the Rio Grande forms our southern boundary. And, only a year ago, the International Boundary Commission, United States and Mexico, having failed to agree with respect to a question of boundary, the two countries provided for the addition of a third member to the commission in order that there might be an arbitration to settle the question of international title involved. And yet, in case the pending arbitration treaty with Great Britain is ratified, as amended, or in case an identical treaty were negotiated and ratified with Mexico, we would be precluded from submitting to arbitration under either of these treaties ordinary boundary questions which the respective international boundary commissions had not been able to settle to the satisfaction of both parties.

It is said, indeed, that if the amended treaty is adopted, we can still negotiate special treaties to cover questions such as these, proper for arbitration, but which are excluded from arbitration by the Bacon amendment. So we can, now, without the general arbitration treaty. So we could and did last year with Mexico. But wherein will it be easier to arrange such special arbitrations after we have gone on record by excluding such questions from the terms of our general arbitration treaties and thereby giving prima facie notice, at least, to foreign nations that we no longer propose to arbitrate them?

Finally, we have the exception "concerning the question of the alleged indebtedness or monied obligation of any State of the United States." Here we have an exception which is altogether aimed at the exclusion of justiciable questions. As Senator Lodge remarked in discussing the matter, “if a pecuniary claim is not justiciable I do not know what is." 25

For historical reasons, however, which seem sufficient to a great many people in this country, when it comes to the repudiated reconstruction bonds, "we separate them and take them out from the ordinary class of pecuniary claims," 26 and, of course, it was this particular class of indebtedness which was aimed at by this amendment. But this question of the reconstruction bonds had already been taken care of by the language of the first article of the treaty, which provided for the submission only of differences "hereafter arising," thus, by lan25 Cong. Record, Vol. 48, p. 3050.

26 Senator Lodge's address in the Senate, S. Doc. 353, 62 Cong., 2 sess., p. 24.

guage at once general and inoffensive, which in no wise interferes with the logic of the treaties, meeting the insuperable practical objection to the submission of questions growing out of the reconstruction bonds to arbitration.

The amendment, however, excludes not merely questions arising out of the transactions of reconstruction days, but all questions, at any time arising, with respect to the indebtedness of any State of the United States, thus not merely preventing the reopening of certain very unhappy transactions in the past but amounting to a general repudiation on our part, in advance, of the application of judicial methods to the settlement of such questions in the future; and this although the United States is not only a signatory, but was the proposer and chief advocate of the Hague convention respecting the limitation of the employment of force for the recovery of contract debts, which aims at securing the submission to arbitration of questions growing out of the failure of the signatory countries to meet their public debt, as well as other questions of contract indebtedness.26 It is believed that this feature of the Senate amendment is at once unnecessary, illogical and susceptible of giving offense to foreign governments.27

26 See Treaties and Conventions, pp. 2248–2258, at 2254. See also Scott, The Hague Peace Conferences, Vol. I, pp. 415–422.

27 Senator Bacon said in his speech in the Senate referring to the question of the Southern bonds:

"I do assert it as a fact of which I am as confident as I am of anything else that I have no personal knowledge of that there is now in the State Department, or has been in the recent past, one or more demands or suggestions upon the part of foreign governments upon the Federal Government to take up this question of the bonds of the Southern States which were not paid. If I am wrong about that I invite correction of it, not only here but elsewhere." (Cong. Record for March 9, 1912, Vol. 48, p. 3245.)

If the Senator is right in this statement it would seem that the refusal of the Senate to accept the conclusive and yet inoffensive general terms in which the negotiators of the treaties have arranged to lay the ghost of the southern bonds was peculiarly unfortunate. If such representations have been made it requires no stretch of the imagination to guess that they have been made by some of the leading commercial nations of Europe such as England, France or Germany, where the foreign holders of the repudiated southern bonds for the most part reside.

Germany and Japan are, perhaps, the two foreign nations with whom it would be of the most practical importance to conclude general arbitration treaties, and yet one clause of the Bacon amendment, the provision with respect to the admission of

In conclusion, it is submitted that this amendment has destroyed the symmetry of the arbitration treaties, has done away with their logical quality, has vitiated the fundamental principle upon which they rested so that they are no longer in fact general treaties of arbitration 28 and, furthermore, that certain provisions of the amendment are directly calculated to irritate foreign nations with whom it is most important for us to negotiate treaties of general arbitration.

