I. Etats-Unis d'Amérique, Grande-Bretagne.

19 novembre 1794.

La première convention moderne d'arbitrage a institué en fait trois instances arbitrales, qu'il est utile d'examiner séparément. A. Le premier arbitrage a eu pour objet de déterminer exactement une partie de la frontière qui sépare le territoire américain des possessions anglaises du Canada. L'origine des difficultés survenues remonte au traité de Paris du 3 septembre 1783.

Nous croyons, pour la clarté du compromis et de la sentence intervenue, devoir reproduire tout d'abord la stipulation qui donna lieu à la contestation ici examinée.

Treaty of peace and amity, signed at Paris, September 3, 1783.

ARTICLE II. And that all disputes which might arise in future on the subject of the boundaries of the said United States may be prevented, it is hereby agreed and declared, that the following are, and shall be, their boundaries, viz:

From the North West angle of Nova Scotia, viz. that angle which is formed by a line drawn

due north, from the source of Sainte Croix river to the Highlands, along the said Highlands which divide those rivers that empty themselves into the river St. Lawrence, from those which fall into the Atlantic Ocean, to the north westernmost head of Connecticut river; thence down .

East, by a line to be drawn along the middle of the river St. Croix, from its mouth in the Bay of Fundy to its source, and from its source directly north to the aforesaid Highlands, which divide the rivers that fall into the Atlantic Ocean from those which fall into the river St. Lawrence; comprehending all islands.

1

La commission arbitrale, chargée d'interpréter le texte prémentionné, fut instituée par l'article V du traité d'amitié, de commerce et de navigation du 19 novembre 1794.

Treaty of amity, commerce and navigation between the United Kingdom and the United States of America, signed at London, November 19, 1794.

ARTICLE V. Whereas doubts have arisen what river was truly intended under the name of the

1 CH. DE MARTENS et F. DE CURSY. Recueil manuel et pratique de traités, conventions et autres actes diplomatiques. Leipzig, F. A. Brockhaus, 1846, tome I, p. 312.

river St. Croix, mentioned in the said Treaty of Peace, and forming a part of the boundary therein described, that question shall be referred to the final decision of commissioners to be appointed in the following manner, viz.

One commissioner shall be named by His Majesty and one by the President of the United States, by and with the advice and consent of the senate thereof, and the said two commissioners shall agree on the choice of a third; or if they cannot so agree, they shall each propose one person, and of the two names so proposed, one shall be drawn by lot in the presence of the two original commissioners. And the three commissioners so appointed, shall be sworn impartially to examine and decide the said question according to such evidence as shall respectively be laid before them on the part of the British Government and of the United States. The said commissioners shall meet at Halifax, and shall have power to adjourn to such other place or places as they shall think fit. They shall have power to appoint a secretary, and to employ such surveyors or other persons as they shall judge necessary. The said commissioners shall by a Declaration under their hand and seals decide what river is the river St. Croix intended by the Treaty. The said declaration shall contain a description of the said river, and shall particularize the latitude and longitude of its mouth, and of its source. Duplicates of this declaration, and of the statements of their accounts, and of the journal of their proceedings shall be delivered by them to the Agent of His Majesty, and to the Agent of the United States, who may be respectively appointed and authorized to manage the business on behalf of the respective Governments. And both parties agree to consider such decision as final and conclusive, so as that the same shall never thereafter be called into question, or made the subject of dispute or difference between them'.

Les commissaires prononcèrent leur sentence, après avoir usé de la faculté de déplacer le siège du tribunal arbitral de Halifax à Providence. Cette sentence, parfaitement explicite et précise, n'appelle aucune observation.

Decision of the British and American Commissioners, under the 5th Article of the Treaty of 1794, relative to the River Sainte Croix. Providence, October 25, 1798.

