The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1896-07-18


draft treaty would give a court OF appeal
from the single voice of the foreign judge
Its operation in arrestink fauity OF
doubtful Judgment would make 1t possible
to refer great issues to arbitration without
the risk of a disastrous miscarriage or
justice. am aware that TO the warmer me,
seem unsatisfying and imperfect. But l
believe that Ii offers an opportunity OF
making substantial advance. when
more ambitious arrangement would be un-
able to secure. and iI under its operation
experience should teach us that our ap-
prehensions as to the danger of reposing
tribunal are unfounded il will be easy, by
dropping precautions that will have be
the idea OF arbitration in its most devel-
oped FORM.
SALISBURY'S PROPOSED TREATY.
The draft treaty spoken OF in the above Is
composed of six articles. The first pro-
vides for the appointment by the United
States and Great Britain Of two more per-
manent judicial officers, one of whom is TO
be designated by his own nation TO act as
arbitrator. with one named on the other
side on the appearance of any difference
between the two powers which cannot be
settled by negotiations. The second article
provides for the selection by the two arbi-
traitors of an umpire to act between them.
The remainder of the draft is as follows:
.Third-Complaint made by one power
against the officers of the other, all pc
cuniary claims or groups OF claims.
amounting to not more than G1OO,000. made
on either power by the other, whether
agreement or otherwise; all claims for
damages or indemnity under the said
amount; all questions Affecting dipio,
matte or consular privileges; al alleged
rights of fishery, access, navigation, or
commercial privilege, and all questions re-
ferred by special agreement between the
fxr0 los hal ia
ton in accordance with this treaty, and
the award thereon shall be final.
'.Fourth-Any difference in respect 10
question of fact. or of international law.
involving the territory, territorial rights,
sovereignty or Jurisdiction of either power.
or any pecuniary claim or group OF claims
of any kind involving a sum larger than
E10O, OU0 shall be referred to arbitration un-
DER this treaty. But II IN amy such case,
within three months after the award mas
been reported, either power protests that
such award is erroneous in respect 10 some
issue of fact. or some issue OF internationai
law the award shall be reviewed by
court composed of three of the Judges OF
the Supreme Court of Great Britain and
three of the Judges OF the s up snid court
shall determine. after hearing the case, Dy
a majority of not less than FIVE 10 one, thaS
the said issue has been rightly determined.
the award shall stand and be maj, put IN
default of such determination IT shali not
be valid. If no protest is entered oy ei ,in
power against the award WITHIN the tline
limited it shall be final.
"Fifth-Any difference which. in the ludS-
ment of either power materially allects us us
honor or the integrity OF its territory, shall
not be referred TO arbitration under tnis
treaty except by special agreement
agro .HrnnA hstveen the two powers may be
referred for decision by arbitration, as
herein provided, with the stipulation that,
unless accepted by both powers, the decl-
sion shall not be valid
SECRETARY OLNEYS REPLY.
Secretary Olney begins his response by
directing attention to the fact that Lord
Salisbury in terms. excludes from consid-
Grafton the Venezuelan boundary dispute.
but nevertheless declares that these pro-
posals of her Majestys Prime Minister are
welcomed by the President with the Keen
est appreciation of their value and OF the
enlightened and progressive spirit which
animates them and adds: $50 far as they
manifest a desire that the two great Eng
disappearing peoples of the world shall re-
main in perpetual peace, he fully recipro-
Gates that desis'e. The Secretary says
that il Lord Salisbury had stopped in Ar
ticle no criticism could have been made,
except that the subjects to be arbitrated
are so cautiously restricted as to hardly
cover other than controversies which. as
between civilized states, could almost never
endanger their future relations. But Ar
tcle 3. as well as 4. is apparently quail
fed by Article s. since the national honor
may sometimes be involved even in "A
claim for indemnity for an individual.
Further, the arbitration machinery pro-
vided by Article is open TO serious OBJ
lection as not securing an end of contro-
versy unless an award is concurred in by
at least five out of the six appellate ar
biterS. Therefore, by direction OF the Pres
ident Secretary Olney proposes a substi-
tute for Articles and 5, the change be-
ing provisions that either Congress or Par
liament>at any time before the arbitration
tribunal shall have convened may by act
withdraw particular subject matter from
arbitration as involving the national honor
or integrity and providing further that the
award shall be final if concurred in by all
the arbiters. If assented to by a majority
only the award shall be final unless one Of
the parties within three months from its
PRONUNCIATION shall protest in writing that
the award is erroneous in respect to some
issue Of fact or law. In such case the
award shall be reviewed by a court COM
posed of three United States Supreme JUS
tees and three British Supreme Justices
who shall in advance agree on three i'm
partial juristS to be added to their body
in case they shall be equally divided on
an award. The award of this court wheth-
er unanimous or by majority vote. shall
be final
Secretary Olney points out in support of
his amendments that they make all dis
putes ,prirna facie arbitrable. He shows
that the awards if unanimous. should be
final equally with those of the appellate
tribunal 1t is hardly consistent with any
reasonable theory of arbitration, he says.
that an award concurred in by the arbiter
of the defeated country should be appeal
able by that country. Under the amended
scheme an award would result from each
arbitration that the controversy would
finally end. while under the Salisbury dra ft
there would be an award only in the rare
case in which the six appellate arbiters ia
vored 1t. either unanimously or by a ma
Jority of five to one. Such an arrange
ment. he declares. would be dangerous as
arousing public feeling and prejudicing a
peaceful outcome 1t is also to be noted
that the party defeated by the award of
the original tribunal in case where the
stake Is large and the public feeling in
tense. might feel itself under Irresistible
temptation to make all subsequent pro-
ceedinSs purely farcical by making sure
before their selection of the sentiments of
two at least of the appellate arbiters
STRONG POINT.
There can be no arbitration i'm a true
sense. says Mr.. Olney. without a final
award and it might be better to leave con-
troversies to the usual mode 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 coun-
tries. Secretary Olney points out that his
amendment meets Lord Salisbury's obiec-
ton TO the single foreign arbitrator and
adds that IL bias the part of foreign
juriStS is to be feared the United States
being without alliance with any country
is certainly not the party to expect an
advantage from that source In concud-
ing this note he says