they acknowledge that the task is not without its difficulties, do not consider its execution as hopeless. They still trust that a negotiation opened and conducted in a spirit of frankness, and with a sincere desire to put an end to one of the few questions which divide two nations whose mutual interest it will always be to cultivate the relations of amity and a cordial good understanding with each other, may, contrary to the anticipations of His Britannic Majesty's Government, yet have a happy result; but if this should unfortunately fail, other means, still untried, remain. It was, perhaps, natural to suppose that negotiators of the two powers coming to the discussion with honest prejudices, each in favor of the construction adopted by his own nation, on a matter of great import to both, should separate without coming to a decision. The same observations may apply to commissioners, citizens, or subjects of the contending parties, not having an impartial umpire to decide between them; and, although the selection of a sovereign arbiter would seem to have avoided these difficulties, yet this advantage may have been more than countervailed by the want of local knowledge. All the disadvantages of these modes of settlement heretofore adopted might, as it appears to the American Government, be avoided by ap pointing a new commission, consisting of an equal number of commis sioners, with an umpire selected by some friendly sovereign from among the most skillful men in Europe, to decide on all points on which they disagree, or by a commission entirely composed of such men so selected, to be attended in the survey and view of the country by agents selected by the parties. Impartiality, local knowledge, and high professional skill would thus be employed, which, although heretofore separately called into the service, have never before been combined for the solution of the question. This is one mode, and, perhaps, others might occur in the course of the discussion, should the negotiators fail in agreeing on the true boundary. An opinion, however, is entertained, and has been herein before expressed, that a view of the subject not hitherto taken might lead to another and more favorable result." Mr. Livingston, Sec. of State, to Sir C. R. Vaughan, Apr. 30, 1833. MSS. Notes, Sir C. R. Vaughan's reply, dated May 11, 1833, is in Brit. and For. St. Pap., 1833–34, vol. 22, p. 806. In it he says: "This rejection of the decision of the arbitrator by the Government of the United States has thrown the parties, as Mr. Livingston observes, into the situation in which they were prior to the selection of His Neth erland Majesty to be the arbitrator between them. It may be observed, also, that though the tracing of the boundary line according to the treaty of 1783 appeared from the statements delivered by the respective parties to be the principal object of arbitration, the King of the Netherlands was invited, in general terms, 'to be pleased to take upon himself the office of arbitration of the difference between the two Governments,' "It was a measure adopted in order to put an end to tedious and unsatisfactory negotiations which had occupied the attention of the two Governments for more than forty years, and by the seventh article of the convention it was agreed that the decision of the arbiter, when given, shall be taken as final and conclusive, and shall be carried, without reserve, into immediate effect.' "The undersigned cannot but regret the rejection of the decision of the King of the Netherlands, when he sees, throughout the note of Mr. Livingston, all the difficulties which attend the endeavors of the two Governments, actuated by the most frank and friendly spirit, to devise any reasonable means of settling this question. "Mr. Livingston seems to be persuaded that a renewed negotiation may yet have a happy result, and the undersigned observes with satisfaction that the Government of the United States has consented not now to insist upon the navigation of the Saint John's River, a claim which the British Government refused to consider in connection with the boundary question. "But the arrangement in progress last summer having failed, which was to result in enabling the Government of the United States to treat for a more convenient boundary, that Government, in the present state of things, can only treat on the basis of the establishment of the boundary presented by the treaty. "The undersigned is convinced that it is hopeless to expect a favorable result from a renewed negotiation upon that basis. With regard to Mr. Livingston's proposal, that in the event of negotiation failing, the two Governments may have recourse to a commission of boundary, composed of equal numbers selected by each party, to be attended by an umpire, chosen by a friendly sovereign, to decide at once all disputed points, or that a commission of some of the most skillful men in Europe should be selected by a friendly sovereign, and should be sent to view and survey the disputed territory, attended by agents appointed by the parties, the undersigned can only express his conviction that after the expense, delay, and unsatisfactory result of the commission of boundary under the fifth article of the Treaty of Ghent, it must be with great reluctance that the British Government consents to have recourse to such a measure. "Though the Constitution of the United States holds out to foreign powers that treaties are to be effected by ministers acting under instructions from the President, yet the Senate is invested with