The principal achievement of the Hague Conference of 1907 was the Convention for an International Prize Court. That convention provided for a real and permanent court composed of judges who were to be appointed by the contracting Powers for terms of six years, were required to be “judges of known proficiency in questions of international maritime law and of the highest moral reputation,” and were to be paid a stated compensation from a fund contributed by all the Powers.

Jurisdiction was conferred upon the court to review on appeal all judgments of national prize courts. By a subsequent agreement, for the purpose of avoiding difficulties presented by the constitutions of some of the signatory Powers, an alternative procedure was authorized under which the new court might pass upon the question involved in the case of prize de novo, and notwithstanding any judgment of the national prize court, instead of passing upon it by way of appeal from that judgment. Article 7 of the convention provides:

It is undoubtedly desirable, in the interest of the arbitration of international controversies, that at the next Hague Conference a form of treaty should be presented which, while covering all differences between states, shall steer clear of the difficulties which in the past have wrecked important treaties of that character. It is a matter in which the United States may be expected to lead, having by precept and example so often distinguished itself as a pioneer in movements tending to do away with war between nations. Facts must be looked in the face, however, and it is apparent that the present position of the United States with reference to this subject is not so advantageous as could be wished. No two countries of the world are so favorably situated for the purposes of an arbitration treaty between them inclusive of all differences as are Great Britain and the United States. Through racial, social, and commercial ties ever knitting them closely together, war between them has become almost unthinkable. Yet two trials for such a comprehensive treaty have failed and the official position of the United States to-day seems to be that there is a class of questions which is necessarily to be excluded from any general arbitration treaty. The class covers controversies described as affecting “the vital interests, the independence, or the honor” of the parties. In the English-American treaty of 1897 such controversies were disposed of by sending them to arbitration but so constituting the arbitral court that an award must have the assent of the representatives of the losing party or of a majority of them. In the treaty of 1911 it was sought to meet the difficulty by a joint commission of inquiry empowered to investigate and decide whether a question was or was not arbitrable and should or should not be arbitrated. But neither plan proved to be acceptable to the United States acting under the treaty-making power vested jointly in the President and Senate.

An English writer in the Nineteenth Century and After, for April last, after naming twelve wars since 1850, great in political effect and, with two exceptions, great also in bloodshed, says:

Referring to the identic general arbitration treaties recently negotiated with Great Britain and France, President Taft remarks, in a recent magazine article: “They have amended the treaty in the Senate and have put in so many exceptions that really it is very doubtful whether the adoption of such a treaty will be a step forward.”

It is the purpose of the present article to consider the Senate amendments to the arbitration treaties with a view to offering some suggestions upon the question which President Taft thus raises, namely, whether or not the exchange of ratifications and putting into effect of the general arbitration treaties with Great Britain and France, as amended by the Senate, will or will not be a step forward toward the goal of peace through justice. As a foundation for an intelligent discussion of this question it seems desirable to emphasize some points with regard to the purpose and fundamental theory of the treaties as originally drawn and the success with which this theory has been embodied in the language of the treaties.

There appears to be one thing about which nearly all the friends of the treaties may be said to have agreed, that is, that the chief value of the treaties, as negotiated, was indirect and general, not immediate and definite as between the contracting parties. They were chiefly valuable, not because these particular treaties would prevent war between the signatory nations, for “war between the United States and England or the United States and France was inconceivable if not impossible.”

The first article on this subject in the April number of The American Journal of International Law (pp. 359–380), dealt with the general principles upon which these claims have been held by the Court of Claims to have been in their origin valid international demands against France, and to have been assumed as obligations of the United States by force of the treaty of September 30, 1800, the ratifications of which were exchanged July 31, 1801.

The present article will be devoted to a review of some of the rules on which the Court of Claims proceeded in the details of its allowances.

One of the earliest mitigations of the horrors of war, particularly in its incidence upon private individuals, was the custom of sparing the inhabitants of a surrendered city in their persons and property, instead of subjecting them to the rapine and pillage which usually followed a capture by storm. Even the Mosaic Code made this exception in the midst of its barbarities, although the doomed cities of Canaan were excluded from the benefits of the exception. Both the general savagery and the one humane departure from it are well exemplified by verses ten to sixteen of the twentieth chapter of Deuteronomy:

1. 10. When thou comest nigh unto a city to fight against it, then proclaim peace unto it.

2. 11. And it shall be, if it make thee answer of peace, and open unto thee,,then it shall be, that all the people that is found therein shall be tributaries unto thee, and they shall serve thee.

3. 12. And if it will make no peace with thee, but will make war against thee, then thou shalt besiege it.

4. 13. And when the Lord thy God hath delivered it into thine hands, thou shalt smite every male thereof with the edge of the sword;

5. 14. But the women, and the little ones, and the cattle, and all that is in the city, even all the spoil thereof, shalt thou take unto thyself; and thou shalt eat the spoil of thine enemies, which the Lord thy God hath given thee.

6. 15. Thus shalt thou do unto all the cities which are very far off from thee, which are not of the cities of these nations.

7. 16. But of the cities of these people, which the Lord thy God doth give thee for an inheritance, thou shalt save alive nothing that breatheth.

From the foregoing explanations, it will be seen that in the Turko-Bulgarian arrangement relative to the question of independence, less care was taken in regulating according to juridical principles the transmission of the attributes of sovereignty than in an effort to reach a financial compromise capable of conciliating opposing interests. We have in particular considered the property of the public domain as a real property for which the emancipated State must refund the accumulated outlay. This is a curious idea for our times, when we have lost the habit of looking at the public power in the light of patrimoniality. But this conception is self-explanatory, if we but remember that we are in the Orient, in Turkish territory where the coining of the attributes of sovereignty has always been the rule, where the principles of the Middle Ages have survived longer than anywhere else. And these conditions are self-explaining if we think of the persisting uncertainty of the nature and the real meaning both of the Treaty of Berlin and of the union of 1885 regarding Bulgaria and Rumeiia. From all these conditions, there issues an impression of indecision and of archaism.

We considered in a former number of the Journal the chief publications of the Department. The President’s annual message to Congress usually contains a statement of our relations with foreign Powers, and this serves as the annual report of the Secretary of State. A regular annual report to the President or Congress is required from the heads of other departments but not from him. When Richard Olney was Secretary, however, he made a report dated December, 1896, entitled “Report of the Secretary of State” for that year. It was intended to be the first annual report, but the example was not followed.

The management of foreign affairs being the most important of the regular duties of the Department, the supervision of the diplomatic and consular service are its chief duties. The general rules which govern the foreign service are found in the works on international law and particularly in the American digests; but two special publications have been issued by the Department of State for the guidance of its agents abroad — the Diplomatic Instructions and the Consular Regulations.