sideration of the important subjects that have arisen before the Conference. But with all this deference, it seems to me that either there are, in this Conference, two First Delegates of Germany or, if it be only the one whom we have learned to recognize and honor, he speaks with two different voices. Baron Marschall is an ardent admirer of the abstract principle of arbitration and even of obligatory arbitration between those whom he chooses to act with, but when it comes to putting this idea into concrete form and practical effect he appears as our most formidable adversary. He appears like one who worships a divine image in the sky, but when it touches the earth, it loses all charm for him. He sees as in a dream a celestial apparition which excites his ardent devotion, but when he wakes and finds her by his side he turns to the wall, and will have nothing to do with her.' Upon the adjournment of the Conference, Secretary Root decided to take the Imperial German Government at its word and, as Baron Marschall von Bieberstein, speaking in its behalf, had declared him. self in favor of individual treaties with Nations of its choice, Mr. Root proposed that Germany should conclude with the United States a treaty of the kind which France and Great Britain had signed October 14, 1903, and because of its general acceptance was then, as it is now, the model of a general treaty of arbitration. It was one of a series of which Mr. Root negotiated twenty-five during the year succeeding the adjournment of the Second Conference. It bound the nations, in case of a failure to reach an agreement through diplomatic channels, to arbitrate disputes of a legal nature relating to the interpretation of treaties existing between the contracting parties, with the restriction, however, that they did not affect the vital interests, independence, or honor of the contracting States and that they did not concern the interests of third parties. The Imperial German Government refused to conclude such a treaty, although Mr. Root urged the matter.

Again, in 1913 and in 1914, Secretary Bryan earnestly besought the Imperial German Government to negotiate a treaty by which the contracting parties pledged their faith to submit all disputes between them to a Commission of Inquiry, to be composed of five members, which Commission would have a year within which to examine and report upon any dispute submitted by the parties or by one or the other of them, during which period each party bound itself not to resort to force or a hostile action against the other.

The Imperial German Ambassador, as was the case with Baron 1 Deuxième Conférence Internationale de la Paix, Actes et Documents, tome II, p. 72.

Marschall von Bieberstein, accepted in principle but refused to put the principle in concrete and binding form. Yet, this treaty would have been but one of thirty negotiated by Secretary Bryan in the course of 1913-14, and would have been similar to the treaties concluded with Great Britain and France after the outbreak of the war of 1914. The reason for this refusal seems to be that the Imperial German Government was as unwilling in 1914, as in 1899 and in 1907, to tie its hands by arbitration, and the language used by the Imperial Secretary of State in 1914 to the British Ambassador at Berlin strangely recalls the language of Count Münster to Ambassador White at The Hague.

In an interview of August 1, 1914, between Herr von Jagow, Imperial German Secretary of State, and Sir Edward Goschen, British Ambassador at Berlin, the latter communicated the substance of Sir Edward Grey's telegram of that date informing him of "the readiness of Austria to discuss with Russia and the readiness of Austria to accept a basis of mediation."'1

According to the British Ambassador's report, Herr von Jagow said "that Austria's readiness to discuss was the result of German influence at Vienna, and, had not Russia mobilized against Germany, all would have been well. But Russia, by abstaining from answering Germany's demand that she should demobilize, had caused Germany to mobilize also. Russia had said that her mobilization did not necessarily imply war, and that she could perfectly well remain mobilized for months without making war. This was not the case with Germany. She had the speed and Russia had the numbers, and the safety of the German Empire forbade that Germany should allow Russia time to bring up masses of troops from all parts of her wide dominions." And in the interview of August 4th, as reported by the British Ambassador, between the Imperial German Secretary of State and the Ambassador, the latter asked in the name of his Government whether "the Imperial Government would refrain from violating Belgian neutrality. Herr von Jagow at once replied that he was very sorry to say that his answer must be 'No,' as, in consequence of the German troops having crossed the frontier that morning, Belgian neutrality had been already violated. Herr von Jagow again went into the reasons why the Imperial Government had

2

1 Sir Edward Grey to Sir Edward Goschen, British Ambassador at Berlin, British Blue Book, No. 1, d. No. 131; Diplomatic Documents Relating to the Outbreak of the European War, p. 988.

2 Sir Edward Goschen, British Ambassador at Berlin, to Sir Edward Grey, British Blue Book, No. 1, d. No. 138; ibid., p. 993.

been obliged to take this step, namely, that they had to advance into France by the quickest and easiest way, so as to be able to get well ahead with their operations and endeavor to strike some decisive blow as early as possible. It was a matter of life and death for them, as if they had gone by the more southern route they could not have hoped, in view of the paucity of roads and the strength of the fortresses, to have got through without formidable opposition entailing great loss of time. This loss of time would have meant time gained by the Russians for bringing up their troops to the German frontier. Rapidity of action was the great German asset, while that of Russia was an inexhaustible supply of troops."1

In a remarkable article entitled "Military Strategy v. Diplomacy," written by Mr. Munroe Smith, professor of jurisprudence in Columbia University in the City of New York and a doctor of jurisprudence of the University of Göttingen, thus comments upon the views of Count von Münster and Herr von Jagow and the practice of the Imperial German Government as stated by the latter in 1914:

