claims shall be submitted to a tribunal of six members," three of whom
shall be judges of the Supreme Court or of Circuit Courts, to be
nominated by the President of the United States. The other three shall
be members of the highest British court or members of the Judicial
Committee of the Privy Council, to be nominated by the Queen. "Their
award by a majority of not less than five to one shall be final. If
there is less than the prescribed majority, the award shall also be
final, unless either party within three months protests that the award
is erroneous. If the award is protested, or if the members of the
tribunal are equally divided, there shall be no recourse to hostile
measures of any description until the mediation of one or more friendly
powers shall have been invited by one or the other party." It is also
provided that "where one of the United States or a British colony is
specially concerned, the President or Queen may make a judicial officer
of the state or colony an arbitrator."
In some cases, a question may be removed from the jurisdiction of the
tribunal of three or the tribunal of five, and transferred to that of
the tribunal of six. If, prior to the close of the hearing of the claim
before the lower tribunal, it shall be decided by the tribunal, upon the
motion of either party, that the determination of the claim necessarily
involves a decision of some "disputed question of principle of grave
general importance, affecting the national rights of such party as
distinct from its private rights, of which it is merely an international
representative," then the jurisdiction of the lower tribunal over the
claim shall at once cease, and it shall be dealt with by the tribunal of
six.
With regard to territorial claims, a special article defines them as
including not only all claims to territory, but also "all other claims
involving questions of servitude, rights of navigation, access to
fisheries, and all rights and interests necessary to control the
enjoyment of either's territory."
The treaty is to remain in force for five years from the date at which
it becomes operative, and "until a year after either party shall have
notified the other of its wish to terminate it."
The first impression which one gets from reading the treaty is that it
is strictly defined and limited in its application. Yet, when duly
considered, it seems to cover all chances of controversy that are likely
to arise between the United States and Great Britain. Under such a
treaty as this, nearly all the questions at issue between the two
countries since 1783 might have been satisfactorily adjusted,--the
payment of private debts to British creditors, the relinquishment of the
frontier posts by British garrisons, the northeastern boundary, the
partition of the Oregon territory, the questions concerning the
Newfoundland fisheries, the navigation of the Great Lakes, the catching
of seals in Bering Sea, the difference of opinion over the San Juan
boundary, etc. Possibly some of the old questions growing out of the
African slave trade might have been brought within its purview, but that
is now of small consequence, since no issues of that sort are likely
ever to rise again. Differences attending the future construction of a
Nicaragua canal, regarded as an easement or a servitude possibly
affecting vested rights, might, under a liberal interpretation, be dealt
with; and one may suppose that the Venezuela question is meant to be
covered, since it relates to territorial claims in which, though they
may not obviously concern the United States either immediately or
remotely, our government has with unexpected emphasis declared itself
interested.
On the other hand, one does not seem to find in the treaty any provision
which would have covered two or three of the most serious questions that
have ever been in dispute between the United States and Great Britain.
One of these questions, concerning the right of search and the
impressment of seamen, was conspicuous among the causes of the
ill-considered and deplorable War of 1812. But it may be presumed, with
strong probability, that no difficulty of that kind can again arise
between these two powers. The affair of the Trent in 1861 seems also to
be a kind of case not provided for. But that affair, most creditably
settled at a moment of fierce irritation and under aggravating
circumstances, was settled in such wise as to establish a great
principle which will make it extremely difficult for such a case to
occur again. As for the Alabama Claims, they could apparently have been
adjusted under the present treaty, as large pecuniary claims involving
international principles of grave general importance.
On the whole, there seems to be small likelihood of any dispute arising
between this country and Great Britain which cannot be amicably
settled, with reasonable promptness, under the provisions of this new
Arbitration Treaty. Once chief desideratum in any such instrument is to
secure impartiality in the arbitrating tribunals, and here the
arrangements made in our treaty will doubtless yield as good results as
can ever be achieved through mere arrangements. In such matters, the
best of machinery is of less consequence than the human nature by which
the machinery is to be worked. Impartiality, not only real, but
conspicuous and unmistakable, is the prime requisite in a court of
arbitration. Its life and health can be sustained only in an atmosphere
of untainted and unsuspected integrity. But in an age which does not yet
fully comprehend the damnable villainy of such maxims as "Our country,
right or wrong," gross partisanship is not easy to eliminate from human
nature. Even austere judges, taken from a Supreme Court, have sometimes
shown themselves to be men of like passions with ourselves. It would
need but few awards made on the "eight to seven" principle, as in the
Electoral Commission of 1877, to make our arbitrating tribunal the
laughing-stock of the world, and to set back for a generation or two the
hand upon the timepiece of civilization.
