tion of the treaty between the two governments should be submitted to arbitration; that the discussion of the form of arbitration should take place in Berlin and that it should be according to Article 38 of the pacific settlement convention; and that, pending the award, a modus vivendi should be adopted which would prevent the recurrence of the incident according to a form of procedure consistent with the Declaration of London but inconsistent with the treaty between Prussia and the United States.

The state of mind in which the Imperial German Government approach the settlement of the Frye case may be judged by the fact that it refused the request of the American Ambassador, acting under instructions from the Department of State, to furnish a copy of the judgment delivered by the prize court at Hamburg in that case; and the futility of an attempt to settle the disputes between the United States and Germany by arbitration is made apparent by the action of the Imperial German Government, which not only refused to furnish a copy of the decision of its prize court-which might have aided the United States in the presentation of its claimbut also to carry out the terms of a present agreement to arbitrate the case of The William P. Frye.

Instead of concluding from this case the extent to which the pledged word of the Imperial German Government can be accepted, some extracts from documents bearing upon a question previously discussed will be quoted.

In July, 1870, when it became known that the Prince of Hohenzollern had been offered and had accepted the throne of Spain, the French Chargé d'Affaires inquired of the Prussian Foreign Office, where he was told that the Prussian Government knew absolutely nothing about the matter (ignorait absolument cette affaire).

This statement was subsequently confirmed by a circular to the Prussian diplomatic agents containing the following assurance:

The North-German Government declared that the matter had nothing to do with Prussia. . . . The Prussian Government has always considered and treated this affair as one in which Spain and the selected candidate are alone concerned, as the respect due to the rights and independence of the Spanish people naturally requires.2

The statement contained in this circular was further confirmed by

1 MSS., Department of State.

2 British and Foreign State Papers, vol. 60, pp. 796, 897, 907, 928. See letter of J. W. Headlam, The Times (London), August 3, 1917.

the King of Prussia himself, who said in a conversation to Benedetti, the French Ambassador:

The negotiations opened on the subject had been pursued between the Spanish Government and the Prince Hohenzollern; the Prussian Government has not only been unconnected with them, it has been ignorant of them (Le gouvernement prussien n'y est pas seulement resté étranger, il les a ignorées). The King himself has avoided associating himself with them. .. The King has been informed of the determination of the Prince; the King has (in this matter) neither called together nor consulted the Council of Ministers; the Prussian Government could not be interpellated on a matter which it has not known and with which it had no more to do than any other European Cabinet."

In 1897 the King of Roumania, the brother of Prince Leopold of Hohenzollern, who had been offered and had refused the Spanish throne, gave the full details of the transaction, showing that the Prussian Government, instead of being ignorant of the candidacy, had proposed it, supported it, and forced it upon the Hohenzollern prince, and that the candidacy had been formally approved at a meeting of the Prussian Ministers specially called to consider the matter.

The following extracts from the memoirs of King Charles of Roumania, written in German and published in Germany in 1897, are quoted without comment:

Count Bismarck is pleading with great warmth for the acceptance of the throne by the hereditary prince: in a memorial to King William he emphasizes the great importance, which the calling of the Prince of Hohenzollern to the Spanish throne would have for Germany; it would be of incalculable political value to have a friendly country in the rear of France.2

Prince Karl Anton and his son Leopold went to Berlin to confer with the authorities as to the candidacy of the young man and on March 20, 1870, that is, five days after the event, he thus wrote to his son Karl in Roumania, who was naturally interested in the fortunes of the family and of the younger brother:

1

On the fifteenth there was a very important and interesting consultation here, under the presidency of the king, and at which the crown prince, both of us [Prince Karl Anton, the

1 Benedetti, Ma Mission en Prusse, 2d ed. (1871), p. 331.

2 Aus dem Leben König Karls von Rumänien, Aufzeichnungen eines Augenzeugen (Stuttgart, 1897, 2 vols.), vol. 2, p. 68.

father, and Leopold, the son], Bismarck, Roon, Moltke, Schleinitz, Thile, and Delbrück were present. The unanimous decision of these advisers was in favor of acceptance, as the patriotic duty of a Prussian.1

Count Bismarck has repeatedly and most decisively declared that the acceptance of the Spanish crown by one of the princes of Hohenzollern was a political necessity."

