 designated tonnage should be admitted to the appoint- 
 ment of members of the court, according to some agree- 
 ment among themselves, or by some other method. The 
 representatives of Sweden and Persia also objected mildly 
 to the British plan, and indorsed some such method as 
 that suggested by M. Barbosa. The committee of exami- 
 nation, appointed at the end of this session of the sub- 
 commission, took up the work of solving this problem of 
 the appointment of judges, and its solution, which was 
 adopted by the conference, will be referred to a little later. 
 The subcommission itself practically settled two other 
 questions, the seventh and eighth on the list, in connection 
 with the proposed court. In reply to the question, What 
 principles of law should the court apply, the British dele- 
 gation replied that these principles should include treaties 
 and, in default of these, the generally accepted principles 
 of international law ; when questions arise on which there 
 is difference of opinion in regard to international law, the 
 court must itself- adopt one principle or the other, and 
 thus aid in the development of international law. Baron 
 von Bieberstein expressed his entire satisfaction with this 
 answer; but M. Nelidow, of Russia, inquired why the Brit- 
 ish plan did not include the laws of the captor country, 
 and said that before judging the acts of naval officers, 
 account should be taken of the laws, regulations, and 
 instructions of their country. To this, Sir Edward Fry 
 replied that the greatest evil of the present condition of 
 affairs arises from the multiplicity of national laws relat- 
 ing to prizes ; and M. Nelidow agreed with him that the
 
 442 THE TWO HAGUE CONFERENCES 
 
 essential thing is to find an international law which can be 
 accepted by all the world. The article adopted embodied 
 the British idea and expressly stipulated that the court can 
 not regard the procedure enacted by the legislation of 
 the captor country in cases where it believes that its results 
 are opposed to justice and equity. 
 
 The final question, Should the order and method of 
 presenting evidence before the court be regulated, was 
 answered in the affirmative, and the method adopted was 
 in line with that adopted for the courts of arbitration. M. 
 Hagerup called attention to the custom of many national 
 prize courts of placing the burden of proof upon the 
 owner of the captured vessel, and denounced this custom 
 as unjust because "he who disposes of the property of 
 another should prove his right to do so, . . . even 
 though it be a state, or its agent, which makes the capture." 
 The method adopted calls for the presentation of docu- 
 mentary and other proof from both parties. 
 
 When the committee of examination took up the work 
 of deciding upon a plan consistent with the views ex- 
 pressed in the subcommission, it found its task much sim- 
 plified by the presentation of a plan agreed upon by the 
 delegations of Great Britain, the United States, Germany, 
 and France, and embodying the compromises already sug- 
 gested. It was able, consequently, to agree upon a final 
 report after only three meetings and comparatively little 
 difficulty. 
 
 The only part of the plan which caused much discussion 
 or any opposition was that concerning the constitution of 
 the court. At the first meeting, Mr. Crowe, of Great Brit- 
 ain, presented the revised plan for the appointment of* 
 judges, and said that the prime element in this matter
 
 ARBITRATION 443 
 
 was the maritime interest of the different powers. "It is 
 proper," he said, "to remember that certain nations will 
 reap only profit from the court, whereas others, endowed 
 with larger navies, will have to fulfill certain obligations 
 and duties as well. We believe that it was just to accord 
 to the nations which possess a considerable marine — and 
 whose officers in consequence will have often to justify 
 their conduct before the court — a direct and permanent 
 representation." Sir Edward Fry had already stated that 
 the plan provided for fifteen judges, eight of whom were 
 to be appointed by "eight of the large powers," which 
 possess not only the largest naval forces but also a very 
 considerable merchant marine; "and they are the only 
 ones," he added, "which will in all probability be defend- 
 ants before this new prize court." These were the only 
 arguments advanced in support of this part of the plan ; 
 but they were accepted without opposition in the com- 
 mittee. Mr. Crowe proceeded to explain that the sug- 
 gestion to have the other seven judges elected by groups 
 of the other states had been discarded, for the reason that 
 any such classification would have been unable to secure 
 the unanimous indorsement of the conference ; the plan 
 proposed, therefore, gave to each of the other states the 
 appointment of a judge, who should be appointed for a 
 term of six years, but should sit in the tribunal for a shorter 
 period, depending upon the importance of his country's 
 merchant marine. He presented a table of the "other 
 powers," to whose judges were assigned seats for periods 
 ranging from one to four years. On the motion of M. 
 Hammarskjold, the committee adopted without discus- 
 sion the amendment that the "other powers" should be 
 represented on the court during the continuance of any
 
 444 THE TWO HAGUE CONFERENCES 
 
 war in which they might be engaged, the retirement of 
 the judges whose places would thus be filled to be deter- 
 mined by lot ; and this amendment afterwards secured the 
 acceptance of the court by several powers. 
 
 The opponents of this plan of appointment were not 
 ready to discuss it on its first presentation, but in the two 
 succeeding meetings of the committee M. Barbosa ex- 
 pressed his opposition to it. He stated that the court of 
 arbitration and the prize court differed in that the latter 
 had to do only with states which had maritime interests, and 
 admitted the justice of the principle on which the appoint- 
 ment of its judges was based. But the application of the 
 principle in the proposed plan he objected to for the rea- 
 son that Brazil was ranked in the fourth class of "other 
 powers," whose judges would sit for only twoof thesixyears ; 
 whereas, according to the best statistics he could find, its 
 merchant marine should place it above Belgium, Portu- 
 gal, and Roumania, which were ranked in the third class, 
 and far above Switzerland and Servia, which do not possess 
 a single ship and yet are ranked, the one above, the other 
 together with, Brazil. M. Esteva, of Mexico, indorsed M. 
 Barbosa's objection, which was applicable to the rank 
 assigned Mexico as well ; but Count Mortera, of Spain, al- 
 though his country possessed more merchant marine than 
 Austria, one of the favored eight "large powers," said that 
 his delegation would accept the second rank assigned it, 1 
 provided that a periodical revision should be made. And 
 M. Hagerup said that, although his country's merchant 
 marine ranked fourth among all the powers of the world, 
 it would accept the eleventh place assigned it, in the third 
 class of smaller powers. "It makes this sacrifice," he 
 
 1 That is, the first class among the "smaller powers."
 
 ARBITRATION 445 
 
 said, "with the object of aiding the accomplishment of a 
 useful task which will have great results in the develop- 
 ment of international law." M. Hagerup's short speech 
 was warmly applauded, and under its influence the oppos- 
 ing minority was appealed to by Professor Lammasch, of 
 Austria, and Mr. Crowe, the former of whom urged that 
 not only merchant marine but naval force as well — not 
 only captives but captors also — had been considered in 
 the plan ; while Mr. Crowe argued that if one judge for the 
 entire period were assigned to Norway, for example, and 
 Great Britain, the United States, and Germany were as- 
 signed judges solely in proportion to their merchant 
 marine, the desired number of fifteen judges would be far 
 surpassed ; hence certain countries must be resigned to 
 figure in the same group with powers that have much less 
 tonnage. But the minority did not yield their objections, 
 and to the next meeting of the committee M. Esteva sent a 
 letter stating that his country had instructed him to reject 
 every plan in which "all the states summoned to the con- 
 ference, large or small, strong or weak, are not regarded 
 under the most absolute and perfect equality"; and M. 
 Barbosa made another speech pointing out the mathemati- 
 cal inequalities of the ranking of the states, especially of 
 Brazil, Mexico, Argentina, and Chili, both as regards their 
 merchant marine and their naval forces. No reply was 
 made to this speech, and the committee adopted the plan 
 by a vote of ten delegations to one. 
 
 When the committee's report was presented to the 
 I Commission, M. Barbosa immediately took the floor 
 to state that the Brazilian delegation had been one of the 
 most consistent and foremost advocates of the establish- 
 ment of an international prize court, its exclusive jurisdic-
 
 446 THE TWO HAGUE CONFERENCES 
 
 tion over prizes, its permanence, and the apportionment of 
 its judges among the powers according to their maritime 
 interests; but that precisely because of this fact it had 
 opposed the plan of appointing judges which was alleged 
 to be based on the three elements of the tonnage of mer- 
 chant marine, the value of maritime commerce, and the 
 strength of naval forces. This plan, he charged, was un- 
 just, on this basis, to American states, and especially to 
 Brazil ; and his delegation would vote against the project. 
 On the other hand, the delegations of Mexico and Ar- 
 gentina, on whose behalf M. Barbosa had made an appeal 
 against the plan of appointment, both announced, the first 
 that it would not oppose, and the second that it would 
 vote for, the report as presented by the committee. M. 
 Esteva said that his withdrawal from opposition was au- 
 thorized by his country under the influence of its desire 
 to cooperate in an effort for peace. M. Larreta, of Argen- 
 tina, in a much applauded speech, said that his country's 
 adherence to the plan was due to its belief that the court 
 established by it would render impartial decisions, instead 
 of the more or less partial ones rendered at present by 
 belligerent courts, and that it would be the first inter- 
 national jurisdiction created by the civilized world, and 
 would become immediately, not only a desirable step for- 
 ward, but an indispensable institution. 
 
 "We accept the place accorded to the Argentine Republic in the 
 distribution of judges," he said, "not only because we believe in the 
 good faith which has determined it, and which, in fact, approximates 
 the truth, but also because we have regarded the project less as a 
 problem in arithmetic than as an institution of trust and harmony. 
 It may be that the Argentine Republic should have had a higher rank- 
 ing. We are to-day the leading exporters of cereals in the world. . . . 
 But this little sacrifice we make freely, in homage to this great work 
 of law and justice."
 
 ARBITRATION 
 
 447 
 
 Of the other Latin-American delegations, the Venezuelan 
 announced that it would abstain from voting on the plan 
 because, although designed to establish a much-to-be- 
 desired institution, it flatly contradicted the principle of 
 the equality of sovereign states ; and the delegation from 
 Chili announced that it too would abstain from the vote 
 while awaiting new instructions. 
 
 The delegations of Roumania, Norway, Greece, Belgium, 
 and Servia, in announcing their acceptance of the plan, 
 stated that it was acceptable to them in spite of its unequal 
 distribution of the judges, because there was an essential 
 difference between a court of arbitral justice, in which 
 there should be absolute equality of representation, and a 
 prize court, which would be called upon to adjudicate only 
 one special kind of international differences. 
 
 After this general discussion of the plan, the commis- 
 sion slightly amended the articles submitted to it and 
 adopted them by a vote of twenty-seven to two (Brazil 
 and Turkey), with fifteen abstentions. 1 
 
 When the articles were reported to the conference in 
 plenary session the negative vote was reduced to one (Bra- 
 zil; Turkey this time abstained), the abstentions were 
 reduced to five, and the favorable vote was increased to 
 thirty-eight, although ten of the countries casting a favora- 
 ble vote conditioned it on the reserve of the article relating 
 to the appointment of judges. In view of the one nega- 
 tive vote against the articles establishing the prize court, 
 they could not, according to the precedent set by the first 
 conference, have taken their place as an adopted conven- 
 tion in the Final Act of the conference ; but the committee 
 
 1 Ten of the delegations abstaining were Latin American; the other five 
 were: Denmark, Russia, Montenegro, Persia, and Japan.
 
 448 THE TWO HAGUE CONFERENCES 
 
 having charge of the Final Act received the assurance of 
 M. Barbosa that Brazil would not oppose this action. 
 Hence the "Convention relative to the Establishment of 
 an International Prize Court," with its fifty-seven articles, 
 figures as one of the thirteen conventions adopted by the 
 conference.
 
 XIV. A SUMMARY OF RESULTS AND 
 THEIR HISTORICAL IMPORTANCE 
 
 A. ATTEMPTS 
 
 The direct results of the labors of the two conferences 
 were expressed in the form of conventions, declarations, 
 and desires (voeux). Under the last named are to be 
 found what may be called the "attempts," as distinguished 
 from the "achievements," of the conferences. It would 
 not be fair to call these "failures," as distinguished from 
 "successes"; for, aside from their indirect result of 
 recognizing and sustaining public sentiment, they may 
 have the direct result in the near future of inciting the 
 governments to enter upon a serious study of certain 
 pressing problems and thus to inaugurate a campaign 
 of education which will result in the molding of national 
 public opinion concerning those problems and the attain- 
 ment of an international solution of them. 
 
 This solution may be confidently hoped for in succeed- 
 ing conferences; for it will be noted that even within the 
 short period of eight years some of the "attempts" of 
 the first conference became the "achievements" of the 
 second. 
 
 a. The Conference of 1899 
 
 I. ARMAMENTS 
 
 The action of the first conference on the question of 
 armaments was the unanimous expression of a belief and 
 
 449
 
 450 THE TWO HAGUE CONFERENCES 
 
 a desire; the belief, namely, that "a limitation of the 
 military expenses which now burden the world is greatly 
 to be desired in the interests of the material and moral 
 well-being of mankind" ; and the desire that "the govern- 
 ments, having regard to the propositions advanced in the 
 conference, shall take up the study of the possibility of 
 an agreement concerning the limitation of armed forces 
 on land and sea, and of military budgets." 
 
 This action was in no sense a limitation of armaments, 
 and, indeed, the increase of armaments continued at re- 
 doubled speed after the adjournment of the conference. 
 But the attention of the nations was forcibly directed to 
 the question; a standard was erected, an ideal held up, 
 to serve as the goal of future efforts ; Argentina and Chili 
 reached that goal three years after the conference ad- 
 journed; and some of the governments took up a study 
 of at least one phase of the question and entered upon 
 a direct communication with each other as to the results 
 of their study one year before the second conference 
 "assembled. 1 
 
 This study was considered by the second conference as 
 wholly inadequate, and as having induced some of the 
 larger powers to decline to enter upon a further inter- 
 national discussion of the subject. But the appeal of the 
 Conference of 1899 for a thorough study of the question 
 was still considered as the sine qua non of its solution, 
 and was accordingly repeated by the Conference of 1907. 
 
 1 See United States Senate Document, No. 444, 60th Congress, 1st Session, 
 page 9.
 
 A SUMMARY OF RESULTS 451 
 
 II. WARFARE ON THE SEA 
 
 I. Marine Cannon 
 
 The conference voted to refer the question of prohibit- 
 ing the introduction of new types of marine cannon, and 
 of those with larger caliber, to study by the governments. 
 But there seems to have been but little hope in the con- 
 ference that the governments would act upon this vote, 
 and there is no evidence that they have done so. 
 
 2. Torpedo Boats and Rams 
 
 The proposition to prohibit the use of submarine torpedo 
 boats, or plungers, met with so much opposition that it 
 was abandoned. 
 
 The propositions to prohibit the construction of war 
 ships with rams, and to mask the rams on war ships in 
 time of peace, were also abandoned, and without formal 
 action. 
 
 3. The Private Property of Belligerents 
 
 The United States proposition that the private property 
 of belligerents should be exempt from capture in maritime 
 warfare was referred, by unanimous vote, to a later con- 
 ference for discussion. But the importance of the question 
 and the reasonableness of the American proposition were 
 presented to the conference, and through it to the nations, 
 in an impressive address ' by Ambassador White ; and 
 the delegation from Italy stated its country's adhesion 
 to the proposition both in principle, as an international
 
 452 THE TWO HAGUE CONFERENCES 
 
 rule, and in practice, as applied in the treaty between 
 Italy and the United States. 
 
 The fact that this American proposition was pushed to 
 no further conclusion should be viewed in the light of 
 what was accomplished by the conference in the direction 
 of arbitration. Ambassador White wrote in his diary 
 at the time of his efforts in behalf of the exemption of 
 private property on the sea: "What we are sent here for 
 is, above all, to devise some scheme of arbitration; and 
 anything which comes in the way of this, by provoking 
 ill feeling or prolonging discussion on other points, will 
 diminish our chances of obtaining what the whole world 
 so earnestly desires." 
 
 4. Neutral Rights and Duties 
 
 The comparatively unimportant right, or "faculty," of 
 neutral states to send their naval attaches to the theater 
 of maritime warfare, was the only neutral right or duty 
 on the seas discussed by the Conference of 1899; and the 
 conference declined to sanction even this right. But the 
 raising of the question of neutral rights and duties in 
 warfare on the land led to the adoption of a desire that 
 the entire question should be referred to a later conference. 
 This desire was heeded in 1907, and an important code 
 of rules concerning the rights and duties of neutrals on 
 both land and sea was adopted by the second conference. 
 
 5. Laws and Customs of Naval Warfare 
 
 An attempt was made to have one custom of naval 
 warfare, that of bombarding unfortified seaports, regu-
 
 A SUMMARY OF RESULTS 453 
 
 lated by international agreement. But the conference 
 consented only to have this question referred to a later 
 conference. This reference met with entire success in 
 1907, however; and the work of the first conference in 
 codifying the laws of warfare on land inspired the second 
 conference to regulate various other customs of maritime 
 warfare than that of bombardment. 
 
 III. WARFARE ON LAND 
 
 I. New Arms and Methods 
 
 The various attempts to prohibit the introduction or 
 use of new and more powerful kinds of explosives, cannon, 
 and muskets came to naught in the conference, and have 
 been commonly regarded as absolute failures. It may 
 be noted, however, that these attempts were based on 
 the Declaration of St. Petersburg of 1868, which was 
 ratified by seventeen European powers; and that the 
 spirit of this declaration was successfully appealed to in 
 the case of a new kind of bullets the use of which was 
 prohibited by the first conference. 
 
 2. Neutral Rights and Duties 
 
 Nothing was accomplished by the first conference in 
 the definition and sanction of the rights and duties of 
 neutrals in warfare on the land. But the importance 
 of the question was so impressively stated that the confer- 
 ence voted unanimously to refer it to the next conference ; 
 and the second conference made extraordinary progress 
 in the solution of it.
 