A general experience, however, justifies us in hoping much better things
from the group of international tribunals contemplated in our present
treaty. There is no doubt that the good work is undertaken in entire
good faith by both nations; both earnestly wish to make international
arbitration successful, and there is little fear that the importance of
fair dealing will be overlooked or undervalued. If the present
proceedings result in the establishment of a tribunal whose integrity
and impartiality shall win the permanent confidence of British and
Americans alike, it will be an immense achievement, fraught with
incalculable benefit to mankind. For the first time, the substitution of
international lawsuits for warfare will have been systematically begun
by two of the leading nations of the world; and an event which admits of
such a description cannot be without many consequences, enduring and
profound.
For observe that the interest of the present treaty lies not so much in
the fact that it provides for arbitration as in the fact that it aims at
making arbitration the regular and permanent method of settling
international disputes. In due proportion to the gravity of the problem
is the modest caution with which it is approached. The treaty merely
asks to be tried on its merits, and only for five years at that. Only
for such a brief period is the most vociferous Jingo in the United
States Senate or elsewhere asked to put a curb upon his sanguinary
propensities and see what will happen. Nay, if we really prefer war to
peace; if, like the giant in the nursery tale, we are thirsting for a
draught of British blood, neither this nor any other treaty could long
restrain us. As Hosea Biglow truly observes,--
"The right to be a cussed fool
Is safe from all devices human."
It has been rumoured that some Senators will vote against the treaty, in
order to show their spite against President Cleveland and Mr. Olney. If
the treaty should fail of confirmation through such a cause, it would be
no more than has happened before. Members of the Sapsea family have sat
in other chambers than those of the Capitol at Washington. But, as a
rule, good causes have not long been hindered through such pettiness,
and should the treaty thus fail for the moment, it would not be ruined,
but only delayed. In any event, it is not likely to be long in acquiring
its five years' lease of life. If during that time nothing should occur
to discredit it, even should no cases arise to call it into operation,
its purpose is so much in harmony with the most enlightened spirit of
the age that it is pretty sure to be renewed. Should cases arise under
it, the machinery which it provides is confessedly provisional and
tentative, and upon renewal can be modified in such wise as may seem
desirable. Other human institutions have been moulded by experience, and
so, doubtless, it will be with international courts of arbitration.
The working of the tribunals created by the present treaty will be
carefully watched by other nations than the two parties directly
concerned, and should it achieve any notable success it will furnish a
precedent likely to be imitated. The removal of any source of irritation
at all comparable to the Alabama Claims would be, of course, a success
of the first magnitude; great good, with far-reaching consequences,
might be wrought by a much smaller one. Probably few readers are aware
of the extent to which the arbitration at Geneva in 1872 has already
served as a precedent for the peaceful solution of international
difficulties.[24] Already the moral effect of that event has been such
as to suggest that it may hereafter be commemorated as the illustrious
herald of a new era. The Geneva event was brought about by a treaty
specially framed for the purpose, and might thus be regarded as
exceptional or extraordinary in its nature. Still greater, then, would
be the moral effect of a similar success achieved by a tribunal created
under the provisions of a permanent treaty.
The commission to arbitrate between the Argentine Republic
and Brazil, 1886.
Arbitration by Spain between Colombia and Venezuela, 1887.
Arbitration by the minister of Spain at Bogotá between
Italy and Colombia, 1887.
Arbitration by President Cleveland between Nicaragua and
Costa Rica, 1888.
Arbitration by the Queen of Spain between Peru and Ecuador,
1888.
Arbitration by Baron Lambermont between England and
Germany; affair of Lamoo, 1888.
Arbitration by the Czar of Russia between France and the
Netherlands; affair of the boundaries of Guinea, 1888.
Arbitration by Sir Edward Momson between Denmark and
Sweden, 1888.
Compromise between the United States and Venezuela, 1890.
Compromise between Germany, the United States, and Great
Britain; affair of Terranova, 1891.
Arbitration by Switzerland between England, the United
States, and Portugal; affair of the railroads at Delagoa
Bay, 1891.
Arbitration between Great Britain and the United States
relating to the question of the delimitation of territorial
power in Bering Sea, 1893.
It may be urged that arbitration cannot often succeed in dealing with
difficulties so formidable as those connected with the Alabama Claims.
The questions hitherto settled by arbitration have for the most part
been of minor importance, in which "national honour" has not been at
stake, and the bestial impulse to tear and bruise, which so many
light-headed persons mistake for patriotism, has not been aroused. The
London "Spectator" tells us that if the United States should ever repeat
the Mason and Slidell incident, or should feel insulted by the speech of
some British prime minister, there would be war, no matter how loudly
the lawyers in both countries might appeal to the Arbitration Treaty.
