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appeared by the text of his decision, was induced by an erroneous construction of his powers under the protocol to make an award in favor of the claimant, although he considered the claim to have been originally bad; (2) that it was the duty of the Executive to refuse to enforce an unconscionable award; (3) that, assuming the claimant's naturalization to be proved, his right, being a tort feasor, to claim compensation for the consequences of his tort must be denied; (4) that, upon the general question of turpitude, the claim was one that could not be pressed by the United States, "either as a matter of honor or as a matter of law;" (3) that the principle that a sovereign could not honorably press an unjust award, even although it was made by a tribunal invested by law or treaty with ample judicial powers, applied with still greater force to the award of an arbitrator whose acts in administering oaths to witnesses, determining what questions were to be put, and issuing commissions to take testimony must, if sanctioned only by the Executive, be regarded as ultra vires.
Report of Mr. Bayard, Sec. of State, to the President, Jan. 20, 1897, Moore,
June 13, 1885, an award was rendered under the protocol of May 24, 1884, in favor of A. H. Lazare, a citizen of the United States, in respect of a claim against the Government of Hayti, growing out of a contract for the establishment of a national bank at Port au Prince. Counsel for Hayti endeavored to obtain a rehearing on the ground of alleged newly discovered evidence, but the arbitrator declined to grant their application for the reason that, in his judgment, he was functus officio. Counsel then appealed to the Department of State and asked to have the award set aside. The Department held that the award should not be enforced, basing its decision (1) on certain papers in the Department of State which were not shown to have been laid before the arbitrator, (2) on irregularities in the arbitrator's proceedings, (3) on errors in the award, (4) on alleged newly discovered evidence, (5) on an oral statement of the person who had acted as arbitrator that this evidence would have affected his judgment, and (6) on the conclusion that the claim as it stood could not be honorably pressed.
Report of Mr. Bayard, Sec. of State, to the President, Jan. 20, 1887,
"The duty of the executive to refuse to enforce an award which turns out to have been inequitable or unconscionable, has been maintained in repeated rulings of this Department, and is sanctioned by the Supreme Court of the United States.
"The awards under the treaty with Mexico of 1848 were set aside by act of Congress in the Atocha case, and by the courts in the
Gardiner case (13 Stat. 595; 16 Stat. 633). Two of the awards under the Chinese claims treaty of 1858 were reopened in behalf of rejected claimants (15 Stat. 440; 20 Stat. 171). The Secretary of State, in the case of the Caroline, returned to Brazil, against the claimant's protest, money to be paid him under a diplomatic settlement. (See Senate Rep. No. 1376, Fortieth Congress, first session.) "The precedents in this Department therefore fully sustain the principle stated by Chief Justice Waite, that
"As between the United States and the claimants, the honesty of the claim is always open to inquiry for the purpose of fair dealing with the government against which, through the United States, a claim has been made. (Frelinghuysen . Key, 110 U. S. 63.)"
Report of Mr. Bayard, Sec. of State, to the President, in the case of
See, also, Moore, Int. Arbitrations, II. 1794-1800.
As to the case of the Caroline against Brazil, see Moore, Int. Arbitrations,
5. GENERAL ARBITRATION.
(1) PROJECT OF INTERNATIONAL AMERICAN CONFERENCE, 1890.
November 29, 1881, Mr. Blaine, as Secretary of State of the United States, extended, in the name of the President, an invitation to all the independent countries of North and South America to participate in a general congress to be held in Washington on the twenty-fourth of November, 1882, "for the purpose of considering and discussing methods of preventing war between the nations of America." Mr. Blaine added that the President desired that the attention of the congress should be strictly confined to this one great object." On the ninth of August, 1882, Mr. Frelinghuysen, Mr. Blaine's successor, gave notice that the President was constrained to postpone the projected meeting till some future day. As one of the grounds for this action he stated that the peaceful condition of the South American republics, which was contemplated as essential to a profitable and harmonious assembling of the congress, did not exist. The original proposal, however, was never entirely relinquished; and on May 28, 1888, the President gave his approval to the act under which was convoked the International American Conference of 1889-1890. Of this conference one of the results was the celebrated plan of arbitration adopted April 18, 1890. By this plan it was declared that arbitration, as a means of settling disputes between American republics, was adopted "as a principle of American international law;" that arbitration should be obligatory in all controversies concerning dip
lomatic and consular privileges, boundaries, territories, indemnities, the right of navigation and the validity, construction, and enforcement of treaties; and that it should be equally obligatory in all other cases, whatever might be their origin, nature, or object, with the sole exception of those which, in the judgment of one of the nations involved in the controversy, might imperil its independence; but that, even in this case, while arbitration for that nation should be optional, it should be "obligatory upon the adversary power." The conference also adopted a resolution recommending arbitration to the nations of Europe.
Moore, Int. Arbitrations, II. 2113-2117.
During the nineteenth century there were eighty-four international arbitrations to which an American nation was a party. In forty, or nearly one-half, of these the other party was a European power, the arbitrations between American nations being forty-four. To about two-thirds of these the United States was a party, the number of arbitrations between other American powers being fourteen. Of this number there were ten that related to questions of boundary.
After the adjournment of the International American Conference the plan of a treaty of arbitration was signed by the following nations: Brazil, Bolivia, Ecuador, Guatemala, Hayti, Honduras, Nicaragua, Salvador, the United States, Uruguay, and Venezuela.