 454 THE TW0 HAGUE CONFERENCES 
 
 IV. ARBITRATION 
 
 I. Obligatory Arbitration 
 
 Universal obligatory arbitration, that is, obligatory 
 arbitration for all classes and cases of dispute, was con- 
 sidered by the conference entirely impossible under the 
 existing circumstances, and no delegation even proposed 
 it. 
 
 On the other hand, the importance of obligatory arbi- 
 tration for certain classes of cases as a means of asserting 
 the principles of law in international relations and of 
 eliminating many troublesome misunderstandings between 
 states, was emphatically asserted and freely admitted. 
 The attempt was accordingly made to secure a convention 
 providing for obligatory arbitration in eleven classes of 
 cases, in so far as these cases should not affect the vital 
 interests or the honor of the parties to the dispute. In 
 the face of strong opposition, and in order to insure 
 unanimous support for the Permanent Court of (voluntary) 
 Arbitration, this attempt was abandoned before the propo- 
 sition was brought to a formal vote. 
 
 The conference did formally indorse (by Article 19 
 of the Convention for the Peaceful Adjustment of Inter- 
 national Differences) the introduction of obligatory arbi- 
 tration for certain classes of cases in separate treaties 
 contracted by the individual states ; and the large number 
 and the success of such treaties which had recently been 
 contracted were made very prominent in the conference's 
 discussions. 
 
 The famous Article 27 (of the above-named con- 
 vention), which made it the duty of the signatory powers
 
 A SUMMARY OF RESULTS 455 
 
 to remind the parties to a dispute that the Permanent 
 Court of Arbitration is open to them, was also advocated 
 and welcomed as a step in the direction of obligatory 
 arbitration; while the exponent of Germany's powerful 
 opposition to a general treaty of obligatory arbitration 
 said that when the Permanent Court should be put in 
 operation, the opportune moment might come when, 
 after experiments between separate nations, a list of 
 cases could be agreed upon obligatory for all. 
 
 The impulse of the first conference towards obligatory 
 arbitration is shown by the fact that after the adjourn- 
 ment of the conference the German government devoted 
 itself to a profound study of obligatory arbitration, and 
 adopted several treaties providing for it, and at the second 
 conference announced its entire conversion to a belief 
 in its efficacy and desirability in so far as treaties between 
 separate nations are concerned. 
 
 This impulse is shown by the additional fact that 
 various other countries, great and small, "have made 
 haste," to quote Mr. Choate's speech in the Conference 
 of 1907, "to interchange with other individual nations 
 agreements to settle the very questions for which arbitra- 
 tion was recognized by the last conference as the most 
 efficacious and equitable remedy, by that peaceful method 
 instead of by a resort to war. I believe that some thirty 
 treaties have been thus exchanged among the nations of 
 Europe alone, all substantially to the same purport and 
 effect." 
 
 And Baron von Bieberstein, of Germany, said in the 
 second conference: "In the course of our debates the 
 fortunate fact has been mentioned that a long series of 
 other treaties of obligatory arbitration have been con-
 
 456 THE TWO HAGUE CONFERENCES 
 
 eluded between various states. This is genuine progress, 
 and the credit of it is due, incontestably, to the first Peace 
 Conference." 
 
 2. The Forcible Collection of Debts 
 
 The only class of debts, for whose collection obligatory 
 arbitration was proposed in .the first conference, was that 
 class which arises from pecuniary damages suffered by 
 one state or its citizens as the result of the illegal action 
 or negligence of another state or its citizens. 
 
 It was recognized that since disputes having to do 
 with such damages have formed the large majority of 
 the cases submitted to arbitration they are especially 
 suitable for submission to obligatory arbitration. Such 
 disposition was provided for them by unanimous vote 
 of a committee of the first conference, and by a vote of 
 thirty-one to eight in a commission of the second con- 
 ference. But in both cases this agreement failed when 
 the other parts of the obligatory arbitration programme 
 w r ere discarded. 1 
 
 b. The Conference of 1907 
 
 I. ARMAMENTS 
 
 The Russian government omitted the subject of the 
 limitation of armaments from the programme of the 
 second conference, and several other powers made 
 a determined effort to prevent its being introduced 
 
 1 The arbitration of contract debts was regarded, in the second conference, 
 as different from, or a different kind of, obligatory arbitration, and was made 
 the subject of an international agreement.
 
 A SUMMARY OF RESULTS 
 
 457 
 
 for discussion. But the conference as a whole deter- 
 mined to regard it, as Secretary Root instructed the 
 United States delegation to regard it, as "unfinished 
 business." 
 
 Accordingly, the importance of restricting the increase 
 of armaments was again impressed upon the representatives 
 of the nations; again the delegations of several great 
 powers expressed the sympathy of their people with the 
 general proposition; and again the governments were 
 urged to enter upon a thorough study of the ways and 
 means of finding a practical plan of limitation, and of 
 securing international agreement to adopt it ; while 
 for the first time in the presence of the representatives 
 of all the nations, an inductive argument for limitation 
 was made on the basis of a five years concrete experi- 
 ment on the part of two important republics of the New 
 World (Argentina and Chili). 
 
 In furtherance of the desire expressed by the con- 
 ference that the question of armaments shall be subjected 
 to a thorough study, the International Peace Congress, 
 at its session of 1907 in Munich, requested the Inter- 
 national Peace Bureau at Berne to secure the appoint- 
 ment of committees to initiate that study. The Bureau, 
 through its representatives in the various nations, has 
 already created a number of representative committees 
 in the principal countries of both hemispheres with the 
 duty of studying thoroughly and impartially the whole 
 armament question, of laying the results of their study 
 before the governments and the public, and of procuring 
 as soon as possible the meeting of an international con- 
 ference charged with the sole duty of solving this knotty 
 problem.
 
 458 THE TWO HAGUE CONFERENCES 
 
 II. WARFARE ON THE SEA 
 
 i . The Private Property of Belligerents 
 
 The "American idea" of exempting the private property 
 of belligerents from capture in time of naval war, was 
 again presented to the nations by America's first delegate 
 in a profoundly impressive address. After a discussion 
 of it which lasted three weeks and which showed the 
 strength of the arguments advanced in its favor and the 
 weakness of those opposed to it, twenty-one of the forty- 
 four nations represented cast their votes for its adoption 
 and only eleven voted against it. The eight "large 
 powers" were evenly divided on the question, and this 
 fact, rather than the negative vote, abstention, or absence 
 of nineteen of the "small powers," was the chief reason 
 why the American delegation decided not to press the 
 matter in a plenary session of the conference, but to leave 
 it where the commission had brought it. 
 
 "There it was left," says Mr. Choate, 1 "either for these twenty- 
 two 2 nations to agree, as they may agree, to a treaty between them- 
 selves, for the practical establishment of the doctrine between them 
 in case they engage in war, or for action by a further conference to 
 be held in the course of seven or eight years. So there, as it seems 
 to me, was very great progress made. We do not stand any more 
 where we did at the beginning of the conference, nobody assenting 
 to it but ourselves, but twenty-two nations of greater or less im- 
 portance pledged to the proposition which makes so strongly for 
 peace." 
 
 1 In an address before the New York State Bar Association, January 24, 
 1908. 
 
 2 Mr. Choate states the number of affirmative votes to be twenty-two, 
 and it may be that Chili, who abstained from the first vote, or one of the eleven 
 absentees, later asked to be recorded in favor of the proposition ; but the 
 official record gives the number, and list, of the affirmative votes as twenty- 
 one. See note, page 138.
 
 A SUMMARY OF RESULTS 459 
 
 It may be noted, also, that the favorable attitude of 
 a large section of the conference towards the exemption 
 of merchant ships and cargoes from capture made easier 
 the path to success of the propositions to accord merchant 
 ships in hostile ports a delay of favor before capture, to 
 treat the crews of captured merchant ships with especial 
 leniency, and to exempt from capture mail and ships 
 engaged in fishing or in scientific, charitable, or religious 
 missions. 
 
 2. Blockade 
 
 An attempt was made by several states of Continental 
 Europe to restrict "effective blockades" to those which 
 are maintained by naval forces stationed in such a way 
 as to create an evident danger to ships which desire to 
 attempt a passage, and to restrict the capture of such 
 ships to the moment when they are attempting to break 
 the established lines. But the British contention that 
 cruisers and submarine mines are proper means of en- 
 forcing a blockade, and the American insistence that 
 a ship which sets sails for a blockaded port, after the 
 blockade has been duly announced, may be seized beyond 
 the established lines, prevented the attempt at restriction 
 from being successful. 
 
 The conference made no direct reference of the subject 
 of blockade to the consideration of the next conference; 
 but it was doubtless meant to be included in its reference 
 to that body of the laws and customs of maritime warfare. 
 
 3. Contraband of War 
 
 The British proposition to abolish the principle of 
 contraband of war, the Brazilian proposition to abolish
 
 460 THE TWO HAGUE CONFERENCES 
 
 the distinction between absolute and conditional contra- 
 band, and the German, French, and American propo- 
 sitions to define more clearly the meaning and liability 
 of absolute and conditional contraband, all failed of 
 adoption. 
 
 But the British proposition, at first marvelled at be- 
 cause of its radical character, received a vote of twenty- 
 six for, five against, and four abstentions. Four of the 
 five negative votes were cast by "great powers," while 
 Japan, another of the eight great powers, abstained. 
 Three of the eight great powers voted for the proposition, 
 and twenty-three of the other nations united with them 
 in support of this radical measure; hence it is probable 
 that when the subject comes up in the next conference, 
 at least a strict definition of absolute and conditional 
 contraband will be agreed upon. 
 
 4. The Destruction of Neutral Prizes 
 
 The proposition to secure a prohibition of the de- 
 struction of neutral prizes, and to require every neutral 
 prize either to be taken before a prize court or released, 
 failed of adoption, and was referred to the decision of 
 the next conference. An amendment to this proposition, 
 namely, that neutral powers be permitted to receive within 
 their harbors both belligerent and neutral prizes, was 
 adopted; and this permission will probably result in 
 saving many neutral prizes from destruction. 
 
 5. The Laws and Customs of Naval Warfare 
 
 The attempt to apply to naval warfare the remarkable 
 code of laws and customs adopted by the Conference
 
 A SUMMARY OF RESULTS 461 
 
 of 1899 for the regulation of warfare upon land did not 
 result in the adoption of a code of maritime law. But 
 it did result in a valuable report upon the applicability 
 of the code of 1899 to naval warfare, and in the twofold 
 desire, passed unanimously by the conference, that the 
 question be referred to the next conference and that 
 meanwhile the powers shall apply the code of 1899 to 
 naval warfare as far as possible. 
 
 III. ARBITRATION 
 
 1. International Commissions of Inquiry 
 
 The attempts, first, to make it the duty of the powers 
 to call the attention of nations in dispute to the desirability 
 of appointing commissions to inquire into the dispute; 
 and, second, to induce the powers to agree to establish 
 international commissions of inquiry, instead of merely 
 declaring that they judged their establishment to be 
 useful, failed of achievement. On the other hand, the 
 powers agreed that the establishment of such commissions 
 is both useful and desirable, and they adopted an im- 
 proved code of procedure for such commissions when 
 established. 
 
 2. Obligatory Arbitration 
 
 The attempt to apply the principle of obligatory ar- 
 bitration in a general treaty between all the nations did 
 not succeed. It gave rise to a prolonged and extraor- 
 dinary debate, in the course of which it became evident 
 that the Dominican proposition to establish unrestricted
 
 462 THE TWO HAGUE CONFERENCES 
 
 obligatory arbitration was premature, but that the nations 
 were unanimous in expressing an ardent desire for re- 
 stricted obligatory arbitration in some form, either in the 
 form of a general treaty between all the nations, or in 
 that of separate treaties between pairs of nations, and 
 either in the form of a treaty specifying a list of definite 
 classes of disputes, or in that of a treaty providing for the 
 arbitration of all disputes with certain specified exceptions. 
 
 The American proposition of obligatory arbitration 
 for judicial disputes and those relating to the interpreta- 
 tion and application of treaties, with the exception of 
 those involving vital interests, independence, and honor, 
 and the interests of third parties, secured an affirmative 
 vote of thirty-five to nine. The Portuguese proposition 
 of obligatory arbitration for some list of cases secured an 
 affirmative vote of thirty-three to eleven; and obligatory 
 arbitration for the proposed list of cases secured an affirm- 
 ative vote of thirty-one to thirteen. 
 
 In view of the lack of unanimity revealed by the debate 
 and the above-mentioned votes, the conference did not 
 adopt any definite measure providing for obligatory 
 arbitration in any form. But it did adopt by a vote of 
 forty-one ayes and three abstentions, 1 a recognition of 
 obligatory arbitration in principle; a declaration that 
 certain differences, and especially those relating to the 
 interpretation and application of international treaties, 
 are capable of being submitted to obligatory arbitration 
 without any restriction whatever; and an assertion that 
 the diversities of opinion revealed in the long debate 
 did not exceed the bounds of a juristic controversy. 
 
 1 One of the three delegations which abstained was that of the United 
 States, the prime advocate of the proposition for obligatory arbitration. See 
 page 348.
 
 A SUMMARY OF RESULTS 463 
 
 It is also noteworthy that the German and Austrian 
 delegations, which led the opposition to the proposed plans 
 for obligatory arbitration, did so for the expressed reason 
 that these plans, if adopted, would injure the progress of 
 obligatory arbitration, and that they were among the 
 foremost and most emphatic advocates of obligatory 
 arbitration, in the form of separate treaties between pairs 
 of nations, as a means of settling international disputes. 
 
 The United States delegation, in its report to the govern- 
 ment, comments on this attempt and its result as follows : 
 
 "It may be admitted that the establishment of the 
 principle of obligatory arbitration is an advance. It 
 is not, however, the great advance so earnestly desired; 
 for a concrete treaty embodying the principle of obliga- 
 tory arbitration would have been infinitely more valuable 
 than the declaration of obligatory arbitration, however 
 solemnly made." 
 
 B. ACHIEVEMENTS 
 
 The accomplished facts of the two conferences, or the 
 questions which were proposed, discussed, and answered 
 in the form of an international agreement, are to be found 
 in the "conventions" and "declarations" adopted by 
 the conferences, signed by the delegations, and, when 
 necessary, ratified by the governments. 
 
 In most cases, governmental ratification was not neces- 
 sary after the duly qualified signatures were affixed; 
 but in some cases, as in that of the United States, rati- 
 fication was necessary on the part of more than one 
 branch of the government. For example, of the three 
 conventions and three declarations adopted by the Con- 
 ference of 1899, the American delegation signed and
 
 464 THE TWO HAGUE CONFERENCES 
 
 the United States Senate ratified three conventions and 
 one declaration; of the thirteen conventions and one 
 declaration adopted by the Conference of 1907, the 
 American delegation signed ten conventions and one 
 declaration, while the United States Senate ratified nine 
 conventions and one declaration. 
 
 Although, in theory, a nation is bound only by those 
 agreements adopted by the two conferences which have 
 been signed by its delegation, representing the executive, 
 and ratified by the legislative branch of the government, 
 where the latter is necessary, still in practice it has been 
 shown that it is only a very bold and hardened govern- 
 ment indeed which will continue long to resist the inter- 
 national public opinion of the civilized world and to resort 
 to measures condemned by the Peace Conferences. Note- 
 worthy illustrations of the potency of international public 
 opinion are the action of Great Britain in accepting the 
 prohibition of "dum dum" bullets and asphyxiating 
 bombs, that of Spain and Mexico in renouncing the 
 practice of privateering, that of Switzerland and China 
 in ratifying the laws and customs of warfare, and that 
 of the Latin American republics in adhering to all of the 
 acts of the Conference of 1899. 
 
 Secretary John Hay, in his instructions to the United 
 States delegation to the first conference, said: "The 
 proposed conference promises to offer an opportunity 
 thus far unequaled in the history of the world for initiat- 
 ing a series of negotiations that may lead to important 
 practical results." That the conference utilized this op- 
 portunity to a remarkable degree is the verdict of history. 
 Its achievements are summarized briefly in the following 
 pages.
 
 A SUMMARY OF RESULTS 465 
 
 a. The Conference of 1899 
 
 I. WARFARE IN THE AIR 
 
 A prohibition was placed for five years upon the hurling 
 of projectiles from balloons or by other new analogous 
 means. The prohibition was at first made a permanent 
 one, but on the motion of Captain Crozier, of the United 
 States, it was reduced to the term of five years. 
 
 Humanity would be the gainer, it was argued, from 
 this measure, first, because warfare could not be waged 
 from or in the air for at least five years; and second, 
 because within five years air war ships would be given 
 the opportunity of developing into so perfect a fighting 
 machine that it might diminish the duration, the evils, 
 and the expenses of wars. Doubt may be entertained 
 as to the consistency of the two parts of this argument; 
 but there can be no doubt that the conference was sincere 
 in its desire to emphasize, by the passage of this pro- 
 hibition, the modern determination that the horrors of 
 warfare shall be reduced to the minimum, and that the 
 means of making war shall not be unrestrictedly and 
 irresponsibly increased. 
 
 II. WARFARE ON THE SEA 
 
 In taking up a consideration of this topic, the Con- 
 ference of 1899 entered upon an almost untra versed realm. 
 For more than a century repeated attempts had been 
 made to establish in international law certain principles 
 for the regulation of warfare on the sea; but the only
 
 466 THE TWO HAGUE CONFERENCES 
 
 fruits of those attempts were the four articles of the 
 Declaration of Paris of 1856, which were only partially 
 accepted. In 1899 there were only two achievements 
 added to the previous ones; but these were almost uni- 
 versally accepted, and one of them was of far-reaching 
 importance. 
 
