CHAPTER XVII

ARBITRATION AND ITS PROCEDURE

ARBITRATION as a means of settling international disputes is by no means a modern device. Herodotus, the father of history, cites instances of its observance in the ancient Persian Empire. With the Greek states it was a common practice, but always among themselves, and not extended by them to other nations. Thucydides refers to the system with approval and cites the words of the King of Sparta: "It is impossible to attack as a transgressor him who offers to lay his grievance before a tribunal of arbitration."

The dominating spirit of Rome could not tolerate the practice as applied to itself, even in the days of the Republic, and propositions for arbitration on the part of other nations were received by the Senate with sovereign contempt. It did not, however, refuse to act as arbitrator between other contending nations, and in more than one instance settled the question by annexing the territory in dispute to Rome, conduct which Cicero felt impelled to characterize as "miserable trickery." Soon after the decay of the Roman Empire there was a revival of the practice among the Franks and Visigoths. The rising power of the popes gave them a controlling influence in the international affairs of Christendom, which was often exercised through arbi

tration of the controversies of nations. One of the wisest of them, Innocent III, declared that the pope was the sovereign mediator on earth, that peace is a duty of Christians, and that the head of the Church ought to have the power to impose it upon them. It was Pope Alexander VI who, in arbitrating the differences between Spain and Portugal, traced the celebrated imaginary line from pole to pole, dividing between them the possession of all the newly discovered countries.

The German emperors, as successors of the Cæsars, and in political affairs the rivals of the popes, set up a claim for such paramount authority as to enforce their arbitration on other nations, but their pretension was not generally accepted. Other influences also besides the Church or political preeminence in the mediæval period controlled in the matter of arbitration. The exalted character of a sovereign sometimes led contending princes to submit their differences to him; for instance, Louis IX, the saintly King of France, owing to his great wisdom and the authority of his character, was often called to act the part of conciliator or arbitrator. So also cities sometimes assumed the part of arbitrator, and eminent jurisconsults were called upon, as the professors of the Italian universities. That the practice was recognized as a wise method of adjusting disputed questions is manifest from the fact that in the great congresses or conferences of Westphalia, Ryswick, and Utrecht provision was made for the reference of certain subjects to arbitration.

As the power of the papacy began to wane and the

warlike nations rose in importance in the fifteenth and sixteenth centuries, resort to arbitration became less frequent, and almost disappeared in the seventeenth century. Rousseau cynically asked how disputes in that age could be submitted "to a tribunal of men who boasted that their power was founded exclusively on the sword, and who bowed down to God only because he is in heaven." But toward the close of the eighteenth century the nations began again to look with favor on the settlement of their differences by an appeal to reason, and the nineteenth century was the most fruitful in the history of the race in a resort to arbitration; and it is our proud boast that our own country stands at the head of the list of the nations which have most often and on the most important questions submitted their international disputes to this peaceful method of adjustment.

The United States early adopted the practice. In one of the first treaties after independence was secured, that of 1794 with England, negotiated with a view to avoid a threatened conflict, provision was made for three tribunals or commissions of arbitration; and our next important treaty, that with Spain of 1795, likewise created an arbitration commission. The practice so early adopted has been faithfully observed throughout our entire history. Our government has been a party to between seventy and eighty arbitrations of an international or semi-international character, involving twenty different nations, eleven on this hemisphere and nine on the eastern, including the most powerful and the weakest of states. As one result of this policy, the United States has been engaged in foreign wars less than five years

of its existence as an independent nation, a period of over one hundred and twenty years.

The country with which we have most often resorted to arbitration is the one with which we have had the most intimate, the most irritating and perplexing relations; and it is greatly to the credit of both the United States and Great Britain that for the last three-quarters of a century and more they have been able to settle all their differences, some of them of the most grave and threatening character, by the peaceful method of diplomacy or arbitration. The subject most fruitful of negotiation and arbitration between them, aside from claims, has been that of international boundary and territory.

The first question of this class grew out of the treaty of peace and independence of 1783. In fixing the boundaries between the United States and Canada the St. Croix River was named in the treaty as both the eastern boundary and the initial point of the northern divisional line. Very soon after the treaty the identification of the St. Croix River became a matter of dispute. Two considerable rivers emptied into Passamaquoddy Bay, one of which must have been intended as the boundary-line by the negotiators of the treaty, but neither of them was popularly known as the St. Croix. The two governments not having been able to agree upon the subject, it was stipulated in the Jay treaty of 1794 that the question of what was the St. Croix River should be submitted to the arbitration of a commission consisting of one member on the part of each government and an umpire chosen by these two commissioners. It is an indication of the spirit of conciliation which character

ized the British commissioner that he agreed to the selection of an American citizen as umpire, late a federal judge and a prominent lawyer of New York. The commission was enabled to render a unanimous decision, which was accepted by both governments. An interesting incident of this arbitration, already noticed, was that the two surviving negotiators of the treaty of 1783 gave their testimony as witnesses. John Adams, then President of the United States, appeared in person and responded to the interrogatories of the commission, and John Jay, then Chief Justice of the Supreme Court, made a deposition.

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The second question, in order of time, respecting the boundary-line submitted to arbitration, related to the islands in and adjoining Passamaquoddy Bay. The uncertainty as to these also grew out of the language of the treaty of 1783. By the provisions of the treaty peace of 1814 this question was referred to two commissioners, one on the part of each government, and it was provided that if they failed to agree they should report to the respective governments the points of disagreement and the grounds thereof; and the governments agreed to refer the points of disagreement to the arbitration of some friendly power. Happily the commissioners were able to unite upon a joint report or decision, which was accepted by both

governments.

The third question related to what was described in the treaty of 1783 as "the northwest angle of Nova Scotia" and the line along the highlands between the New England States and Canada. This proved to be one of the most irritating, difficult, and tedious of all, the