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EMERIC CRUCE



EMERIC CRUCE



BY



THOMAS WILLING BALCH

A. B. (Harvard)
Member of the Philadelphia Bar

Author of " Some Facts about Alsace and Lorraine,"

'The Brooke Family of Whitchurch, Hampshire, England,"

"The Alabama Arbitration," etc.



Philadelphia

ALLEN, LANE & SCOTT

1900

fa



Copyright, 1899, by
THOMAS WILLING BALCH.



319



+



Press of

ALLEN, LANE & SCOTT,

Philadelphia, Pa.



TO

MONSIEUR ERNEST NYS,

VICE-PRESIDENT AU TRIBUNAL DE PREMIERE INSTANCE

DE BRUXELLES,

PROFESSEUR A L'UNIVERSITE DE BRUXELLES,

MEMBRE DE L'lNSTITUT DE DROIT INTERNATIONAL,

CHEVALIER DE L'ORDRE DE LEOPOLD,



AND



MONSIEUR ALBERT SOENENS,

JUGE AU TRIBUNAL DE PREMIERE INSTANCE DE

BRUXELLES.



Ez fer war, I call it murder, —

There you hev it plain an' flat ;
I don't want to go no furder

Than my Testyment fer that ;
God hez sed so plump an' fairly,

It's ez long ez it is broad,
An' you ' ve gut to git up airly

Ef you want to take in God.

'Taint your eppyletts an' feathers

Make the thing a grain more right ;
'Taint afollerin' your bell-wethers

Will excuse ye in His sight ;
Ef you take a sword an' dror it,

An' go stick a feller thru,
Guv'ment aint to answer for it,

God ' 11 send the bill to you.

James Russell Lowell.



Emeric Cruce is hardly, if at all, known on this
side of the Atlantic, and has not received the recog-
nition that is his due. In June, 1897, while working
in the Bibliotheque Nationale, I took copious notes
upon what he wrote in his Nouveau Cynee in refer-
ence to international arbitration and have prepared
this monograph to show what an important place he
has filled in its development. In a letter that ap-
peared in a Philadelphia weekly paper, December
7th, 1899, I called attention to Cruce and his pro-
posal in 1623 of a permanent International Court at
Venice. In collecting some of the materials for this
book, I have received assistance from Samuel Dick-
son, Esq., and J. Rodman Paul, Esq., members of
the Philadelphia Bar, Dr. William H. Klapp, Head-
Master of the Protestant Episcopal Academy, of
Philadelphia, James G. Barnwell, Esq., Librarian of
the Philadelphia Library, and Bunford Samuel, Esq.,
of the Ridgway Library.

T. W. B.

Philadelphia, Christmas, 1899.



EMERIC CRUCE.



i.

' I "HE meeting last summer (1899) at the Hague
of delegates from most of the powers of the
world, in response to the call of the Emperor Nicolas
the Second, to consider the possibilities of lighten-
ing the burdens imposed on humanity by militarism, 1
has forced upon public attention, in a much larger
measure than ever before, the evolution of inter-
national peace. The war that is now raging in
South Africa so soon after the deliberations at the
Hague, shows that universal peace is probably but
a dream. Yet the submission of the Alabama claims,

1 International Arbitratioti and the Peace Conference at the
Hague by F. de Martens, delegate from Russia to the Confer-
ence at the Hague: The North American Review ; Volume
CLXIX. (1899), pages 604-624.

The International Conference of Peace, by Seth Low, Presi-
dent of Columbia College and United States Delegate to the
Peace Conference: The North American Review, volume
CLXIX. (1899), pages 625-639.

La Conference de la Haye et V Arbitrage International, par
Arthur Desjardins : Revue des Deux Mondes, volume 155,
(1899), pages 1-26.



2 EMERIC CRUCE.

the Bering Sea seal fisheries, and the Venezuela-
Guiana boundary, to the decisions of International
Courts of Arbitration proves that war can be avoided
by a resort to arbitration, whenever the parties to
an international controversy conclude that it will be
more advantageous for them to submit to the peace-
ful award of a Court of Arbitration rather than to
the chances of a war, with its uncertain results and
its heavy cost in blood and, especially, treasure, that
modern warfare and economic conditions impose on
the combatants.