 1. Asphyxiating Gases 
 
 The conference adopted the agreement to abstain from 
 the use of projectiles the object of which is the diffusion 
 of asphyxiating or deleterious gases. Captain Mahan, 
 of the United States, opposed this agreement, and the 
 American and British delegations were the only ones of 
 the twenty-six which refused to sign it. The British 
 delegation announced its adhesion to it, in the Conference 
 of 1907, and the Latin American republics did the same. 
 
 This action on the part of forty-three out of forty-four 
 of the world's governments is probably the reason why 
 human ingenuity has not been devoted more conspicuously 
 to the invention or improvement of asphyxiating bombs; 
 and it will doubtless prevent this particular means of 
 warfare from being resorted to in the future. 
 
 2. The Geneva Convention 
 
 The ten articles adopted at the Conference of Geneva 
 in 1868 for the purpose of applying to naval warfare the 
 rules which had been adopted four years earlier for 
 hospital service in warfare on the land, remained a dead 
 letter for one generation. The Conference of 1899 then
 
 A SUMMARY OF RESULTS 467 
 
 took them up and breathed into them the breath of life. 
 Not only was the overcoming of obstacles to their adoption 
 in 1899 a marked triumph in diplomacy and international 
 law, but the humanitarian efforts of the Red Cross have 
 already resulted in unmeasured good in one great battle 
 on the sea. In the future, upon the oceans as on the land, 
 human kindness and medical science are to be given a 
 chance to mitigate the savage brutalities of war. 
 
 III. WARFARE ON LAND 
 
 The Conference of Brussels of 1874 adopted a declara- 
 tion concerning the laws and customs of warfare on land; 
 but during the subsequent quarter century this declara- 
 tion remained unratified. The adoption of an elaborate 
 code, growing out of this declaration (which was itself 
 the outgrowth of the United States Army's General 
 Order No. 100, issued in 1863), was one of the chief 
 triumphs of the Conference of 1899. The Geneva Con- 
 vention, which was designed for and has succeeded 
 in the alleviation of the sufferings caused by war, is de- 
 servedly famous; but the code of warfare adopted by 
 the first Conference at The Hague, which was designed 
 for and has already succeeded in the prevention of many 
 of the sufferings of warfare, will probably become even 
 more deservedly famous. 
 
 In addition to this code, the Conference of 1899 is to 
 be credited with two other achievements in regard to 
 warfare on land; namely, the restriction of the use of 
 unnecessarily cruel projectiles, and a provision for the 
 revision of the Geneva Convention of 1864.
 
 468 THE TWO HAGUE CONFERENCES 
 
 i. Bullets 
 
 In accordance with the spirit of the Declaration of St. 
 Petersburg of 1868, the Conference of 1899 adopted a 
 prohibition of the use of bullets which expand or flatten 
 easily in the human body, such as bullets with hard 
 jackets which do not entirely cover the core or have 
 incisions in them. The British and American delegations, 
 while declaring their sympathy with the spirit of the 
 Declaration of St. Petersburg, opposed this specific pro- 
 hibition, and proposed one in more general terms. But 
 the conference adopted the prohibition as stated by a vote 
 of twenty-three to three. The three powers casting the 
 negative vote were the United States, Great Britain, and 
 Portugal. At the Conference of 1907, Great Britain and 
 Portugal announced their adhesion to the prohibition 
 adopted in 1899, and the Latin American republics ac- 
 cepted it also. The United States delegation renewed 
 its attempt to have the prohibition made more general, 
 but failed in it. 
 
 The American proposition in regard to bullets was 
 apparently more drastic than the one adopted; but the 
 military experts of Europe and South America agree that it 
 would not abolish the use of bullets unnecessarily cruel, while 
 the more specific rule adopted does accomplish this purpose. 
 
 2. The Geneva Convention 
 
 The Conference of 1899 adopted the desire (voeu) 
 that a special conference should be held for the revision 
 of the Geneva Convention of 1864. In accordance with 
 this desire, a convention was held in Geneva during the
 
 A SUMMARY OF RESULTS 469 
 
 summer of 1906, and expanded the original ten articles 
 into a convention of thirty-three. These additions were 
 in the nature of additional protection to the sick,, wounded, 
 and dead found on battlefields, and to their caretakers 
 and places of refuge. 
 
 This revised convention, although accomplished seven 
 years after the Conference of 1899, was made possible 
 by it, and was inspired by the same spirit. In the words 
 of one of the German delegates to the Conference of 
 Revision, "the Convention of Geneva and that of The 
 Hague are sisters, destined to walk together along the 
 path of civilization towards the triumph of justice and 
 humanity." 
 
 3. The Laws and Customs of Warfare on Land 
 
 With the object of throwing the mantle of humanity 
 over the arm of force, of restricting the cruelties of war- 
 fare by defining its rights and duties, the Conference of 
 1899 adopted a code containing sixty articles. 
 
 These articles admitted corps of militia and volunteers, 
 and even a population rising en masse in defense of their 
 country, as well as regular soldiers, to the rights and 
 privileges of "belligerents," provided they respect the 
 laws and customs of warfare. They gave generous scope 
 to the term " prisoners of war," and provided rigorously 
 for a treatment of them quite in accord with modern 
 principles of imprisonment. They denied the possession 
 of an unrestricted right by belligerents to adopt means of 
 injuring the enemy, and prohibited the use of seven such 
 means. They prohibited the bombardment of undefended 
 towns and buildings, prescribed means of diminishing the
 
 470 THE TWO HAGUE CONFERENCES 
 
 evils of bombardment of fortified places, and prohibited 
 a resort to pillage, even after a successful assault. They 
 restricted the scope of the term "spies," and provided 
 that captured spies shall be tried before being punished. 
 They protected the inviolability of bearers of flags of truce. 
 They laid down strict regulations for the maintenance 
 of armistice, and prescribed that capitulations should be 
 exacted in accordance with the rules of military honor. 
 And, finally, without acknowledging the right of conquest, 
 they endeavored to moderate its conditions by strictly 
 defining "occupied territory," prescribing efficiency and 
 moderation in its government, forbidding the invader 
 to compel the population to take an oath of allegiance 
 to him or to take part in operations against their country, 
 protecting the civil, religious, and property rights of the 
 population, and by protecting public works and the prop- 
 erty of municipalities and of religious, charitable, and 
 educational institutions. 
 
 So valuable has this code of laws been considered by 
 international jurists that Professor Zorn, of Germany, 
 said that it alone would have made the Conference of 
 1899 a remarkable success; and Professor de Martens, 
 of Russia, said that it will certainly be as notable as the 
 treaty on arbitration. These estimates are due to the 
 fact that it has replaced the old adage, "In the midst of 
 warfare laws are silent," by the new one, "In the midst 
 of warfare laws shall rule." 
 
 IV. ARBITRATION 
 
 The convention adopted by the Conference of 1899 
 for the peaceful settlement of international differences
 
 A SUMMARY OF RESULTS 47 1 
 
 has been called the Magna Charta of International Law; 
 and it has been argued that just as Magna Charta was the 
 basis of all later development of English liberty, so the 
 convention of 1899 must ever remain the keystone of the 
 arch of international justice. Its adoption, in the words 
 of Baron d'Estournelles, has solemnly characterized war 
 as a conflagration, and commissioned every responsible 
 statesman a fireman with the prime duty of putting out 
 the fire or preventing its spread. 
 
 Its provisions for the peaceful settlement of disputes, 
 entirely voluntary though they are, unquestionably facili- 
 tate the avoidance of war; and its increasingly success- 
 ful operation is confidently expected to result in the 
 limitation and probably the reduction of armaments. 
 Hence it has supplied a positive programme to the "peace 
 movement," which no longer emphasizes solely or chiefly 
 the evils of war, but insists upon the organization of 
 a practical means of avoiding it. The barracks or war- 
 ship philosophy of peace is no longer merely denounced, 
 but it is brought into destructive competition with a peace- 
 ful philosophy of peace. The mediaeval adages, "In 
 time of peace, prepare to make war," and "If you wish 
 for peace, prepare for war," are replaced by the modern 
 ones, "In time of peace, prepare to make war impossible" 
 and "If you wish for peace, prepare for peace." A court 
 and not barracks, statesmanship instead of a war ship, 
 are the standard raised by the arbitration convention of 
 1899. 
 
 It is true that since the first Peace Conference two 
 terrible wars have occurred; but it is also true that at 
 least two wars, possibly as terrible, have been averted 
 by the operation of the simple means provided by the
 
 472 THE TWO HAGUE CONFERENCES 
 
 conference, and that four important international dis- 
 putes have been settled by its court of arbitration. This 
 record, of only seven years, is full of encouragement; 
 while the many separate treaties of arbitration, which 
 have been largely the outgrowth of the first conference, 
 and the impulse given to arbitration in various ways, 
 have undoubtedly enlarged the empire of law in inter- 
 national relations and fortified the sentiment of inter- 
 national justice. 
 
 Secretary Root, in his instructions to the United States 
 delegation to the second conference, alluded to the many 
 separate treaties of arbitration between individual countries, 
 and said that "this condition, which brings the subject 
 of a general treaty for obligatory arbitration into the 
 field of practical discussion, is undoubtedly largely due 
 to the fact that the powers generally in the first Hague 
 Conference committed themselves to the principle of 
 the pacific settlement of international questions in the 
 admirable convention for voluntary arbitration then 
 adopted." 
 
 i. Good Offices and Mediation 
 
 The agreement adopted by the conference that powers 
 in dispute would have recourse to the good offices or 
 mediation of one or more friendly powers, before an ap- 
 peal to arms, in case of any serious dispute, and as far 
 as circumstances permit, was supplemented by the further 
 statement that the signatory powers consider it useful 
 that one or more powers, strangers to the dispute, should, 
 on their own initiative, and as far as circumstances permit, 
 offer their good offices or their mediation to the states
 
 A SUMMARY OF RESULTS 473 
 
 at variance with each other. The restriction of this 
 agreement by the phrase, "as far as circumstances permit," 
 was considered an unfortunate one, but was adopted 
 because the conference did not desire to attempt more 
 than the powers could reasonably be expected to carry out. 
 
 When the principle embodied in these agreements is 
 compared with the former jealous resentment of any 
 "foreign intervention" which dominated international rela- 
 tions before 1899, the progress made by the conference 
 in the mere frank statement of it is apparent. But when 
 it is recalled that, inspired by it, President Roosevelt ex- 
 tended the good offices of the United States government 
 to Japan and Russia in their recent war, and that the 
 Peace of Portsmouth, New Hampshire, was the fortunate 
 result, the value of this feature of the convention of 1899 
 is greatly proven by an accomplished fact of vast historic 
 import. 
 
 The desirability of a more frequent resort to this means 
 of avoiding or shortening a war was emphasized in the 
 Conference of 1907, which adopted the words, "and 
 desirable," to the former statement that the powers con- 
 sider good offices and mediation "useful." This slight 
 addition to the phraseology of 1899 mav n °t have directly 
 the desired result of increasing the frequency of good 
 offices and mediation; but it at least emphasizes the 
 former statement that their extension, even during the 
 course of hostilities, shall not be considered by either 
 of the parties to the dispute as an unfriendly act. The 
 consistent adoption of this latter view, together with the 
 growing conviction that the interests of one are the interests 
 of all in the family of states, will increase the frequency 
 of this means of preventing war and insuring justice.
 
 474 THE TW0 HAGUE CONFERENCES 
 
 2. International Commissions of Inquiry 
 
 The statement that the powers consider the establish- 
 ment of international commissions of inquiry to be a 
 " useful" method of avoiding warfare was adopted in 
 1899 after a long struggle. But it was hedged about with 
 conditional phrases as to honor, essential interests, and 
 circumstances permitting; and in 1907 it was strengthened 
 only by the addition of the words, "and desirable." 
 
 This statement, most moderate in its form and referring 
 to a purely voluntary measure on the part of disputants, 
 is a striking illustration of the importance of holding up 
 a standard to which the wise and the honest may repair. 
 Issued by the first conference, and made practicable by 
 the adoption of a few simple rules of procedure, it enabled 
 the great powers of Russia and Great Britain to settle 
 speedily and peacefully a grave dispute which arose be- 
 tween them six years after the conference adjourned. 
 The incident of the Hull Fishermen, or the Dogger Bank, 
 was of historic importance not only as showing the influ- 
 ence of a simple statement of belief, but as showing also 
 that even disputes in which "honor and essential inter- 
 ests" are involved may be settled by the peaceful and 
 rational method of international commissions of inquiry. 
 
 The adoption of the wise motto, "Investigate before 
 you fight," will inevitably result many times in proving 
 the truth of the saying, "Investigate and you won't fight." 
 
 3. Tfie Permanent Court of Arbitration 
 
 The idea of a permanent international court of arbitra- 
 tion was one of profound statesmanship ; its recommenda-
 
 A SUMMARY OF RESULTS 475 
 
 Hon to the powers would have been a long step in advance ; 
 while the actual establishment of it was a veritable triumph, 
 — the crowning glory, it has been universally admitted, 
 of the first Peace Conference. 
 
 The competence of jurisdiction conferred upon the 
 court, and the careful arrangements made for its operation, 
 were designed to make it the regular, though entirely 
 voluntary, forum of international justice. The famous 
 Article 27, which declared it to be the duty of the 
 powers to remind disputants of the existence of the court 
 and its adaptability to the peaceful solution of inter- 
 national disputes, was adopted for the purpose of making 
 it the frequent, as well as the regular, means of settling 
 difficulties before which diplomacy should fail. 
 
 The cases which have been brought before the Per- 
 manent Court have been of very great importance, but 
 have been only four in number, while it is believed that 
 several other cases of grave import should have been 
 brought before it. An article was therefore adopted in 
 1907 providing that either disputant, without making an 
 agreement with its opponent, or waiting for the reminder 
 from the powers provided for in Article 27, might 
 of its own initiative report its willingness to arbitrate 
 to the International Bureau, which shall then inform 
 all the powers of the fact, leaving them to perform their 
 duty in the premises. It is confidently believed that this 
 amendment will result in sending more, and even the 
 most crucial of questions, to the decision of the Permanent 
 Court, instead of to trial by battle. 
 
 The importance of the Permanent Court of Arbitration 
 should be measured, not only by its important achieve- 
 ments during the few years of its existence, but also by
 
 476 THE TWO HAGUE CONFERENCES 
 
 the estimates of its founders, — those great international 
 statesmen who, by creating it, gave expression to the 
 highest aspirations of their own century, and foresaw 
 and provided for the needs of the next. President de 
 Staal, in his final address to the conference, declared 
 .that the convention which provided for its establishment 
 opened a new era in the domain of international law 
 and would be called by posterity "the first international 
 code of peace." Chevalier Descamps, in reporting the 
 work of the committee to the conference, said of its im- 
 portance : 
 
 "When one seeks through the history of international law, — 
 from the day when that law was placed upon firm foundations by 
 the man of genius to whom America has recently rendered brilliant 
 homage on his native soil, — when one seeks some page comparable 
 with that which the Conference of The Hague has just written, it 
 seems difficult to find one more fruitful." 
 
 Secretary John Hay, in his instructions to the United 
 States delegation to the first conference, expressed a 
 sentiment which, though anticipating the Permanent 
 Court of Arbitration, will forever remain an illuminating 
 comment upon its importance as well as upon that of all 
 similar agencies of international law and justice. 
 
 "The duty of sovereign states," he wrote, "to promote inter- 
 national justice by all wise and effective means is only secondary to 
 the fundamental necessity of preserving their own existence. Next 
 in importance to their independence is the great fact of their inter- 
 dependence. Nothing can secure for human government and for 
 the authority of law which it represents so deep a respect and so 
 firm a loyalty as the spectacle of sovereign and independent states, 
 whose duty it is to prescribe the rules of justice and impose penal- 
 ties upon the lawless, bowing with reverence before the august 
 supremacy of those principles of right which give to law its eternal 
 foundation."
 
 A SUMMARY OF RESULTS 477 
 
 b. The Conference of 1907 
 
 The difficulty, the impossibility perhaps, of forming 
 at present a just estimate of the historic importance of 
 so recent an assembly as the second Peace Conference, 
 needs no argument with students of history. All that 
 will be attempted here is to suggest a few considerations 
 prerequisite to such an estimate, to quote the opinion 
 of a few men who participated prominently in the work 
 of the conference itself, and to summarize briefly its 
 achievements. 
 
 Students of these achievements should not forget that the 
 growth of institutions, even national ones, is necessarily 
 and desirably slow; for not only must national prejudices 
 be overcome and national interests reconciled, in the mak- 
 ing of international agreements, but these agreements, 
 to be binding and fruitful, must be neither forced nor 
 reluctant. It should not be forgotten, either, that no 
 human assembly can accomplish all that ought to be 
 done, or all that is expected of it ; and that by emphasiz- 
 ing unduly its failures, its real successes may be unduly 
 minimized. 
 
 In judging of the work of this "parliament of man," 
 we should remember the slow and often disappointing 
 results of the parliaments of nations. We should re- 
 member, too, that the international assembly, unlike 
 national legislatures, was composed of representatives 
 of every kindred, tongue, and nation; and that the dele- 
 gates, though possibly in advance of the political and 
 moral standards of their own people, were bound by 
 strict instructions from governments which necessarily
 
 478 THE TWO HAGUE CONFERENCES 
 
 reflected the diverse institutions and ideals of their re- 
 spective nations. It should be remembered, also, that 
 in an assembly of the representatives of sovereign and 
 independent states, the rule of the majority and the 
 enforcement of parliamentary law were subordinated 
 to the necessity of practical unanimity and of voluntary 
 agreement. 
 