a control over all subjects arising out of intercourse with foreign powers. Their participation in the making of treaties has generally been limited, since the administration of General Washington, to advising and consenting to ratify a treaty; but their agency has been admitted by the President, formerly, by advising on the instructions to be given previously to opening a negotiation. When the Senate, in the month of July last year, advised the rejection of the decision of the King of the Netherlands, they took the initiative in the process of the negotiation which they directed the President to offer to open at Washington for the settlement of the boundary, as they restricted the Executive to treat only for a boundary according to the description in the treaty of 1783. "I am persuaded that there will be great difficulty in constituting a joint commission upon the plan of Mr. Livingston. To insure proper skill and impartiality, it should be selected in Europe. From the nature of the country the commissioners can be actively employed only during the summer months; the undertaking will last, therefore, in all probability, more than one year. "Should His Majesty's Government reject the proposition of Mr. Liv. ingston, Mr. McLane has stated that, without the consent of Maine, the General Government cannot treat for a conventional line of boundary. It may be inferred from Mr. McLane's note of 28th May, that the failure of the commission to discover the highlands to be sought after, would give ground of greater public necessity for that cousent than at present exist. "The rejection of Mr. Livingston's proposition, and the impossibility of engaging the Government of the United States to treat for a conventional line, must have the effect, I presume, of leaving the disputed territory in the possession of His Majesty, unless it should still be left at the option of this Government to acquiesce in the boundary sug gested by the King of the Netherlands." Sir C. R. Vaughan to Lord Palmerston, July 4, 1833. Brit. and For. St. Pap., 1833-34, vol. 22, p. 823. Lord Palmerston, in an instruction to Sir C. R. Vaughan, dated December 21, 1833, says: "His Majesty's Government trust that they gave a proof of this [conciliatory] disposition on their part when they intimated to the Government of the United States that not only were they prepared to abide, as they consider both parties bound to do, by the decisions of the King of the Netherlands upon such of the points referred to him upon which he has pronounced a decision; but that they were willing to agree to the compromise which that sovereign has recommended, upon the single point on which he found it impossible to make a decision strictly conformable with the terms of the treaty. "The Government of the United States has not hitherto concurred with that of His Majesty in this respect; but as such a course of proceeding on the part of the two Governments would lead to the speediest and easiest settlement, it is the wish of His Majesty's Government to draw the attention of the American Cabinet to some considerations on this subject, before they advert to the new proposition made to you by Mr. Livingston. "It is manifest that nothing but a sincere spirit of conciliation could induce His Majesty's Government to agree to the adoption of the arrangement recommended by the King of the Netherlands; because the boundary which he proposes to draw between the two parties would assign to the United States more than three-fifths of that disputed territory, to the whole of which, according to the terms of the award itself, the title of the United States is defective in the same degree as that of Great Britain. "But it seems important, in the first place, to consider what the ref erence was which the two parties agreed to make to the King of the Netherlands, and how far that sovereign has determined the matters which were submitted for his decision. "Now, that which the two Governments bound themselves to do by the convention of the 29th of September, 1827, was to submit to an arbiter certain points of difference which had arisen in the settlement of the boundary between the British and American dominions,' and to abide by his decision on those points of difference; and they subsequently agreed to name the King of the Netherlands as their arbiter. The arbiter then was called upon to decide certain questions, and if it should appear that he has determined the greater part of the points submitted to him his decisions on those points cannot be rendered invalid by the mere circumstance that he declares that one remaining point cannot be decided in any manner that shall be in strict conformity with the words of the treaty of 1783, and that he, consequently, recommends to the two parties a compromise on that particular point." This position is then vindicated at length. For this instruction in full, sce Brit. and For. St. Pap., 1833–34, vol. 22, p. 826. By the Treaty of Ghent "all attempts to settle the boundary ended in making provision for referring the question to the arbitrament of a friendly sovereign. This was done, the King of the Netherlands being agreed upon as the arbiter. He accepted the trust, executed it, and made an award nearly satisfactory to the British Government, because it cut off a part of the northern projection of Maine, and so admitted a communication, although circuitous, between Halifax and Quebec; but still leaving the highland boundary opposite that capital. The United States rejected the award, because it gave up part of