The two illustrations cited are not happy ones, since from both may be
deduced reasons why war is not likely to ensue. The Mason and Slidell
incident was a most impressive illustration of the value of delay and
discussion in calming popular excitement. The principle of international
law which the United States violated on that occasion was a principle
for which the United States had long and earnestly contended against the
opposition of Great Britain. A very brief discussion of the affair in
the American press made this clear to every one, and there was no
cavilling when our government disowned the act and surrendered the
prisoners with the noble frankness which characterized President
Lincoln's way of doing things. What chiefly tended to hinder or prevent
such a happy termination of the affair was the unnecessary arrogance of
Lord Palmerston's government in making its demand of us. What chiefly
favoured it was the absence of an ocean telegraph, affording the delay
needful for sober second thought. I remember hearing people say at the
time that the breaking of the first Atlantic cable in 1858 had thus
turned out to be a blessing in disguise! Now, should any incident as
irritating as the Trent affair occur in future, the Arbitration Treaty
can be made to furnish the delay which the absence of an ocean cable
once necessitated; and I have enough respect for English-speaking people
on both sides of the water to believe that in such case they will behave
sensibly, and not like silly duellists. So, too, as regards "feeling
insulted" by the speech of a prime minister, there is a recent historic
instance to the point. Our British cousins may have had reason to feel
insulted by some expressions in President Cleveland's message of
December, 1895, but they took the matter very quietly. Had the boot been
on the other leg, a few pupils of Elijah Pogram might have indulged in
Barmecide suppers of gore, but there the affair would probably have
ended. The reason is that deliberate public opinion in both countries
feels sure that nothing is to be gained, and much is to be lost, by
fighting. Under such conditions, the growing moral sentiment which
condemns most warfare as wicked has a chance to assert itself. Thus the
delay which allows deliberate public opinion to be brought to bear upon
irritating incidents is a great advantage; and the mere existence of a
permanent arbitration treaty tends toward insuring such delay.
People who prefer civilized and gentleman-like methods of settling
disputes to the savage and ruffian-like business of burning and
slaughtering are sometimes stigmatized by silly writers as
"sentimentalists." In the deliberate public opinion which has come to be
so strong a force in preventing war between the United States and Great
Britain, sentiment has as yet probably no great place; but it is hoped
and believed that it will by and by have much more. In the days of
Alexander Hamilton, there was very little love for the Federal Union in
any part of this country; it was accepted as a disagreeable necessity.
But his policy brought into existence a powerful group of selfish
interests binding men more and more closely to the Union, and more so at
the North than at the South. When Webster made his reply to Hayne,
there was a growing sentiment of Union for him to appeal to, and
stronger at the North than at the South. When the Civil War came, that
sentiment was strong enough to sadden the heart of many a Southerner
whose sense of duty made him a secessionist; at the North it had waxed
so powerful that men were ready to die for it, as the Mussulman for his
Prophet or the Cavalier for his King. Thus sentiment can quickly and
sturdily grow when favoured by habits of thought originally dictated by
self-interest. Obviously a state of things in favour of which a strong
sentiment is once enlisted has its chances of permanence greatly
increased. I therefore hope and believe that in the deliberate public
opinion above mentioned sentiment will by and by have a larger place
than it has at present. As feelings of dislike between the peoples of
two countries are always unintelligent and churlish, so feelings of
friendship are sure to be broadening and refining. The abiding sentiment
of Scotchmen toward England was for many centuries immeasurably more
rancorous than any Yankee schoolboy ever gave vent to on the Fourth of
July. There is no reason why the advent of the twenty-first century
should not find the friendship between the United States and Great
Britain quite as strong as that between Scotland and England to-day.
Toward so desirable a consummation a permanent policy of arbitration
must surely tend.
The fact that deliberate public opinion in both countries can be counted
upon as strongly adverse to war is the principal fact which makes such a
permanent policy feasible. It is our only sufficient guarantee that the
awards of the international tribunal will be respected. These
considerations need to be borne in mind, if we try to speculate upon the
probable influence upon other nations of a successful system of
arbitration between the United States and Great Britain. Upon the
continent of Europe a considerable interest seems already to have been
felt in the treaty, and, as I observed above, its working is sure to be
carefully watched; for the states of Europe are suffering acutely from
the apparent necessity of keeping perpetually prepared for war, and any
expedient that holds out the slightest chance of relief from such a
burden cannot fail to attract earnest attention.