1 Aus dem Leben König Karls von Rumänien, Aufzeichnungen eines Augenzeugen (Stuttgart, 1897, 2 vols.), vol. 2, p. 72.

2 Ibid., p. 93.

CHAPTER XIX

THE FREEDOM OF THE SEAS

The President, in his address of April 2, 1917, stated that Germany was running amuck, and in view of this fact, which was only too true, the United States could not very well appear before posterity as the champion of the freedom of the seas if it stood aside and allowed the Imperial German Government to continue to run amuck on the high seas. As President Wilson had advocated the freedom of the seas when his country was neutral-and it is to be hoped that he will stand for it as steadfastly when his country is belligerent-and as the Imperial German Government has repeatedly proclaimed the freedom of the seas and has declared in the official correspondence with the United States that its actions are conceived and executed in behalf of the freedom of the seas, it becomes material to consider in what sense this phrase can be used to condemn and to sustain one and the same action.

It is well to define the term "high seas" in order that we may have a firm foundation upon which to build; otherwise, with the best of intentions, we are liable to fall into the confusion which we criticise in others; and it seems peculiarly appropriate, where interests are involved and passions aroused, to leave the atmosphere of the chancelleries and to take refuge in the cool and the calm of courts of justice. For this reason, a decision of a court of justice will be invoked.

The circumstances surrounding the case are interesting in themselves and calculated to show that the Court was obliged, by the very terms of the act giving it jurisdiction, to define the "high seas" in the sense in which that phrase is used in international law. The origin of the Court was peculiarly international. The United States alleged that Great Britain had been unneutral in the American Civil War, and that, because of Great Britain's failure to comply with the requirements of neutrality, especially in the matter of Confederate cruisers, built, fitted out, and equipped in Great Britain and permitted to make of British ports the base of hostile operations, the United States and its citizens had suffered damage. As the result

of a bitter controversy, the questions involved were submitted to arbitration by a treaty between the two countries, concluded on May 8, 1871, and commonly called the Treaty of Washington.

The first article states in the portion material to the matter in hand that differences existed between the two Governments growing out of acts committed by various Confederate vessels, of which The Alabama was the chief; that the British Government in a "friendly spirit" expressed regret for the escape "under whatever circumstances" of The Alabama and other vessels from British ports and for the depredations committed by those vessels; that to adjust those dif ferences and speedily to settle all claims growing out of acts committed by The Alabama and other vessels, generally known as the Alabama Claims, the United States and Great Britain agreed to refer such claims to a tribunal of arbitration composed of five arbitrators, one to be appointed by the United States, one by Great Britain, one by Italy, one by Switzerland, and one by Brazil. The second article provided that the arbitrators were to meet at Geneva, and, therefore, the tribunal and the award are known respectively as the Geneva Tribunal and the Geneva Award. The sixth article provided that the arbitrators should be governed by three rules generally known as the three rules of Washington,1 "which are agreed upon by the high contracting parties as rules to be taken as applicable to the case, and by such principles of international law not inconsistent therewith as the arbitrators shall determine to have been applicable to the case.

Article 7 provided, among other things, that the tribunal should consider each of the cases separately in accordance with the three rules and the principles of international law not inconsistent with them, and that it should, if it found Great Britain at fault and if it thought.

1 The following is the text of the three rules of Washington:

A neutral Government is bound

First, to use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a Power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use.

Secondly, not to permit or suffer either belligerent to make use of its ports or waters as the base of naval operations against the other, or for the purpose of the renewal or augmentation of military supplies or arms, or the recruitment of men.

Thirdly, to exercise due diligence in its own ports and waters, and, as to all persons within its jurisdiction, to prevent any violation of the foregoing obligations and duties. (Malloy, Treaties, etc., between the United States and Foreign Powers, vol. 1, p. 703.)