the boundary of 1783; and thus the question remained for nearly thirty (twelve?) years longer, until the treaty of 1812, Great Britain demanding the execution of the award, the United States refusing it." 2 Benton's Thirty Years, &c., 438. As to Treaty of Ghent, see supra, § 150c. Mr. Webster, in his speech of April 6 and 7, 1846, in defense of the Treaty of Washington, thus speaks (5 Webster's Works, 84): "The King of the Netherlands was appointed arbitrator under this convention, and he made his award on the 10th of January, 1831. This award was satisfactory to neither party; it was rejected by both, and the whole matter was thrown back upon its original condition. This happened during the first term of General Jackson's administration. He immediately addressed himself to new efforts for the adjustment of the controversy." Mr. Webster then proceeds to notice the several messages of General Jackson bearing on this question, closing with that of December, 1835, where he said: "In the settlement of the question of the northeastern boundary little progress has been made. Great Britain has declined acceding to the proposition of the United States, presented in accordance with the resolution of the Senate, unless certain preliminary conditions are admitted, which I deem incompatible with a satisfactory and rightful adjustment of the controversy." See supra, §§ 150c, 130d. "When a dispute as to territorial limits arises between two nations, the ordinary course is to leave the country claimed by them respectively in the same condition (or as nearly so as possible) in which it was when the difficulty first occurred, until an amicable arrangement can be made in regard to conflicting pretensions to it. It has not been the intention of the United States to deviate from this course, nor has any notice been given by Mexico that she proposed to assume jurisdiction over it, or change the possession as it was held at the conclusion of the treaty of peace and limits between the two Republics." Mr. Marcy, Sec. of State, to Mr. Conkling, May 18, 1853, MSS. Inst., Mex, "Motions to open or set aside international awards are not entertained unless made promptly, and upon proof of fraudulent concoction or of strong after-discovered evidence." Mr. Bayard, Sec. of State, to Mr. Morris, May 12, 1886. MSS. Dom. Let. "When there is a persistent refusal on the part of one Government to pay damages claimed by another on behalf of one of its citizens, the only method of redress that exists, if arbitration be not resorted to, is by reprisal, which, in a case such as the present, would inevitably produce war. It certainly would not be claimed that at this period, when the refusal of the British Government to pay the claim has been acquiesced in by Administration after Administration without even a suggestion of reprisals, reprisals could now be threatened." Mr. Bayard, Sec. of State, to Messrs. Benedict, Taft, and Benedict, May 18, 1886; ibid. "The interest of peace and good will among nations are so transcendent, and the practice of international mediation and arbitration is so essential to those interests, that a proud and self-respecting people would always submit to the consequences of very great errors of judgment, and sometimes even to those of bias and prejudice in international arbitration, rather than to refuse to execute an award; but it should be kept in mind that there are occasions when such obedience would be a crime against the true interests of peace and good neighborhood, and destructive of international arbitration as the best of their safeguards. If, as Vattel tersely states it, 'the arbitrators, by pronouncing a sentence evidently unjust and unreasonable, should forfeit the character with which they are invested, their judgment would deserve no attention.' A just nation, however, in whose favor an award has been made, should be willing to forego the advantage of a victory on far less evident grounds than those which would justify a refusal by the losing party to perform, and to readjust and retry the matter in dispute, if it had reason to think that any serious error had been committed, or that anything of corruption or unfairness had played a part in the affair, for no honorable Government could consent to profit by a success so gained. Upon such principles Congress at its last session authorized the Presi dent to reopen, if he should see cause, certain awards in favor of citi zens of the United States against the Government of Mexico. "But the Treaty of Washington was a written agreement between two parties, and not a statute; and the history and language of previous treaties between them may be justly resorted to to throw light upon a disputed interpretation. The fifth article of the treaty of 1794 provided for three commissioners to decide upon the river intended by the Saint Croix,' named by the treaty of 1783, but was silent as to the power of a majority. The same treaty created five commissioners to ascertain certain damages to British subjects, and conferred decisive power upon three of them. It also established a similar commission of five to ascertain certain losses of Americans, and conferred full power upon a majority. Can it be doubted that in that case both Governments intended, for obvious reasons, to make different and more elastic provisions respecting decisions touching private claims from those relating to their boundaries? The article as to the Saint Croix was followed by Article V of the Treaty of Ghent on the same general sub. S. Mis. 162-VOL. III- -6 |