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INTRODUCTION

Arbitration, the gift of the Grecian world, was frequently resorted to in the Middle Ages, but was passing out of the minds of men and the practice of nations in the eighteenth century, when it was brought again to honor by the Republic of the New World. The statesman to whom the renascence of arbitration is due was John Jay, who was Secretary of State for Foreign Affairs during the Confederation from 1784 to the institution of the Government under the Constitution, and who continued to act as Secretary of State in Washington's administration until Jefferson's assumption of the office on March 22, 1790, upon his return from France, in which country he had represented the United States as its Minister. It is important to bear this in mind, because it was John Jay who, as Secretary of State under the Confederation proposed the arbitration of the outstanding difficulties with Great Britain and sent a report to Congress advocating this form of settlement. The report was sent to Congress on April 21, 1785, recommending that "effectual measures should be immediately taken to settle all disputes with the Crown of Great Britain" with respect to the northeastern boundary of the United States, and Secretary Jay suggested that the papers in the case "should be transmitted to the Minister Plenipotentiary of the United States at that Court, with instructions to make a proper representation of the case, and to propose that commissioners be appointed to hear and finally decide those disputes."

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It was likewise John Jay, as Acting Secretary of State in Washington's Cabinet, who urged President Washington to secure by arbitration the settlement of the outstanding difficulties which unfortunately had not been settled as Jay had proposed. Washington, acting upon Jay's suggestion, sent a copy of Jay's original report to the first Congress under the Constitution, stating in his letter of transmission, dated February 9, 1790, that "it is desirable that all questions between this and other nations be speedily and amicably settled."

Congress took no action, and the disputes between Great Britain and the United States remained unsettled, a constant source of irritation and a pretext for war if either country should be disposed to resort to force. The outbreak of the French Revolution and the war

1 American State Papers, vol. i, p. 94. 2Ibid., p. 90.

between Great Britain and France in 1793 further embittered the relations of Great Britain and the United States, because France claimed and exercised the right, over the protest alike of Great Britain and the United States, to fit out and to arm privateers within the jurisdiction of the United States; to cruise upon British commerce, taking the prizes when captured either within or without our territorial waters into American ports, and to condemn them in prize courts organized within our jurisdiction. The actions of Great Britain were not wholly beyond criticism, and the two nations found themselves slowly drifting into war, when Washington proposed to Great Britain to negotiate directly in order to settle all of their outstanding difficulties, and selected John Jay, then Chief Justice of the Supreme Court of the United States, to repair to England as the representative of the United States in such negotiations.

It was in a way poetic justice that Jay, who had originally proposed, in the days of the Confederation, to settle the outstanding disputes with Great Britain by arbitration, and who had influenced Washington to espouse that method of settling controversies with the mother country, should have been chosen to carry into effect his own recommendations. Some of the outstanding difficulties he was able to settle by direct negotiation; others, particularly the claims which he had previously proposed to arbitrate and the difficulties which had arisen since the outbreak of the wars of the French Revolution, he was unable to settle by direct negotiation, but he succeeded in prevailing upon Great Britain to submit these disputes to arbitration. He preserved the peace of his country, and by the treaty which bears his name, he introduced to the favorable notice of the modern world arbitration for the settlement of disputes which diplomacy had failed to adjust. But in so doing, he sacrificed every hope he might have cherished for political preferment, for his treaty, which was very unpopular with the partisans of a stiff foreign policy, was advised and consented to by a narrow margin in the Senate; the appropriations for carrying it into effect were passed in the House by yeas 51, nays 48,1 and Jay himself shared the unpopularity of his treaty. He had had, however, no illusion as to the outcome of his mission, saying, "If Washington shall think fit to call me to perform this service, I will go and perform it to the best of my abilities, foreseeing as I do the consequences to my personal popularity. The good of my country I believe demands the sacrifice, and I am ready to make it." To

1Annals of Congress, vol. 5, 4th Cong., 1st sess., p. 1291.

Mrs. Jay he confided his views without reserve. "This is not of my seeking," he said in a letter to her; "on the contrary I regard it as a measure not to be desired, but to be submitted to." And in another letter, a little later, after Jay had been appointed special envoy to Great Britain he wrote: "No appointment ever operated more unpleasantly upon me; but the public considerations which were urged, and the manner in which it was pressed, strongly impressed me with a conviction that to refuse it would be to desert my duty for the sake of my ease and domestic concerns and comforts."

Jay's treaty provided in its 5th, 6th and 7th articles for the arbitration of the boundary disputes between the two countries; the settlement of disputes concerning debts claimed by British merchants, to be due and unpaid, but which could not be collected because of legal impediments interposed by the States of the Union; and, finally, the complaints of citizens of the United States, on the one hand, and of British subjects, on the other, for losses since the outbreak of the war between Great Britain and France, due to the alleged illegal conduct of Great Britain and the United States. The success of the commission organized under the 7th article to settle this last category of claims, and the admirable opinions of the commission showing that model judgments could be rendered between nations, as well as within nations, convinced the world that arbitration could safely be resorted to. The result was that during the nineteenth century arbitration became the favorite method of settling disputes between nations after the breakdown of diplomacy, and the submission by Great Britain and the United States of the so-called Alabama claims to the arbitration of the Geneva tribunal in 1872, showed the nations that arbitration had no limits which good-will and mutual desire might not overcome. It thus happened that in the course of the nineteenth century the nations generally had had sufficient experience in arbitration to suggest that the new remedy had come to stay; that it was in their interest to devise machinery in order to facilitate a recourse to arbitration and a method of procedure in order to bring the issue to a decision.