By Thomas Barclay, David Howell and Egbert Benson, Commissioners appointed in pur

1 Treaties and Conventions between the United States and other Powers, 1776-1887, p. 382.

suance of the 5th Article of the Treaty of amity, commerce and navigation between His Britannic Majesty and the United States of America, finally to decide the question: What river was truly intended under the name of the river Sainte Croix, mentioned in the Treaty of Peace between His Majesty and the United States of America, and forming part of the boundary therein described. >

We, the said Commissioners, having been sworn impartially to examine and decide the said question according to such evidence as should respectively be laid before us on the part of the British Government and of the United States, and having heard the evidence which had been laid before us by the Agent of His Majesty and the Agent of the United States respectively appointed and authorized to manage the business on behalf of the respective Governments, have decided, and hereby do decide:

The river hereinafter particularly described and mentioned to be the river truly intended under the name of the river Sainte Croix in the said Treaty of Peace, and forming a part of the boundary therein described, that is to say, the mouth of the said river is in Passamaquaddy Bay, at a point of land called Ive's Point, about I mille northward from the northern part of Sanct Andrew's Island and in the latitude of 45°5′ and 5" north, and in the longitude of 67° 12′ and 30" west from the Royal Observatory at Greenwich in Great Britain, and 3°50′ and 15′′ east of Howard College in the University of Cambridge, in the state of Massachusetts. And the course of the said river up from its source is northerly to a point of land called The Devil's Head, thence turning the said point, is westerly to where it divides in 2 streams, the one coming from the westward and the other from the northward, having the Indian name Chiputnatecook, or Chipnitcook, as the same may be variously spelt, then up the said stream, so coming from the northward to its source, which is at a stake near a yellow birch-tree, hooped with iron, marked S. T. and J. H., 1797 », by Samuel Titcomb and John Harris, the surveyors employed to survey the above-mentioned stream coming from the northward. And the said river is designated on the map hereunto annexed and hereby referred to as further descriptive of it by the letters A, B, C, D, E, F, G, H, I, K and L. the letter A being at its said mouth, and the letter L being at its said source. And the course and distance of the said source from the island at the confluence of the above-mentioned 2 streams is, as laid down on the said map, north 5o and about 15' west by the magnet: about 84'/2 miles. In testimony whereof we have hereunto set

our hands and seals, at Providence, in the State of Rhode Island, the 25th day of october, in the year 1798 1.

B.

- Le second arbitrage institué par le traité de 1794 avait pour objet de fixer les sommes dues à des citoyens anglais par des Citoyens américains et devenues irrécouvrables au profit des premiers. Le premier document reproduit par nous est l'article VI du traité du 19 novembre 1794 qui institue la commission arbitrale. Cette commission ne parvint pas à remplir la mission qui lui était dévolue et les deux nations terminèrent le conflit à l'amiable aux termes d'un arrangement conclu en 1802 et dont nous donnons également plus loin les stipulations principales.

Treaty of amity, commerce and navigation between the United Kingdom and the United States of America, signed at London, November 19, 1794.

ARTICLE VI. Whereas it is alledged by divers British merchants and others, His Majesty's subjects, that debts to a considerable amount, which were bona fide contracted before the Peace, still remain owing to them by citizens or inhabitants of the United States, and that by the operation of various lawful impediments since the Peace, not only the full recovery of the said debts has been delayed, but also the value and security thereof have been in several instances, impaired and lessened, so that by the ordinary course of judicial proceedings, the British creditors cannot now obtain, and actually have and receive full and adequate compensation for the losses and damages which they have thereby sustained. It is agreed that in all such cases where full compensation for such losses and damages, cannot, for whatever reason, be actually obtained, had and received by the said creditors in the ordinary course of justice, the United States will make full and complete compensation for the same to the said creditors: But it is distinctly understood, that this provision is to extend to such losses only as have been occasioned by the lawful impediments aforesaid, and is not to extend to losses occasioned by such insolvency of the debtors, or other causes as would equally have operated to produce such loss, if the said impediments had not existed, nor to such losses or damages as have been occasioned by the manifest delay or negligence, or wilful omission of the claimant.

' HERTSLET. A complete Collection..., t. IX, p. 761.

For the purpose of ascertaining the amount of any such losses or damages, five Commissioners shall be appointed, and authorized to meet and act in the manner following, viz. Two of them shall be appointed by His Majesty, two of them by the President of the United States by and with the advice and consent of the Senate thereof and the fifth by the unanimous voice of the other four; and if they should not agree in such choice, then the Commissioners named by the two parties, shall respectively propose one person, and of the two names so proposed one shall be drawn by lot in the presence of the four original Commissioners.

When the five Commissioners thus appointed shall first meet, they shall, before they proceed to act respectively, take the following oath or affirmation, in the presence of each other, which oath or affirmation being so taken, and duly attested, shall be entered on the record of their proceedings, viz.:

« I. A. B. one of the Commissioners appointed in pursuance of the 6th Article of the Treaty of Amity, Commerce and Navigation, between His Britannic Majesty and the United States of America do solemnly swear or affirm, that I will honestly, diligently, impartially and carefully examine, and to the best of my judgment, according to justice and equity, decide all such complaints, as, under the said article, shall be preferred to the said Commissioners; and that I will forbear to act as a Commissioner in any case, in which I may be personally interested ».