It was provided by Art. XIX. that the treaty should be ratified by the nations approving it, according to their respective constitutional methods, and that the ratifications should be exchanged at Washington on or before May 1, 1891. No ratifications were filed on or before that day, and on October 22, 1891, the United States sent out to the eleven original signatories a proposal to extend the time. Favorable responses were received from Bolivia, Ecuador, Guatemala, Honduras, Nicaragua, Salvador, and Venezuela; but it was stated in December, 1895, that "as the original treaty was rejected by some important governments of South America," and its revival had only been advocated by a few," the negotiations had "not advanced."
Mr. Adee, Act. Sec. of State, to Mr. Abbott, min. to Columbia, Oct. 24, 1890, For. Rel. 1890, 269; Mr. Wharton, Act. Sec. of State, to Mr. Conger, No. 89, Oct. 22, 1891, MS. Inst. Brazil, XVII. 544; Mr. Wharton, Act. Sec. of State, to Mr. Trueblood, Feb. 27, 1893, 190 MS. Dom. Let. 456; Mr. Olney, Sec. of State, to Mr. Paine, Dec. 9, 1895, 206 MS. Dom. Let. 371.
"It is, in my judgment, incumbent upon the United States to conserve the influential initiative it has taken in this measure by ratifying the instrument and by advocating the proposed extension of the time for exchange." (President Harrison, annual message, Dec. 9, 1891, For. Rel. 1891, XII.)
H. Doc. 551---vol 7----6
"A strange indifference has been manifested toward arbitration with our sister republics. In the convocation of the first Pan-American Conference, based upon a resolution of Congress, the invitation issued by our Government mentioned arbitration as one of its chief objects. When the conference assembled, it was found difficult to bring two or three of the nations to an agreement on the subject. Our Government regarded it as of such importance that Mr. Blaine, then Secretary of State, went into the conference and by his matchless personality and great eloquence brought about an arbitration treaty whereby all questions not involving independence were to be submitted to arbitration. In transmitting this treaty to the Senate in 1890 President Harrison stated that its ratification would constitute one of the happiest and most hopeful incidents in the history of the Western Hemisphere.' Notwithstandnig the strong committals of Congress and the President, the treaty was never called up for consideration, so far as known to the public, and was allowed to die by limitation." (The Hon. John W. Foster, in The Independent, May 26, 1904, p. 1187.)
See Plan of International Peace League, by Francisco de P. Suarez,
In connection with the Pan-American project of 1890, reference may be made to previous efforts to promote international arbitration on the American continents.
One of the declared objects of the Panama congress of 1826 was to promote the peace and union of American nations, and to establish amicable methods for the settlement of disputes between them; but, as is well known, the congress failed to accomplish this design. The project, however, was not wholly abandoned. It appealed too strongly to the imagination to be readily forgotten, and in 1831 Mexico revived it, by proposing a conference of American republics for the purpose of bringing about not only a union and close alliance for defense, but also the acceptance of "friendly mediation" for the settlement of disputes between them, and the framing and promulgation of a code of public law to regulate their mutual relations. This was not a proposal of a scheme of arbitration; but it may be observed that the adoption of a code of public law to govern the relations of nations would remove one of the greatest obstacles to the successful operation of a permanent tribunal for the decision of international differences.
In 1847 there assembled at Lima a congress composed of representatives of Bolivia, Chile, Ecuador, New Granada, and Peru. The avowed object of this meeting was the formation of an alliance of American republics for the purpose of “maintaining their independence, sovereignty, dignity and territorial integrity, and of entering into such other compacts as might be conducive to their common welfare." At the first session of the congress it was decided to extend an invitation to the United States; but it is altogether probable that
this resolution was taken with a view to bring to the attention of the United States the object of the conference, rather than with any hope that the invitation would be accepted. In reality the United States was then at war with Mexico, and was not in a position to lend the weight of its influence to the preservation of the principle of territorial integrity. For a number of years after the congress of 1847 efforts for union among American nations seem to have been confined to the Spanish-American republics, and in no small measure to have been inspired by a feeling of apprehension towards the United States, excited not only by the Mexican war, but also by filibustering expeditions, such as those of William Walker, against Mexico and the states of Central America. This feeling led to the making of the "continental treaty" of 1856 between Chile, Ecuador, and Peru.
January 11, 1864, the Peruvian Government invited the Spanish nations of America to take part in another congress at Lima, with a view to "organize into one family" the several republics of Spanish origin. Among the particular subjects specified for the consideration of the proposed congress was the adoption of measures which should. lead to the amicable settlement of boundary disputes, which were declared to be in nearly all the American states the cause of international quarrels, of animosities, and even of wars as disastrous to the honor as to the prosperity of the nations concerned; and to this was added the explicit proposal "irrevocably to abolish war, superseding it by arbitration, as the only means of compromising all misunderstandings and causes for disagreement between any of the South American republics." The congress met at Lima November 14, 1864, the anniversary of the birth of Bolivar. Representatives were present from the Argentine Republic, Bolivia, Chile, Colombia, Ecuador, Guatemala, Peru, and Venezuela.
September 3, 1880, a convention was signed at Bogota between the Governments of Chile and Colombia, by which the two Republics bound themselves "in perpetuity to submit to arbitration, whenever they can not be settled through diplomatic channels, all controversies and difficulties, of whatever nature, that may arise between the two nations." It was also stipulated that the contracting parties should endeavor, at the earliest opportunity, to conclude similar conventions with other American nations," to the end that the settlement by arbitration of each and every international controversy should become a principle of American public law." On the strength of the signature of this convention the Colombian minister of foreign relations, October 11, 1880, extended to the governments of America an invitation to appoint representatives to meet at Panama with full powers to give to the convention full international effect. This invitation was necessarily rendered nugatory by the continuance of the ChilePeruvian war.