 In view of these limitations and obstacles, the achieve- 
 ments of the second Peace Conference were far more 
 than could have been reasonably expected; while taken 
 by themselves they afford a cause of present gratification 
 and a rich promise of increasing fruitfulness. 
 
 I. WARFARE IN THE AIR 
 
 The prohibition upon the hurling of projectiles from 
 balloons, which was imposed by the first conference, 
 was renewed by the second, and increased from the 
 former duration of five years to that of "the end of the 
 next conference." 
 
 Whatever may be the final result of international legis- 
 lation on this matter, the next seven years are to be 
 saved from the horrors of a warfare from on high, 
 in which the elements of uncertainty and the lack 
 of adequate control of engines of destruction so largely 
 prevail. 
 
 One of the laws and customs of warfare on land, adopted 
 in 1907, was a permanent prohibition of the bombard- 
 ment of undefended towns and buildings by artillery, by 
 the launching of projectiles- or explosives from balloons, 
 or by any means whatever.
 
 A SUMMARY OF RESULTS 
 
 II. WARFARE ON THE SEA 
 
 479 
 
 The regulation of warfare on the sea was a task full 
 of difficulties both technical and delicate. The questions 
 discussed were burning ones which recent bitter events 
 had made prominent, and every one had to be considered 
 from the point of view of both belligerent and neutral, 
 while the interests of both continental and maritime 
 powers had to be reconciled. 
 
 The Congress of Paris of 1856 and the Peace Con- 
 ference of 1899, with their handful of rules, were the only 
 precursors of the second conference in the vast task of 
 regulating naval warfare. To the four or five former 
 rules, the second conference added a full score; and its 
 deliberations upon questions still unsolved will un- 
 doubtedly become the basis of the future solutions of 
 several other knotty problems. In the words of the 
 reporter of the IV Commission, which accomplished 
 so much of this difficult labor: "The result achieved 
 to-day is only the corner stone of the edifice universally 
 expected and desired, whose completion can not be hoped 
 for in a few months. Devotion to law and the spirit of 
 equity and conciliation, by which the labors of this com- 
 mission have not ceased to be inspired, are the best gauge 
 of the future." 
 
 The Russian delegates, Professor de Martens, president 
 of the IV Commission, and M. Nelidow, president of the 
 conference, reflected the importance attached by their 
 country to the solution of the naval questions which the 
 Russo-Japanese War had pressed forward, by declaring 
 that praise or criticism of the conference would be equiva- 
 lent to praise or criticism of the code of maritime law
 
 480 THE TWO HAGUE CONFERENCES 
 
 which it adopted, since the two were indissolubly bound 
 together; 1 and that the code of maritime law was even 
 more important than what had been accomplished for 
 arbitration. 2 
 
 The International Prize Court, which is classed in 
 this book with the other international courts under the 
 section of arbitration, may also rightly be looked upon as 
 a triumph within the domain of the regulation of warfare 
 on the sea. And this court Sir Edward Fry, of Great 
 Britain, declared to be the most remarkable of all the 
 measures adopted by the conference, "because," he ex- 
 plained, "this is the first time in the history of the world 
 that there has been organized a truly international court. 
 International law to-day," he continued, "is nothing else 
 than a chaos of opinions which are often contradictory 
 and of decisions of national courts based on national 
 laws. We hope to see growing up little by little around 
 this court a system of laws truly international which shall 
 owe its existence solely to the principles of equity and 
 justice, and which will therefore deserve not only the 
 admiration of the world, but the respect and obedience 
 of civilized nations." 3 This system of international 
 prize law, the outgrowth of the prize court established 
 by the second conference, will also look back to that 
 conference as its primal source. 
 
 i. Submarine Mines 
 
 The prohibition of the use of unanchored mines, unless 
 constructed in such manner as to become harmless within 
 
 1 Professor de Martens, in his final address to the IV Commission. 
 
 2 President Nelidow, in his final address to the conference. 
 
 3 Sir Edward Fry, in his address to the conference at its last plenary session.
 
 A SUMMARY OF RESULTS 481 
 
 one hour after their control has been lost; the prohibition 
 .of the use of anchored mines which do not become harm- 
 less as soon as they break their cables; the prohibition 
 of the use of automobile torpedoes which do not become 
 harmless when they have missed their aim; the pro 
 hibition of the placing of mines along the coasts and in 
 front of the ports of the enemy, with the sole purpose of 
 intercepting commerce; the requirement that every pre- 
 caution be taken to protect peaceful navigation against 
 submarine mines; and the agreement that belligerents 
 shall cause them to become harmless after a limited time 
 by removing them, or guarding them, or indicating the 
 dangerous regions and notifying the other powers of 
 them ; — such were the important regulations prescribed 
 by the second conference for the use of submarine contact 
 mines and torpedoes. 
 
 In view of the great destruction to neutral commerce 
 caused in the past by these "demons of the sea," and in 
 view of the fact that this was the first attempt to regulate 
 their use by belligerents and neutrals alike, the achieve- 
 ment of the conference in this respect was of great im- 
 portance. It is true that the British delegation gave 
 public expression to its keen disappointment that the 
 rules did not go still farther and prohibit the use, under 
 any conditions, of unanchorcd mines, and restrict the 
 area of anchored mines. But in the regulations adopted, 
 a very long step was taken; and the earnest solicitude 
 of the greatest maritime power of the world in regard to 
 the matter will be a potent force in developing the existing 
 rules into still more drastic ones. And meanwhile, the 
 public acknowledgment, by Germany's first delegate, of 
 the belligerent's heavy responsibility to neutrals in the
 
 482 THE TWO HAGUE CONFERENCES 
 
 placing of mines, will be enforced; while his assertion 
 that conscience, good sense, and the sentiment of duty 
 imposed by the principles of humanity will form an even 
 more effective guarantee against the abuses of mines than 
 international law itself, will be impressed upon belligerent 
 governments and the admirals whom they instruct. 
 
 2. Naval Bombardment 
 
 Bombardment by naval forces w r as regulated by a series 
 of important rules. The bombardment of undefended 
 ports, towns, villages, dwellings, or buildings, was pro- 
 hibited. Bombardment for the enforcement of a money 
 ransom was prohibited, as was also pillage, even in the 
 case of towns captured by assault. The right of de- 
 stroying by bombardment the military and naval equip- 
 ment in undefended ports, etc., was restricted by the 
 proviso that the local authorities should first be given a 
 reasonable time in which to perform the destruction them- 
 selves; if military necessities demand immediate bom- 
 bardment, and no other means can be found to destroy 
 such equipment, then the naval force may bombard them, 
 but every precaution must be taken to protect the port 
 itself. The right of bombarding an undefended port, 
 etc., to enforce a requisition of stores or provisions was 
 restricted by the proviso that such stores must be in accord 
 with the resources of the port requisitioned, must be 
 sanctioned by the commandant of the naval force, and 
 must be paid for, in cash when possible, or vouched for 
 by written receipts. 
 
 The conference did not define precisely what it meant 
 by "undefended" ports, etc., but it acquiesced in the
 
 A SUMMARY OF RESULTS 483 
 
 statement that an unfortified town situated near a fortified 
 coast is an undefended town; and it voted that a port 
 before which automatic submarine mines of contact are 
 anchored is not to be considered subject to bombardment 
 because of that fact. 
 
 The importance of these rules has been minimized 
 because they prevent only the bombardment of, and 
 not the landing of troops in, undefended ports. But 
 this is to condemn the present because it is not the future. 
 The importance of the rules as far as they go is evident. 
 They are calculated to save anxiety, suffering, the loss 
 of life and property; they restrict naval warfare, as has 
 been the case with land warfare, to contests between 
 armed forces, and exempt non-combatants and the de- 
 fenseless from its horrors; and they will probably induce 
 governments to avoid the waste of money in the erection 
 of forts which not only become speedily antiquated, with 
 improvements in naval armaments, but which may draw 
 the fire of those armaments upon sea-coast towns and 
 peoples. 
 
 3. Merchant Ships transformed into Cruisers 
 
 The danger that the practice of transforming merchant 
 ships into cruisers in time of war might restore the old 
 system of privateering which the Declaration of Paris 
 of 1856 abolished, was recognized by the Conference of 
 1907, which regulated it by a half-dozen rules. These 
 rules provide that a transformed merchant ship may 
 acquire the rights and privileges of war ships only when 
 placed under the immediate control and responsibility 
 of the state whose flag it flies, with a commander duly
 
 484 THE TWO HAGUE CONFERENCES 
 
 commissioned by the state, and a crew under military 
 discipline; and when bearing the distinctive external 
 marks of the war ships of its nation. These ships must 
 conform to the laws and customs of war ; and their trans- 
 formation must be published in the state's official list of 
 war ships. 
 
 The object and result of these rules will be to make 
 piracy more difficult, to restrict privateering, 1 and to bring 
 all naval combats within the rules adopted for the human- 
 izing of warfare. 
 
 4. Restrictions on the Right of Capture 
 
 Although the American proposition to exempt private 
 property from capture in naval warfare was not adopted 
 by the conference, several restrictions on this right of 
 capture were adopted. 
 
 Merchant ships of belligerents, except those evidently 
 intended for transformation into war ships, cannot be 
 confiscated, whether they be in the enemy's ports on the 
 outbreak of hostilities, or enter them after that event in 
 ignorance of it, or are captured on the high seas in igno- 
 rance of the war. They must be given a sufficient warning 
 to depart, in the first two cases, and if they do not or can 
 not heed this warning, they may only be detained until 
 the end of the war, or requisitioned on payment of com- 
 pensation; and in the third case, they may be detained 
 until the end of the war, or requisitioned or even destroyed 
 on payment of compensation. The same rules apply to 
 
 1 In accordance with the policy of the United States in regard to privateering 
 and the capture of private property in naval warfare, the United States delega- 
 tion did not sign, and the United States Senate did not ratify, this convention.
 
 A SUMMARY OF RESULTS 485 
 
 cargoes on board the above three classes of merchant 
 ships. 1 
 
 The officers and crews of captured merchant ships are 
 not to be made prisoners of war, whether they are citizens 
 of a neutral or of a belligerent state, provided they sign 
 a promise in writing that they will not take part in the 
 war. 2 
 
 Boats used exclusively for fishing purposes, and all 
 ships engaged upon scientific, religious, or philanthropic 
 missions, were exempted from capture. 
 
 The postal correspondence of both neutrals and bellig- 
 erents was made inviolable, and must be forwarded with 
 the least possible delay in case the ship conveying it is 
 detained or captured. 
 
 These various rules are all in the direction of canalizing 
 warfare, — of restricting its wastes and injuries to defi- 
 nite channels, and of protecting from its ravages the 
 normal world of peace and commerce. 
 
 5. Belligerents in Neutral Waters 
 
 The absolute sovereignty of neutral states, and its 
 inviolability during warfare, is made the basis of the 
 rules adopted for the conduct of belligerents in neutral 
 waters. These rules 3 have to do with the entrance and 
 stay, the repairs, revictualing, and recoaling, the number 
 
 1 The United States delegation and the Senate rejected this convention 
 because of the American demand that all merchant ships and cargoes of 
 belligerents, except in the case of contraband or blockade, shall be exempt 
 from capture. 
 
 2 Neutral members of the crew arc required to make no promise; neutral 
 officers must promise not to serve on an enemy ship while the war lasts; 
 belligerent officers and members of the crew must promise not to take part 
 in any warlike operations. 
 
 3 See pages 149-157.
 
 486 THE TWO HAGUE CONFERENCES 
 
 and departure, of belligerent war ships in neutral waters; 
 they -strictly forbid military preparations or operations 
 within neutral waters, on the part of belligerents; and 
 they authorize and expect, and generally require, the 
 neutral states to enforce these rules by every means in 
 their power, asserting that such enforcement cannot be 
 looked upon by either belligerent as in any sense an un- 
 friendly act. 
 
 The United States delegation did not sign the con- 
 vention which embodied these rules; but the United 
 States Senate has advised and consented to the adherence 
 of the United States to it under two conditions: first, 
 that the rule be excluded which provides that a neutral 
 power may allow prizes to enter its ports and roadsteads, 
 whether under convoy or not, when they are brought 
 there to be sequestrated pending the decision of a prize 
 court, etc. (Article 23) ; and second, that it be understood 
 that the last clause of Article 3 implies the duty of a 
 neutral power to make the demand therein mentioned 
 for the return of a ship captured within the neutral juris- 
 diction. 
 
 The adoption of the rules regulating the conduct of 
 belligerents in neutral waters will prevent the recurrence 
 of many exasperating and dangerous complications be- 
 tween neutrals and belligerents; and they assert in un- 
 mistakable terms the absolute sovereignty of neutral 
 states in their relations with belligerents, and their in- 
 violable right to be left unmolested in their normal con- 
 dition of peace as the ravages of war sweep past them. 
 
 The rules adopted did not cover all the questions which 
 may arise between neutrals and belligerents, in naval 
 warfare, but the convention includes the rule that the
 
 A SUMMARY OF RESULTS 487 
 
 contracting powers shall communicate to each other in 
 due course all laws, proclamations, and other enactments 
 regulating in their respective countries the status of 
 belligerent war ships in their ports and waters. In this 
 way it is hoped that complete national codes of laws shall 
 be adopted, which shall approximate uniformity and 
 become the basis of a definite system of international 
 law covering every aspect of this important question. 
 
 III. WARFARE ON LAND 
 
 The great achievement of the Conference of 1899, in 
 relation to warfare on land, was a codification of its laws 
 and customs in regard to operations on the theater of war; 
 the great achievement of the Conference of 1907, in rela- 
 tion to warfare on land, was the codification of its laws 
 and customs as regards neutral states and citizens. 
 
 Like the convention relating to the conduct of belligerents 
 in neutral waters, the convention relating to neutrals on 
 land did not attempt to provide for all possible cases of 
 misunderstanding and dispute ; but it took up the subject 
 from the point of view both of neutral states and of neutral 
 residents of belligerent territory, and made decided prog- 
 ress with both of these aspects of a knotty problem. 
 It revised also the laws and customs of warfare on land, 
 adopted in 1899, in a number of important particulars. 
 
 1. The Rights and Dulles of Neutrals 
 
 As in the case of the convention relating to belligerents 
 in neutral waters, so in the convention relating to the
 
 488 THE TWO HAGUE CONFERENCES 
 
 rights and duties of neutrals on land, the inviolability of 
 neutral states is made the basis of the articles adopted. 
 
 These articles forbid belligerents to perform certain 
 acts to their own military advantage on the territory of 
 a neutral state, and they fix carefully the responsibility 
 of the neutral state in preventing the performance of those 
 acts; they define the relation of a neutral state towards 
 belligerent soldiers, invalids, and wounded; they define 
 and protect the rights of neutrals residing within the 
 territory of belligerents; and they protect the property 
 of railway companies belonging to neutrals but operating 
 within belligerent territory. The conference also adopted 
 two desires (vceux) that the authorities of belligerent states 
 shall make it their special duty to protect peaceful in- 
 dustrial relations with neutrals, and that the powers shall 
 endeavor to establish by separate treaties uniform regu- 
 lations concerning the military obligations exacted of 
 resident aliens. 
 
 The importance of the above rules lies in the twofold 
 fact that they lessen the anxieties and hardships of neu- 
 trals residing within belligerent territory, and, by removing 
 some vexed uncertainties as to the relations between neutral 
 and belligerent states, they diminish the danger of warfare 
 between them and, at the same time, help to preserve in- 
 tact the normal peaceful intercourse of trade and com- 
 merce between their citizens. 
 
 2. The Laws and Customs of Warfare on Land 
 
 The following noteworthy rules were added in 1907 to 
 the important code of 1899: a declaration of war, stating 
 its causes, or an ultimatum with a conditional declaration
 
 A SUMMARY OF RESULTS 489 
 
 of war, must be issued before hostilities are commenced, 
 and definite notice to neutrals of the state of war is 
 required ; militia corps and volunteers, to be considered 
 "belligerents," must bear arms openly, as well as re- 
 spect the laws and customs of war; prisoners of war 
 may be confined only as an indispensable measure of 
 safety, and only for the duration of the circumstances 
 which necessitate their confinement; bureaus of in 
 formation were charged with the duty of ascertaining ad- 
 ditional details concerning prisoners, and of forwarding 
 their record to their government after the conclusion of 
 peace; officers were exempted from the rule permitting 
 belligerents to employ their prisoners of war as laborers, 
 and it was agreed that their captors should pay them a 
 salary equal to that paid to officers of the same rank in 
 the enemy's army ; the repudiation, by belligerent govern- 
 ments, of the private claims, or "rights and actions at 
 law," of the subjects of hostile powers was prohibited; 
 belligerents were forbidden to compel the subjects of the 
 enemy to take part in the operations of the war directed 
 against their country, even when they have been in the 
 belligerent's service before the war commenced; a per- 
 manent prohibition was placed on the bombardment of 
 undefended towns and buildings, by artillery, by the launch- 
 ing of projectiles or explosives from balloons, or by any 
 means whatever; in the bombardment of defended towns, 
 historical monuments were added to the list of buildings 
 to be protected; a belligerent was forbidden to compel 
 the population of an occupied territory to give information 
 concerning the army of the other belligerent or its means 
 of defense; the rights of private property in occupied 
 territory were strengthened by the rules that receipts
 
 490 THE TWO HAGUE CONFERENCES 
 
 given for contributions in kind shall be redeemed for 
 money as soon as possible, and that all means, on land 
 and water and in the air, of transmitting news and trans- 
 porting persons or things, except those regulated by 
 maritime law, shall not be confiscated by the invader, but 
 only used for his military necessities and be restored and 
 compensated for on the conclusion of peace. 
 
