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matter was little considered, either because the British view of the subject was accepted, or because complete confidence in the merits of the American case superseded any interest in the question. The question involved, first, the text of the treaty, and second, the surrounding circumstances. By the treaty of Washington four boards of arbitration were constituted for the determination of different matters. In respect of three of them, it was expressly provided that a majority should be sufficient for an award. In the case of the Halifax commision, there was no such provision, and the inference from this fact was that it was not intended to invest a majority of that commission with power to make an award. The suggestion that the omission of such a provision was due to inadvertence was not to be lightly entertained, since there was special reason, in the case of the Halifax commission, for adopting every possible guaranty against unreasonable or illusory estimates. Mr. Evarts, however, in submitting this argument, declared that the Government of the United States would regard the maintenance of entire good faith and mutual respect in all dealings, under the beneficent treaty of Washington, as of paramount concern, and would not assume to press its own interpretation of the treaty on the point in question against the deliberate interpretation of Her Majesty's Government to the contrary."

Lord Salisbury, in reply, cited Halleck, Bluntschli, and Calvo, to the effect that the decision of a majority of arbitrators binds the minority, unless the contrary is expressed, and declared that he was not aware of any authorities on international arbitration who could be quoted in the contrary sense. Lord Salisbury also argued that the form of the tribunal, and the manner in which it was constituted, indicated the intention of the contracting parties that a majority of its members should be competent to render an award.

The award was duly paid.

Mr. Evarts, Sec. of State, to Mr. Welsh, min. to England, Sept. 27, 1878,
For. Rel. 1878, 290; Lord Salisbury, for. sec. to Mr. Welsh, min, to
England, Nov. 7, 1878, For. Rel. 1878, 316.

Senator George F. Edmunds, in the North American Review, 1879, vol.
128, p. 1, in an article on "The Fishery Award," maintained that
unanimity was essential to the validity of the award of the Halifax
commission. He argued that, in countries whose jurisprudence is
founded on the Roman law, a majority is in the ordinary course of
procedure sufficient for a decision, but that in Great Britain and the
United States, where the common law prevails, the opposite rule
obtains. On this ground he impeached the authority of Bluntschli,
Heffter, and Calvo, in whose countries the Roman law is the basis
of jurisprudence, and maintained that as between Great Britain and
the United States unanimity was, in the absence of a contrary stipu
lation, essential to an award. It should not be forgotten, however,

Mr. Evarts, Sec. of State, to Mr, Welsh, min. to England, Sept. 27, 1878, For. Rel. 1578, 200,

that the rules of international law are based upon the principles of the Roman civil law. This is due to the fact that international law was first developed by the nations of continental Europe, of whose jurisprudence the Roman civil law is the foundation. If, by general international practice, based on the authority of international law, the concurrence of a majority of a board of arbitrators is sufficient for a decision, the natural inference would be that the United States and Great Britain, in their dealings with each other or with other powers, as independent nations, intended to observe that practice, unless they expressly agreed to disregard it.

By the fifth article of the convention of 1822, " in the event of the two commissioners (on the part of the United States and Great Britain respectively) not agreeing in any particular case under examination, or of their disagreement upon any question which may result from the stipulations of this convention, then and in that case they shall draw by lot the name of one of the two arbitrators, who, after having given due consideration," etc. The commissioners disagreed as to the allowance of interest, but the British commissioner refused to call an arbitrator. It was held that his action was unwarranted. Wirt, At. Gen., 1826, 2 Op. 28.

The Colombian Government and the Cauca Company, an American corporation, agreed to submit certain differences to a special commission composed of three members, one appointed by Colombia, one by the company, and the third by agreement between the Secretary of State of the United States and the Colombian minister at Washington. The commission, under the power vested in it to "determine" its "procedure," resolved that all decisions should be by majority vote. At the end of the hearing, when little remained to be done but the signing of the award, the Colombian commissioner resigned. The potential existence of the commission was limited to 210 days, and 203 days had already elapsed. The two remaining members then rendered an award. Held, that the award was sufficient and effective. Colombia v. Cauca Co. (1902), 190 U. S. 524.

(7) RULES OF DECISION.

§ 1075.

"Decisions of international commissions are not to be regarded as establishing principles of international law. Such decisions are molded by the nature and terms of the treaty of arbitration, which often assumes certain rules, in themselves deviations from international law, for the government of the commission. Even when there are no such limitations, decisions of commissions have not heretofore been regarded as authoritative, except in the particular case decided.

I am compelled, therefore, to exclude from consideration the rulings to which you refer, not merely because they do not sustain the position for which they are cited, but because, even if they could be construed as having that effect, they do not in any way bind the Government of the United States, except in those cases in which they were rendered."

Mr. Bayard, Sec. of State, to Mr. Muruaga, Spanish min., Dec. 3, 1886,
For. Rel. 1887, 1015, 1021.

