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not agreeing on an umpire, they were thrown back on the plan of repetitiously choosing one of two persons by lot in each case of difference, which resulted so unfortunately in the case of the joint commission under the convention of 1822, whose history has been just narrated, and which, by rendering the application of principles a matter of hazard, could scarcely fail, even if the commissioners should faithfully give it effect, to produce inharmonious decisions and contradictory results, yielding to one claimant redress and denying it to another under precisely similar circumstances. This aspect of the plan was well illustrated by Mr. Clay in his computation of the lump sum which was accepted in lieu of the awards that might have been made under the convention of 1822. In estimating the amount to be paid as interest on the claims he deducted one-half on the ground that, as one of two persons, respectively named by the two governments, was to be chosen by lot as arbitrator in each case of difference, it was to be assumed, on the supposition that the lot would fall equally often on each person, that one half of the suitors would obtain interest, while the other half would not.

Efforts to Choose an Umpire.

It was not a groundless assumption. The convention of 1853, however, afforded the commissioners an opportunity to agree on an umpire, and fortunately both commissioners were duly impressed with the great importance of the subject. The American commissioner, in a letter to his British colleague, said:

"By the terms of the Treaty for the adjustment of claims, entered into between the United States and Great Britain, it is provided that the Commissioners appointed by the respective governments shall, before proceeding to any other business, name some third person to act as Arbitrator or Umpire in any case or cases in which they may themselves differ in opinion, and that, if the Commissioners should not be able to agree on some person, they should each name a person as Umpire, and that the Umpire who should act, in case of any difference of opinion, should be designated by lot.

"The Commissioners therefore have not only the duty devolved upon them, by the terms of the Convention, of a speedy and impartial settlement, according to justice and equity, of subsisting claims of citizens of either country on the Government of the other, but also of constituting, in conformity to the same principles of justice and equity, the tribunal which is to be the ultimate arbiter in the decision of these claims. A proper discharge of this duty is of vital consequence to the success of the Convention.

"A disagreement as to the person who shall be selected as

Umpire, and the necessity of resorting to the contingency of a Lot to constitute one in any given case, must detract greatly from the moral effect of any decisions made by the Commission. "If the Commissioners disagree as to men from just cause, a subsequent selection by either party of those men by lot necessarily constitutes an unequal and unjust tribunal between the parties, and the remaining forms of a trial might as well be dispensed with.

"If they disagree, from any cause, the Tribunal is necessarily constituted of men unsatisfactory to the Commissioners, and an adverse decision whether right or wrong would naturally carry the impression to claimants that their cause was lost, not from want of its justice, but for want of a fairly constituted tribunal.

"Under these circumstances it is highly important that the Commissioners should agree and to effect this, should adopt such principles of selection in coming to a decision, as will be most likely to ensure the appointment of an Umpire impartially situated between the Governments and the Claimants, not merely nominally, but actually so.

"This action of the Commissioners on this point is not only important as regards the issue of this Convention, but its successful organization may go far to establish the practice of mutual arbitrations between our own Governments in future, and between other Governments in similar claims.

"Such claims must necessarily arise from time to time under the extended commercial relations of the two countries, and the same difficulties of adjustment of them that have heretofore existed will doubtless continue.

"The delays incident to official intercourse between Governments, the frequent changes in Administrative Officers, the difficulty in procuring appropriations through the respective legislative branches of either Government for the payment of claims if allowed, the fact that the allowance of such claims for the most part is the impeachment of the just and proper conduct of the Executive Officers themselves, and the fact that the discussion and allowance of claims are sometimes embarrassed by partisan conflict and feelings, are circumstances common to both Governments which tend greatly to dishearten claimants, excite national animosities and render it desirable that an equal and impartial Tribunal independent of any such difficulties should be constituted, whose sole duty shall be, in a judicial capacity, to adjust such claims.

"Our great aim then is to constitute a Tribunal, mutually appointed, standing in a just and equal position between the Governments and the Claimants, to adjust these matters; and a failure to do this, is substantially a failure of the great objects of the Convention while it necessarily impairs the hopes of all similar attempts at adjustment."1

Mr. Upham to Mr. Hornby, London, September 22, 1853. (MSS. Dept. of State.)

As to the person who would satisfy these requirements, the American commissioner said that the umpire appointed "should be favorably known in America and have an established reputation there for integrity and impartiality;" that, as the term of the commission was limited, he should be immediately accessible; that, in order to avoid the translation of evidence and arguments, he should be able to speak and write English; and that, from various considerations, including the fact that his compensation would be very limited, he should have a residence in London. The American commissioner therefore suggested for the place George Peabody, who, though an American, had long resided and was permanently established in London. He thought Mr. Peabody better suited to the position than a person who was neither an Englishman nor an American, since few foreigners in London were known in America, except certain individuals who had come in collision with their own governments," and who might therefore be prejudiced against existing forms of government in Europe, and the diplomatic representatives of other nations, who were open to objection from the circumstance that claims similar to those to be decided might be pending between the United States or Great Britain and their own governments, as well as from their official position and the intimate connections between their governments and Great Britain.