The chief fundamental force that makes for war
or peace is the need of food. In order that man,
like any other living organism, may exist, he must
have food ; and after his sustenance is assured, he
desires other necessaries and luxuries to add to his
comforts. In a simple state of society, when the
tribal organization is barely formed, war carried on
by one band against another costs little beyond the
loss of life. Then, as a number of tribes are welded
into a small state or nation, the complexity of society
grows and the wealth of the people exposed to loss
or destruction by war increases. As the state form
of government develops and the number of people
increases, whether they will favor keeping the peace
or seek war depends on whether or not they can
supply their wants from the wealth in their posses-



THE CAUSES OF WAR. 3

sion. So long as the individuals as a whole have
the opportunity to gain what they consider a com-
fortable livelihood with reasonable ease, the State,
which in its actions is a reflex of the opinions of the
mass of the citizens, will not be eager to gain the
wealth of another people through war. But so soon
as a large part of the community, owing to increas-
ing numbers or other causes, find it difficult to obtain
what they deem a suitable living, they will begin to
cast covetous eyes upon the possessions of others. 2
Sometimes their desire to gain the wealth of others
will result in a civil war ; but more generally they
will force the State to make war on another people.
Hunger nerves both man and beast in the quest
for food. When the hunter comes upon a lion

2 On this point see the notable and patriotic speech of ex-
President Grover Cleveland at the tenth annual dinner of the
Reform Club at New York, April 24th, 1897. He said in
part: — "The fundamental truth that our free institutions offer
opportunities to all within their influence, for the advancement
and improvement of their condition, has been so far denied
that honest accumulation is called a crime and the necessity
and habit of individual effort and struggle, which are the main-
springs of sturdy Americanism, are descried as unjustifiable
burdens, while unwholesome paternalism is presented in hand-
some and inviting garb. Those enlisted in this crusade of dis-
content and passion, proclaiming themselves the friends of the
people, exclude from that list all their countrymen except those
most unfortunate or unreasonable, and those whom they them-
selves have made the most discontented and credulous."



4 EMERIC CRUCE.

that has just enjoyed a good feast, the king of
beasts will steal away if he can ; but if he has not
had food for many days, he will show fight. 3 As
it is with wild animals, so it is with humanity. But
as civilization or co-operation progresses, and foreign
commerce develops, nations become more interde-
pendent. War then, by interrupting trade, inflicts
injury upon the wealth of both the conquerors and
the conquered. Also, when a great world power,
with millions of inhabitants, trading with all parts
of the world and depending for its prosperity upon
the maintenance of that commerce, engages for any
cause upon a serious war, it incurs, in order to
maintain its armaments on a war footing, enormous
debts, and consequently it must increase its taxation.
A great war, by giving feverishly active business to
the manufacturers of arms and the other purveyors
of the necessaries for war, brings prosperity to those
engaged, whether as employers or employees, in
those industries. But to the people as a whole,

3 " At night and when urged on by hunger, lions are some-
times incredibly daring ; in fact as old Jan Viljoen once said to
me, ' a hungry lion is a true devil, and fears nothing in the
world.' A Hunter' s Wandering in Africa, by F. C. Selous :
London: R. Bentley, 1881, page 266.

An able writer has laid bare in the following passage why
men fight: — "Two bulls who dispute over a pasture, two
lions who dispute over a flock, two savage tribes fighting for
a hunting ground, show us plainly the cause of war ; but the



THE CAUSES OF WAR. 5

war can only bring increased burdens, for it de-
stroys and does not create legitimate trade ; 4 and
by forcing the imposition of increased taxation,
war adds to the cost of manufacturing in that
country, and to the extent that it thereby increases
the cost of production it contributes a disadvantage
to the ability of that people to sell in foreign markets
more cheaply than citizens of other countries. As
the increasing facilities for transportation develop
international commerce, war threatens more and
more with destruction or serious loss the victors
as well as the vanquished. 5 Even to-day, the powers
that are building railroads so that they may more
easily mass their troops are thereby making them-
selves more amenable to the economic forces of

current changes aspect as it departs from its source, it in-
creases and grows purer, and soon, forgetful of its weaknesses,
from where comes also all its grandeurs, humanity prides itself
justly about the heroism of a Leonidas or the genius of a
Hannibal." La France Nozivelle, par Prevost-Paradol, de
/' Academie Franfaise : Paris: Calmann Levy, 3 Rue Auber:
Treizieme edition, 1884, page 266.

* Compare Bastiat' s ' ' The Broken Pane ' ' in his essay, Ce qu'on
voit et ce qu' on ne voit pas: Oeuvres completes: Paris;
Guillaumin et Cie., 1854 ; Volume V., page 337.

