It has always been urged, both by sceptics and by believers, that the test of the practicability of international arbitration stands on the question of sanctions. And yet, by a striking inconsistency, the same authors who agree on the primordial importance of this problem have constantly failed to resolve it. In fact they have hardly ever attempted to explain its terms.

In spite of my reluctance to quote my own work, I am obliged to say that the only book ever devoted to this one great problem was my comprehensive treatise on “ Sanctions of International Arbitration,” the French edition of which appeared in 1905, with a preface by Baron d’Estournelles de Constant. President Roosevelt, whose great energies and high statesmanship were then devoted both to the negotiations of the Peace of Portsmouth and to the preparation of the program of the Second Hague Conference, courteously permitted me to dedicate the book to him, and therefore I dare say that, though the study of all the great European authors who, since Grotius, have led the way to the present state of international law was my constant guide, I did not lack of American inspiration.

On February 15, 1911, the Senate of the United States advised and consented to the ratification of the International Prize Court Convention adopted by the Second Hague Peace Conference and signed by the American delegates October 18, 1907. Although transmitted to the Senate with the various Hague conventions on February 27, 1908, and favorably recommended by the President and Secretary of State, action upon the convention was deferred by the Committee on Foreign Relations because the convention in its original form involved an appeal from the Supreme Court of the United States to the international court at The Hague. This feature of the otherwise acceptable convention raised doubts as to its constitutionality, because Article 3, section 1, of the Constitution provides that “ the judicial power of the United States shall be vested in one Supreme Court.” An appeal from the Supreme Court to the court at The Hague seemed to some inconsistent with this provision, for a court can not be considered supreme if an appeal lies from its decisions. To this it may be answered that the court to be established at The Hague is not a court of the United States, and, therefore, is not contemplated by the Constitution; for the Hague court is a diplomatic tribunal for the settlement of questions which would otherwise be adjusted by diplomacy, or referred to a mixed commission specially constituted for their determination, or which if not determined by either of these methods, might result in war.

On the 9th of April, 1911, the Hague court will celebrate its first decennial. The first decade of the court was opened by the submission on the part of the United States and Mexico of the Pious Fund case to the tribunal for its decision, and of the eight cases so far submitted to the court and brought to trial during the first decade, the United States has been a party in four, and in a fifth, the Japanese House Tax case, the United States agreed to abide by the result. The last case to be tried was the Orinoco Steamship Company case submitted by the United States and Venezuela.

Both the Pious Fund and the Orinoco Steamship Company case raised important questions vitally affecting the future of international arbitration. Both cases were peculiar in that they dealt with a question which had already been once before decided by an arbitral tribunal. In both cases the effect of the previous arbitral decision was submitted as a preliminary question to the Hague court. In the Pious Fund case the preliminary question submitted was as to whether the claim, as a consequence of the former decision of Sir Edward Thornton, umpire under the convention between the United States and Mexico of 1868, was within the principle of res judicata. The court sustained the contention of the United States, by holding that the rule of res judicata applies to international arbitral sentences “ rendered within the limits of the jurisdiction fixed by the compromise,” and accordingly rendered judgment in favor of the United States, without considering the merits of the claim.

As a canal is part of the territory of the country through which it passes, the general principle of sovereignty gives to that country, and to that country alone, the right of fortification. This general principle is capable of modification by treaty. Thus, as the Suez Canal is wholly in Egypt, a right of fortification resided with Egypt, or with its suzerain, Turkey; and, in order to destroy the right, there had to be express provisions in the Constantinople Convention of 1888 — “ respecting the free navigation of the Suez Canal ” — to which Turkey was a party. In that treaty as to Suez, there was ample recognition of the prima facie right and duty of the local country to protect the canal. Similarly, the right to fortify the Panama Canal would still reside with the Republic of Panama, and not with the United States, if the convention of 1903 with Panama did not grant to the United States control of the Canal Zone, with all the rights which the United States would possess if it were the sovereign, and “ to the entire exclusion of the exercise by the Republic of Panama of any such sovereign rights.” The treaty specifically adds that “ the United States shall have the right * * * to establish fortifications.”

France has had a richer legislative experience in matters of nationality than any other country. Scarcely a decade has passed since the Revolution in which some project for legislation has not been proposed, and during the intervals between these projects the subject has been kept alive by very intelligent discussion on the part of statesmen and writers. A resumé of French legislation will indicate the trend of thought in France and throw light upon the policies behind the present law. In so brief a summary as is here presented it will be impossible, however, to refer to the numerous proposals which never passed beyond the stage of debate. We shall confine ourselves to the laws as adopted, and these will suffice for our purpose.

The law existing in France immediately anterior to the Revolution conferred French nationality on persons (1) born on French soil; (2) born in a foreign country of a French father who had not established his domicile in that country nor lost his intent to return, provided the person so born returned to France.