The Institute of International Law, founded in 1873, upon the initiative of the American publicist, Francis Lieber, and through the efforts of the Belgian publicist, Rolin-Jaequemyns, foresaw the need and the advantages of a code of arbitral procedure, and within a year after its organization drafted a code which served as the basis of discussion at the First Hague Conference, and which with sundry 1Pellow's John Jay, pp. 267-8.

amendments, not always for the better, was adopted by that august assembly. It was not only the jurists who foresaw the necessity of facilitating a recourse to arbitration and provided the means therefor; men in public life felt the need and took appropriate steps to meet it. Thus through the happy coöperation of Mr. William Randel Cremer, a labor Member of Parliament, and Frédéric Passy, then a Member of the French Chamber of Deputies, the Interparliamentary Union was formed in 1888, and held its first meeting in Paris the next year, on the centenary of the French Revolution. At the meeting of the Union at The Hague in 1894, five years before the great and fertile idea of the Czar took visible form and shape in the capital of the Netherlands, the following resolution was voted:

1. National sovereignty remains inalienable and inviolate; 2. Adherence by any government to the creation of a permanent international court must be entirely voluntary;

3. All adhering States must be on a footing of perfect equality before the permanent international court;

4. The decision of the permanent court must have the force of decisions, subject to execution.1

These enlightened and practical men of affairs foresaw that arbitration should have its machinery just as the jurists of the Institute of International Law foresaw the need and provided a code of procedure for international tribunals. A year later, that is to say, in 1895, at the Brussels session, a project based upon these resolutions was adopted by the Interparliamentary Union, and this draft of a Permanent Court of Arbitration, like the draft of arbitral procedure of the Institute of International Law, served as the basis of discussion at the Czar's Conference held at The Hague in 1899, where it was accepted in principle, adopted with many modifications and put into effect.

On the twelfth day of August, 1898,3 the staid and sedate diplomats accredited to the Court of St. Petersburg were astonished to receive from the hands of Count Mourawieff, Russian Minister for Foreign Affairs, a circular note proposing a conference to consider the question of the limitation of armaments, and the burdens which they had imposed, which, in the opinion of the Czar, were unendurable in themselves and fatal to economic and social progress. On December 30, 1898, a second circular modifying the first and elaborating it in certain.

1Lange, Union Interparlementaire. Résolutions des Conférences et Décisions principales du Conseil, 2d ed., 1911, p. 50.

2Ibid., p. 53.

August 24, 1898. new style. 4 January 11, 1899, new style.

respects, was handed to the same staid and sedate but now somewhat expectant diplomats accredited to The Hague, proposing not only definitely the Conference, but outlining its program, of which the following article alone is important for present purposes:

Acceptance, in principle, of the use of good offices, mediation, and voluntary arbitration, in cases where they are available, with the purpose of preventing armed conflicts between nations; understanding in relation to their mode of application and establishment of a uniform practice in employing them.1

This assembly, known in history as the First Hague Peace Conference, which it is devoutly to be hoped will be only the first of an endless series of conferences meeting at The Hague, basing its action upon the proposal of the Interparliamentary Union, created the socalled Permanent Court of Arbitration, in reality, machinery by which a temporary tribunal can be created; and, basing its action upon the code of procedure of the Institute of International Law, drafted a code of arbitral procedure for adoption by the nations. It has generally been supposed that the proposal to establish a Court of Arbitration was due to American initiative, and it appears to be the fact that the American delegation was the only one sent to The Hague with specific instructions on this point and a definite plan for an International Court of Arbitration. It is, of course, well known to all persons interested in the subject that the proposal to establish a Court of Arbitration was made in the First Conference by the first British delegate, Lord, then Sir Julian Pauncefote, and the reason for such a proposal and the agreement to make it were stated only recently at the dinner of the American Society for the Judicial Settlement of International Disputes, held at Washington on December 6, 1913, by a person who was in a position to know whereof he spoke. The Honorable David Jayne Hill, at that time Assistant Secretary of State, later our distinguished Ambassador to Berlin, lifted the curtain and showed the setting of the stage. Mr. Hill said:

One day [in the month of November, 1898] the door of my office opened, and the genial face of John Hay appeared. He walked into my room saying, "I have brought you a visitor"; and Lord Pauncefote, following, as the door was swung open, entered the room. Mr. Hay said, "Lord Pauncefote has brought to the department a little pamphlet about international justice. 1Scott, The Hague Conventions and Declarations of 1899 and 1907, 2d ed., p. xviii. 2Procès-verbaux, pt. i, p. 134; pt. iv, p. 3.

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