So long as the rule of capture of private property at sea exists unimpaired, states with mercantile marines of any importance will find that one of the problems they have to face in war is to defend their sea-borne commerce, and to attack that of their adversary. On the 26th March, 1913, Mr. Winston Churchill, the First Lord of the British Admiralty, made an important statement in the House of Commons regarding the methods proposed by Great Britain for the protection of trade. As reported in the Times Mr. Churchill’s speech was as follows:

The above is the title of a very instructive article in this Journal for April, 1913, by Dr. Hans Wehberg, who points out and analyzes the special grounds for the different reservations contained in several arbitration treaties concluded up to the present time, with the suggestion that such reservations might henceforth be restricted merely to two, that is to say, the exceptions of “vital interests” and “national honor.”

The questions presented to the Joint International Commission appointed under the terms of Articles VI and XV of the treaty between the United States of America and the Republic of Panama, ratified February 26, 1904, were of so unusual a character that a brief statement of the principles formulated by the Commission will probably be of interest to students of international law.

In these days of wars which have engulfed almost all Europe it is a satisfaction to recall that thirteen nations sent their delegates to an international conference relating to safety of life at sea, no longer ago than December, 1913, and that they signed on the 20th of January, 1914, a convention which has been adopted by many of the nations and which was transmitted to the Senate of the United States by the President on the 17th of March. All the resources of human skill and science are now being used to destroy life. It is a pleasure to reflect that man has at one time been engaged in a more humane and, shall we not add, a more Christian undertaking.

The purpose of this study is the narration in detail of the responsible suggestions and action that resulted in erecting the Permanent Court of Arbitration at The Hague and in bringing into the realm of “practical” statesmanship the Court of Arbitral Justice, designed as a genuine tribunal instead merely of a panel of judges. The origin of these courts, which, even as they exist, are the greatest achievements in the institutionalizing of international law, is important because in some degree it demonstrates the processes by which international law grows and it registers to some extent the state of its legislative development. Everybody knows that you cannot bring a code of international law into effect by the process of introducing a bill in any legislature, but beyond that there is no agreement or even any very clear conception as to the processes of securing international institutions. A study of the origins of the two Hague courts of general jurisdiction furnishes some clue to the existing processes, and is the more interesting because most “practical” people denied their possibility so long as the constituent conventions were not actually in existence. The origins of these two courts, in so far as they reveal a principle, point to the conclusion that the idealism of the world can be wrought into effective machinery when the trained publicist takes hold of it and works it into forms harmonizing with existent conditions.

It appears to be generally accepted that International Law as we know it today had its beginnings in the writings of the political theorists of the latter sixteenth and early seventeenth centuries, more particularly in the memorable treatise of Grotius which appeared in the year 1625. The works of these writers were produced during the period of so-called rationalism when the true historical view had not yet been discovered, and the precedents and examples which were cited in support of the new rules of international law were taken exclusively from Biblical or classical antiquity. Moreover, in this same period Roman law was held in high esteem, a fact which further served to focus attention upon ancient law and custom. It is not surprising, therefore, to find that many principles which had regulated international conduct among European states, especially those of Teutonic character, during the Middle Ages, were either overlooked or rejected. If we remember that these principles had been enforced by an extensive system of municipal legislation, we shall understand why the founders of international law may have regarded them as res internæ rather than as matters of international import. Recently, however, the problems to which these very principles were applied have become of increasing international concern and vigorous attempts have been made on the one hand to preserve a sphere of municipal jurisdiction and on the other hand to inject into our international jurisprudence the principles upon which they were based. It shall be my purpose to show the early development of the rules which regulated the question of responsibility for aliens, how they were rejected by the early publicists and what effect they had upon later developments in our international law.