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be had to reprisals, aggression, or hostility of any kind, by the one republic against the other, until the government of that which deems itself aggrieved shall have maturely considered, in the spirit of peace and good neighborship, whether it be not better that such difference should be settled by the arbitration of commissioners appointed on each side, or by that of a friendly nation. And should such course be proposed by either party, it shall be acceded to by the other, unless deemed by it altogether incompatible with the nature of the difference, or the circumstances of the case.
It will be observed that this article is what may be called "all inclusive,” to use an expression of the hour, for not only the treaty but the political or commercial relations of the two governments are to be subjected to the procedure prescribed in Article XXI. It will be observed that arbitration is not compulsory, to use another expression of the day, as each of the contracting parties is left free to decide whether the course laid down in Article XXI is in its opinion "altogether incompatible with the nature of the difference or the circumstances of the case.” The comment leaves the article and the treaty where it finds it, to the interpretation and application of the governments of the two countries.
It has long been the effort of friends of peace, especially in this country, to persuade the nations to agree to submit their outstanding difficulties to arbitration, and indeed to bind themselves by solemn agreement to submit future differences or disputes to arbitration. This general policy was proposed, not only in abstract but in concrete form, by William Jay, whose position in the peace movement is little inferior to that of his distinguished father, who, by the treaty which bears his name, introduced arbitration again into the practice of nations.
In 1842 William Jay published in England and the United States a little book entitled War and Peace: The Evils of the First and a Plan for Preserving the Last, in which he recommended that the nations should bind themselves by treaty to submit their present as well as their future disputes to arbitration. He believed that a great principle should be tried under the most favorable conditions, and he therefore proposed that the first treaty of this kind should be made with France, between which country and the United States there were then no disputes, and it seemed probable to Mr. Jay that disputes of a serious kind would not arise between them. Mr. Jay's proposal follows in his own words:
1 Malloy's Treaties and Conventions between the United States and other Powers, Vol. I, p. 1117.
Suppose in our next treaty with France an article were inserted of the following import:
“It is agreed between the contracting parties that if, unhappily, any controversy shall hereafter arise between them in respect to the true meaning and intention of any stipulation in this present treaty, or in respect to any other subject, which controversy cannot be satisfactorily adjusted by negotiation, neither party shall resort to hostilities against the other; but the matter in dispute, shall, by a special convention, be submitted to the arbitrament of one or more friendly Powers; and the parties hereby agree to abide by the award which may be given in pursuance of such submission." 2
It is difficult to estimate the exact influence of any book or pamphlet. The ideas stated in Mr. Jay's little work appear, at least to the writer of this comment, to be so reasonable as to suggest themselves to negotiators without being specially called to their attention. It is very difficult to say when an idea first took definite form and shape and, in describing a proposition of one, we often overlook another worthy person whose claims should be borne in mind.
Without attempting to claim for William Jay the authorship of what is now familiarly termed in French the clause compromissoire, it is believed that a clearer and more statesmanlike formulation of it than his is not to be found, and, without attempting to maintain that Article XXI of the treaty between Mexico and the United States is due to Jay's proposal, it is interesting to note in this connection that Jay's little book appeared in 1842, just six years before the conclusion of the treaty between Mexico and the United States, that it was widely circulated in the United States as well as in England, that its distinguished author was deeply interested in the relations between Mexico and the United States, and well informed as to their relations as evidenced by his admirable book entitled A Review of the Causes and Consequences of the Merican War, published a year after its termination, and that he was a man of great influence, due not only to his family connections, but to his own ability, integrity and high ideals. The writer of the brief sketch of Jay appearing in the 11th edition of the Encyclopedia Britannica felt justified in saying that “his pamphlet, War and Peace: The Evils of the First, with a Plan for Securing the Last, advocating international arbitration, was published by the English Peace Society in 1842, and is said to have contributed to the promulgation by the Powers signing the Treaty of Paris in 1856 of a protocol expressing the wish that nations, before resorting to arms, should have recourse to the good
2 War and Peace: American edition, pp. 81-82; English edition, p. 40.
offices of a friendly Power." This statement is quoted and indeed the reference to Jay is made to show that those ideas were in the air in the 40's and in the 50's, and to express the hope that they may also be found to be in the air in this year of trial and tribulation.
JAMES BROWN Scott.
THE SO-CALLED INVIOLABILITY OF THE MAILS
Recent correspondence between the Allied and United States Governments has called renewed attention to the so-called inviolability of postal correspondence on the high seas during maritime warfare.
The Eleventh Hague Convention Relative to Certain Restrictions on the Exercise of the Right of Capture in Maritime Warfare declares:
The postal correspondence of neutrals or belligerents, whether official or private in character, found on board a neutral or enemy ship is inviolable. If the ship is de tained, the correspondence is forwarded by the captor with the least possible delay.
The provisions of the preceding paragraph do not apply, in case of violation of blockade, to correspondence destined for or proceeding from a blockaded port (Art. I).
The inviolability of postal correspondence does not exempt a neutral mail ship from the laws and customs of maritime war respecting neutral merchant ships in general. The ship, however, may not be searched except when absolutely necessary, and then only with as much consideration and expedition as possible (Art. 2).