The early Romans had their præfecti prætorio, or military judges, afterwards replaced by magistri militum, who exercised a jurisdiction somewhat corresponding to modern courts-martial and military commissions. It is true that there has been much dispute in regard to the exact limits of this jurisdiction, as conferred by the laws which have been handed down to us, yet its general outlines have been pretty well agreed upon.

When Count Mouravieff, at the order of the Emperor of Russia, convoked the first peace conference by the circular of the 12th/24th August, 1898, hardly any one foresaw the importance which this first move was to take, which seemed then in the opinion of the writer Mommsen like “ a printer’s error in the history of the world.”

In order to realize the extent of the development to which coming periodical peace conferences are destined it is sufficient to examine the facts of yesterday and the road already traversed.

The object of the first Russian project was very limited; its purpose was to call together a certain number of Powers to study the possibility of “ putting a limit ” on armament for the purpose of diminishing the financial burdens of the states, but the exchanges of opinion which preceded the assembly of these “ disarmament conferences ” having shown that the chances of success were very feeble, a second circular by Mouravieff (January 11, 1899) extended the first program by attaching thereto particularly “the possibility of preventing armed conflicts by pacific means ” and the reduction of “ the laws and customs of war ” to a system of rules. These two new subjects changed the character of the assembly, the title of which even was modified. It was called thenceforth the “ Peace Conference.” And, in fact, the conference in obedience to the very force of things soon completed the transformation of accession to principle, subordinated the premature question of disarmament, and applied its efforts towards justifying its title by concentrating all its force on the matter of pacific adjustment of international conflicts.

During the fourteen years that he occupied the chair of history and political economy at Columbia College, in the city of New York, Francis Lieber displayed praiseworthy activity. This period of his life covered some restless years; the theatre of operations was of a size whose equal can be shown by few historical dramas. Terrorstricken, the civilized world witnessed a tremendous struggle, whence, fortunately, the cause of civilization was to issue triumphant. The learned professor did not content himself with zealously performing his university obligations; neither was he satisfied with fulfilling his civic duties; he threw himself resolutely into the conflict; he fought with his tongue and his pen; he made himself the organizer and representative of a ceaseless propaganda for the Union cause against the secessionists; by his advice and by his legal works he gave the Federal Government the most valuable assistance. For a long time he had been occupied with public law; he now enlarged the field of his researches and his studies, and he studied ardently the laws of war and important problems of international law. The serious events taking place before his eyes led him, too, to write his opinions and to draft The instructions for the government of armies of the United States in the field, which will ever be an honor to him.

Connected as it is with the progress of the present phenomenal movement for international peace, the question whether the Panama Canal should be permanently fortified as part of its construction and before it is opened to the commerce of the world, is of the highest importance; and for this reason the views and conclusions of the commissioners who considered the subject under authority of Congress in 1899–1901, when negotiations were in progress between the United States and Great Britain for a new agreement to take the place of the Clayton-Bulwer Treaty, are of the gravest public interest and are worthy of the most considerate attention. It was not until November, 1903, that the Isthmian Canal Zone came under “ the perpetual control ” of the United States by the treaty of the 18th of that month with the new-born Republic of Panama; but, for some years prior, the United States had been considering the acquisition of a strip of territory in the Isthmus, and the construction of a waterway between the two oceans, on its own responsibility, at its own cost, and under its own control. It was from this new point of view that the Canal Commission of 1899–1901, of which the late Admiral Walker was president, made its investigations and report; and it was to open the way to the accomplishment of this enterprise without a violation of the Clayton-Bulwer Treaty and with the consent of Great Britain, whose interests in the physical union of the Atlantic and Pacific were second only to those of the United States, that the negotiations then pending between the two governments had been commenced and were subsequently carried on until they resulted in the Hay-Pauncefote Treaty, which was signed on November 18, 1901, proclaimed February 22, 1902, and is now in force. It antedated by some months the passage of “ the Spooner bill,” which provided for the purchase of the rights and property of the New Panama Canal Company (De Lesseps’ successor in France) and for the acquisition of the necessary territorial rights from Colombia, or, failing that, from Nicaragua and Costa Rica.

International law, perhaps more than any other branch of the science, is progressive. In its study, the elements of this progress should be traced to their origin. International law has been a growth of mutual understanding between nations, developed out of necessities of particular situations, ripening gradually from precedent to precedent and finally formulated and codified in international conventions and treaties. Of these the most notable are the conventions adopted at the two conferences held at The Hague in 1899 and 1907.

It is not surprising to find that times of war have given rise to many of the rules which nations have gradually come to recognize and embodied in the system which has become common to them all. In times of peace the situation adapts itself more readily to the requirements of each nation. War necessarily displaces the ordinary course of business and human conduct.