Mr. Olney to Sir Julian Pauncefote.
Washington, April 11, 1896.
Excellency: I have the honor to acknowledge the receipt at your hands of the copy of Lord Salisbury’s dispatch of March 5, 1896. His lordship, after recurring to the negotiations of last year between himself and the late Secretary Gresham for the establishment of a general system of arbitration of disputes between the two Governments, and after in terms excluding from consideration the Venezuelan boundary dispute, expresses the opinion that the time is favorable for renewing discussion upon the subject. He thereupon proceeds to make a most interesting contribution to such discussion, which he concludes by submitting the draft of a proposed treaty, a copy of which, for convenience of reference, is annexed to this communication.
It is proper to state at the outset that these proposals of Her Majesty’s prime minister are welcomed by the President with the keenest appreciation of their value and of the enlightened and progressive spirit which animates them. So far as they manifest a desire that the two great English-speaking peoples of the world shall remain in perpetual peace, he fully reciprocates that desire on behalf of the Government and people of the United States. To himself personally nothing could bring greater satisfaction than to be instrumental in the accomplishment of an end so beneficent.
[Page 225]If Lord Salisbury’s draft bad stopped with article 3 no criticism could have been made either of the arbitral machinery provided or of the arbitral subjects enumerated, except that the latter seem to be so cautiously restricted as hardly to cover other than controversies which, as between civilized States, could almost never endanger their peaceful relations. But article 3, as well as article 4, is apparently qualified by the provisions of article 5, since the national honor may sometimes be involved even in a claim for indemnity to an individual. Further, the arbitral machinery provided by article 4 is open to serious objection as not securing an end of the controversy unless an award is concurred in by at least five out of the six appellate arbiters. In calling attention to these features of the scheme as largely restricting its value, I am directed by the President to propose as a substitute for articles 4 and 5 the following:
IV. Abitration under this treaty shall also be obligatory in respect of all questions now pending or hereafter arising involving territorial rights, boundaries, sovereignty, or jurisdiction, or any pecuniary claim or group of claims aggregating a sum larger than £100,000, and in respect of all controversies not in this treaty specially described: Provided, however, That either the Congress of the United States, on the one hand, or the Parliament of Great Britain, on the other, at any time before the arbitral tribunal shall have convened for the consideration of any particular subject-matter, may by act or resolution declaring such particular subject-matter to involve the national honor or integrity, withdraw the same from the operation of this treaty: And provided further, That if a controversy shall arise when either the Congress of the United States or the Parliament of Great Britain shall not be in session, and such controversy shall be deemed by Her Britannic Majesty’s Government or by that of the United States, acting through the President, to be of such nature that the international honor or integrity may be involved, such difference or controversy shall not be submitted to arbitration under this treaty until the Congress and the Parliament shall have had opportunity to take action thereon.
In the case of controversies provided for by this article, the award shall be final if concurred in by all the arbitrators. If assented to by a majority only, the award shall be final unless one of the parties, within three months from its promulgation, shall protest in writing to the other that the award is erroneous in respect of some issue of fact or of law. In every such case, the award shall be reviewed by a court composed of three of the judges of the Supreme Court of Great Britain and three of the judges of the Supreme Court of the United States, who, before entering upon their duties, shall agree upon three learned and impartial jurists to be added to said court in case they shall be equally divided upon the award to be made. To said court there shall be submitted a record in full of all the proceedings of the original arbitral tribunal, which record, as part thereof, shall include the evidence adduced to such tribunal. Thereupon the said court shall proceed to consider said award upon said record, and may either affirm the same or make such other award as the principles of law applicable to the facts appearing by said record shall warrant and require; and the award so affirmed or so rendered by said court, whether unanimously or by a majority vote, shall be final. If, however, the court shall be equally divided upon the subject of the award to be made, the three jurists agreed upon as hereinbefore provided shall be added to the said court; and the award of the court so constituted, whether rendered unanimously or by a majority vote, shall be final.
The considerations which, in the opinion of the President, render the foregoing amendments of Lord Salisbury’s scheme most desirable and perhaps indispensable may be briefly stated:
1. The scheme, as thus amended, makes all disputes prima facie arbitrable.
Each, as it may arise, will go before the arbitral tribunal unless affirmative action by the Congress or by the Parliament displaces the jurisdiction.
2. The scheme, as amended, puts where they belong the right and power to decide whether an international claim is of such nature and importance as not to be arbitrable, and as to demand assertion, if need be, by force of arms.
[Page 226]The Administration in authority when a serious international controversy arises must, in the nature of things, be often exposed to influences not wholly favorable to an impartial consideration of the nature of that controversy.
It may always be more or less controlled by personal predilections and prejudices inherent in the controversy or arising in its progress, while considerations connected with party success or failure are factors not likely to be wholly eliminated in determining upon a particular course of action.
It is liable to decide in haste—to view the honor of the country as not distinguishable from the good of its party—and to act without the advantage of a full discussion of the subject in all its aspects by party opponents as well as by party friends.
On the other hand, if the issue between war and arbitration be left to the supreme legislative tribunal of the country—to Congress on the one hand or Parliament on the other—there will be ample time for deliberation and for full investigation and debate of the subject in all its bearings, while it is in the face of such an issue and of all its responsibilities that mere party interests are most likely to be subordinated to those of the country at large.
A more conclusive consideration in this connection, however, remains to be stated. It is that, if war and not arbitration is to be evoked in settlement of an international controversy, the direct representatives of the people, at whose cost and suffering the war must be carried on, should properly be charged with the responsibility of making it.