 The importance of the above rules lies in the fact that 
 they are another step in the humanizing of war and in 
 the protection of peace and prosperity from its ravages. 
 
 IV. ARBITRATION 
 
 As the first conference is historically important chiefly 
 for the progress which it made in the advancement of 
 the principle and practice of voluntary international arbi- 
 tration, so the chief historical importance of the second 
 conference lies in its advancement of the principle and 
 practice of both obligatory and voluntary international 
 arbitration. The latter's work in furtherance of the 
 principle of obligatory arbitration has already been es- 
 timated under the head of "attempts"; 1 its promotion 
 of the practice of obligatory arbitration will be summarized 
 in connection with the forcible collection of debts and 
 the International Prize Court; its achievements in the 
 field of voluntary arbitration are associated with its sys- 
 tem of arbitral procedure for the Permanent Court of 
 Arbitration and its Court of Arbitral Justice. 
 
 Popular expectations in regard to the first conference 
 ran highest in the direction of the limitation of armaments; 
 these expectations were disappointed, but the conference 
 
 1 See pages 461-463.
 
 A SUMMARY OF RESULTS 
 
 491 
 
 gave to the world unhoped for, almost undreamed of, 
 achievements in the realm of arbitration. The second 
 conference was anticipated in popular interest chiefly 
 because of what was hoped it would accomplish in the 
 direction of arbitration; the highest of these hopes were 
 disappointed, but the field of future harvests was sur- 
 veyed and plowed and planted, while the harvest actually 
 gleaned is sufficiently good and bountiful to encourage 
 and rejoice greatly all true patient lovers of international 
 . peace. 
 
 1. The Forcible Collection of Debts 
 
 The agreement to refrain from the use of armed force 
 for the collection of contractual debts, unless arbitration 
 of them should fail, was one of the most important achieve- 
 ments of the second conference, and one of the greatest 
 triumphs in the history of diplomacy. 
 
 It will remove one cause of uncertainty, anxiety, and 
 restriction from the paths of neutral commerce; it will 
 promote financial prudence and financial honesty on the 
 part of governments; it will protect the limited resources 
 of undeveloped countries from the extravagant demands 
 of unscrupulous foreign "promoters"; it will relieve 
 state departments of the vast labor and expense of collect- 
 ing doubtful claims; it will relieve the United States of 
 the burden of defending financial dishonesty, and of 
 unduly interfering with the domestic affairs of other 
 nations, in its determination to enforce the Monroe 
 Doctrine ; it will be one more strong reason for the limi- 
 tation of armaments, especially on the part of the Latin 
 American states; it will do away with a prolific source
 
 492 THE TWO HAGUE CONFERENCES 
 
 of threats, "peaceful blockades," and warfare between 
 nations; and it is a long step towards general obligatory 
 arbitration. 
 
 International honesty, justice, industry, and peace have 
 all received a powerful impulse from the adoption of this 
 "Porter Proposition," which of itself alone has made the 
 second Peace Conference well worth the time, labor, and 
 expense which it involved. 
 
 2. Arbitral Procedure 
 
 The few rules of 1899 for the procedure of international 
 commissions of inquiry were so developed and increased 
 in 1907 that a complete code of ready-made rules is 
 available at all times for the guidance of those commissions, 
 no matter how suddenly they may be called upon to operate, 
 or how important and delicate the questions which they 
 may be asked to investigate. These rules * are based upon 
 experience in the case of the Hull Fishermen, or the 
 Dogger Bank, and are confidently expected to facilitate 
 a resort to commissions of inquiry as a means of avoiding 
 warfare. 
 
 The code of arbitral procedure adopted in 1899 for the 
 Permanent Court of Arbitration was so amended and 
 developed in 1907 that the chances of uncertainty and 
 delay in the arbitration of international differences were 
 lessened, the expenses of the procedure were diminished, 
 and a further advance was made in the direction of raising 
 international arbitration from the plane of diplomacy to 
 that of genuine judicature. The measures adopted for 
 facilitating an agreement upon the compromise, that 
 sine qua non of arbitration, and the five articles pro- 
 
 1 See pages 291-295.
 
 A SUMMARY OF RESULTS 4g ~ 
 
 viding for a "summary pro'ccdurc of arbitration," * were 
 designed to make more easy and frequent a resort to 
 the Permanent Court for the settlement of international 
 difficulties. 
 
 3. The Court of Arbitral Justice 
 
 The action of the conference in regard to the Court 
 of Arbitral Justice, which was proposed and championed 
 by the United States delegation, was considered by many 
 its most conspicuous failure, by some its most bitter dis- 
 appointment, and by a few its most promising achieve- 
 ment. The verdict of future events must be awaited for 
 assured condemnation or vindication of that action; 
 but a few reasons may be suggested here for placing it, 
 and for placing it high, upon the list of the conference's 
 achievements. 
 
 The potency of great ideas in human history needs 
 not to be argued; nor does the statement that the idea 
 of establishing a genuine court as the arbiter of inter- 
 national differences is a great, a baJm-brechende, idea. 
 Now this idea, although abandoned as impracticable by 
 the first conference, was introduced in the second con- 
 ference only eight years later, explained, attacked, de- 
 fended, and almost unanimously accepted as both desirable 
 and practicable. Some of the ablest of international 
 jurists collaborated in the task of advocating that idea 
 and giving to it form and substance. The concrete results 
 of their labor were adopted by the conference and are 
 published, not as a vermiform appendix, but as an essen- 
 tial annex to the Final Act. 
 
 1 See pages 402-409.
 
 494 THE TWO HAGUE CONFERENCES 
 
 Not only will the idea of such a court henceforth stand 
 behind the wrong of warfare, but it will inevitably rule 
 the future. The court itself, fashioned and wrought out 
 in all but one of its details, needs only an agreement as 
 to the appointment of its judges; and when this breath 
 of life is breathed into it by any number of the nations, 
 it will at once spring into beneficent activity. Its operation 
 does not require unanimity among the nations, as did 
 so many other features of the Final Act of The Hague; 
 nor does it require even a two-thirds acceptance, as did 
 the Constitution of the United States; but the moment 
 when two or more powers agree upon the appointment 
 of its judges, it will open its doors for the pacification of 
 disputes. Even though constituted by only two powers, it 
 will be known as the Court of Arbitral Justice at The 
 Hague, and, like a city set upon a hill, it will eventually 
 draw to it all nations seeking to escape the evils of warfare. 
 
 It was greatly to be desired, of course, and it is still 
 greatly to be desired, that its operation should come 
 as the result of unanimous agreement. But even from 
 this point of view it should be noted that the conference 
 voted unanimously the recommendation that the govern- 
 ments should adopt, not some court, but this particular 
 Court of Arbitral Justice, and put it in operation 
 as soon as they could agree upon the choice of its 
 judges. 
 
 To inhabitants of the Western World, also, the hope of 
 a court based upon unanimous support is strengthened by 
 the recent establishment of a court of arbitral justice by the 
 republics of Central America. This hope of our Western 
 World has been well expressed by President Roosevelt 
 who said of the method of choosing the judges: "This
 
 A SUMMARY. OF RESULTS 495 
 
 remaining unsettled question is plainly one which time and 
 good temper will solve" ; x by Ambassador. Choate and Sec- 
 retary Hale, who said, in their report to the United States 
 government, in regard to the same question : " A little time, 
 a little patience, and the great work is accomplished" ; and 
 by Dr. Scott, who writes: "I believe you will search in 
 vain for any work of a more far-reaching nature accom- 
 plished within the past centuries. The dream of Henry 
 IV, the hope of William Penn, both of whom prepared 
 projects for a court of nations, seem, if not wholly to have 
 been realized, within the very grasp of our generation." 2 
 
 4. The International Prize Court 
 
 The establishment of an international high court of 
 justice functioning as a court of appeal from national 
 courts in cases of merchant ships captured in naval war, 
 was, for several reasons, one of the second conference's 
 most important achievements. It is the first truly inter- 
 national court established in the history of the world. 
 Its decisions will be a fruitful source of maritime law. 
 It will remove the capture of merchant ships still farther 
 from the plane of piracy, by permitting the decision of 
 a national prize court to be supplemented by that of an 
 international one. It will modify the presumably partial 
 decisions of national courts by an appeal to the probably 
 less partial decisions of an international one, and will 
 thereby emphasize forcefully the principle in international, 
 as in national law, that a suitor shall not be judge in his 
 own cause. It will remove a fertile cause of disputes 
 between the belligerents themselves, and between them 
 
 1 The President's message to the Congress, December, 1907. 
 
 2 James Brown Scott, "The Work of the Second Hague Conference," a 
 pamphlet published by the Association for International Conciliation.
 
 496 THE TWO HAGUE CONFERENCES 
 
 and neutral nations, and will thereby lessen the bitterness 
 of wars once begun and prevent the outbreak of others. 
 The unanimous adoption (with the exception of Brazil's 
 vote) of its method of selecting judges, will pave the way 
 for the solution of the same question in regard to the Court 
 of Arbitral Justice. And, by supplying in time of war 
 a regular adjudication of one very important and delicate 
 class of international differences, it will serve as an in- 
 ductive argument and give a strong impulse to the estab- 
 lishment of the Court of Arbitral Justice for the adjudi- 
 cation of all classes of international differences in time 
 of peace. 1 
 
 C. INDIRECT RESULTS 
 
 The indirect results of great events in the world's history 
 are often of greater, because more lasting and far-reaching, 
 importance than are their direct and measurable ones. 
 An eminent historian, the Duke de Broglie, has said: 
 "We live in a time when we must take as much and more 
 account of the moral effect of a great measure than of its 
 material and immediate results." This would seem to 
 be especially true of conferences designed to promote 
 the world's peace. Just as the hands on the clock of 
 time cannot be turned permanently backward, so nations 
 cannot be permanently checked in their advance towards 
 visions which their eyes have once clearly seen and their 
 minds have begun to appreciate. 
 
 1 Although the International Prize Court was based on the compromises 
 proposed by Mr. Choate, and the convention establishing it was signed by 
 the United States delegation, the United States Senate has not yet ratified it. 
 The Senate committee's refusal to report it at the last session was due to the 
 constitutional objection that no foreign jurisdiction can be established or 
 recognized by the United States Government ; but it is entirely probable 
 that this objection will be found to be a mistaken one, and that the convention 
 will be ratified at the Senate's next session.
 
 A SUMMARY OF RESULTS 497 
 
 All the indirect results of the two Peace Conferences, 
 all the visions which they have summoned above the 
 international horizon, are too numerous to be mentioned 
 here, and they can be fully appreciated only with the 
 progress of the nations towards them. But there are two 
 indirect results of these conferences which, because of 
 their prime and immediate importance, should be men- 
 tioned briefly here. These are, first, their promotion of 
 what may be called in Tennyson's phrase, "the federation 
 of the world"; and, second, their preparation for a third 
 Peace Conference at The Hague. 
 
 I. THE FEDERATION OF THE WORLD 
 
 The above phrase has been selected as the title of this 
 section, rather than its companion one, which is quoted 
 with equal frequency, "the Parliament of Man." Of 
 course, the meeting and work of the two Peace Con- 
 ferences constitute in no true modern political sense a 
 parliament. The universality of both phrases, it is true, 
 was closely approximated by them. The one hundred 
 members of the first conference represented twenty-six 
 of the world's fifty-nine independent powers, and three- 
 fourths of its population and resources; the two hundred 
 and fifty-six members of the second conference represented 
 forty-four of the world's fifty-seven powers claiming 
 sovereignty, and practically all of its population and re- 
 sources. But although the conferences may properly 
 be called world assemblies, they lacked some essential 
 features of a world parliament or legislature. 
 
 On the other hand, they possessed some striking features 
 which may justify the appellation of the federation of the
 
 498 THE TWO HAGUE CONFERENCES 
 
 world. The legislative, judicial, and executive organs 
 of this federation are still rudimentary, of course, but they 
 have come to life, thanks to the Peace Conferences, and 
 give promise of larger growth. The twenty conventions 
 and declarations adopted by the two conferences form^ 
 a code of international law which is, in the aggregate, of 
 large volume and great importance. The judicial organs 
 of this federation are the Permanent Court of Arbitration, 
 the Court of Arbitral Justice, and the International Prize 
 Court; and, although the first of these is for purely 
 voluntary resort and the second has not yet been put in 
 operation, they together form a very respectable judiciary 
 for the world federation, a much more respectable one 
 than various other federations have had, and one that is 
 strengthened by an admirable code of judicial procedure 
 and by the obligatory submission to it of at least two im- 
 portant classes of cases, the collection of contractual 
 debts and the adjudication of maritime prizes. 
 
 The chief defect of international law in the past has 
 generally been considered to be its lack of an efficient 
 executive. This defect has been largely supplied by the 
 two Peace Conferences. The conventions are operative 
 only upon those powers which have accepted them, but 
 they can be discontinued only after formal notice to the 
 other powers and at the end of one year after the date 
 of such notice. The sanction for the faithful observance 
 of the conventions, meanwhile, rests not only upon the 
 good faith and public opinion of each nation, but upon 
 an international public opinion which has been so largely 
 developed by the conferences that it is almost a creation 
 of their own. They have greatly strengthened this inter- 
 national public opinion by the personal intercourse of
 
 A SUMMARY OF RESULTS 499 
 
 the leaders of thought throughout the world; and they 
 have greatly enlightened it by holding up in the clear, 
 many-sided light of a world discussion the ideals of each 
 nation, thus making each nation more fully conscious 
 than ever before of its own ideals of international conduct 
 and of those of all other nations. The potency of this 
 strengthened and enlightened international public opinion 
 has been illustrated many times in the pages of this book. 
 Its force was acknowledged by such dissimilar men as 
 Count Miinster, of Germany, in the first conference, and 
 M. Beernaert, of Belgium, in the second; it has been 
 bowed to by many powers, ranging from the British Em- 
 pire down to Venezuela. 
 
 This federation of the world is very far indeed from 
 the ideal of a world empire, which was realized by Caesar 
 and attempted by Napoleon. It is also very far from the 
 particularist ideal of absolute and isolated autonomy on 
 the part of each nation, which has been found to be, 
 both in the Orient and the Occident, as undesirable as 
 it is impossible. The golden mean between these two 
 extremes which this federation of the world has begun 
 to represent, is well expressed by Professor de Martens, 
 of Russia, in his closing address to the IV Commission of 
 the second conference. 
 
 "If we deserve any credit," he said, and his statement was received 
 with unanimous applause, "for the elaboration of approved proj- 
 ects, it is by grace only of the conviction which inspires all of us 
 without exception that the days of an isolated life and of separation 
 between the nations have passed away for ever, that nations must 
 make mutual concessions to each other, and that only on this essential 
 condition can the organization of the new international and common 
 life become a great blessing to all. This, gentlemen, is the mistress 
 idea of all our labors, and this is the keystone of the edifice of law
 
 500 THE TWO HAGUE CONFERENCES 
 
 and justice whose corner stone we have recently laid. This idea 
 will become in the future the solid guarantee of international peace, 
 and, by leaving it as a heritage to our successors, we shall guarantee 
 the success of their efforts towards the ideal which we have pursued." 
 
 The "edifice of law and justice," to which Professor 
 de Martens referred, was the Peace Palace in The Hague, 
 which Mr. Andrew Carnegie, of the United States, had 
 presented, and whose corner-stone the second conference 
 had laid. This palace, the seat of the international 
 courts established by the conferences, is a tangible and 
 beautiful expression of the ideal of the federation of the 
 world, which they have done so much to realize. The 
 chief public ceremony of the first conference, too, the 
 honor accorded by the United States delegation to the 
 memory of Hugo Grotius at Delft, was the exaltation 
 of that international law and justice which must ever 
 be the motive power and guidance of the federation of 
 the world, and which the two Peace Conferences have 
 done so much to develop. 
 
 II. THE THIRD PEACE CONFERENCE 
 
 The wholly unexpected manner in which the first 
 conference was called into existence, and the large element 
 of chance which entered into the summoning of the second, 
 led the Interparliamentary Union and other influential 
 organizations to demand that some regular means should 
 be adopted by the second conference for the periodical 
 assembly of its successors. 
 
 Secretary Root instructed the United States delegation 
 of 1907 to "favor the adoption of a resolution by 
 the conference providing for the holding of further
 
 A SUMMARY OF RESULTS 
 
 50T 
 
 conferences within fixed periods and arranging the 
 machinery by which such conferences may be called and 
 the terms of the programme may be arranged, without 
 awaiting any new and specific initiative on the part of 
 the powers or any one of them." "Encouragement for 
 such a course," Mr. Root added, " is to be found in the 
 successful working of a similar arrangement for inter- 
 national conferences of the American Republics." 
 
