inclined to welcome a proposal which a belligerent would not care to make lest its motives be questioned and it be accused of weakness or inability to carry on the war.

But admitting that nothing new is created by these provisions which represent the practice of nations when minded to give a word of advice or lend a helping hand, the next succeeding provision at least removes an objection, if it does not add a right, inasmuch as it provides that the offer is not to be regarded by one or other of the parties in conflict "as an unfriendly act."

With these observations by way of introduction the Convention thus states the function and purpose, the nature and effect of good offices and mediation, which were apparently regarded as synonymous by its framers:

The part of the mediator consists in reconciling the opposing claims and appeasing the feelings of resentment which may have arisen between the States at variance (Article 4).

The functions of the mediator are at an end when once it is declared, either by one of the parties to the dispute, or by the mediator himself, that the means of reconciliation proposed by him are not accepted (Article 5).

Good offices and mediation, either at the request of the parties at variance, or on the initiative of Powers strangers to the dispute, have exclusively the character of advice and never have binding force (Article 6).

The acceptance of mediation can not, unless there be an agreement to the contrary, have the effect of interrupting, delaying, or hindering mobilization or other measures of preparation for war.

If mediation occurs after the commencement of hostilities it causes no interruption to the military operations in progress, unless there be an agreement to the contrary (Article 7).

The meaning of this is clear: the good office of a friend or of a mediator is not to interfere with measures which a nation has a right to take according to its sovereign pleasure, but to suggest that the conflict be adjusted peaceably, if war has not begun, and, if hostilities are in progress, that they be ended according to a method which the mediator either discloses or is willing to disclose upon request. Accurate writers limit good offices to advice and extend mediation to cooperation in the adjustment which good offices have advised. But whether this distinction be sound or observed in practice, the method is diplomatic, in that it is negotiation by third parties instead of negotiation between the parties in conflict; it is unlimited in that the differ

ence may concern a question of fact, of law, or of policy, and the pacificators may with the assent of the nations at odds accomplish whatever the parties might themselves have done if they had remained on speaking terms, if they had not resorted to fisticuffs or, as we may more elegantly say, to war.

If a distinction between good offices and mediation is to be observed, ` President Roosevelt's action in bringing Russia and Japan together at Portsmouth, whereby the treaty of Portsmouth, of September 5, 1905, was negotiated by their representatives, and the war ended, is to be considered good offices, not mediation. The following official telegrams under date of June 8, 1905, addressed to the American Ambassador at St. Petersburg and the American Minister to Tokio finely state Mr. Roosevelt's humanitarian purpose and the means by which it was effected:

The President feels that the time has come when, in the interest of all mankind, he must endeavor to see if it is not possible to bring to an end the terrible and lamentable conflict now being waged. With both Russia and Japan the United States has inherited ties of friendship and good will. It hopes for the prosperity and welfare of each, and it feels that the progress of the world is set back by the war between these two great nations. The President accordingly urges the Russian and Japanese Governments, not only for their own sakes, but in the interest of the whole civilized world, to open direct negotiations for peace with one another. The President suggests that these peace negotiations be conducted directly and exclusively between the belligerents-in other words, that there may be a meeting of Russian and Japanese plenipotentiaries or delegates without any intermediary, in order to see if it is not possible for these representatives of the two. powers to agree to terms of peace. The President earnestly asks that the Japanese Government do now agree to such meeting, and is asking the Russian Government likewise to agree. While the President does not feel that any intermediary should be called in in respect to the peace negotiations themselves, he is entirely willing to do what he properly can if the two powers concerned feel that his services will be of aid in arranging the preliminaries as to the time and place of meeting; but if even these preliminaries can be arranged directly between the two powers, or in any other way, the President will be glad, as his sole purpose is to bring about a meeting which the whole civilized world will pray may result in peace.1

1 Foreign Relations of the United States, 1905, p. 808; see also, Moore, Digest of International Law, vol. 7, p. 21.

In any event the mediator advises, and his decision, if he proposes one, is advisory and without binding effect until by acceptance of the parties it becomes their decision and adjusts the controversy. The action of Leo XIII in proposing terms for the adjustment of the Caroline controversy in 1885, between Germany and Spain was that of a mediator not arbitrator. When, however, the terms were accepted by both of the disputants, the erstwhile suggestion had the force of an arbitral award, and the action of the Pope is to be considered as an act of mediation of which it is a typical and illuminating example.

In 1884 an admiral of the Imperial German Navy hoisted the German flag at Yap, in the Caroline Islands, over which Spain claimed sovereignty. This the Imperial Government denied, and sought to acquire title in its own behalf by possession followed by effective occupation. This action on the part of Germany led to outbreaks in Madrid, in which the Imperial German Embassy and Consulate were attacked. In this state of affairs Prince Bismarck proposed, and Spain accepted the mediation of Pope Leo XIII. His Holiness thereupon suggested in their behalf the negotiation of a convention by which Germany acknowledged the sovereignty of Spain over the Caroline and Pellew Islands. In consideration of this action on the part of Germany Spain was to engage itself to establish, as quickly as possible, "a regular administration with sufficient force to guarantee order and the rights acquired" in the archipelago, to offer to Germany complete "liberty of commerce and navigation," the right to fish and to establish a naval station and coal depot at or in the islands, and finally to guarantee “the liberty of making plantations" in the islands, and of "founding agricultural establishments on the same footing as Spanish subjects."