The statement that the decisions of international commissions" are not to be regarded as establishing principles of international law" is to be understood only in a very restricted sense. It is no doubt true that where such decisions rest upon special stipulations of treaty inconsistent with international law, and not upon the general principles of law, they are not to be received as expositions of the latter; but where they purport to expound the general principles of law they possess, as do the decisions of other judicial tribunals, an authority commensurate with the dignity of the commission and the reputation and learning of the persons who compose it. Phillimore specifies, as one of the sources of international law, "the decisions of international tribunals." (Int. Law, 3rd ed., I. 68.) Likewise Wheaton, who, in discussing the sources of international law, enumerates: 4. The adjudications of international tribunals, such as boards of arbitration and courts of prize." And he pertinently declares that, “as between these two sources of international law greater weight is justly attributable to the judgments of mixed tribunals, appointed by the joint consent of the two nations between whom they are to decide." (Lawrence's Wheaton, 1863, 30.) Oppenheim, one of the most recent of publicists, mentions, among the "causes" of international law, i. e., the factors that "influence the gradual growth of new rules," (as distinguished from "sources" or "springs," i. e., "treaties and custom ") the decisions of courts and arbitral awards." (Int. Law, 24.) Citations to the same effect might be greatly multiplied. It would indeed be strange if the judgments of tribunals erected by nations to decide between them upon principles of international law should be destitute of authority as to what those principles are.

By a protocol signed at St. Petersburg August 26 (Sept. 8), 1900, it was agreed to submit to arbitration the claims of the American sealing schooners James Hamilton Lewis, C. H. White, and Kate and Anna and of the American whaling bark Cape Horn Pigeon, growing out of their seizure and detention by Russian cruisers.

The Russian Government desired to include in the protocol a provision that the arbitrator should, in determining each claim, follow "the general principles of international law and the spirit of inter

H. Doc. 551-vol 7-4

national agreements bearing upon the subject." The United States objected to the phrase "spirit of international agreements bearing upon the subject " as vague and possibly retroactive, and after some discussion proposed to omit the whole passage, thus leaving the entire case to the unreserved judgment of the arbitrator. The Russian Government, however, adhering to the phrase on the ground of a desire to recognize treaties as a source of international law, the whole passage was retained, with the addition of the proviso that it should have "no retroactive force," and that the arbitrator should apply to the cases "the principles of international law and of international agreements which were in force and binding upon the parties to this litigation at the moment when the seizures aforementioned took place."

For. Rel. 1900, 851, 853, 854, 857, 858, 861, 863, 865, 870, 871, 872, 874, 885.

(8) AGENTS AND ATTORNEYS.

§ 1076.

Mr. Semple, the chargé d'affaires of the United States to New Granada, was authorized by his Government to appear in its behalf before the commissioners appointed under the treaty between the three states formerly composing the original Republic of Colombia for the purpose of deciding upon the debts due by that Republic. The commissioners intimated a doubt as to his authority to act. With reference to this question the Department of State said: "It is true that you are accredited in a diplomatic capacity to the Government of New Granada only, but as the functions of the board of commissioners were believed to be merely judicial, it was not deemed expedient that the United States should incur the expense or necessary that they should go through the form of sending a special diplomatic agent to Bogotá to advocate the few and inconsiderable demands which were supposed to be within the powers of the board to adjust. It was thought sufficient for you to inform it that you had been directed by your Government to act for that purpose, and it was presumed that if any scruples should be raised as to your powers, an authenticated extract from your instructions would and should be judged adequate to obviate all doubt on that head. When the claims should have been adjusted and the time for payment should have approached, it was considered that it might be necessary for you to be specially empowered by the President to receive and give acquittances for whatever sums of money might have been payable at Bogotá."

Mr. Forsyth. Sec. of State, to Mr. Semple, chargé d'affaires to New
Granada, No. 7, Feb. 12, 1839, MS. Inst. Colombia, XV. 58,

The act establishing the Department of Justice does not prohibit the designation by the President of an advocate on the part of the United States under the agreement with Spain of 1871 organizing the American and Spanish Claims Commission.

Akerman, At. Gen., 1871, 13 Op. 416.

A commission constituted in pursuance of treaty provisions to settle and adjust disputed claims is for that purpose a quasi court, and an agreement to present and prosecute before it a claim at a fixed compensation, or for a reasonable percentage of the amount recovered, is not illegal, immoral, or against public policy.

Wright v. Tebbitts, 91 U. S. 252.

(9) CESSATION OF ARBITRATORS' FUNCTIONS.

§ 1077.

According to the public law of the monarchies of Europe, the authority of ministers, and perhaps of international commissioners, expires on the death, deposition, or abdication of the prince; but not so as between the American Republics, in which the executive power is permanent and continuous, without regard to the governing person, and there is no interruption of the authority or renewal of the credentials of their public ministers on a change of President for whatever cause, provided such President continues to represent and exercise the appointing power of the Government.

Cushing, At. Gen., 1855, 7 Op. 582.

The officers of international commissions may be removed by agreement of the contracting powers creating the commission.

Mr. Trescot, Acting Sec. of State, to Lord Lyons, July 31, 1860, MS. Notes to Gr. Brit. VIII. 336.

June 13, 1885, the Honorable William Strong rendered as arbitrator an award against the Government of Hayti in the cases of Pelletier and Lazare, under the protocol between the United States and Hayti of May 24, 1884. Soon after the award was rendered, counsel for Hayti endeavored to obtain from the arbitrator a rehearing of the Lazare case, on the ground of alleged newly discovered evidence, but he declined to grant their application on the ground that, in his judgment, his "power over the award was at an end" when it "had passed from his hands and had been filed in the State Department."

Mr. Strong to Mr. Preston, Haytian min., Feb. 18, 1886, S. Ex. Doc. 64, 49 Cong. 2 sess. 43. It appears that Judge Strong, June 23, 1886, made at the Department of State an "oral statement" to the effect that if the documents had been presented to him they would have made a "vast difference" in his award. The United States on

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