 The United States delegation introduced a resolution 
 in accordance with these instructions and suggested, as 
 the date of the meeting of the third conference, the month 
 of June, 1914. Although the great desirability of the 
 object of this resolution was freely admitted, the con- 
 ference seemed to fear that it implied, in some way, a 
 wrong to the Czar of Russia, since he had taken the 
 initiative in calling the first conference and in arranging 
 its programme of work, and had played a large part in 
 the same respects in relation to the second conference. 
 When the resolution was presented in the sixth plenary 
 session, delegation after delegation arose and expressed 
 its gratitude to the Czar, as the initiator of both confer- 
 ences, and to the Queen of the Netherlands, as their 
 hostess. The delegation of the United States participated 
 in this expression of gratitude, and made it plain that 
 no wrong was intended to the Czar, but that the welfare 
 of humanity should not be subordinated to diplomatic 
 ceremonialism. The resolution, as finally adopted as 
 one of the desires (vceux) of the Final Act was as follows : 
 
 "The conference recommends to the powers the reunion of a 
 third Peace Conference, which shall take place within a period 
 analogous to that which has elapsed since the preceding conference, 
 at a date to be fixed by common agreement among the powers, and
 
 502 THE TWO HAGUE CONFERENCES 
 
 it calls their attention to the necessity of preparing for the work 
 of this third conference long enough in advance to insure the pursuit 
 of its deliberations with the requisite authority and rapidity. To 
 attain this end, the conference considers it very desirable that about 
 two years before the probable date of the reunion a preparatory 
 committee be charged by the governments with the duty of collect- 
 ing the various propositions to be submitted to the conference, of 
 investigating matters susceptible of future international regulation, 
 and of preparing a programme to be approved by the governments 
 soon enough to permit its serious study in each country. This com- 
 mittee shall also be charged with the duty of proposing a mode of 
 organization and procedure for the conference itself." 
 
 The above resolution was voted unanimously and, 
 despite its somewhat indefinite phraseology, it means 
 that probably in the summer of 1915 a third International 
 Peace Conference will assemble at The Hague, which 
 shall in a similar manner provide for the meeting of its 
 successor. It means, also, that about two years before 
 that date the attention of every nation will be centered 
 upon some great problems of international life, and that 
 an ardent and careful, a thorough and enthusiastic, dis- 
 cussion of those problems and the best means of solving 
 them will roll round the world, gaining enlightenment and 
 power as it proceeds. And then, when the third con- 
 ference assembles, it may be confidently expected that 
 it will convert some of the attempts of the second confer- 
 ence into accomplished facts, even as the attempts of the 
 first became the achievements of the second. 
 
 "The immediate results of such a conference," says 
 our great American Secretary of State, Mr. Elihu Root, 1 
 "must always be limited to a small part of the field which 
 
 1 In his instructions to the United States delegation to the second con- 
 ference, and his letter to the President in regard to its work.
 
 A SUMMARY OF RESULTS 503 
 
 the more sanguine have hoped to see covered; but each 
 successive conference will make the positions reached in 
 the preceding conference its point of departure, and will 
 bring to the consideration of further advances towards 
 international agreement opinions affected by the accept- 
 ance and application of the previous agreements. Each 
 conference will inevitably make further progress and, 
 by successive steps, results may be accomplished which 
 have formerly appeared impossible. . . . The most valu- 
 able result of the Conference of 1899 was tnat li ma de the 
 work of the Conference of 1907 possible. The achieve- 
 ments of the two conferences justify the belief that the 
 world has entered upon an orderly process through which, 
 step by step, in successive conferences, each taking the 
 work of its predecessor as its point of departure, there 
 may be continual progress toward making the practice of 
 civilized nations conform to their peaceful professions." 
 With these wise words of warning and encouragement 
 this account of the first two great Peace Conferences may 
 fitly be brought to an end.
 
 INDEX 
 
 After the name of each delegate mentioned, the year of his membership is given in 
 parentheses, and a reference to the topics in the discussion of which he participated. 
 The topics are not listed separately, but are noted under " Conference of 1800 " and 
 " Conference of 1907." 
 
 "Alabama," The, 123, 398. 
 
 Alexander IT, 214, 215. 
 
 Amourel, General (1907), neutral 
 rights and duties on land, 201 ; 
 belligerents, 221; occupation of 
 hostile territory, 257, 260; open- 
 ing of hostilities, 263. 
 
 Amsterdam, 18-19. 
 
 Ardagh, General Sir John (1899), 
 armaments, 62; muskets, 179; 
 bullets, 181, 182-185 '< belliger- 
 ents, 218. 
 
 Argentina, 43, 74, 80, 138, 159, 
 162, 311, 334, 339, 357, 362, 370, 
 
 417. 445. 446, 45°. 457- See 
 also Drago, Larreta, Saenz Pcna. 
 
 Asser, T. M. C. In i8qq: 13; 
 Geneva Convention, 191; good 
 offices and mediation, 268; 
 obligatory arbitration, 328; 
 Permanent Court, 372, 374, 
 380, 410-411; arbitral proced- 
 ure, 392. Inigoj: 34; special 
 mediation, 276-277; Court of 
 Arbitral Justice, 410-411. 
 
 Austria, 34, 50, 71, 80, 86, 87, 91, 
 
 . 93. lo6 > "9, *34> 135. i3 8 , J 39> 
 144, 159, 177, 179, 182, 212, 230, 
 236, 259, 260, 261, 264, 277, 290, 
 323, 324, 325, 334, 338, 345, 346, 
 349, 369, 370, 403, 404, 438, 444, 
 463. See also Gieslingen, 
 Khuepach, Lammasch, Merey, 
 Soltyk, Welsersheimb. 
 
 Austro-Prussian War, 139. 
 
 Barbosa, Ruy (1907), 15; com- 
 missions of inquiry, 290; obliga- 
 tory arbitration, 319, 323; forci- 
 ble collection of debts, 361-362, 
 366-367; Court of Arbitral 
 Justice, 420, 424, 425-426; In- 
 ternational Prize Court, 429, 
 436, 440-441, 444-446, 448. 
 
 Bartholdt, Richard, 4. 
 
 Basily, M., 4. 
 
 Bayard, Secretary, 356. 
 
 Beaufort, W. H. de. In i8qq: ad- 
 dress at opening session, 36; 
 and at closing session, 39. In 
 igoy: address at closing session, 
 43: commissions of inquiry, 289. 
 
 Beernaert, Auguste. InlSgg: 13, 
 ^t, ; armaments, 54-55 ; bullets, 
 183; neutral rights and duties 
 on land, 211; belligerents, 216- 
 217,219; prisoners of war, 224; 
 spies, 238 ; occupation of hostile 
 territory, 243-248, 254; Perma- 
 nent Court, 418. In igoj: 15, 
 33; public opinion, 25, 499; ex- 
 emption of private property, 
 136-137; laws and customs of 
 naval war, 167; bullets, 187- 
 188, 189-190; belligerents, 222; 
 bombardment on land, 237; 
 occupation of hostile territory, 
 260; Court of Arbitral Justice, 
 418-419. 
 
 Behring Fisheries, 398, 405. 
 
 Beldiman, M. In l8gg: arma- 
 
 5°5
 
 506 
 
 THE TWO HAGUE CONFERENCES 
 
 ments, 67 ; Geneva Convention, 
 191 ; commissions of inquiry, 
 280, 283-284; obligatory arbi- 
 tration, 302, 304, 306, 331, 339. 
 In igoy : commissions of in- 
 quiry, 290, 295-297; Court of 
 Arbitral Justice, 426. 
 Belgium, 79-80, 103, 138, 139, 
 144, 162, 175, 234, 265, 323, 325, 
 
 334, 33 8 , 339, 345, 348, 370, 384, 
 408.. 422, 425, 444, 447. See 
 also Beernaert, Descamps, Heu- 
 vel. 
 
 Berlin, Act of, 1885, 268; Labor 
 Conference, 377. 
 
 Bieberstein, Baron Marschall von 
 (1907), 15; submarine mines, 
 99-100; exemption of private 
 property, 135; neutral rights 
 and duties on land, 207, 209; 
 opening of hostilities, 263; com- 
 missions of inquiry, 290 ; obliga- 
 tory arbitration, 312-314, 333- 
 
 335, 337-342, 346, 455-45 6 ; 
 arbitral procedure, 408; Court 
 of Arbitral Justice, 411-412, 
 417; International Prize Court, 
 427, 428-429, 429-430, 441. 
 
 Bildt, Baron de (1899), arma- 
 ments, 63-64; obligatory arbi- 
 tration, 303; Permanent Court, 
 
 381, 384- 
 
 Bille, M. de (1899), rams, 92; oc- 
 cupation of hostile territory, 255. 
 
 Bismarck, Prince, 52, 53. 
 
 Blaine, James G., 356. 
 
 Bolivia, 49, 138, 363. 
 
 Bonfils, 356. 
 
 Borel, Colonel (1907), occupation 
 of hostile territory, 257; Inter- 
 national Prize Court, 431. 
 
 Bourgeois, Leon. In iSgg: 13, 
 33; armaments, 62, 64—65, 66; 
 occupation of hostile territory, 
 251 ; good offices and mediation, 
 268; commissions of inquiry, 
 280, 283 ; obligatory arbitration, 
 305,308-310; Permanent Court 
 of Arbitration, 372-373, 380. 
 In igoj : 15, 33; armaments, 
 
 74 ; commissions of inquiry, 
 292 ; obligatory arbitration, 311— 
 3 I2 > 339, 343-344, 347; Court 
 of Arbitral Justice, 420-421. 
 
 Brandstrom, Captain (1899), ar- 
 maments, 62. 
 
 Brazil, 11, 95, 105, 134, i35- I 3 6 » 
 138. 139, I 5 I , 159. l62 > 26 3, 3 I 9, 
 334, 37°. 4o8, 419, 425, 447, 459- 
 460. See also Barbosa. 
 
 Brewer, Justice, 391. 
 
 British Delegation in 1899, war- 
 fare in the air, 79 ; asphyxiating 
 gases, 87, 89, 90, 464; torpedo 
 boats, 91; rams, 92; naval 
 bombardment, 100; Red Cross 
 refugees, 123, 124; exemption 
 of private property, 127, 129, 
 133; muskets, 179; bullets, 182, 
 184, 185, 187, 464, 468 [Geneva 
 Convention, 1906, 198, 199]; 
 belligerents, 219-220; obliga- 
 tory arbitration, 330; forcible 
 collection of debts, 349, 350; 
 Permanent Court, 385. See 
 also Ardagh, Fisher, Paunce- 
 fote. 
 
 British Delegation in 1907, arma- 
 ments, 49, 70-75 ; programme, 
 49, 50-51; warfare in the air, 
 80; submarine mines, 94, 96, 
 98-99, 481-482 ; naval bom- 
 bardment, 102 ; merchant ships 
 transformed into cruisers. 105, 
 107 ; hospital ships, 118 ; exemp- 
 tion of private property, 135, 
 138, 139 ; delay of favor to mer- 
 chant ships, 141, 142, 143; cap- 
 tured merchant crews, 144; bel- 
 ligerents in neutral waters, 152- 
 157; blockade, 159, 459; con- 
 traband, 160-162, 459-460; 
 neutral prizes, 163; bullets 187, 
 188; asphyxiating gases, 188; 
 neutral rights and duties on 
 land, 204, 209 ; prisoners of war, 
 230; occupation of hostile terri- 
 tory, 259, 261 ; special media- 
 tion, 277; commissions of in- 
 quiry, 288, 292, 296; obligatory
 
 INDEX 
 
 507 
 
 arbitration, 331, 334, 345; forci- 
 ble collection of debts, 350, 351, 
 370; arbitral procedure, 404; 
 Court of Arbitral Justice, 421; 
 International Prize Court, 42, 
 427, 438, 442. See also Crowe, 
 Fry, Howard, Ottley, Reay, 
 Sat w. 
 
 Broglie, Due de, 496. 
 
 Brussels, Conference and Declara- 
 tion of, 1874, 213-218, 225- 
 228, 233, 238-242, 244-247, 254- 
 255. 467. 
 
 Bryce, Dr. James, 341. 
 
 Bulgaria, 11, 14, 93, 138, 172, 174, 
 175, 259, 282 345, 368, 419, 420. 
 See also Standoff. 
 
 Btilow, Count and Chancellor von, 
 
 5°, 7 r > 387- 
 Bustamente, M. (1907), Inter- 
 national Prize Court, 431. 
 
 Caesar, Julius, 499. 
 
 California Pious Funds, 405. 
 
 Candamo, M. (1907), obligatory 
 arbitration, 320-321,323; for- 
 cible collection of debts, 359- 
 360. 
 
 Carnegie, Andrew, 19, 41,411, 412, 
 500. 
 
 Castro, M. (1907), obligatory ar- 
 bitration, 317, 318; forcible col- 
 lection of debts, 359. 
 
 Chili, 74, 80, 97, 103, 138, 162, 222, 
 311, 322, 323, 325, 425, 445, 447, 
 450, 457, 458. See also Gana, 
 Matte. 
 
 China, 80, 94, 102, 108, 138, 143, 
 
 175, 26 4, 339, 403, 425, 464- 
 
 See also Foster. 
 Chino-Japanese War, 120. 
 Choate, Joseph H. (1907), 15; 
 
 exemption of private property, 
 
 134-135. I37- 1 3 8 > M0-141, 45 8 ; 
 exemption of certain ships, 145 ; 
 mediation, 275; obligatory ar- 
 bitration, 3i4-3 T 7> 3 22 -3 2 3, 339, 
 341-342, 346, 348, 455; arbitral 
 procedure, 408; Court of Arbi- . 
 tral Justice, 412-415, 418, 423, 
 
 424, 426, 495 ; International 
 Prize Court, 430-437, 496. 
 
 Coanda, Colonel (1899), arma- 
 ments, 62. 
 
 Cobden, Richard, 134. 
 
 Collins, Lord Justice, 391. 
 
 Columbia, 80, 108, 138, 360, 363, 
 370. See also Perez Triana. 
 
 Conference of 1899, forerunners, 
 1 ; origin, 1-3 ; place of meeting, 
 6-8; members, 10-13; leaders, 
 13; festivities and ceremonies, 
 17-18; publicity and public 
 opinion, 21-24; organization, 
 28; commissions and sub-com- 
 missions, 28-30; method of 
 work, 29-30; officers, 30-31; 
 meetings, 35-40 ; programme, 
 45-47; results, 449-456, 463- 
 476, 496-500; armaments, 35, 
 46, 52-69, 449-450; warfare in 
 the air, 76-79, 465 ; warfare on 
 the sea : 465-466 ; new arms and 
 methods, 83-85 ; marine can- 
 non, 85-86, 451 ; explosives and 
 asphyxiating gases, 87-90, 466; 
 torpedo boats and rams, 91-92, 
 451; bombardment, 100, 234, 
 452-453; Geneva Convention, 
 109-124, 466-467 (hospital ships, 
 109-116; Red Cross officials 
 and refugees, 118-124); ex- 
 emption of private property, 
 126-133, 451-452; neutral 
 rights and duties, 146-147, 452; 
 laws and customs, 166, 452- 
 453; warfare on land : 467; new 
 arms and methods, 169-170, 
 453 (explosives, 1 70-1 71, 453 J 
 field guns, 1 71-172, 453; mus- 
 kets, 1 72-181, 453; bullets, 181- 
 187, 468) ; Geneva Convention, 
 190-193, [Revision of 1906, 193- 
 199 J, 468-469 ; neutral rights 
 and duties, 199-201, 453 ; laws 
 and customs, 35, 213-215 (bel- 
 ligerents, 215-220, 469; prison- 
 ers of war, 222-228, 469; means 
 of injuring the enemy, 232-234, 
 469; bombardment, 234, 469-
 
 5 o8 
 
 THE TWO HAGUE CONFERENCES 
 
 470; spies, 238-239, 470; 
 of truce, 239-240, 470; armis- 
 tice, 241-242, 470; capitula- 
 tions, 242-243, 470; occupation 
 of hostile territory, 243-256, 
 470); arbitration: 36, 46, 454— 
 456, 470-476; good offices and 
 mediation, 267-275, 472-473; 
 commissions of inquiry, 277- 
 288, 474; obligatory, 297-311, 
 454-456; specific cases, 326- 
 331 ; forcible collection of debts, 
 349-350, 456; Permanent Court, 
 
 23. *99, 3°4-3 o6 > 33°, 33 x ..3 6 9. 
 370-387, 474-476; International 
 Bureau, 379-381, 385-386; Per- 
 manent Administrative Council, 
 381-382; arbitral procedure, 
 390-402. 
 Conference of 1907, origin, 3-5; 
 place of meeting, 8-9 ; members, 
 13-16; leaders, 15-16; festivi- 
 ties and ceremonies, 18-20; 
 publicity and public opinion, 
 24-27; organization, 31-32; 
 commissions and sub-commis- 
 sions, 32-33; method of work, 
 33; officers, 33-34; meetings, 
 40-44; programme, 47-51; re- 
 sults, 449, 456-464, 477-503; 
 Third Peace Conference, 500— 
 503; armaments, 42, 49, 69-75, 
 315, 456-457; warfare in the 
 air, 79-82, 236-237, 478; war- 
 fare on the sea: 479-480; new 
 arms and methods, 93 ; sub- 
 marine mines, 93-100, 480-482 ; 
 bombardment, 100-104, 482- 
 483; merchant ships trans- 
 formed into cruisers, 104-108, 
 483-484 ; Geneva Convention, 
 116-118, 124-126 (hospital 
 ships, 116-118; Red Cross offi- 
 cials and refugees, 124-126); 
 exemption of private property, 
 133-141, 458-459; delay of 
 favor to merchant ships, 141- 
 144, 484; captured merchant 
 crews, 144, 485; exemption of 
 certain ships, 144-146, 485 ; ex- 
 
 emption of mail, 146, 485 ; neu- 
 tral rights and duties, 148-166, 
 459-460,485-487 (belligerents in 
 neutral waters, 149-157, 485- 
 487; blockade, 157-159, 459; 
 contraband, 160-163, 459-460; 
 destruction of neutral prizes, 
 163-166, 460) ; laws and customs, 
 166-168, 460—461 ; warfare on 
 land : 487 ; bullets, 187-190, 468; 
 neutral rights and duties, 201— 
 213, 487-488; laws and customs 
 (belligerents, 220-222, 489 ; pris- 
 oners of war, 228-232, 489; 
 means of injuring the enemy, 
 235-236, 489; bombardment, 
 236-237, 489 ; capitulations, 243 ; 
 occupation of hostile territory, 
 256-262, 489-490; opening of 
 hostilities, 262-266, 488-489) ; 
 arbitration: 43, 490-491; good 
 offices and mediation, 275-277; 
 commissions of inquiry, 288- 
 297, 461; obligatory, 311-326, 
 369, 461-463; specific cases, 
 331-348; forcible collection of 
 debts, 350-370, 456, 491-492; 
 Permanent Court, 387-390; ar- 
 bitral procedure, 402-409, 492- 
 493; Court of Arbitral Justice, 
 410-426, 493-495, 496; Inter- 
 national Prize Court, 427-448, 
 480, 495-496. 
 
