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VIII

INTERNATIONAL ARBITRATION

Although the independence of the United States was won by the sword, the founders of the American Republic were accustomed to look upon war as a measure that could be justified only as a choice of evils. Standing armies and elaborate preparations for war they deprecated as a menace to liberty. Having proclaimed as the basis of their political system the consent of the governed, they cherished as their ideal a peaceful nation, always guided by reason and justice. In order that this ideal might be attained, they perceived the necessity of establishing international relations on definite and sure foundations. To that end they became ardent expounders of the law of nations; and their predilection for legal methods naturally found expression in the employment of arbitration for the settlement of international differences.

By arbitration we mean the determination of controversies by international tribunals judicial in their constitution and powers. Arbitration is not to be confounded with mediation. Mediation is an advisory, arbitration a judicial, process. Mediation recommends, arbitration decides. And while it may be true that nations have for this reason sometimes accepted mediation when they were unwilling or reluctant to arbitrate, yet it is also true that they have settled by arbitration questions which mediation could not have adjusted. It is, for instance, hardly conceivable that the question of the Alabama claims could have been settled by mediation. The same thing may be said of many boundary disputes. The importance of mediation, as one of the forms of amicable negotiation, should not, indeed, be minimized. A plan of mediation even may, as in the case of The Hague convention for the peaceful settlement of international disputes, form a useful auxiliary to a system of arbitration; but the fact should nevertheless be understood that the two processes are fundamentally different, and that, while mediation is only a form of diplomacy, arbitration consists in the application of law and of judicial methods to the determination of international disputes.

The government of the United States had been in existence only five years, when it found occasion to employ arbitration for the settlement of serious differences with the mother-country. Important provisions of the treaty of peace remained unexecuted. Various posts along the northern frontier were still held by the British forces, and the British government refused to evacuate them because of the failure of the United States to render effectual the engagement that British creditors should meet with no lawful impediment to the recovery of their confiscated debts. Moreover, almost immediately after the ratification of the treaty of peace, a question arose as to what was the “River St. Croix," which was to form the eastern boundary of the United States in its course northward from the Bay of Fundy. Such a river appeared on the map used by the negotiators of the treaty, but no stream answering to the name was afterwards found. The uncertainty as to the boundary was embarrassing, while the controversy as to the surrender of the posts and the recovery of debts formed a prolific source of irritation. But a still more acute cause of quarrel arose when, in 1793, the governments of France and Great Britain began to fulminate and enforce measures invasive of the rights of neutral trade. The situation then became so tense that, apparently as the only alternative to measures of force, Washington decided to send a special mission to England. John Jay, who was chosen for that delicate task, submitted his first formal representations to Lord Grenville on July 30, 1794. In the treaty concluded on the 19th of the following November, provision was made for three arbitrations. The first of these related to the boundary question; the second, to the claims on account of confiscated

debts; the third, to the subject of neutral rights and duties.

The boundary question was referred to a mixed commission of three persons, which met at Halifax, Nova Scotia, on August 30, 1796, and rendered its award at Providence, Rhode Island, on October 25, 1798, holding that the Schoodiac, or Schoodic, was the river intended under the name of the St. Croix.

The claims of British subjects, on account of the impediments which they had encountered in their efforts to collect in the State courts their confiscated debts, were referred to a mixed commission of five persons, which met at Philadelphia in May, 1797. The proceedings of this body were inharmonious, and its sittings were suspended on July 31, 1798, by the withdrawal of the two American members. Differences of opinion on questions of law were to be expected, but the discussions at the board also developed personal feeling. This appears to have been largely due to the action of Mr. Macdonald, one of the British commissioners, a gentleman who no doubt deserved all the commendations bestowed upon him at the time of his appointment for rectitude and good - will, but who seems unfortunately to have possessed a sense of duty unmitigated by a sense of proportion. Wishing to be entirely candid with his associates, he made it a rule freely to acquaint them with all his opinions; and he adopted the practice of presenting to the board, when it was not otherwise occupied, memoranda expressive of his views. The final rupture was caused by his submitting a resolution which declared that from the beginning of the Revolution down to the treaty of peace the United States, whatever may have been their relation to other powers, stood to Great Britain in an attitude of rebellion. As it has always been the doctrine of the United States that the treaty of peace did not grant their independence, but merely recognized it as, a condition existing from July 4, 1776, the date of its declaration, the American commissioners regarded the resolution as gratuitously offensive and withdrew. The claims which the commission failed to adjust were settled by a treaty concluded January 8, 1802, under which the British government accepted the sum of £600,000 in satisfaction of its demands.

But the most important, as well as the most interesting, of the arbitral tribunals under the Jay treaty, was that which sat at London for the purpose of disposing of American claims against Great Britain on account of captures made under the orders in council, and of British claims against the United States on account of the latter's failure completely to enforce its neutrality. The membership of this board was worthy of the great questions submitted to its determination. The American commissioners were Christopher Gore, who, although popularly known as the legal preceptor of Daniel

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