Three of the said Commissioners shall constitute a board and shall have power to do any act appertaining to the said Commission, provided that one of the Commissioners named on each side, and the fifth Commissioner shall be present, and all decisions shall be made by the majority of the voices of the Comissioners then present. Eighteen months from the day the said Commissioners shall form a board, and be ready to proceed to business, are assigned for receiving complaints and applications; but they are nevertheless authorized, in any particular cases in which it shall appear to them to be reasonable and just, to extend the said term of eighteen months for any term not exceeding six months after the expiration thereof the said Commissioners shall first meet at Philadelphia, but they shall have power to adjourn from place to place as they shall see cause.

The said Commissioners, in examining the complaints and applications so preferred to them, are empowered and required, in pursuance of the true intent and meaning of this Article, to take into their consideration all claims, whether of

principal or interest, and (or) balances of principal and interest and to determine the same respectively, according to the merits of the several cases, due regard being had to all the circumstances thereof, and as equity and justice shall appear to them to require. And the said Commissioners shall have power to examine all such persons as shall come before them on oath or affirmation, touching the premises: and also to receive in evidence, according as they may think most consistent, with equity and justice, all written depositions, or books or papers, or copies or extracts thereof; every such deposition, book, or paper, or extract being duly authenticated either according to the legal forms now respectively existing in the two countries, or in such other manner as the said Commissioners shall see cause to require or allow. The award of the said Commissioners, or of any three of them as aforesaid, shall in all cases be final and conclusive, both as to the justice of the claim, and to the amount of the sum to be paid to the creditor or claimant: and the United States undertake to cause the sum so awarded to be paid in specie to such creditor or claimant without deduction, and at such time or times, and at such place or places, as shall be awarded by the said Commissioners: and on condition of such releases or assignments to be given by the creditor or claimant, as by the said Commissioners may be directed: Provided always, that no such payment shall be fixed by the said Commissioners to take place sooner than twelve months, from the day of the exchange of the ratifications of this Treaty 1.

Convention between the United States and Great Britain on the difficulties arisen in the execution of the Treaty of November 19, 1794, signed at London, January 8, 1802.

Difficulties having arisen in the execution of the sixth article of the treaty of amity, commerce and navigation concluded at London on the fourth day of november, one thousand seven hundred and ninety four, between his Britannic Majesty and the United States of America, and in consebuence thereof the proceedings of the Commissioners under the seventh article of the same treaty, having been suspended; the parties to the said treaty being equally desirous, as far may be, to obviate such difficulties, have respectively named Plenipotentiaries to treat and agree respecting the same: that is to say, his Britannic Majesty has named for his plenipotentiary, the right honourable Robert Banks Jenkinson, commonly called Lord Hawkesbury, one of His Ma

1 Treaties and Conventions .

jesty's most honourable Privy Council, and his principal secretary of state for foreign affairs: and the President of the United States, by and with the advice and consent of the senate thereof, has named for their plenipotentiary Rufus King, Esquire, minister plenipotentiary of the said Unites States to his Britannic Majesty, who have agreed to and concluded the following Articles:

ART. I. In satisfaction and discharge of the money which the United States might have been liable to pay in pursuance of the provisions of the said sixth article, which is hereby declared to be cancelled and annulled, except so far as the same may relate to the execution of the said seventh article, the United States of America hereby engage to pay, and his Britannic Majesty consents to accept for the persons described in the said sixth article, the sum of six hundred thousand pounds sterling, payable at the times and place, and in the manner following, that is to say the said sum of six hundred thousand pounds sterling, shall be paid at the city of Washington in three annual instalments of two hundred thousand pounds sterling each and to such person or persons, as shall be authorized by his Britannic Majesty to receive the same; the first of the said instalments to be paid at the expiration of one year, the second instalment at the expiration of two years, and the third and last instalment at the expiration of three years, next following the exchange of the ratifications of this convention.

And to prevent any disagreement concerning the rate of exchanges, the said payments shall be made in the money of the said United States; reckoning four dollars and forty-four cents to be equal to one pound sterling 1.