The peoples of Europe are not unfamiliar with the principles of
arbitration. Indeed, like many other good things which have loomed up
conspicuously in recent times, arbitration can be traced back to the
ancient Greeks, for whom it occasionally mitigated the evils attendant
upon frequent warfare between their city-states. Among the Italian
republics of the Middle Ages, disputes were sometimes submitted to the
arbitration of learned professors in the universities at Bologna and
other towns. But such methods could not prevail over the ruder fashions
of Europe north of the Alps. As mediæval Italy was the industrial and
commercial centre of the world, so in our day it is the nations most
completely devoted to industry and commerce, the English-speaking
nations, that are foremost in bringing into practice the methods of
arbitration. The settlement of the Alabama Claims is the most brilliant
instance on record, and we have already cited examples of the readiness
of sundry nations, great and small, to imitate it. Such examples, even
when concerned with questions of minor importance, are to some extent an
indication of the growing conviction that war, and the unceasing
preparations for it, are becoming insupportable burdens.
It is the steadily increasing complication of industrial life, and the
heightened standard of living that has come therewith, that are making
men, year by year, more unwilling to endure the burdens entailed by war.
In the Middle Ages, human life was made hideous by famine, pestilence,
perennial warfare, and such bloody superstitions as the belief in
witchcraft; but men contrived to endure it, because they had no
experience of anything better, and could not even form a conception of
relief save such as the Church afforded. Deluges of war, fraught with
horrors which stagger our powers of conception, swept at brief intervals
over every part of the continent of Europe, and the intervals were
mostly filled with petty waspish raids that brought robbery and murder
home to everybody's door; while honest industry, penned up within walled
towns, was glad of such precarious immunity as stout battlements eked
out by blackmail could be made to afford. Fighting was incessant and
ubiquitous. The change wrought in six centuries has been amazing, and it
has been chiefly due to industrial development. Private warfare has been
extinguished, famine and pestilence seldom occur in civilized countries,
mental habits nurtured by science have banished the witches, the land is
covered with cheerful homesteads, and the achievement of success in life
through devotion to industrial pursuits has become general. Wars have
greatly diminished in frequency, in length, and in the amount of misery
needlessly inflicted. We have thus learned how pleasant life can become
under peaceful conditions, and we are determined as far as possible to
prolong such conditions. We have no notion of submitting to misery like
that of the Middle Ages; on the contrary, we have got rid of so much of
it that we mean to go on and get rid of the whole. Such is the general
feeling among civilized men. It may safely be said not only to that no
nation in Christendom wishes to go to war, but also that the nations are
few which would not make a considerable sacrifice of interests and
feelings rather than incur its calamities. For reasons such as these,
the states of Continental Europe are showing an increasing disposition
to submit questions to arbitration, and in view of this situation the
fullest measure of success for our Arbitration Treaty is to be desired,
for the sake of its moral effect.
The method at present in vogue on the continent of Europe for averting
warfare is the excessively cumbrous expedient of keeping up great
armaments in time of peace. The origin of this expedient may be traced
back to the _levée en masse_ to which revolutionary France resorted in
the agonies of self-defence in 1792. The _levée en masse_ proved to be a
far more formidable engine of warfare than the small standing armies
with which Europe had long been familiar; and so, after the old military
system of Prussia had been overthrown in 1806, the reforms of Stein and
Scharnhorst introduced the principle of the _levée en masse_ into times
of peace, dividing the male population into classes which could be kept
in training, and might be successively called to the field as soon as
military exigencies should demand it. The prodigious strength which
Prussia could put forth under this system was revealed in 1866 and 1870,
and since then similar methods have become universally adopted, so that
the commencement of a general European war to-day would doubtless find
several millions of men under arms. The progress of invention is at the
same time daily improving projectiles on the one hand, and
fortifications on the other; we may perhaps hope that some of us will
live long enough to see what will happen when a ball is fired with
irresistible momentum against an impenetrable wall! To keep up with the
progress of invention enormous sums are expended on military engines,
while each nation endeavours to avert war by making such a show of
strength as will deter other nations from attacking it. A mania for
increasing armaments has thus been produced, and although this state of
things is far less destructive and demoralizing than actual war, it lays
a burden upon Europe which is fast becoming intolerable. For the modern
development of industry has given rise to problems that press for
solution, and no satisfactory solution can be reached in the midst of
this monstrous armed peace. Competition has reached a point where no
nation can afford to divert a considerable percentage of its population
from industrial pursuits. Each nation, in order to maintain its rank in
the world, is called upon to devote its utmost energies to agriculture,
manufactures, and commerce. Moreover, the economic disturbances due to
the withdrawal of so many men from the work of production are closely
connected with the discontent which finds vent in the wild schemes of
socialists, communists, and anarchists. There is no other way of
beginning the work of social redemption but by a general disarmament;
and this opinion has for some years been gaining strength in Europe. It
is commonly felt that in one way or another the state of armed peace
will have to be abandoned.