5 Recherches Zconomiqiies, historiques et statistiqties stir les
guerres contemporaines par Paul Leroy-Beaulieu, 1869.

Commercial Expansion vs. Colonial Expansion : An open
letter by Andrew Carnegie, Nov. 20th, 1898.



6 EMERIC CRUCE.

the trade of the world : for with the opening of
those roads to commerce, trade will soon roll over
their rails.

In the main, it is the desire to possess what others
have, that leads nations on to war; and it is the
dread of losing what they have — in these latter days,
the fear of injury to commerce 6 — that gives pause
to their warlike aspirations.

Great nations, though they will readily attack small
and weaker states, when they think the gain will
outweigh the cost, hesitate to precipitate war with
another first-class power. This seems to be true of
all powerful nations alike. Perhaps the clearest illus-
tration of this power of force in influencing the
foreign policy of a great State, was the consent of
Great Britain to arbitrate her territorial dispute with
Venezuela, but her refusal to do so with the South
African Republic. When in 1895 President Cleve-
land sent to Congress his message on the Venezuela-
Guiana Boundary question, England, confronted with
the danger of having war with the United States as
well as with Venezuela, if she pushed her land claims
against the South American nation with force of
arms, paused in her forward policy because she could

6 Der Krieg, von Johann von Bloch (translated from the
Russian): Berlin: Puttkammer & Miihlbrecht, 1899.

Esprit des Lois, par Montesquieu, livre vingtieme, chapitre II



THE VENEZUELA AND THE TRANSVAAL DISPUTES. 7

not risk a war with the United States; and finally
consented to submit her case to an International
Court of Arbitration. A few years later, however,
when Great Britain again wished to extend her
territory at the expense of a small State — the Trans-
vaal Republic — she refused the proffer of arbitration
of her small opponent, 7 and forced on war. Ap-

1 President Kruger offered to submit the differences between
the Transvaal Republic and Great Britain to the decision of an
International Court composed of two arbitrators, nominated by
the two governments respectively, who "shall agree respecting a
third person, who shall act as President of the arbitration tri-
bunal," which should decide in every case by a majority vote.

Sir Alfred Milner, in submitting to his government this proposal
of President Kruger for arbitration, wrote : —

" It is evident that this third person will virtually decide every-
thing, and it is provided that he shall ' not be a subject of one of
the arbitrating parties,' i. e., a foreigner.

" On this ground alone I feel sure her Majesty's Government
will not accept the proposal. For every reason I think it is
desirable that it should promptly intimate its total inability to
entertain it."

See extract from Sir Alfred Milner' s dispatch of June 14th,
1899, to his Home Government : The Times, London, August
26th, 1899, page 5.

L' ' Angleterre et la Republiqtie Sud-Africaine by John West-
lake, Q. C., LL. D., Professor of International Law in Cam-
bridge University : La Revue de Droit International et de
Legislation Comparee ; Volume 28 (1896), pages 268-300.

The Transvaal Suzerainty : a letter by John Westlake, to
the Editor of the London Times, published in that paper on
September 22nd, 1899, page 8, last column.

Impressions of South Africa, by James Bryce : New York :
The Century Co., 1898.



8 EMERIC CRUCE.

parently the South African Republic could not offer
a serious and protracted resistance, and England had
no cause to fear the active intervention of a first-class
power. In a war against the United States and
Venezuela, Britain was almost certain to lose ulti-
mately, while against the South African Dutch Re-
public, war could hardly but end sooner or later in
her victory on the field of battle.

Since the discoveries by Adam Smith and the
Physiocrats, and their successors — Mill, J. B. Say,
Bastiat, David A. Wells, and others — of those eco-
nomic laws, which before their time acted unknown
and unseen by humanity, it is possible for people who
stop to think and reason, to see that war imposes,
not only destruction of life, but also, by stopping
and destroying commerce as well as requiring the
maintenance of large armies, heavy financial losses
and burdens. 8 Our great countryman and President,
George Washington, saw this clearly. In a letter to
Lafayette in 1786 he said: —

"As the member of an infant empire, as a philan-
thropist by character, and, if I may be allowed the

% Principes de la Science Politique par E. de Parieu, Vice-
President du Conseil d' Etat, Membre de F Institut : Paris, 1870,
pages 351-355-

Ce qu' on voit et ce qu 'on tie voit pas par Frederic Bastiat :
Oeuvres completes: Paris; Guillaumin et Cie., 1854; Volume
V., pages 340-343.