The parties in dispute did this, and so hostilities were happily averted through the mediation of the Holy Father.

The distinction between mediation on the one hand and arbitration on the other exists in nature, not merely in name, and is thus clearly and authoritatively stated in the Digest of Justinian:

A man is held to have undertaken an arbitration, so Pedius says (b. 9), when he has assumed the duties of judge and promises to give a decision which shall finally dispose of the matters in dis

1 Moore, History and Digest of the International Arbitrations to which the United States has been a party, vol. 5, pp. 5043-4. See also, Moore, Digest of International Law, vol. 7, p. 6.

pute. But where, the same writer proceeds, the supposed arbitrator only intervenes so far as to try whether the parties will allow their dispute to be disposed of by his advice and authority, he cannot be held to have undertaken an arbitration.1

The same distinction, deeply embedded in private law, exists also in public law, and in that portion of it termed the law of nations, as was aptly pointed out by Sir James Mackintosh, who is reported to have said in the course of debate in Parliament on April 11, 1815: "A mediator is a common friend, who counsels both parties with a weight proportioned to their belief in his integrity, and their respect for his power. But he is not an arbitrator, to whose decision they submit their differences, and whose award is binding on them."

The first step to internationalize good offices and mediation, giving to them the standing and dignity of an international institution, was taken in connection with the Congress of Paris which put an end to the Crimean war. The belligerents with the addition of Austria and Prussia, adopted, upon the initiative of the British plenipotentiary, Lord Clarendon, himself influenced indirectly by William Jay, and directly by English peace men, "the vau that States, between which any serious misunderstanding may arise, should, before appealing to arms, have recourse, as far as circumstances might allow, to the good offices of a friendly Power." The plenipotentiaries were either so sure of the usefulness or harmlessness of their vau, as to express the hope "that the Governments not represented at the Congress will unite in the sentiment which has inspired the vau recorded in the present protocol."

In Article 8 of the Treaty of Paris the same plenipotentiaries stipu- lated on behalf of their respective countries that "if there should arise between the sublime Porte and one or more of the signatory Powers a difference threatening the maintenance of their relations, the sublime Porte or each of the Powers before having recourse to the employment of force, will put the other contracting Parties in a position to prevent this extremity through their mediation.""

And finally as showing the precedents for the action of the Hague

1 Dig. bk. IV, tit. 8, law 13, § 2 [Monro's translation].

2 Hansard's Parliamentary Debates, vol. 30, p. 525. See also, Moore, Digest of International Law, vol. 7, p. 3.

3 British and Foreign State Papers, vol. 46, p. 135.

4 Ibid., p. 136.

5 Ibid., p. 12.

Conference in the matter of good offices and mediation, which appear to be used indiscriminately in these various instances, Article 12 of the General Act of the Conference of Berlin in regard to the Kongo, signed February 26, 1885, may be quoted:

In cases where serious disagreement with regard to, or within the limits of, the territories mentioned in Article 1 and placed under the régime of commercial liberty may arise between the signatory Powers of the present act or Powers which may adhere thereto in the future, these Powers agree before appealing to arms, to resort to the mediation of one or more friendly Powers.1

The friendly compositor frequently mentioned in the Middle Ages but much of a stranger in the modern world may be considered either as the mediator acting with consent and invested with the power of deciding the controversy submitted to him, or as an arbiter chosen by the parties in dispute and authorized by them to settle the difference definitively by the application of his sense of right and fairness. In such a case the settlement of the dispute is regarded as of more consequence than the method employed. It may include quarrels arising out of questions of fact, law or policy; the compositor may act as a diplomat, arbiter or judge. The admirable disposition of the difficult and trying controversy known as The Alsop Case between Chile and the United States, which was submitted to the friendly composition of Edward VII in 1909 and, upon his death, to his successor, George V, by whom it was decided in 1911, upon the advice of eminent counsel, shows that the friendly compositor may be at one and the same time the impartial judge, although in the decision of this very case the function of the friendly compositor is said to be to pronounce "an award which shall do substantial justice between the parties without attaching too great an importance to the technical points which may be raised on either side." The Hague Conferences did not deal with friendly composition other than as it may be included in good offices, mediation or arbitration, and the subject is only mentioned in passing to call attention to this method, whose day is not yet run, in which the conscience of a particular individual is preferred to diplomacy, without reference to law, which is at least respected in arbitration and is the very life and soul of judicial decision.

1 British and Foreign State Papers, vol. 76, p. 12.

2 American Journal of International Law, vol. 5, p. 1081.