 Corea, 14, 27, 199. 
 
 Costa Rica, 14. 
 
 Crimean War, 139. 
 
 Crowe, Mr. (1907), arbitral pro- 
 cedure, 406; International Prize 
 Court, 442-443, 445. 
 
 Crozier, Captain W. (1899), arma- 
 ments, 62, 67-68; warfare in 
 the air, 77-79, 82, 465 ; exemp- 
 tion of private property, 166, 
 233; explosives, 170, 180; bul- 
 lets, 185-186, 190; belligerents, 
 220; occupation of hostile terri- 
 tory, 247. 
 
 Cuba, 138, 222, 230, 232, 237 
 263-264, 266. See also Busta- 
 mente.
 
 INDEX 
 
 509 
 
 Davis, General G. B. (1007), bul- 
 lets, 187, 189; neutral rights 
 and duties on land, 207-208; 
 opening of hostilities, 265. 
 
 "Deerhound," The, 123. 
 
 De Floecker, 356. 
 
 Denmark, 49, 87, 91, 93, 138, 171, 
 175. 2 55> 261, 3 11 , 3*9, 339. 422, 
 425, 447. See also Bilk. 
 
 Descamps, Chevalier (1899), 13; 
 occupation of hostile territory, 
 248-249, 251; good offices and 
 mediation, 267 ; special me- 
 diation, 274; commissions of 
 inquiry, 282; obligatory arbi- 
 tration, 300-301, 303, 328; 
 Permanent Court, 37i-375> 
 
 37 6 > 47 6 - 
 
 Despagnet, 356. 
 
 D'Estournelles de Constant. In 
 l8gg: 13; address at closing 
 session, 39 ; warfare in the air, 
 76; commissions of inquiry, 
 279-280, 287 ; obligatory arbi- 
 tration, 305, 306; Permanent 
 Court, 372, 471. In igoy: 15; 
 Peace Palace resolution, 20, 43; 
 obligatory arbitration, 322, 325, 
 342 ; Court of Arbitral Justice, 
 412. 
 
 Dogger Bank (Hull Fishermen), 
 292, 296-297, 474, 492. 
 
 D'Oliviera, M. (1907), obligatory 
 arbitration, 334. 
 
 Dominican Republic, 97, 108, 138, 
 
 263, 3*9, 3 6 3, 3 68 . 3 6 9, 37°, 425, 
 461-462. 
 
 Drago, Dr. Luis M. (1907), 15; 
 belligerents in neutral waters, 
 151 ; obligatory arbitration, 320, 
 333, 339, 340-34I ; forcible col- 
 lection of debts, 357, 358-364. 
 
 Drago Doctrine, 358-367, 370. 
 
 Ecuador, 108, 138, 359, 370. 
 
 Esteva, M. (1907), International 
 Prize Court, 444, 445, 446. 
 
 Eyschen, M. It! i8gg: 13; neutral 
 rights on land, 199-200; com- 
 missions of inquiry, 285. In 
 
 igoy: neutral rights on land, 
 211-212. 
 
 Fish, Hamilton, 356. 
 
 Fisher, Admiral (1899), new arms 
 and methods, 84; explosives, 
 87. 
 
 Foster, John W. (1907), exemp- 
 tion of private property, 137. 
 
 France, 71, 74, 78, 80, 82, 87, 91, 
 93, 97, 102, 107, 112, 116, 119., 
 124, 126, 127, 129, 135, 138, 139, 
 142. 161, 162, 171, 174, 175, 179, 
 201, 237, 263-265, 288, 292, 295, 
 
 29 6 » 334, 345, 349, 3 6 9, 37°, 408, 
 411, 438, 442, 460. See also 
 Amourel, Bourgeois, D'Estour- 
 nelles, Fromageot, Mounter, Pe- 
 phau, Renault. 
 
 Francis I, 178. 
 
 Frederick II, 411. 
 
 Fromageot, M. (1907), Perma- 
 nent Court, 388; arbitral pro- 
 cedure, 405. 
 
 Fry, Sir Edward (1907), 15; ad- 
 dress at closing session, 44; 
 armaments, 71-75; asphyxiat- 
 ing gases, 90; commissions of 
 inquiry, 289-290, 292, 294; 
 obligatory arbitration, 314, 323, 
 
 334, 339, 342-343, 346, 348; 
 forcible collection of debts, 367 ; 
 arbitral procedure, 405, 406, 
 409; Court of Arbitral Justice, 
 417, 420, 424; International 
 Prize Court, 427, 429, 430, 432- 
 
 433, 437, 44i, 443, 480. 
 Fusinato, Professor (1907), com- 
 missions of inquiry, 292. 
 
 Gana, M. (1907), obligatory arbi- 
 tration, 321-322. 
 
 Germany, 176, 342, 377, 417. 
 
 German Delegation in 1899, pub- 
 licity, 22; public opinion, 23- 
 24; marine cannon, 86; tor- 
 pedo boats, 91; rams, 93; Red 
 Cross refugees, 123, 124; mus- 
 kets, 179; bullets, 182; Geneva 
 Convention, 191; belligerents,
 
 5«> 
 
 THE TWO HAGUE CONFERENCES 
 
 220; obligatory arbitration, 307 ; 
 forcible collection of debts, 349, 
 350; Permanent Court, 23, 199, 
 33o, 33 1 , 374, 3&3, 386-387, 455- 
 See also Miinster, Schwarzhoff, 
 Siegel, Zorti. 
 
 German Delegation in 1907, pro- 
 gramme, 50; armaments, 71; 
 warfare in the air, 80, 82 ; sub- 
 marine mines, 96, 97, 99-100, 
 481-482 ; naval bombardment, 
 102 ; merchant ships trans- 
 formed into cruisers, 106, 107; 
 hospital ships, 116; exemption 
 of private property, 138; delay 
 of favor to merchant ships, 141, 
 142, 143; exemption of mail, 
 146; belligerents in neutral ports, 
 ^S 2 - l 55l blockade, 135, 159; 
 contraband, 135, 161, 162, 460; 
 neutral prizes, 165; neutral 
 rights and duties on land, 203, 
 207, 208, 209; belligerents, 220- 
 221; prisoners of war, 230; 
 means of injuring the enemy, 
 235-236; occupation of hostile 
 territory, 256, 259 ; opening of 
 hostilities, 264, 265; special 
 mediation, 277; obligatory ar- 
 bitration, 312-313, 323, 325, 334, 
 335, 33 8 , 345, 463; forcible col- 
 lection of debts, 369, 370; Per- 
 manent Court, 389 ; arbitral 
 procedure, 403-405, 408; Court 
 of Arbitral Justice, 421; Inter- 
 national Prize Court, 40, 427, 
 438, 442, 445. See also Bieber- 
 stein, Giindell, Kriege, Siegel. 
 
 Gieslingen, Baron von (1907), oc- 
 cupation of hostile territory, 257, 
 
 259- 
 Gilinsky, Colonel (1899), arma- 
 ments, 56-60, 62 ; warfare in the 
 air, 77, 79 ; new arms and meth- 
 ods, 169; explosives, 170, 171; 
 field guns, 171, 172; muskets, 
 172-173, 180; bullets, 182; 
 prisoners of war, 226; spies, 
 238-239; occupation of hostile 
 territory, 246, 247, 248. 
 
 Gortschakof, Prince, 135. 
 Greco-Turkish War, 120. 
 Greece, 49, 80, 93, 138, 159, 175, 
 237, 280, 282, 283, 284, 290, 296, 
 
 3 2 3, 325, 334, 33%, 339, 345, 3 6 3, 
 
 422, 425, 447. 
 Grotius, Hugo, 18, 476, 500. 
 Guatemala, 108, 138, 359, 360, 370, 
 
 425- 
 
 Guiana Arbitration, 392. 
 
 Giindell, General von (1907), neu- 
 tral rights and duties on land, 
 212; belligerents, 221. 
 
 Haarlem, 17. 
 
 Hagerup, Francis (1907), 16, 34; 
 International Prize Court, 431, 
 
 434, J35, 442, 444-445- 
 Hague, The, 6-9, 17, 19, 101, 380, 
 
 3 8 J, 3 8 5> 394, 4I7- 
 
 Haiti, 103, 138, 210, 276, 288-289, 
 348, 3 68 , 3 6 9, 419, 420, 425. 
 
 Hale, Chandler (1907), 495. 
 
 Hall of the Knights (Ridderzaal), 
 8-9. 
 
 Hamilton, Alexander, 356, 359. 
 
 Hammarskjold, M. (1907), Inter- 
 national Prize Court, 430,. 443. 
 
 Hav, Secretary, 5, 8, 133, 464, 476. 
 
 Heffter, A. W., 356. 
 
 Henry IV, 495. 
 
 Heuvel, M. van den (1907), naval 
 bombardment, 103. 
 
 Hill, David J. (1907), Fourth of 
 July Reception, 18; obligatory 
 arbitration, 326. 
 
 Hjulhammar, Captain (1899), 
 rams, 92. 
 
 Hohenlohe, Chancellor von, 23, 387. 
 
 Holls, F. W. (1899), 13; special 
 mediation, 272-274. 276; com- 
 missions of inquiry, 277, 2S6; 
 obligatory arbitration, 308, 310, 
 329 ; Permanent Court, 372, 
 376-37 8 ,379,38o,384,387,388; 
 arbitral procedure, 394, 395, 
 399, 4oo, 401, 403. 
 
 Honduras, 14. 
 
 House in the Woods (Huis ten 
 Bosch), 7-8, 36, 39.
 
 INDEX 
 
 511 
 
 Howard, Sir Henry (1907), Inter- 
 national Prize Court, 435, 437, 
 
 43 8 , 439- 
 Hull Fishermen (Dogger Bank), 
 292, 296-297, 474, 492. 
 
 Institute of International Law, 
 
 200. 
 
 International Peace Bureau, 457. 
 
 International Peace Congresses, 
 
 1, 457. 
 
 Interparliamentary Union, 4, 27, 
 71, 331, 500. 
 
 Italy, 43, 71, 80, 86, 91, 92, 94, 106, 
 132, 134, 13S, 145-146, i53> I S 6 , 
 158, 159, 179, 191, 229, 234, 237, 
 264, 277, 288, 311, 319, 330, 334, 
 407, 408, 438, 451-452. See 
 also Fusinato, Nigra, Tornielli, 
 Zuccari. 
 
 Japan, 49, 71, 80, 81, 86, 91, 92, 
 95, 96, 102, 105, 107, 119, 120, 
 121, 138, 141, 152, 153, 155, 159, 
 162, 164, 179, 191, 199, 203, 204, 
 228-232, 259, 264, 325, 326, 345, 
 348, 368, 438, 447, 460, 473. 
 See also Sakomoto, Tsudzuki. 
 
 Jomini, Baron, 177. 
 
 Journalists. In iSgg, 21-23. ? n 
 IQOJ, 25-26. 
 
 Karnebeek, A. P. C. van (1899), 
 13; armaments, 60-61, 67; as- 
 phyxiating gases, 89 ; muskets, 
 180; occupation of hostile ter- 
 ritory, 249-250. Peace Palace 
 address, 1907, 19-20. 
 
 Karnebeek, H. A. van (1907), laws 
 and customs of naval war, 167- 
 168. 
 
 Khuepach, Lieut. Col. von (1899), 
 armaments, 62; muskets, 173; 
 prisoners of war, 227. 
 
 Kriege, Dr. (1907), obligatory ar- 
 bitration, 335-336, 337; Per- 
 manent Court, 387-388; arbi- 
 tral procedure, 403, 405, 406; 
 International Prize Court, 427, 
 431-433, 435, 437, 43 8 - 
 
 Kiinzli, Colonel (1899), bullets, 
 
 181, 182; belligerents, 218. 
 Kuropatkin, General, 2. 
 
 La Barra, M. (1907), forcible col- 
 lection of debts, 359 ; Court of 
 Arbitral Justice, 417. 
 
 Lammasch, Professor. In i8gg: 
 prisoners of war, 226; occupa- 
 tion of hostile territory, 251; 
 commissions of inquiry, 277; 
 obligatory arbitration, 303 ; 
 Permanent Court, 372, 376, 38^. 
 In igoy : Permanent Court, 389; 
 arbitral procedure, 404 ; Inter- 
 national Prize Court, 445. 
 
 "La Perouse," 145. 
 
 Larreta, M. (1907), International 
 Prize Court, 446. 
 
 Lieber, Professor, 215. 
 
 Lincoln, President, 214, 377, 401. 
 
 Liszt, F. von, 356. 
 
 Loeff, M. (1907), arbitral proced- 
 ure, 406. 
 
 London, Treaty of, 200. 
 
 Low, Seth (1899), Hugo Grotius 
 address, 18; arbitral procedure, 
 
 395- 
 Luxemburg, 10, 97, 138, 175, 
 187, 200, 325, 345, 384. See 
 also Eyschen. 
 
 Macedo, Count (1899), arbitra- 
 tion, 379. 
 
 Mahan, Captain A. T. (1899), 
 armaments, 68; new naval 
 arms and methods, 85; marine 
 cannon, 85, 86; asphyxiating 
 gases, 88-90; torpedo boats, 
 91; rams, 92; hospital ships, 
 112-113, 114, 115, 117; Red 
 Cross officials, 119; Red Cross 
 refugees, 123-124; bullets, 186; 
 Geneva Convention, 192. 
 
 Marshall, Chief Justice, 434. 
 
 Martens, Professor Fedor de. 
 In iSgg: 13, 34; exemption 
 of private property, 127-128; 
 Geneva Convention, 191, 199; 
 neutrals on land, 200; laws
 
 5i2 
 
 THE TWO HAGUE CONFERENCES 
 
 and customs of warfare on 
 land, 214-215, 470; belliger- 
 ents, 217-219; occupation of 
 hostile territory, 244-245 ; spe- 
 cial mediation, 275; commis- 
 sions of inquiry, 277-278, 282- 
 283, 287 ; obligatory arbitra- 
 tion, 305 ; forcible collection of 
 debts, 349, 350; Permanent 
 Court, 199, 372, 375, 379, 385- 
 386, 416; arbitral procedure, 
 391,394,398,400,401. Inigoy: 
 16, 34, 479-480, 499-500; ori- 
 gin of conference, 50; exemp- 
 tion of private property, 135, 
 139; delay of favor, 141; ex- 
 emption of certain ships, 144; 
 neutrals on the sea, 148; block- 
 ade, 157-158; contraband, 160; 
 neutral prizes, 163; laws and 
 customs of naval war, 167; 
 special mediation, 276-277; 
 commissions of inquiry, 289- 
 292, 296-297; obligatory arbi- 
 tration, 320, 323, 328, 330, 339; 
 forcible collection of debts, 
 356-357 ; Permanent Court, 
 389-390 ; arbitral procedure, 
 404, 407 ; Court of Arbitral 
 Justice, 416-417, 418; Inter- 
 national Prize Court, 437, 439. 
 
 Matte, M. (1907), forcible col- 
 lection of debts, 362. 
 
 Merey, M. de (1907), obligatory 
 arbitration, 314, 324, 325, 337- 
 339, 343-346; International 
 Prize Court, 439. 
 
 Merignac, 356. 
 
 Mexico, 80, 97, 106, 108, 138, 
 175, 222, 334, 359, 4i8, 419, 
 425, 464. See also Esteva, 
 La Barra, Zenil. 
 
 Mexico, Treaty of, 362. 
 
 Michelson, Colonel (1907), belliger- 
 ents, 222 ; opening of hostilities, 
 263, 264. 
 
 Mill, John Stuart, 135. 
 
 Milovanovitch, M. (1907), obliga- 
 tory arbitration, 317, 318; forci- 
 ble collection of debts, 362, 367. 
 
 Mirza Riza Khan (1899), occu- 
 pation of hostile territory, 253- 
 
 254- 
 Monaco, 11. 
 
 Monroe Doctrine, 311, 362, 491. 
 Montenegro, 10, 11, 14, 80, 97, 
 
 i3 8 , J 43, 162, 175, 222, 259, 
 
 3 2 5, 345, 447- 
 
 Mortera, Count (1907), Inter- 
 national Prize Court, 444. 
 
 Mounier, General (1899), arma- 
 ments, 62 ; warfare in the air, 
 77; bullets, 182; spies, 239; 
 flags of truce, 240. 
 
 Mouravieff, Count, 2, 3, 6, 45, 
 
 53-54, 3*5- 
 Minister, Count (1899), 13; ad- 
 dress at closing session, 39 ; 
 Permanent Court, 387 ; public 
 opinion, 499. 
 
 Napoleon I, 1, 499. 
 
