On September 19, 1910, at The Hague, plenipotentiaries of the following nations: Germany, United States of America, Argentine Republic, Austria-Hungary, Chile, Denmark, Spain, France, Great Britain, Japan, Norway, Netherlands and Sweden, signed an instrument entitled Protocole Additionnel á la Convention XII de la Haye du 18 Octobre, 1907. The protocol is by its own provisions (Art. 8) to be considered as forming an integral part of the Convention creating the International Court of Prize; and the acceptance of the protocole additionnel is likewise made a sine qua non to the acceptance of the original convention.

The protocole additionnel seeks to create a different remedy and a modified procedure par dérogation to Articles 28 (paragraph one), 29 and 45 (paragraph two) of the Prize Court Convention and by eliminating Article 8 of the convention entirely and substituting therefor a method preserving the appearance of an action de novo in the International Court and confining its judgment to the ascertainment of the damages to be allowed an injured claimant. It is the practical embodiment of the voeu adopted by the London Naval Conference in 1909 at the instance of the delegation of the United States (acting under instructions from their government); and is intended to offer a means whereby certain nations named as parties to the protocol may obviate constitutional difficulties in the way of their ratifying the original convention.

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:

We have seen that in private law the Canonists and Romanists made open war on custom, and took sides against it on behalf of the written law — the formal, written word, emanating direct from the will of the supreme authority. Custom has contributed a large number of rules to the law of nations. To the examples already given we may add the formalities of treaties and the necessity of ratification; rules which appear in the thirteenth and fourteenth centuries of our era, and in accordance with which the signature of the plenipotentiaries does not make conventions binding in the absence of their confirmation by the supreme authority. Hand in hand with laws, edicts and decrees, which together form the “consular laws,” custom is still to be found in so far as regards the laws in force in the European and American States, over the territory of different important political communities, such as the Ottoman Empire, various Asiatic Powers, and certain African governmental communities. Is it necessary to recall that almost all of the laws of war are the result of customs recognized during hundreds of years, and upon which intellectual and moral progress has not ceased to exert a beneficent influence?

“Law in general,” says Montesquieu, “is human reason so far as it controls all the people of the earth, and the political and civil laws of each nation can only be considered as individual cases in which this human reason is applied.” Reason was held by the Romans to constitute one of the fundamental elements of law. Cicero announced the existence of “a veritable law, true reason (recta ratio), in conformity with nature, universal, immutable and eternal, the commands of which constitute a call to duty and the prohibitions of which avert evil.”

It is at present unnecessary to consider what influence the Stoic, Academic and Epicurean doctrines had on Roman jurisprudence, and it would be risky to support as absolutely final any view which might be expressed on the subject. During the last phases of the Republic there had already come to exist in the world’s capital a fusion of the different schools of philosophy; and traces of the Platonic teachings constantly appear in the expression of the great orator’s lofty thought.

In his instructions to the American delegation to the Second Hague Conference, Secretary of State Root pointed out as the weakness of the present system of arbitration the prevalence of diplomatic ideals instead of purely judicial ideals in practice and procedure, and stated it as his opinion that the creation of a truly permanent international court composed of professional judges, who should act under a sense of judicial as distinguished from diplomatic responsibility, would increase the confidence of nations in arbitration and render the recourse to this method of settling international disputes much more frequent. Secretary Root’s statement is so important in itself, the reasoning is so clear and unanswerable, the proposal to establish a permanent international court of justice so cleancut and precise, and the details which he specifies so simple and apparently self-evident, that I shall quote and comment briefly upon this passage in the instructions. “There can be no doubt,” he says, “that the principal objection to arbitration rests not upon the unwillingness of nations to submit their controversies to impartial arbitration, but upon an apprehension that the arbitrations to which they submit may not be impartial. It has been a very general practice for arbitrators to act, not as judges deciding questions of fact and law upon the record before them, under a sense of judicial responsibility, but as negotiators effecting settlements of the questions brought before them in accordance with the traditions and usages and subject to all the considerations and influences which affect diplomatic agents. The two methods are radically different, proceed upon different standards of honorable obligation, and frequently lead to widely differing results. It very frequently happens that a nation which would be very willing to submit its differences to an impartial judicial determination is unwilling to subject them to this kind of diplomatic process.”

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.

The treaties of Münster and Osnabrück gave to Europe a sort of international constitution which remained the basis of its public law down to the French Revolution. But it would be a serious error to assume that the international community of states as revealed to the world by the Peace of Westphalia implied the recognition of the science of international law as understood and practiced by the society of nations at the present time. The science of international law as it exists today is a result of slow historical growth and is the product of two main factors, viz., certain theories or principles on the one hand, and international practice or custom on the other. The relative value and influence of the contributions of each of these factors is so difficult to determine that they have never been thoroughly eifted or separated — a task left for the future historians of international law.

The jurisdictional act of 1885 provides

That the provisions of this act shall not extend to such claims as were embraced in the convention between the United States and the French Republic concluded on the 30th day of April, 1800.

The question has sometimes been asked, whether these French spoliation claims were not pressed by our government against France after the conclusion of the treaty of September 30, 1800, which has always been relied upon as surrendering the rights of these claimants to France for a valuable consideration.

We have seen that Napoleon in ratifiying the convention of 1800, did so with the proviso “that by this retrenchment the two states renounce the respective pretensions, which are the object of the said article,” that is, “the indemnities mutually due, or claimed.” The claims here referred to were, on our side, for seizure of our ships and cargoes.

It is common knowledge that the United States was originally settled either by God-fearing men and women fleeing from persecution, or by political refugees who were unable to bring about reforms which they believed essential to good government and were unwilling to comply with the state of affaire existing in the Old World, or, finally, by those who, unfortunate at home, were desirous of bettering their condition in the New World. The Pilgrim and the Puritan, the Episcopalian and the Catholic, the Quaker, the Presbyterian and the Lutheran settled the Atlantic Coast. The roundhead and the cavalier, the rich and the poor and the inmate of the debtor’s prison found themselves side by side upon a plane of equality without the traditions and the conservatism of an older world. Whether the colony was composed of Puritans and manifested intolerance to the protestant brother of a different faith; whether the settlement remained loyal to the Church of England, as Virginia, or favored the Catholic, as Maryland, or freely accepted the law-abiding without questioning his religion, as the Quakers of Pennsylvania, the principle of religious toleration steadily gained ground, and by the time of the Revolution it may be said generally that religious differences ceased to influence men or their conduct toward each other, by virtue of a conception of liberty which embraced not merely the right to and protection of property but the freedom of thought, of speech and of public worship. The example of Virginia, which in 1786 established religious freedom by statute, profoundly influenced the Federal Government and the various States of the Union; for, by the First Amendment to the Constitution of the United States, it is provided that “Congress shall make no law respecting the establishment of a religion, or prohibiting the free exercise thereof,” and the States of the American Union have, in their various Constitutions, placed the same restriction upon their legislatures. The amendment of the Constitution and the like provisions in State Constitutions were not dictated by indifference or hostility to the principles of the Christian religion, but aimed to prevent not merely the establishment of any one form of religion, however widely spread, but to establish upon a firm footing the right before the law of every religious sect.

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: