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On June 12, 1848, Lord Palmerston earnestly opposed a proposition in Parliament that Great Britain should pledge herself to abide the result of arbitration, on the ground that "there is no country. which, from its political and commercial circumstances, from its maritime interests, and from its colonial possessions, excites more anxious and jealous feelings in different quarters than England does, and there is no country that would find it more difficult to obtain really disinterested and impartial arbitrators."

Creasy's First Platform of Int. Law, 698.

For notice of the arbitration of the German Emperor in the case of the
San Juan water boundary, see Phillimore, Int. Law (3d ed.), 5-10.

In July, 1892, the British schooner Lottie May put into the port of Ruatan, island of Ruatan, Honduras, unloaded a cargo of provisions and asked for a clearance for Great Caiman, whence she had come. Clearance was refused because of revolutionary troubles on the Honduran coast, and afterwards the captain of the schooner was arrested for alleged insulting language to the authorities. He was imprisoned for six days, the vessel meanwhile being detained. The British Government claimed damages to the amount of £300 for the captain and £200 for the vessel. The Honduran Government admitted liability, but contested the amount of damages, claiming that it was not liable for damages on account of imprisonment of the master, but only for the detention of the vessel.

It was agreed to arbitrate the question, and an invitation to act as arbitrator was extended to Mr. Arthur M. Beaupre, chargé d'affaires ad interim of the United States to Guatemala and Honduras. Mr. Beaupre was authorized by the United States to act on the understanding that he was to do so personally and not as the representative of his Government. This condition was accepted by the parties to the dispute, who desired, however, that the case should be submitted to "Arthur M. Beaupre, who is now chargé d'affaires ad interim of the United States," with the understanding that he was to sign his individual name and render his decision over his personal signature. This arrangement was approved.

For. Rel. 1899, 371–372.

The members of the general board provided by The Hague treaty are not officers of the United States whose appointments require confirmation by the Senate, nor are they in the ordinary acceptation of the terms persons holding office. Their work is not only occasional, but is contingent upon their appointment by foreign powers to act as arbitrators in the settlement of disputes between them.

Griggs, At. Gen., Nov. 7, 1900, 23 Op. 313.

(4) LIMITATION OF ARBITRATORS' POWERS.

§ 1072.

An award was made under the 7th article of the treaty of 1794 with Great Britain to several persons collectively, who afterwards disagreed as to their respective shares. It was advised that the Government had only to see that the money was paid to those in whose favor it was awarded, and that they must resort to the courts to settle their differences.

Breckenridge, At. Gen., 1805, 1 Op. 153.

Under the treaty with Spain of February 22, 1819, provision was made for the appointment of commissioners to "receive, examine, and decide upon the amount and validity of all the claims” of a certain description against that Government. It was held that this gave the commissioners power to decide conclusively upon the amount and validity of claims, but not upon the conflicting rights of parties to the sums awarded by them.

Comegys r. Vasse, 1 Pet. 193.

Under the act of Congress constituting a board of commissioners to pass on claims, provided for by the treaty with France of 1831, the decision of the board between conflicting claimants is not conclusive, and the question of their respective titles is fully open to be adjudicated by the courts.

Frevall. Bache, 14 Pet. 95.

The award of commissioners under the act of 1849 (9 Stat., 393), passed to carry into effect the convention with Mexico of 1848, does not finally settle the equitable rights of third persons to the money awarded. It makes, however, a legal title to the person recognized by the award as the owner of the claim, and if he also have equal equity, his legal title can not be disturbed.

Judson r. Corcoran, 17 How. 612.

When it was announced, in 1887, that Costa Rica and Nicaragua would refer their boundary dispute to the President of the United States, the Colombian minister at Washington suggested that it would be advisable to postpone the proceedings till the Spanish Government should render its decision in the pending arbitration of the boundary between Colombia and Costa Rica, and in case this could not be done he reserved the rights of his Government, so far as they might be affected by any decision on the dispute between Costa Rica and Nicaragua. Replying to these representations, the Department

of State said: "I do not conceive it possible for an arbitrator to assume to decide any question other than that submitted to him by the two states which may seek his judgment, or to take cognizance of any collateral issue between either of them and a third state, which is not expressly submitted to him by the parties directly interested. I am not aware that Nicaragua is a party to the submission now before the Queen Regent of Spain, any more than Colombia is a party to the question which Costa Rica and Nicaragua may submit to the arbitrament of the President of the United States; and I find nothing in the submission to Spanish arbitration (as heretofore made known to this Department by the official communications of the representatives of Colombia and Costa Rica at this capital) which would induce me to advise the President that, in the event of his accepting the personal trust of arbitrating the boundary question between Costa Rica and Nicaragua, his decision should await or be in any way contingent upon the decision of the Spanish arbitrator in the wholly independent question between Costa Rica and Colombia, or be otherwise rendered than upon the precise facts submitted to him."

Mr. Bayard, Sec. of State, to Mr. Becerra, Colombian min., July 23, 1887,
MS. Notes to Colombia, VII. 125.

An award was rendered on the question between Costa Rica and Nica-
ragua by President Cleveland on March 22, 1888. (Moore, Int. Arbi-
trations, II. 1964.)

The arbitration between Colombia and Costa Rica lapsed, owing to a dispute between the contracting parties as to the time within which their cases were to be presented. Negotiations were, however, afterwards undertaken for a new treaty of arbitration. (Moore, Int. Arbitrations, V. 4857.)

"Regarding this state of facts as established by the diplomatic understanding of the two governments, we have a case in which, notwithstanding the provisions of the treaty placing American citizens upon the same plane in this regard as natives, a tax is levied upon them of double the amount of that imposed upon natives, and when not paid the employers of such workmen are subject to a summary seizure and sale of their goods. It is strongly urged in the able argument submitted by the minister of Hayti that the remedy of the claimants should be sought in the local courts of Hayti, and that such remedy is exclusive. Numerous precedents are cited to the proposition that governments will not intervene diplomatically when such remedy is given. As a general proposition, it is settled international law that a government will not intervene in claims against foreign governments when redress may be had in the courts of that country. If there has been a substantial denial of justice, or a gross miscarriage thereof, sanctioned, and approved by the opposing government, a

nation will then intervene. The arbitrator in this case, however, is given jurisdiction of the differences between the two governments by the terms of the arbitral agreement, giving him jurisdiction and authority to determine certain differences. It is expressly provided in the protocol:

"That the question of the liability of the Republic of Hayti to pay an indemnity in each of said cases, and if so found by the arbitrator, the further question of the amount of the said indemnity to be awarded shall be referred to the Hon. William R. Day, sometime Secretary of State of the United States, and now judge of the circuit court thereof, who is hereby appointed to hear said causes and to determine the questions of said liability and the amount of said indemnity, if if any is found by said arbitrator to be justly due.' "From this agreement the authority of the arbitrator is derived. I can not perceive that the competency of the arbitrator can be limited, because of the fact that Metzger & Co. might have sought judicial remedies in the courts of Hayti. This fact may have weight in the determination of the government when its attention is called to claims against other governments, and may be sufficient reason for declining diplomatic intervention until an attempt has been made to obtain judicial redress in the courts of the country where the claimant is domiciled. The fact that such remedy is afforded may be good ground for withholding consent from an offer to arbitrate differences. I am at a loss to perceive how it can afford a valid objection to the arbitrator exercising powers conferred in the protocol of arbitration."

Award of the Hon. William R. Day, arbitrator, in the matter of the claims of John D. Metzger & Co. v. The Republic of Hayti, protocol of Oct. 18, 1899, For. Rel. 1901, 262, 264, 275.

For the brief of the Hon. W. L. Penfield, Solicitor of the Department of State, for the United States, in this case, see Mr. Hay, Sec. of State, to Mr. Day, March 29, 1900, 244 MS. Dom. Let. 65.

The judicial and executive departments being under the Constitution distinct, the functions of the former, so far as concerns the determination of litigated issues of fact, can not be vested in the latter, unless by a treaty or an act of Congress. The Department of State, therefore, can not, either through its own officers or through an arbitrator appointed by it, take and mould sworn testimony in order to determine such issues. Hence, where an arbitrator appointed under a protocol which was signed by the Secretary of State of the United States and the diplomatic representative of a foreign government, administered oaths to witnesses, determined what questions were to be put to them, and issued commissions for the taking of testimony on oath, it was held that his proceedings, so far as they involved the exercise of distinctively judicial prerogatives, as in the matters specified, were ultra vires.

Report of Mr. Bayard, Sec. of State, to the President, in the cases of
Pelletier and Lazare, Jan. 20, 1887, For. Rel. 1887, 593, 608.
The protocol required the arbitrator to "receive and examine all papers
and evidence" which might be "presented to him on behalf of either
Government," and provided that if he should then "request further
evidence, whether documentary or by testimony, given under oath
before him or before any person duly commissioned to that end,"
the two Governments should use all means in their power to furnish
it. It was assumed from the beginning of the proceedings before
the arbitrator that the protocol was intended to empower him to
administer oaths; but it appeared that he entertained doubts
whether he was authorized to send out a commission to take testi-
mony abroad. Subsequently, however, he stated that he would
"sign what purports to be a commission," though he had "very
serious doubts" as to his powers in the matter. (Moore, Int. Arbi-
trations, II. 1752-1756.)

(5) POWER TO DETERMINE JURISDICTION.

§ 1073.

A controversy arose in the proceedings of the London commission under Article VII. of the Jay treaty as to the power of the commission to decide whether it possessed jurisdiction of claims on which a final decision had been rendered by the lords commissioners of appeal the highest court of appeals in prize cases. In order to prevent the commission from acting on this question, the British commissioners asserted a right to withdraw from the board, the treaty requiring at least one of the commissioners on each side and the fifth commissioner to be present at the performance of any act appertaining to the commission. In this way the progress of the board was brought to a halt. In this dilemma the matter was brought by Rufus King, American minister in London, to the attention of Lord Grenville, who submitted the question to Lord Chancellor Loughborough. The lord chancellor resolved the difficulty by declaring "that the doubt respecting the authority of the commissioners to settle their own jurisdiction, was absurd; and that they must necessarily decide upon cases being within, or without, their competency." Moore, Int. Arbitrations, I. 324–327.

A similar question was raised by the British Government with regard to the power of the Geneva tribunal to deal with what were known as the "indirect claims." This question was disposed of by the declaration of the arbitrators on June 19, 1872, that, without regard to the question of the interpretation or effect of the treaty, the claims in question did not in their opinion constitute, upon principles of international law, a good foundation for an award of compensation or computation of damages between nations, and should therefore be

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