It is believed that the arbitration treaties with Great Britain and France, as originally drawn and as construed in the Lodge amendment, were bold and statesmanlike documents, a genuine advance over all that had been done before. Whatever disposition may ultimately be made of the treaties, a great part of their mission has been accomplished. "There never was one lost good." In the education which the country at large has received and the better understanding of a great and intricate subject which has come to the Senate itself, through the illuminating discussion which has taken place in and out of Congress; in the inspiration which has come to the friends of peace in all lands through the negotiation of these treaties and the struggle for their adoption, lies a great gain which the ultimate fate of the treaties, whatever it be, can never destroy.

But, returning to the fundamental thesis suggested in the beginning of this article, that the value of these treaties lies in their usefulness as models and in their inspirational power as respects future treaties, and not in their practical utility in preventing war between the contracting parties, it is submitted that to ratify the treaties as amended would, on the whole, hinder rather than help the cause of peace through justice. WILLIAM CULLEN DENNIS.

aliens to our educational institutions, strikes unquestionably at Japan, and it is quite within the realm of possibility that the exception with respect to State indebtedness, eo nomine, may be found to have unnecessarily irritated Germany.

28 In this connection it is interesting to note that the Japanese press is already beginning to suggest that the amended treaties are not treaties of "general arbitration" within the meaning of Article 4 of the revised Anglo-Japanese treaty of alliance, and hence, even if ratified they will not bring into effect the provisions of that article relieving Great Britain from any obligation to go to war with a nation with which it has a "treaty of general arbitration."

THE FRENCH SPOLIATION CLAIMS

PART II

The first article on this subject in the April number of THE AMERICAN JOURNAL OF INTERNATIONAL LAW (pp. 359-380), dealt with the general principles upon which these claims have been held by the Court of Claims to have been in their origin valid international demands against France, and to have been assumed as obligations of the United States by force of the treaty of September 30, 1800, the ratifications of which were exchanged July 31, 1801.1

The present article will be devoted to a review of some of the rules on which the Court of Claims proceeded in the details of its allowances.

VALUE

The following statement in the pamphlet published by John K. Kane, one of the commissioners for the distribution of the French indemnity of 1831, shows the principles upon which that commission proceeded.2

The vessel was generally estimated at her cost to the owner, deducting a reasonable percentage for her subsequent depreciation. The expense of constructing her, as entered in the builder's books of account, and the price paid for her by the claimant, or that for which an interest in her had been sold to others, were of course safe guides to her value at a certain time. The valuation sometimes found in the charter parties, and that stipulated in policies of insurance or embargo bonds, were also valuable, though rarely to be accepted as conclusive; and even modern depositions were sometimes resorted to.

The commission though sitting at such a comparatively early day, stated that even then such evidence was not always obtainable. They therefore laid down the following general rules for the ascertainment of values; 3

Public Treaties of the United States, 1875, pp. 224–232.

2 Moore's International Arbitrations, Vol. 5, p. 4482.

3 Ibid., p. 4483.

The seizure and description of the vessel, its place of construction, and its age were except in a few cases of foreign built vessels determined easily by the register; and the proximate, or rather the probable value was then fixed by reference to the general table of information which had been collected on the subject. This result was compared with the proofs in each case; and the table was made more accurate for future use by the repeated tests which were thus applied to it.

The cargo when taken at sea was estimated at its price in the market from which it came, and the different charges which had contributed to increase its value. The bills of parcels of the claimants, their invoices-taking care to strike out the debentures on foreign merchandize where they appeared to be included in the price—the sworn value in the manifests of exportation, and a comparison of these in some cases with other similar documents relating to other shipments, or with prices current of the day, enabled the board to fix the original cost with reasonable certainty.

The Court of Claims proceeded on the same principles in the ascertainment of values under the French Spoliation Act of 1885.

PREMIUM OF INSURANCE

The premium of insurance paid by the owner of either the vessel or cargo has been allowed as part of the value of the thing lost. On this point the court has said:

That the premium received, being part of the interest insured and paid, constitutes part of the insurer's loss, which he is entitled to recover.'

The commission on the French indemnity of 1831 allowed,

The fair and ordinary premium of insurance for the immediate voyage, ascertained at the time of shipment and calculated to cover. This premium was regarded as a sufficiently exact equivalent for the hazards of the voyage, and as indicating definitely the increase of value which was gained by encountering them. It was therefore allowed, without inquiring whether the risk had been transferred by contract to an insurer, or was borne by the owner himself.5

This same rule for the allowance of a fair premium of insurance for the voyage whether the risk was assumed by an underwriter or by the owner himself has been very generally followed by tribunals passing

Schooner Delight, 21 C. Cls. 430, 441.

5 Moore's International Arbitrations, Vol. 5, p. 4483.