THE POWER OF INTERNATIONAL COMMERCE. 9

expression, as a citizen of the great republic of hu-
manity at large, I cannot avoid reflecting with pleas-
ure on the probable influence that commerce may-
hereafter have on human manners and society in
general. On these occasions I consider how man-
kind may be connected like one great family in
fraternal-ties. I indulge a fond, perhaps, an enthusi-
astic idea, that, as the world is evidently much less
barbarous than it has been, its melioration must be
progressive ; that nations are becoming more and
more humanized in their policy, and in fine that the
period is not very remote when the benefits of a
liberal and free commerce will pretty generally suc-
ceed to the devastations and horrors of war." 9

Another great statesman, Richard Cobden, also
hoped that freedom of trade would diminish the
frequency of war. 10 He had no idea that armies
could be done away with altogether, nor was he so
visionary as to think that with the adoption of in-
ternational arbitration, the world would be freed

* "Protection" by John DeWitt Warner: Tariff Reform :
Pitblished semi-monthly by the Tariff Reform Committee of the
Reform Club: Volume IV., No. 12 (New York, September
30th, 1891), page 37.

10 U Arbitrage International : Son passe — son present — son ave-
nir, par Michel Revon : Paris: Arthur Rousseau, 1892, pages
433-434-



IO EMERIC CRUCE.

from all its woes : but he hoped that with the de-
velopment of international trade, war would become
less frequent until it should cease perhaps altogether. 11
He saw clearly that the power behind the throne of
international peace was those economic laws of com-
merce that in the long run are stronger than the
most powerful of legislatures.

11 Cobden et la Ligue : Oeuvres completes de Frederic Bastiat :
Paris: Guillaumin et Cie., 1883, Volume III., pages 86-87.



II.

From early times, as soon as man had developed to
a high degree of social relations, as in Egypt and
Babylon, the desire to avoid strife and war is at first
faintly, then gradually more strongly, discernible.
One of the earliest written expressions of this wish
to escape the arbitrament of arms was given by the
old Jewish prophet, Micah, who was born about
750 B. C, when he said: — 12

"And He shall judge among many people, and re-
buke strong nations afar off; and they shall beat their
swords into plow-shares, and their spears into prun-
ing-hooks: nation shall not lift up a sword against
nation, neither shall they learn war any more."

And a little later the prophet Isaiah said : — 13

"And He shall judge among the nations, and
shall rebuke many people; and they shall beat their
swords into plow-shares, and their spears into prun-
ing-hooks: nation shall not lift up sword against
nation, neither shall they learn war any more."

The ancient Grecian States made some attempts to
settle their quarrels with one another without war;



12 Micah IV., 3.

13 Isaiah II., 4.



(11)



12 EMERIC CRUCE.

but the meagre details that we possess of the inter-
State arbitration that obtained in some measure
among the Grecian States, show that the Greeks
did not practice international arbitration in its mod-
ern sense. It would seem, however, from a phrase
in Herodotus 14 that a custom prevailed among the
Greeks themselves for two towns, both subjects of a
more powerful city, to submit any differences that
might arise between them to the decision of the court
of their sovereign city. An analogous case to-day
would be a suit between the cities of Philadelphia and
Pittsburg, argued before the highest court of their
sovereign, the Supreme Court of Pennsylvania. But
a dispute between two of the sovereign members
of the Union — as for example a case involving the
boundary between Pennsylvania and New York —
submitted to the Supreme Court of the United
States, would be very different.

In 418 B. C. the Lacedaemonians defeated the
Argives completely. The Argives were not in a
position to refuse to ratify any terms that the La-
cedaemonians might press upon them, and in the
treaty of peace with which the two States concluded
the war, they agreed to settle their differences for
fifty years without recourse to arms. One of the
clauses of the treaty reads as follows : —

14 Herodotus ; Book 5, Section 83.



ATTEMPTS AT ARBITRATION AMONG THE ANCIENTS. I 3

" If any city of the allies shall quarrel with a
city they shall go to some city [with their quarrel]
whichever city it may appear is fair and impartial
to both." 15

While this seems to have been an attempt to
arrive at something like international arbitration, yet
among the Greeks themselves arbitration in the
modern sense hardly, perhaps never truly, obtained ;
and between the Greeks and the rest of the world
(oi /3dp/3apo«) it never existed.