These proposals were made by Germany at the Second Hague Conference of 1907, and were supported by an argument on the part of Herr Kriege, one of the members of the German delegation, which cannot be said to have much applicability to the circumstances of the present war. Herr Kriege said:
Postal relations have at our epoch such importance--there are so many interests commercial or other, based on the regular service of the mail-that it is highly desirable to shelter it from the perturbations which might be caused by maritime war. On the other hand, it is highly improbable that the belligerents who control means of telegraphic and radio-telegraphic communication would have recourse to the ordinary use of the mail for official communications as to military operations. The advantage to be drawn by belligerents from the control of the postal service therefore bears no prejudicial effect of that control on legitimate commerce.
It cannot be said that the Eleventh Convention of 1907 is legally binding in this war; it was not signed by Russia, one of the leading belligerents, and it has not been ratified by more than half of the states represented at the Second Hague Conference.
In any case the provisions of the first paragraph of Article I do not apply, "in case of violation of blockade, to correspondence destined for or proceeding to a blockaded port.” For reasons best known to themselves, the Allied Governments of France and Great Britain have not sought shelter either under this provision or under the plea that the Eleventh Convention is not legally binding-pleas which they might have entered with entire justice and propriety.
Prior to the limited adoption of the Hague Convention dealing with this subject, the doctrine relative to the inviolability of mails was doubtful, and the practice by no means uniform. For example, Hall, after admitting that ordinary letters are prima facie innocent, and that they should only be seized under very exceptional circumstances, goes on to say:
At the same time it is impossible to overlook the fact that no national guarantee of the innocence of the contents of a mail can really be offered by a neutral Power. No government could undertake to answer for all letters passed in the ordinary manner through its post-offices. To give immunity from seizure as of right to neutral mailbags would therefore be equivalent to resigning all power to intercept correspondence between the hostile country and its colonies, or a distant expedition sent out by it, and it is not difficult to imagine occasions when the absence of such power might be a matter of grave importance. Probably the best solution of the difficulty would be to concede immunity as a general rule to mail-bags, upon a declaration in writing being made by the agent of the neutral government on board that no dispatches are being carried for the enemy, but to permit a belligerent to examine the bags upon reasonable grounds of suspicion being officially stated in writing. (Hall, 5th ed., pp. 675, 679-680.)
Lawrence treats this matter very fully in his War and Neutrality in the Far East (pp. 185ff.). He says:
In recent times a practice has grown up of granting special favors to such mailboats in time of war, if they are neutral and willing to accept the conditions imposed. The United States has been the pioneer in this matter. During her war with Mexico she allowed British mail-steamers to pass unmolested in and out of the port of Vera Cruz, which came into her possession for a time in 1847. In 1862, when the American Civil War was at its height, the Government of Washington exempted from search the public mails of any neutral Power, if they were duly sealed and authenticated, but it was added that the exemption would not protect “simulated mails verified by forged certificates and counterfeit seals.” If a vessel carrying mails rendered itself subject to capture for other reasons, she might be seized, but the mail-bags were to be forwarded unopened to their destination. The example thus set was followed by France in 1870. At the commencement of her great war with Germany she announced that she would take the word of the official in charge of the letters on board a regular mail-steamer of neutral nationality as to the absence of any noxious communications. The proclamation of President McKinley at the beginning of the war with Spain in
1898 went further still. It declared that “the voyages of mail-steamers are not to be interfered with, except on the clearest grounds of suspicion of a violation of law in respect of contraband or blockade.” A similar indulgence was granted by Great Britain in the course of the Boer War to steamers flying the German mail-flag. They were not to be stopped on mere suspicion that there might be unlawful despatches in their bags. On the other hand, many modern cases may be mentioned where no indulgence, or a very limited one, was given. For instance, in 1898 Spain did not duplicate the American concession, and in 1902 Great Britain and Germany would not allow neutral mail-steamers to pass through their blockade of Venezuelan ports, but stopped them instead, and after overhauling their correspondence and detaining what seemed noxious, sent the rest ashore in boats belonging to the blockading squadron.
We see then that practice is by no means uniform. It is impossible, therefore, to argue that the usage of the last half-century has conferred upon the vehicles of the world's commercial and social communications an immunity from belligerent search which they did not before possess. The utmost we can venture to assert is that such a usage is in process of formation, and is in itself so convenient that it ought to become permanent and obligatory, due security being taken against its abuse. This last condition will be difficult of attainment. No government agent on board a mailsteamer can be aware of the contents of the letters for which he is responsible. There would be a terrible outcry if he took means to make himself acquainted with them. His assurance, therefore, as to the innocence of the communications in his bags can be worth but little, even though it is given in all good faith. States must face the fact that to grant immunity will mean that their adversaries in war will use neutral mailboats for the conveyance of noxious despatches made up to look like private correspondence. Probably it will be worth while to take the risk of this rather than dislocate the affairs of half a continent by capturing and delaying its correspondence. While general freedom was given, it might be wise to reserve a right of search and seizure in circumstances of acute suspicion.
Many other authorities, including French and German ones, might be cited to show that, prior to the meeting of the Hague Conference of 1907, the immunity of mail-bags from search was far from established. Nor can the ratification of the Eleventh Hague Convention by less than half the members of the International Comity (if such an entity exists) be said to have created a new and binding rule in international law.
However, it is an omen of good augury that the United States and the Allied Governments, in their recent correspondence on the subject, were able to agree on general principles, though they differed somewhat in their application.
In the first place, all the Powers (apparently including even Germany) are agreed that post parcels constitute merchandise which may be seized and, under certain circumstances, confiscated.
Furthermore, the United States Government apparently agrees with