3. The scheme, as amended, changes the arbitration machinery provided by article 4 of Lord Salisbury’s draft in important particulars.
In the first place, the award of the original tribunal of arbitration, if the arbiters are unanimous, is to be final, and the appellate tribunal is to give its decision in view of the record and proceedings (including any evidence adduced) of such original tribunal. It is hardly consistent with any reasonable theory of arbitration that an award concurred in by the arbiter of the defeated country should be appealable by that country. It is obvious, too, that the parties may properly be required to present all their facts and evidence to the original tribunal. Otherwise, and if the award is appealable in any event, the original tribunal might as well be dispensed with, since each party will be sure to make its real contest before the appellate tribunal alone.
In the second place, by the scheme as amended, an award is the result of each arbitration, so that the controversy is finally ended. Under the draft as proposed, on the other hand, there will be an award only in the rare cases in which the six appellate arbiters favor it, either unanimously or by a majority of five to one. Such an arrangement, it is believed, would be dangerous and rather mischievous than salutary in its operation. In all the cases in which the arbitrators were equally divided, or stood four to two, public feeling in each country would have been aroused by the protracted discussions and proceedings, and the chances of a peaceful outcome would be rather prejudiced than promoted. That would be the almost certain result in cases in which the arbiters stood four to two, and in which one judge of the highest court of his country had found himself compelled to give his vote in favor of the other country.
It is a possibility to be noted that the party defeated and disappointed by the award of the original tribunal, in a case where the stake is large and the public feeling intense, might find itself under irresistible temptation to make all subsequent proceedings purely farcical [Page 227] by making sure, before their selection, of the sentiments of two at least of the appellate arbiters.
It is submitted that precaution becomes excessive when the entire arbitration proceedings are made abortive unless the tribunal of six judges reaches an award by a majority of at least five to one. If they stand four to two—which means that at least one judge of the highest court of his country believes that country’s claim to be ill founded—it is hardly reasonable to insist that the result should not be accepted and made effective.
It is believed, also, that there can be no arbitration, in the true sense, without a final award, and that it may be better to leave controversies to the usual modes of settlement than to enter upon proceedings which are arbitral only in name and which are likely to have no other result than to excite and exasperate public feeling in both countries.
It is objected by Lord Salisbury that to insist upon the finality of an award upon the controversies described in article 4 is to enable a single foreign jurist to decide matters of great international consequence.
But under article 4 as amended, the members added to the appellate tribunal need not be foreigners, and if foreigners and they control the result, it must be by the votes of at least two of them.
It may be pointed out, too, that if bias on the part of foreign jurists is feared, the United States, being without alliances with any of the countries of Europe, is certainly not the party to expect any advantage from that source. Great Britain could at least not fail to know in what quarters friendliness or unfriendliness might be looked for.
It is believed that the risks anticipated from the powers given to a foreign jurist as arbiter or umpire under article 4 as amended, if not purely imaginary, may be easily exaggerated. Before the foreign jurist could act, the questions in dispute would have been thoroughly canvassed and decided, once at least, and perhaps twice; so that the risks in question may fairly be regarded as reduced to a minimum.
Finally, to insist upon an arbitration scheme so constructed that miscarriages of justice can never occur is to insist upon the unattainable, and is equivalent to a relinquishment altogether of the effort in behalf of a general system of international arbitration. An approximation to truth—results which, on the average and in the long run, conform to right and justice—is all that the “lot of humanity” permits us to expect from any plan. Not to surround an arbitration plan with all reasonably practicable safeguards against failures of justice would undoubtedly be the height of unwisdom. But beyond that human skill and intelligence are without avail, while for actual results dependence must be placed upon the patient hearing and deliberate decision of a tribunal whose proceedings will attract the close attention and careful scrutiny of the civilized world. It may be conceded that a general arbitration scheme not perfected through repeated arbitration experiments entails the risks of erroneous awards. But in this, as in human affairs generally, there is but a choice between evils, and the nonexistence of any arbitration scheme entails the far greater risks of controversies which should be arbitrated being settled by the sword. It would seem to be the part of wisdom, therefore, to establish the principle of general arbitration, even at the risk of the development of defects in the scheme originally adopted. The affirmation of the principle would of itself tend to greatly diminish the chances of a resort to war, while the imperfections of the scheme as disclosed by its actual working would be [Page 228] remediable at any time by the consent of the parties. That they would be so remedied, in fact, it is difficult not to believe, since a principle of such great value being once established, it is wholly unlikely that both parties would not desire to perpetuate its operation, and would not therefore be prepared to consent to reasonable changes in the necessary machinery. It would tend to insure such consent if the treaty were made terminable after a short term of years on notice by either party.
It only remains to observe that if article 4 as amended should prove acceptable, no reason is perceived why the pending Venezuelan boundary dispute should not be brought within the treaty by express words of inclusion. If, however, no treaty for general arbitration can be now expected, it can not be improper to add that the Venezuelan boundary dispute seems to offer a good opportunity for one of those tentative experiments at arbitration which, as Lord Salisbury justly intimates, would be of decided advantage as tending to indicate the lines upon which a scheme for general arbitration can be judiciously drawn.
Begging that this communication—copy of which is inclosed for that purpose—may be brought to Lord Salisbury’s attention at your earliest convenience, I avail myself of this opportunity to renew, etc.,