VII
THE ARBITRATION TREATY
After negotiations which had been pending for nearly two years, the general Arbitration Treaty between the United States and Great Britain was signed on the 11th of January [1897] by Mr. Richard Olney and Sir Julian Pauncefote, representing the two countries concerned; and on the following day the document was sent by President Cleveland to the Senate for ratification. The provisions of this important treaty may be summarized as follows: —
It is expected that differences arising between the two countries will ordinarily admit of settlement by the customary methods of diplomacy. It is only with cases where such customary methods fail that the provisions of the present treaty are concerned; and the parties hereby agree to submit all such cases to arbitration after the manner herein provided.
The "questions in difference" that are liable to arise are arranged in three grades or classes: (1) small pecuniary claims; (2) large pecuniary claims, and others not involving questions of territory; (3) territorial claims. For each of these grades there is to be a special method of settlement.
First, "all pecuniary claims or groups of claims, which in the aggregate do not exceed $500,000 in amount and do not involve the determination of territorial claims," shall be decided by a tribunal constituted as follows: "Each party shall nominate one arbitrator, who shall be a jurist of repute, and the two arbitrators so nominated shall, within two months of their nomination, select an umpire. In the event of their failing to do so within the limit of time, the umpire shall be appointed by agreement between the members of the Supreme Court of the United States and the members of the Judicial Committee of the Privy Council in Great Britain." In case these persons fail to agree upon an umpire within three months, the King of Sweden and Norway shall appoint one. Among public personages of unquestionable dignity and importance, this sovereign is as likely as any to be free from bias against either the United States of Great Britain; but should either party object to him, they may adopt a substitute, if they can agree upon one. It does not seem likely that the failure to select an umpire would often reach the stage where an appeal to the Swedish King would be necessary. The umpire, when and however appointed, shall be president of the tribunal of three, and the award of a majority of the members shall be final. Under these provisions, it may be expected that all petty claims can be disposed of without unreasonable delay, and with as little risk of unfairness as one would find in any court whatever.
Secondly, "all pecuniary claims or groups of claims exceeding $500,000, and all other matters in respect whereof either of the parties shall have rights against the other, under the treaty or otherwise, provided they do not involve territorial claims," shall be dealt with as follows: Such claims must be submitted to the tribunal of three, as above described, and its award, if unanimous, shall be final. If the award is not unanimous, either party may demand a review of it, but such demand must be made within six months from the date of the award. In such case, the appellate tribunal shall consist of five jurists of repute, no one of whom has been a member of the tribunal of three whose award is to be reviewed. Of these five jurists, two shall be selected by each party, and these four shall agree upon their umpire within three months after their nomination. In case of their failure, the umpire shall be selected (as in the former case) by the members of the Supreme Court and the Judicial Committee of the Privy Council; and if these do not agree within three months, the selection shall be left (as before) to the King of Sweden and Norway. The umpire, when selected, shall preside. The award of the tribunal of three shall be reviewed by this tribunal of five, and the award of a majority of the five shall be final.
Thirdly, "any controversy involving the determination of territorial 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.
In a lecture at the Royal Institution of Great Britain in 1880, I argued that the contrast between the United States, with a population quite freed from the demands of militarism, and the continent of Europe, with its enormous armaments useless for productive purposes, could not long be maintained; that American competition would soon come to press so severely upon Europe as to compel a disarmament, and in this way the swords would get beaten into ploughshares. American competition is less effective than it might be, owing to our absurd tariffs and vicious currency, but its tendency has undoubtedly been in the direction indicated. I suspect, however, that the process will be less simple. Within the last twenty years the operations of production and distribution have been assuming colossal proportions. Syndicates, trusts, and other huge combinations of capital have begun carrying on business upon a scale heretofore unprecedented. Already we see symptoms that such combinations are to include partners in various parts of the earth. Business, in short, is becoming more and more international; and under such circumstances the era of general disarmament is likely to be hastened. In the long run, peace has no other friend so powerful as commerce.
While every successful resort to arbitration is to be welcomed as a step toward facilitating disarmament, it seems probable that institutions of somewhat broader scope than courts of arbitration will be required for the settlement of many complex international questions. In the European congresses which have assembled from time to time to deal with peculiar exigencies, we have the precedent for such more regular and permanent institutions. An example of what is meant was furnished by the Congress of Paris in 1856, when it dealt summarily with the whole group of vexed questions relating to the rights and duties of neutrals and belligerents upon the ocean, and put an end to the chaos of two centuries by establishing an international code relating to piracy, blockades, and seizures in times of naval war. This code has been respected by maritime powers and enforced by the world's public opinion, and its establishment was a memorable incident in the advance of civilization. Now, such work as the Congress of Paris did can be done in future by other congresses, but it is work of broader scope than has hitherto been undertaken by courts of arbitration. I am inclined to think that both these institutions – the International Congress and the Tribunal of Arbitration – are destined to survive, with very considerable increase in power and dignity, in the political society of the future, long after disarmament has become an accomplished fact.