C. La troisième commission arbitrale fut chargée d'évaluer les dommages réciproques soufferts par des citoyens, tant américains qu'anglais, à raison de captures de vaisseaux et de prises de marchandises. Les travaux de cette commission commencés le 16 août 1796 furent interrompus le 20 juillet 1799 à raison. des difficultés qui firent échouer la seconde commission. Les deux nations confirmèrent à nouveau les pouvoirs de la troisième commission par une stipulation expresse du traité du 8 janvier 1802.

1 F. DE MARTENS, Recueil des traités. Supplément, t. III. Treaties and Conventions.. 1776-1887, p. 398.

1776-1887, p. 382.

p. 202;

Treaty of amity, commerce and navigation, signed at London, November 19, 1794.

ARTICLE VII. Whereas complaints have been made by divers merchants and others, citizens of the United States, that during the course of the war in which His Majesty is now engaged, they have sustained considerable losses and damage, by reason of irregular or illegal captures or condemnations of their vessels and other property under colour of authority or commissions from His Majesty, and that from various circumstances belonging to the said cases, adequate compensation for the losses and damages so sustained cannot now be actually obtained, had, and received by the ordinary course of judicial proceedings; it is agreed; that in all such cases where adequate compensation cannot, for whatever reason, be now actually obtained, had, and received by the said merchants and others in the ordinary course of justice, full and complete compensation for the same will be made by the British Government to the said complainants. But it is distinctly understood that this provision is not to extend to such losses or damages as have been occasioned by the manifest delay or negligence, or wilful omission of the claimant.

That for the purpose of ascertaining the amount of any such losses and domages, five Commissioners shall be appointed and authorized to act in London exactly in the manner directed with respect to those mentioned in the proceeding article, and after having taken the same oath or affirmation (mutatis mutandis) the same term of eighteen months is also assigned for the reception of claims, and they are in like manner authorized to extend the same in particular cases. They shall receive testimony, books, papers and evidence in the same latitude, and exercise the like discretion and powers respecting that subject; and shall decide the claims in question according to the merits of the several cases, and to justice, equity and the laws of nations. The award of the Commissioners or any such three of them as aforesaid, shall, in all cases, be final and conclusive, both as to the justice of the claim, and the amount of the sum to be paid to the claimant; and his Britannic Majesty undertakes to cause the same to be paid to such claimant in specie, without any deduction, at such place or places, and at such time or times as shall be awarded by the same Commissioners, and on condition of such releases or assignments to be given by the claimants, as by the said Commissioners may be directed.

And whereas certain merchants and others, His Majesty's subjects complain that in the course

of the War they have sustained loss and damage by reason of the capture of the vessels and merchandise, taken within the limits and jurisdiction of the States, and brought into the ports of the same, or taken by vessels originally armed in parts of the said States:

It is agreed that in all such cases where restitution shall not have been made agreeably to the tenor of the letter from Mr. Jefferson to Mr. Hammond dated at Philadelphia september 5, 1793. a copy of which is annexed to this treaty; the complaints of the parties shall be, and hereby are referred to the Commissioners to be appointed by virtue of this Article, who are hereby authorized and required to proceed in the like manner relative to these as to the other cases committed to them; and the United States undertake, to pay to the complainants or claimants, in specie, without deduction, the amount of such sums as shall be awarded to them respectively by the said Commissioners, and at the times and places which in such awards shall be specified, and on condition of such releases or assignments to be given by the claimants as in the said awards may be directed. And it is further agreed, that not only the now existing cases of both descriptions, but also all such as shall exist at the time of exchanging the ratifications of this Treaty, shall be considered within the provisions, intent and meaning of this Article '.

Convention between the United States and Great Britain on the difficulties arisen in the execution of the Treaty of November 19, 1794, signed at London, January 8, 1802.

ART. III. It is furthermore agreed and concluded that the commissioners appointed in pursuance of the seventh article of the said treaty of amity, commerce and navigation and whose proceedings have been suspended, as aforesaid, shall immediately after the signature of this convention, reassemble and proceed in the execution of their duties according to the provisions of the said seventh article; except only that instead of the sums awarded by the said commissioners being made payable at the time or times by them appointed, all sums of money by them awarded to be paid to American or British claimants, according to the provisions of the said seventh article, shall be made payable in three equal instalments, the first whereof, to be paid at the expiration of one year, the second at the expiration of two years, and the third and last at the expiration of three years next, after the exchange of the ratifications of this convention.

1 Treaties and Conventions. ...... 1776-1887, p. 384.