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ment as to the nature of the injury or amount of the indemnity could not be arrived at, mixed commissions have been established by treaty in numerous instances, to judge and decide the questions at issue between the two contending Governments.

On three several occasions, within a brief period, the United States and Great Britain have had recourse to the international tribunal of a mixed commission for settlement of unliquidated claims of citizens or subjects of one country against the Govern. ment of the other, namely, by the Treaty of July 26, 1853; by that of July 1, 1863; and by the present Treaty of Washington. Other examples of this occur in our earlier history. And the United States have had treaties of a similar character with the Mexican Republic, with the Republic of New Granada, with that of the United States of Colombia, and with the Republics of Costa Rica, Venezuela, and Peru.

An eminent French publicist, M. Pradier Fodéré, observes :

“L'arbitrage, très-usité dans le moyen-âge, a été presque entièrement négligé dans les temps modernes; les exemples d'arbitrage offerts et acceptés sont devenus de plus en plus rares, par l'expérience des inconvénients qui semblent être presque inséparables de ce moyen, ordinairement insuffisant par le défaut d'un pouvoir sanctionnateur. Lorsque les grandes puissances constituent un tribunal arbitral, ce n'est ordinairement que pour des objets d'intérêt secondaire.”

As to the absence of any power to compel observ. ance of the award of an international tribunal, it may

suffice to say that the “pouvoir sanctionnateur” is in the treaty of arbitration, which nations are quite as likely to observe as they are to observe any other treaty. It is that question of good faith among nations upon which the peace of the world stands.

Undoubtedly, cases occur in which the international discord or debate turns on questions where the national honor or dignity is directly in play, and where the controversy becomes a matter of personal sentiment; and in such cases it may not be easy to obtain an agreement to arbitrate. Such, indeed, was the view of Earl Russell, as we have already seen, with reference to the imputed want of due diligence of the British Government in the matter of the Alabama and the Florida. But the influence of time, which softens sensibilities and resentments, and the prevalence at length of the mutual desire of peace, may overcome even the most serious apparent obstacles to friendly arbitration, as the conduct of Great Brit. ain in expressing her regret for the incidents of which the United States complained, and in referring the whole subject to the Tribunal at Geneva, seems to demonstrate.


Many instances have occurred in the present century of another form of arbitration, differing materially from mixed commissions, namely, submission to a sin. gle arbiter or tribunal, with complete authority to decide the subject of controversy.

Thus, in 1851, France and Spain referred to the ar

bitration of the King of the Netherlands the question of responsibility for certain prizes, an incident of the intervention of France in the affairs of Spain in the time of Ferdinand VII. In 1827, Great Britain and the United States referred a question of boundary to the King of the Netherlands. In 1843, France and England submitted a question of indemnities claimed by British subjects to the King of Prussia. In 1844, France and Mexico submitted a similar question to the Queen of Great Britain. In 1852, the United States and Portugal submitted to the Emperor of the French the question of the responsibility of Portugal for the destruction of an American letter-of-marque by the English in the port of Fayal. In 1858, the United States and Chile submitted a question of private loss to the decision of the King of the Belgians. In 1862, a difference between some English officers and local Brazilian authorities was submitted to the arbitration of the King of the Belgians by Great Britain and Brazil. In 1867, Great Britain and Portugal submitted a question of territory to the decision of the United States. In 1870, Brazil and the United States referred a question of damages to the decision of Sir Edward Thornton, the British Minister. In 1864, Great Britain and Peru submitted a question of private claims to the judgment of the Senate of the free city of Hamburg.

We shall presently have to speak of a fact of the same class in the question referred by Great Britain and the United States to the Emperor of Germany by the Treaty of Washington.

One of the earliest of our conventions of this nature was contained in the Treaty of 1818, in execution of an article of the Treaty of Ghent [1815], by which the United States and Great Britain stipulated to refer a certain question of indemnities to some friendly Sovereign or State. Afterward the Emperor of Russia was selected as such arbitrator, and rendered an award against Great Britain, in general terms, by reason of which it became necessary to provide by a second treaty [1822] for the appointment of a commissioner and arbitrator on the part of the United States, and a commissioner and arbitrator on the part of Great Britain, to assemble at Washington and assess damages under the umpirage of the Minister of the mediating Power accredited to the United States. This example is curious and instructive, seeing that the debtor Government, so to speak,—Great Britain,

in order to give effect to its engagement at Ghent entered into three successive international compacts with the United States,—one to appoint an arbiter, another to name him, and a third to give effect to his award. There could be no better illustration of the moral force of treaties of arbitration in the estimation of modern States.



These many examples, it seems to me, tend to manifest the increasing desire of modern nations to ter. minate all their controversies, if possible, by friendly means rather than by force. Where they can not

agree between themselves, they establish a mixed commission or appoint an arbitrator or arbitrators. On such occasions the contending parties do not select an arbitrator in consideration of his being powerful, like an Emperor of the French or an Emperor of Germany, but because of confidence in the impartiality of the arbiter, as when great States refer a question to relatively feeble Sovereigns, like the King of the Netherlands or the King of the Belgians, or to the Senate of a little Republic like Hamburg, or even to five individual judges, like the Arbitrators of Geneva, or to a single personi like Sir Edward Thornton. Nay, in further proof of the availableness of this method of settling national disputes, we have Great Britain and the United States, in spite of their own particular quarrel, each trusting the other in a question between either of them and another Power.

The same disposition of mind on the part of mod. ern Governments, that is, the assumption that a se. lected international judge or arbitrator will decide impartially, whether he be powerful or weak, and of whatever nationality he may be, appears in the constitution of mixed commissions. Generally these commissions consist of two commissioners, one appointed by each of the respective Governments, with authority given to the commissioners to select an umpire to determine any differences which may arise between them; or sometimes the umpire is agreed on by the two Governments.

Now, in the very heat of our late controversies with Great Britain, we consented to accept the British

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