Such were the views of the American commissioner as expressed both in his letters and in personal conferences with the British commissioner.

While observing that the convention did not fix the compensation of the umpire, and that the pecuniary question would probably be a matter of secondary consideration, the British commissioner, although agreeing that it was desirable for the umpire to reside in London and to be thoroughly ac quainted with the English language, said that these points were in his opinion of less moment than "the all important one of the umpire's possessing the qualification of being entirely free from bias, either by reason of nationality, connection, or of any possibility of interest in the matters or questions to be determined." With this view he suggested the names of Count Stezlecki, M. Van de Weyer, the Chevalier Bunsen, the Duc de Broglie, the Duc de Nemours, Prince Joinville, M. Guizot, and M. Lamartine. M. Van de Weyer was then the

minister of Belgium, and the Chevalier Bunsen the minister of Prussia, in London; but the British commissioner thought that this fact ought not to be considered, since their literary and social reputation entitled them "to take rank amongst that class of citizens of the world in whom every nation takes a pride, whose fame is the common property of all, and whose feelings, sympathies, and interests may be fairly considered as not confined to one place or people, but equally and indifferently spread over the whole world." Nor could such men as the French princes, the Duc de Broglie, and MM. Stezlecki and Lamartine have any bias on the claims in question. As to Mr. Peabody, the British commissioner said that he did not mean "for a moment to cast the slightest shadow on the reputation of that gentleman, either as a citizen of the United States, or as an American merchant residing" in London; he had honorably earned a high character for integrity and uprightness, and reflected credit on the country of his birth; but he was "essentially an American, standing at the head of the American commercial firms" in England, and looked upon "as par excellence the representative of the American commercial community" in that country. To take him from that sphere and put him in the post of umpire would be to place him in an invidious position. Being doubtful as to the propriety of choosing either a British subject or an American citizen, the British commissioner said he had refrained from officially referring to natives of Great Britain; but he suggested, as among those whose character, reputation, independent station, and social position placed them above all suspicion, Lords Brougham, Truro, and St. Leonards, ex-Lord Chancellors of Great Britain; Mr. Justice Patteson, ex-judge of the Queen's Bench; Thomas Babington Macaulay, George Grote, and Thomas Baring. At the same time he thought it was among foreigners, entirely indifferent to both countries, that an umpire should be selected.1

Agreement on Mr.
Van Buren.

The American commissioner would not exclude foreigners, and expressed his sense of the character and reputation of those whom the British commissioner had mentioned; but he was still deeply impressed with the difficulties of selecting one free from the objections which he had previously stated. As to the

Mr. Hornby to Mr. Upham, September 27, 1853. (MSS. Dept. of State.)

British subjects who had been suggested, he fully concurred in all that had been said concerning them, and, were the hearing in his own country, he should hardly object to some of them. But the American claimants had come a long distance to present their petitions, and might think it hardly equal if, in addition to this circumstance, the umpire should be taken from England. In the belief that it would, under the circumstances, be more equal to select an umpire from America, the American commissioner said that he might name a gentleman, then on the Continent, but soon to return to London, who would compare favorably with any one who had been mentioned, whose fame was achieved, and who had no ambition to gratify "except perhaps that of establishing a reputation for justice in both hemispheres." He referred to Martin Van Buren, lately President of the United States, and he also named, as persons possessing an English as well as an American reputation, Richard Rush, Washington Irving, Russell Sturgis, and Thomas Aspinwall, formerly American consul at London and for twenty years a resident there.'

On the other hand, the British commissioner said that, while he was willing to admit the force of some of the observations as to the national feeling which might possibly arise in America regarding the fairness of decisions made in England, and at a distance from the residence of the American claimants, he could not admit as founded in reason or justified by experi ence the implication either that England exercised so vast an influence on the rest of Europe as to render her capable, even if she were so inclined, of prejudicing the interests of the people of any other country in such questions as those involved in the claims about to be submitted to decision, or that, in so far as the illustrious foreigners whom he had named were concerned, her influence could in any instance warp their judg ments or give their minds an undue or improper bias, or that any consideration, public or private, could induce men of such high standing and universal fame to depart one hair's breadth from that clear and straightforward course which an umpire should pursue. "It was this conviction," continued the British commissioner,

"which led me to submit their names to you, and it is an undoubted confidence in the integrity of the great men of your

Mr. Upham to Mr. Hornby, October 3, 1853. (MSS. Dept. of State.)

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