 National Educational Association, 
 v. 
 
 Nelidow, M. (1907), 16; Peace 
 Palace address, 20; president 
 of the conference, 7,7,, 41 ; address 
 at opening session, 41-42; ad- 
 dress at closing session, 43 ; 
 programme, 51; armaments, 
 70, 74-75 ; exemption of private 
 property, 134; obligatory arbi- 
 tration, 346, 347, 348; Court of 
 Arbitral Justice, 425, 426; In- 
 ternational Prize Court, 441- 
 442 ; warfare on the sea, 479- 
 480. 
 
 Nesselrode, Count, 130, 135. 
 
 Netherlands, 6, 7, 8, 11, 17-19, 
 34, 37, 39, 49, 86, 91, 92, 95, 
 i3 6 , x 3 8 , 142. 159, J 74, 175, l86 > 
 220, 243, 256, 264, 282-283, 
 288-290, 311, 319, 334, 37 1 , 
 408, 438, 501. See also Asser, 
 Beaufort, Kaniebeek, Loeff, Poor- 
 tugael, Rahusen, Tets. 
 
 New York Peace Congress, 412, 
 
 4i5- 
 New York State Bar Association, 
 
 141, 458.
 
 INDEX 
 
 513 
 
 Nicaragua, 97, 108, 138, 143, 359, 
 360, 363, 370. 
 
 Nigra, Count (1899), 13; exemp- 
 tion of private property, 132; 
 naval bombardment, 166; flags 
 of truce, 240; good offices and 
 mediation, 268-270; commis- 
 sions of inquiry, 284; obliga- 
 tory arbitration, 303, 309, 328; 
 Permanent Court of Arbitra- 
 tion, 372, 375, 386. 
 
 Norway, 14, 135, 138, 162, 334, 
 368, 425, 438, 445, 447. See 
 also Hagerup. 
 
 Nys, 356. 
 
 Odier, M. (1899), Geneva Con- 
 vention, 1907, 192; commis- 
 sions of inquiry, 288 ; obligatory 
 arbitration, 307-308 ; Perma- 
 nent Court, 372, 375-376. 
 
 Ottley, Captain C. L. (1907), 15; 
 submarine mines, 94; naval 
 bombardment, 101-102, 103; 
 delay of favor to merchant ships, 
 141. 
 
 Palmerston, Lord, 134, 356. 
 Panama, 97, 138, 162, 230, 420. 
 Pan-American Conferences, 5, 
 
 3i6-3i7» 3*9- 
 
 Papiniu, M. (1899), arbitral pro- 
 cedure, 393. 
 
 Paraguay, 97, 108, 138, 143, 359, 
 
 3 6 °, 3 6 3, 37o- 
 
 Paris, Declaration of, 1856, 105, 
 108, 133, 157-158, 430, 432, 
 466, 479, 483. 
 
 Paris, Treaty of, 1856, 268. 
 
 Pauncefote, Sir Julian (1899), 
 13; exemption of private prop- 
 erty, 128, 133; Geneva Con- 
 vention, 191 ; occupation of 
 hostile territory, 255; good 
 offices and mediation, 268 
 commissions of inquiry, 284 
 forcible collection of debts, 349 
 Permanent Court, 371-373, 379, 
 382, 385, 386, 387. 
 
 Peace Palace, 19-20, 41, 43. 
 
 Penn, William, 417, 495. 
 
 Pephau, Admiral (1899), new 
 arms and methods, 83; marine 
 cannon, 86; explosives, 87. 
 
 Perez Triana, M. (1907), address 
 at closing session, 44; exemp- 
 tion of private property, 136; 
 forcible collection of debts, 
 364-366. 
 
 Persia, 80, 92, 108, 115, 116, 118, 
 138, 174, 175, 339, 368, 408, 
 420, 425, 439, 447. See also 
 Mirza, Samad. 
 
 Peru, 80, 138, 320, 322, 324, 325, 
 359, 360, 370. See also Can- 
 damo. 
 
 Poortugael, General den Beer. In 
 i8qq: armaments, 55-56, 61; 
 warfare in the air, 77; new 
 arms and methods, 84 ; naval 
 bombardment, 234; muskets, 
 175-179; bullets, 181. Inigoy: 
 16; naval bombardment, 101 ; 
 exemption of mail, 146; occu- 
 pation of hostile territory, 256- 
 257, 259-260; opening of hos- 
 tilities, 263-264; International 
 Prize Court, 434. 
 
 Porter, General Horace (1907), 
 15; merchant ships transformed 
 into cruisers, 108; delay of 
 favor to merchant ships, 143; 
 blockade, 158-159; opening 
 of hostilities, 266; forcible 
 collection of debts, 352-370; 
 International Prize Court, 427. 
 
 Porter Proposition, 351-352, 358- 
 370, 491-492. 
 
 Portsmouth, N.H., Peace of, 5, 
 
 473- 
 Portugal, 80, 87, 93, 135, 138, 
 
 144-145. I 53. I02 . !79, 185, 
 187, 188, 259, 319, 334, 369, 
 419, 444, 462, 468. See also 
 D'Oliveira, Macedo, Sovcral, 
 Vasconcellos. 
 
 Programme, 45-51. 
 
 Publicity, 21-26. 
 
 Public Opinion, 23-27, 464, 498- 
 499.
 
 5i4 
 
 THE TWO HAGUE CONFERENCES 
 
 RafTalovich, M. (1899), bullets, 
 183. 
 
 Rahusen, M. (1899), exemption 
 of private property, 129. 
 
 Reay, Lord (1907), warfare in 
 the air, 80; merchant ships 
 transformed into cruisers, 105; 
 contraband, 1 60-1 61, 162; as- 
 phyxiating gases, 188; neutral 
 rights and duties on land, 204, 
 207, 209 ; occupation of hostile 
 territory, 261. 
 
 Renault, Professor Louis. In 
 i8qq: hospital ships, 112; Per- 
 manent Court, 386. In igoj: 
 15; warfare in the air, 82, 237; 
 hospital ships, 117; exemption 
 of private property, 135; oblig- 
 atory arbitration, 339, 341, 
 344; arbitral procedure, 408; 
 International Prize Court, 427. 
 
 Rivier, A., 356. 
 
 Rolin, M. (1899) [and 1907], ex- 
 plosives, 87 ; prisoners of war, 
 227; armistice, 241; capitula- 
 tions, 242-243. 
 
 Roman Papacy, 11, 39. 
 
 Roosevelt, President, 5, 8, 13, 40- 
 4i, 133, 35 6 , 412, 417. 473. 494- 
 
 Root, Secretary, 415, 457, 472, 
 500-501, 502-503. 
 
 Rotterdam, 19. 
 
 Roumania, 80, 86, 92, 138, 162, 
 171, 174, 175, 176, 182, 230, 
 259, 280, 283, 284, 295, 296, 
 3° 2 . 3°3, 3 2 5, 345. 348, 369, 
 370, 408, 419, 422, 425, 444, 447- 
 See also Beldiman, Coanda, 
 Papiniu, Sturdza. 
 
 Russia, 2, 3, 5, ^3, 3 6 > 3 8 , 45. 47. 
 5°, 55, 69-70, 71, 76, 80, 86, 
 87, 91, 93, 97, 106, 112, 118, 
 124, 127, 129, 133, 134, 135, 
 138, 141, 142, 143, 152-155, 
 162, 164, 171-176, 179, 186, 
 205, 220, 235, 237, 259, 260, 
 261, 264, 277, 286, 288-291, 
 293, 297-300, 326-328, 330, 
 33 1 . 334, 345. 349, 35°, 37°. 
 404, 410, 420, 439, 447, 45 6 > 
 
 473, 474, 501. See also Gi~ 
 Husky, Martens, Michelson, Neli- 
 dow, Rajfalovich, Scheine, Staal, 
 Yermolow. 
 Russo-Japanese War, 4, 5, 93, 94, 
 126, 203, 473, 479. 
 
 Saenz Pefia, M. (1907), address 
 at closing session, 44. 
 
 St. Petersburg, Declaration of, 
 89, 169-170, 185, 453, 468. 
 
 Sakomoto, Captain (1899), new 
 arms and methods, 83. 
 
 Salisbury, Lord, 356, 415. 
 
 Salvador, 108, 138. 
 
 Samad Khan (1907), address at 
 closing session, 44; obligatory 
 arbitration, 317, 318-319. 
 
 San Marino, n. 
 
 Satow, Sir Ernest (1907), sub- 
 marine mines, 98-99 ; blockade, 
 158; neutral prizes, 164-165; 
 laws and customs of naval war, 
 168. 
 
 Scheine, Captain (1899), arma- 
 ments, 56-57, 65-66; new 
 arms and methods, 83, 84; 
 marine cannon, 85 ; explosives 
 and asphyxiating gases, 87; 
 rams, 92; hospital ships, 112; 
 Red Cross refugees, 120; ex- 
 emption of private property, 128; 
 neutral rights and duties, 147. 
 
 Scheveningen, 17. 
 
 Schwarzhoff, Colonel von (1899), 
 armaments, 58-59, 60-62 ; mus- 
 kets, 174, 175, 178, 179, 181; 
 belligerents, 221-222; prisoners 
 of war, 224; spies, 238; flags 
 of truce, 240; armistice, 241, 
 242 ; occupation of hostile 
 territory, 245, 248-251. 
 
 Scott, Sir Charles, 53. 
 
 Scott, Dr. J. B. (1907), commis- 
 sions of inquiry, 294; obliga- 
 tory arbitration, 338, 339, 344; 
 Court of Arbitral Justice, 415- 
 416, 421, 422, 423, 495. 
 
 Servia, 138, 272, 280, 283, 284, 
 290, 296, 308, 310, 332, 334,
 
 INDEX 
 
 515 
 
 339. 3 6 °, 3 6 3, 3 68 , 4iQ, 444, 
 147. See also Milovanovitch, 
 Veljkovitch. 
 
 Siam, 10, 11, 86, gi, 93, 97, 115, 
 116, 121, 138, 175, 282, 33Q, 
 425. See also Rolin. 
 
 Siegel, Captain and Admiral. In 
 iSqq: hospital ships, 114. In 
 IQOJ: submarine mines, 05; 
 hospital ships, 1 1 7. 
 
 Soltyk, Count (1899), asphyxi- 
 ating gases, 87. 
 
 South African Republic, 10, 
 11. 
 
 Soveral, Marquis de (1907), 16; 
 contraband, 162; obligatory 
 arbitration, 317-318, 331, 339. 
 
 Spain, 49, 71, 74, 80, 93, 102, 
 103-104, 108, 137, 138, 153, 
 171, 175, 230, 368, 464. See 
 also Mortera. 
 
 Sperrv, Admiral Charles S. (1007), 
 submarine mines, 95; delay 
 of favor to merchant ships, 
 142; belligerents in neutral 
 ports, 157. 
 
 Staal, Baron de (18)0), 13; presi- 
 dent of the conference, 28; 
 address at opening sessions, 
 36-38 46, 47 ; address at 
 closing session, 39; armaments, 
 55; warfare on land, 169; 
 arbitration, 298; forcible col- 
 lection of debts, 349; Perma- 
 nent Court, 372, 47(1. 
 
 Stancioff, Dr. (1899), armaments, 
 61-62; commissions of inquiry, 
 287-2S8. 
 
 Stead, Win. T., vii. 
 
 Story, Justice, 434. 
 
 Stowell, Lord Justice, 434. 
 
 Sturdza, Captain (1007), occupa- 
 tion of hostile territory, 258. 
 
 Suttner, Baroness von, 24. 
 
 Sweden, 67, 80 86, 01, 03, 135, 
 [38, [62, 171, 175, 176, 237, 
 323, 3 2 5, 332, 334, W, 363, 
 370, 438 See also Bildt, Brand- 
 strum, Hammarskjold, II 'mi- 
 lium mar. 
 
 Switzerland, 109, 138, 162, 175, 
 179, 191-193, 210, 219-220, 
 221, 222, 252, 323, 334, 338, 
 
 33'). 345- 359, 369, 37°- 3' s 4- 
 408, 422, 425, 426, 444, ]d|. 
 See also Borel, Kiinzli, Odirr. 
 
 Tennyson, Alfred, 497. 
 
 Tets van Goudriaan, Jonkheer 
 (1907), address at opening 
 session, 40-41; address at 
 closing session, 44. 
 
 Third Peace Conference, 43, 500- 
 
 5° 3- 
 
 Tocqueville, M. de, 341. 
 
 Tornielli, Count (1907), 16, 34; 
 address at closing session, 44; 
 exemption of certain ships, 
 145; neutral prizes, 165; pris- 
 oners of war, 228; obligatory 
 arbitration, 338, 347; forcible 
 collection of debts, 369. 
 
 Tsudzuki, M. (1907), address at 
 closing session, 44; obligatory 
 arbitration, 324; International 
 Prize Court, 429. 
 
 Turkey, 11, 67, 80, 93, 97, 104, 
 108, 115, 116, 118, 120, 123, 
 138, 159, 162, 171, 179, 203, 
 237> 290, 325, 326, 330, 345. 
 348, 369, 447. See also Turk- 
 litin. 
 
 Turkhan Pacha (1899) [and 
 1907], capitulations, 243. 
 
 United States: Civil War, 133; 
 Congress, 133, 434; Constitu- 
 tion, 350, 361, 404; General 
 Order No. 100, 227, 228, 233, 
 248, 254, 255, 467; Senate, 
 
 329, 335, 337- 33^ 34 1 ■ 3 68 , 
 464, 485, 486, 496; Supreme 
 Court, 433, 434. 
 United States Delegation in 1899, 
 seats, 12; Delft celebration. 
 18; armaments, 68-69; new 
 naval arms and methods, 84- 
 85; marine cannon, 86; as- 
 phyxiating gases, 88-90; tor- 
 pedo boats, 01 ; rams, 92 ;
 
 5i6 
 
 THE TWO HAGUE CONFERENCES 
 
 Red Cross refugees, 122, 123, 
 124; exemption of private 
 property, 126-132, 451-452; 
 muskets, [79, 180, bullets, 182 
 185, 1S7, 468; Geneva Con- 
 vention, [92; belligerents, 220; 
 obligators- arbitration, 310-31 1, 
 329, 330; forcible collection of 
 debts, 349, 350; Permanent 
 Court, 376, 383; arbitral pro- 
 cedure, 401, 404; signature, 
 463-464. See also Crozier, 
 Halls, Low, Mahan, White. 
 United States Delegation in 1907, 
 seats, 15; honorary offices, 
 34; forcible collection of debts, 
 42, 49, 50; armaments, 49, 
 7 1 - 73-74; programme, 50; 
 warfare in the air, 82; sub- 
 marine mines, 95, 96; naval 
 bombardment, 100-101 ; mer- 
 chant ships transformed into 
 cruisers, 108; exemption of 
 private property, 133-141, 458- 
 450; delay of favor to merchant 
 ships, 143-144, 485; belliger- 
 ents in neutral ports, 157, 486; 
 blockade, 159, 459; contra- 
 band, t6i, 162, 460; neutral 
 prizes, 163-164, 165; bullets, 
 1S8-189; neutral rights and 
 duties on land, 20S ; prisoners 
 of war, 230, 231; occupation 
 of hostile territory, 259; open- 
 ing of hostilities, 264, 266; 
 special mediation, 277; com- 
 missions of inquiry, 293 ; oblig- 
 atory arbitration, 315-317, 326, 
 332,' 334, 336-338- 345,. 348, 
 462-463 ; forcible collection of 
 debts, 352, 354-355; arbitral 
 procedure, 404; Court of Arbi- 
 tral Justice, 410, 421, 425-426, 
 403; International Prize Court, 
 438, 442, 445; signature, 464; 
 Third Peace Conference, 501. 
 See also Choate, Davis, Hill, 
 Porter, Scatt, Spcrry. 
 
 Universal Postal Union, 382. 
 Uruguay, 108, 138, 359, 360, 370, 
 419, 422, 425. See also Castro. 
 
 Vasconcellos, M. (1899), media- 
 tion, 275. 
 
 Yeljkovitch, Professor (1899), oc- 
 cupation of hostile territory, 
 247; good offices and media- 
 tion, 270; commissions of in- 
 quiry, 281-282; obligatory arbi- 
 tration, 306, 331. 
 
 Venezuela, 80, 138, 278, 359, 363, 
 370, 419, 420, 425, 447, 499. 
 
 Venezuela Arbitration, 390, 391, 
 417. 
 
 Walker, T. A., 356. 
 
 Washington, Treaty of, 157. 
 
 Welsersheimb, Count (1899), arbi- 
 tration, 382. 
 
 White, Andrew D. (1899), 13; 
 Hugo Grotius address at Delft, 
 18; asphyxiating gases, go; 
 exemption of private property, 
 127-132, 106, 451-452; bullets, 
 186; Geneva Convention, 192; 
 Permanent Court, 387. 
 
 Wilson and Tucker, 356. 
 
 Witte, M., 2. 
 
 Woolsey, T. D., 356. 
 
 Yermolow, General (1907), occu- 
 pation of hostile territory, 257; 
 opening of hostilities, 263. 
 
 Zenil, M. (1899), capitulations, 
 
 243- 
 
 Zorn, Professor (189c/) [and 1007], 
 13; obligatory arbitration, 307, 
 311, 312, 328, 330; Permanent 
 Court, 372, 374-37 6 , 37 s , 380, 
 382, 386, 387 ; laws and customs 
 of warfare on land, 470. 
 
 Zuccari, General (1899), arma- 
 ments, 62; muskets, 173; ar- 
 mistice, 241-242.
 
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