Many writers have referred to international arbi-
tration in the times of the Roman Empire. With
those countries who were not under the pax Ro-
mano,, the Romans did not arbitrate except by force.
Between States that were more or less under the
rule of Rome, international arbitration did not ob-
tain, for international arbitration can only be prac-
ticed between sovereign and independent States.
When two independent Nations asked Rome to
decide a question over which they disagreed, she
generally played the part of the judge in the case

15 Thucydides, Book 5, Section 79.

For an account of the Amphictyonic Council, see the History
of Federal Government from the foundation of the Achaian
League to the disruption of the United States, by Edward A.
Freeman : Volume I. ; Introduction — History of the Greek Fed-
erations : London, 1863, pages 123-143.



14 EMERIC CRUCE.

of the oyster, for sooner or later she annexed them
both. 16

When the wild hordes that overran and dis-
mantled the Roman Empire had in a measure qui-
eted down and made some advances in civilization,
men began to see the advantages and value of co-
operation in the struggle for life. They sought,
at first perhaps unconsciously, to place limits upon
the right of every man to himself avenge his
wrongs. The army leader, who was invested by
election with sovereign power, became the judge
of the disputes between his subjects ; and by de-
grees as his power developed into that of a king,
the right of private war gave way to his jus-
tice. But before the unrestricted vendetta of early
times gave place to the justice of the sovereign,
there was an intermediate stage during which re-
striction after restriction was thrown around the
right of private vengeance. Thus Alfred of Eng-
land allowed the kinsmen of a murdered man to
avenge him ; but they were to seek the murderer
in his house and surround it for seven days be-
fore attacking him ; during that time the slayer

16 See Traitk theorique et pratique de V Arbitrage Interna-
tional : le role du droit dans le fonctionnement actuel de V in-
stitution et dans ses destinies futures par A. M6rignhac : Paris ;
L. Larose, 1895, pages 22-30.



RESTRICTION OF PRIVATE WAR. 1 5

might make a money payment that was regarded
as satisfaction for the crime. 17

Later, geographical, ethnological and social forces
grouped the inhabitants of Europe into nations.
The struggles between the smaller states of early
times were then succeeded by the larger and more
important wars between the great nations. 18 The
law of self-preservation impelled the weaker powers
to form alliances against the stronger. It was in
this way that what has been looked upon as the
first scheme for perpetual peace came to be de-
vised.

When, after many years of severe fighting, Henry
of Navarre finally succeeded in mounting the throne
of his ancestors, he sought to fortify his posses-
sion of the crown, first by restoring peace to his

11 Essays in Anglo-Saxon Law: Boston, 1876: The Anglo-
Saxon Legal Procedure by J. Lawrence Laughlin, pages 268-
269. "If he have power to surround and besiege his foe, let him
watch him during seven days, and not attack him, if he (foe)
wish to remain there. If he wish to surrender and give up his
arms, let him guard him unhurt thirty days, and announce it to
his kinsman and friends \i. e. in order that they may make
composition for him]."

18 For an account of the cases of mediation during the Middle
Ages, see Les Origines du Droit International par Ernest Nys :
Brussels, 1894 ; pages 49-61. See also Traite" thforique et
pratique de V Arbitrage International : le role du droit dans le
fonctionnement actuel de I 'institution et dans ses destinees futures
par A. Merignhac: Paris; L. Larose, 1895, pages 31-42.



1 6 EMERIC CRUCE.

distracted kingdom, and afterwards by curbing the
power of his great adversary, the House of Aus-
tria. 19 The former of these objects he secured
through a grant of religious toleration to the
Protestants. The second he sought to accomplish
by welding the other Christian nations into a great
league against the House of Hapsburg.

All that has come down to us of this latter
project, known to history as le grand dessein, we
are told by Henry's great Minister, Maximilian de
Bethune, Baron de Rosny, afterwards Due de
Sully. 20 International publicists are not agreed to-

19 Histoire du Roy He?iry le Grand composee par Messire
Hardouin de Perefixe Evesque de Rodes, cy-devant precep-
teur du Roy. A Amsterdam, chez Louys et Daniel Elze-
vier 1 66 1.



20



Shortly after Henry's death in 1610, Maximilian de Beth-
une began to dictate his Memoires des Sages et Royales CEco-
nomies d' Estat Domestiques, Politiques et Militaires de Henry
le Grand. Only the first two volumes, which cover the years
1570 to 1605, were completed during Sully's lifetime, but, after
his death, two of his secretaries and Jean Laboureur completed
the unfinished portion. The first edition was published in two
folio volumes at the Chateau de Sully in 1638 by a printer of
Angers, under the designatio?i of Amstelredam {sic). A new
edition was printed at Rouen in 1649. In the eighteenth cen-
tury, the Abbe de 1' Ecluse des Loges transformed the CEcono-
mies royales into Memoires de Sully.


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