There is, however, a far broader aspect to the problem. Of all means which civilization has provided to avert war, negotiation is the most important. Direct negotiation may be and often is supplemented by the friendly offices of nations not immediately concerned and by offers of mediation; but these are but extensions of negotiation. Arbitration is a potent agency for the peaceful settlement of controversies, but arbitration cannot be set in motion without negotiation. For negotiation time is essential. In the interest of the peace of the world, therefore, it is of the highest importance that the political heads of every state should be ever on their guard against the attempts of their military advisers to convince them that immediate attack is necessary. It is usually declared to be a matter of life or death. To the nation primarily concerned it is almost always, in fact, only a matter of greater or less chance of initial success. To peace, however, it is always a matter of death.2

It is therefore a fact, which may indeed be explained but which cannot be controverted, that the Imperial German Government has stood aloof from arbitration, that it has rarely obligated itself to apply this form of settlement; that, in the two Hague Peace Conferences, its delegates opposed projects of arbitration with such energy

Sir Edward Goschen, British Ambassador at Berlin, to Sir Edward Grey, August 8, 1914, British Blue Book, No. 1, d. No. 160; Diplomatic Documents Relating to the Outbreak of the European War, p. 1006.

2 Political Science Quarterly, March, 1915, vol. 30, No. 1, pp. 81-82.

and vigor that they were able to check for the moment a movement which they could not wholly dam. But there are some things which physical power cannot accomplish, and opposition to arbitration as a form of peaceful settlement is as futile as opposition to the Pythagorean theorem, which Sydney Smith once wittily dared Lord Hawksbury, when leader of the Tory Majority in Parliament, to repeal by

statute.

SECTION 3. THE "FRYE" CASE

If the United States should be criticised, as a partisan of arbitration, and indeed as its sponsor in the modern world, for not offering to arbitrate its disputes with Germany, notwithstanding Germany's known repugnance to arbitration, it is proper to suggest that something more than an offer and an agreement to arbitrate are required. The given word must be kept, and it must be said with regret that the attitude of the Imperial German Government towards solemn international agreements during the present war, not to speak of the past, leaves something to be desired, and that, in plain terms, the United States would have had no assurance, after a violation of its pledged word by Germany on the plea of necessity in the international agreements concerning Luxemburg and Belgium, that the Imperial Government would keep its agreement to arbitrate, that it would refrain from the commission of the unlawful acts submitted to arbitration, until the question of right or wrong should be determined by the award of an arbitral tribunal, that it would execute the award of that tribunal after it had been rendered if the award were contrary to its contentions, and that it would not, pleading necessity or vital interests, self-preservation or self-defense, continue the conduct complained of until the close of the war, leaving the entire matter to be patched up by the payment of an indemnity to compensate American interests for the losses which they had incurred either because of Germany's refusal to abide by the award or because of its interpretation of the award in a way inconsistent with the interpretation put upon it by the United States. During the period of its neutrality, the United States intimated that it would not make a treaty of arbitration concerning the loss of life, for it was unwilling to arbitrate the right of a foreign Nation to put to death American citizens, although, if the United States had had a treaty of arbitration with the Imperial Government such as it has with Great Britain and France, which Germany was requested

to negotiate but would not, or if it had had a treaty providing for a Commission of Inquiry similar to treaties of this kind with Great Britain and France, which Germany was urged to conclude but did not, the United States would have been forced to arbitrate Germany's contentions, or submit them to investigation and report at Germany's request unless the United States was prepared to consider solemn compacts as "scraps of paper."

But it is difficult to see, in view of the whole situation, how the United States could have been compelled, although it might have been justified, in submitting to arbitration or to a Commission of Inquiry at the request of the Imperial Government all of its outstanding differences without an existing agreement to do so; but it would assuredly not have been justified in so doing unless the Imperial Government would have agreed to stop, during the arbitral proceedings, its conduct whereof complaint was made. We know, however, that Germany was unwilling, even when the question of peace and war hung in the balance, to suspend its actions, although the United States expressed its willingness to consider Germany's proposals after the severing of diplomatic relations if, during the interval of negotiations, the actions complained of should be renounced.1

But we do not need to speculate as to what the attitude or conduct of Germany would have been in the case of an offer and an acceptance by one or the other country to submit to arbitration the disputes which had arisen out of the war, because we have in the sinking and in the arbitration of The William P. Frye a concrete case.

On January 27, 1915, The William P. Frye, a steel sailing vessel owned by American citizens, and navigating under the American flag, carrying a cargo of 186,950 bushels of wheat from the port of Seattle in the State of Washington to Queenstown, Falmouth, or Plymouth for orders, was encountered in the South Atlantic on the high seas by

1 Under date of February 12, 1917, Secretary Lansing thus addressed Paul Ritter, Minister for Switzerland, who was in charge of the interests of Germany in the United States after the rupture of diplomatic relations:

I am requested by the President to say to you, in acknowledging the memorandum which you were kind enough to send me on the 11th instant, that the Government of the United States would gladly discuss with the German Government any questions it might propose for discussion were it to withdraw its proclamation of the 31st of January, in which, suddenly and without previous intimation of any kind, it cancelled the assurances which it had given this Government on the 4th of May last, but that it does not feel that it can enter into any discussion with the German Government concerning the policy of submarine warfare against neutrals which it is now pursuing unless and until the German Government renews its assurances of the 4th of May and acts upon the assurance. (Official text published by the Department of State.)