disposition for that purpose should at any time be entertained, and the further good offices of the United States be supposed to be useful toward its accomplishment, they will, if desired, be cheerfully bestowed.

"HAMILTON FISH,

"Secretary of State.

"JOAQUIN GODOY,

"Plenipotenciario de Chile.

"MAN'L FREYRE,

"Plenipotenciario de Bolivia.

"ANTONIO FLORES,

"Plenipotenciario del Ecuador.

"MAN'L FREYRE,

"Plenipotenciario del Peru.

"MAURICIO LOPEZ ROBERTS,

"Plenipotenciario de Spana."

Separate treaties of peace between Spain and the allied republics were after long delay signed and ratified, the earliest concluded being those with Peru and Bolivia.'

4. PLANS FOR PERMANENT ARBITRATION.

We have already referred to various plans for the establishment of a permanent system of arbitration.2 By Article LXIII. of the final act of the Congress of Vienna the States of the Germanic Confederation engaged "not to make war against each other on any pretext, nor to pursue their differences by force of arms, but to submit them to the Diet," which would "attempt a mediation by means of a commission;" but it was stipulated that "if this should not succeed, and a juridical sentence becomes necessary, recourse shall be had to a well-organized Austregal court (Austrägalinstanz), to the decision of which the contending parties are to submit without appeal."

By a decree of the Diet, made at Frankfort October 30, 1834, provision was made for the establishment of an arbitral tribunal, for the purpose of deciding upon any differences arising between the States as to the interpretation of the constitution of the confederation, or as to the limits of the cooperation accorded to the States in the execution of certain determinate rights of sovereignty. Each of the seventeen members of the ordinary assembly of the Diet was to name every three years, from the State which he represented, two eminent men, one from the judicial and the other from the administrative branch of government; and from the thirty-four persons so named as arbitrators, arbitral judges, not to exceed

Mr. Mendez de Vigo to Mr. Evarts, September 12, 1879; Mr. Evarts to Mr. Mendez de Vigo, September 19, 1879; Mr. E. de Muruaga to Mr. Bayard, July 19, 1886; Mr. Bayard to Mr. de Muruaga, July 31, 1886; MS. notes to and from the Spanish legation.

* Supra, I. 962; II. 2109. Various historical bodies, such as the Amphictyonic Council, the Supreme Court of the United States, and the German Supreme Court at Leipzig, are often referred to as arbitral tribunals. We desire merely to call attention to the fact, without entering into the question of diversities or analogies. See Calvo, Le Droit Int. 4th ed. III. 491.

eight in number, and an umpire, were to be chosen, in a prescribed manner, for the decision of each difference as it might arise.'

September 3, 1880, representatives of Chile and Colombia signed at Bogotá a convention providing for the submission of all differences that should arise between them to the arbitration of the President of the United States, unless another arbitrator should be specially agreed upon, and for the adoption of measures looking to the conclusion of similar conventions with the other American nations. December 24, 1880, a similar convention was signed at Paris by representatives of Colombia and Salvador, with a stipulation suggesting the convocation of a congress of American nations at Panama. The ratifications of this convention were exchanged at Paris January 7, 1882. It was officially proclaimed in Colombia May 23, 1882, and in Salvador April 9, 1883.3 By Article V. of a protocol of a semiofficial conference of representatives of the Argentine Republic, Bolivia, Colombia, the Dominican Republic, Ecuador, Mexico, Peru, Salvador, and Venezuela at Carácas August 14, 1883, it was declared that, in view of "the feeling of brotherhood which ought to preside over the international relations" of the Spanish-American republics, they should, “in order to render collisions with arms impossible, consider themselves under the obligation to establish arbitration as the only solution for every controversy concerning their rights and interests respecting which differences might occur."4

In numerous recent treaties a clause has been inserted for the arbitration of any disputes which may arise as to their interpretation or execution. Such a clause was introduced in various treaties between Italy and other powers when Mr. Mancini was minister for foreign affairs of the former. Thus a protocol of June 15, 1883, annexed to the treaty of commerce of that day between Italy and Great Britain, signed on the part of the former by Mr. Mancini, provides: "Any controversies which may arise respecting the interpretation or the execution of the present treaty, or the consequences of any violation thereof, shall be submitted, when the means of settling them directly by amicable agreement are exhausted, to the decision of commissioners of arbitration, and the result of such arbitration shall be binding upon both governments." Provision was also made for the appointment of commissioners.5

A similar protocol was annexed to the treaty of commerce between Great Britain and Greece of November 10, 1886.6

A clause to the same effect is embodied in Article XX. of the treaty of commerce and navigation between Belgium and Denmark of June 18, 1895. By a treaty between Spain and Peru, signed at Lima July 16, 1897, it is stipulated that any questions arising between the two countries shall be

Br. and For. State Papers, XXIII. 1191.

2 For. Rel. 1880, 331; 1881, 3-6, 114, 122, 350.

3 For. Rel. 1883, 236-237. The signer of this convention on the part of Salvador was Señor Torres-Caicedo.

4 Br. and For. State Papers, LXXIV. (1882-1883) 895.

5 Br. and For. State Papers, LXXIV. 75.

6 Br. and For. State Papers, LXXVII. 106. An arbitral clause may be found in a treaty between Spain and Sweden and Norway, Id. LXXVIII.

submitted to arbitration, and, in case the contracting parties should be unable to settle any question in that manner, to the mediation of a friendly power.'

Rules proposed by the Institute of International Law.-The subject of rules for the regulation of the procedure of international tribunals of arbitration was discussed by the Institute of International Law at its session at Geneva in 1874, and at its session at the Hague in 1875. At the latter session provisional rules were adopted. The members and associates of the institute present on this occasion were M. Asser, counselor to the ministry of foreign affairs of the Netherlands and professor of law at Amsterdam; the Right Hon. Mountague Bernard, of Oxford; M. Besobrasoff, member of the Academy of Sciences, St. Petersburg; Bluntschli, of the University of Heidelberg; Professor Brocher, of the University of Geneva; Dr. von Bulmerincq, a privy councilor and professor at the University of Heidelberg; David Dudley Field, of New York; W. E. Hall, of London; M. de Martens, of the University of St. Petersburg; M. Moynier, of Geneva; Baron Neumann, professor at the University of Vienna, member of the Chamber of Peers; M. de Parieu, member of the Senate of France and of the Institute of France; M. Pierantoni, professor at the University of Rome, senator of the Kingdom of Italy; M. Rivier, professor at the University of Brussels; M. Rolin-Jaequemyns, of Ghent; M. Albéric Rolin, of Ghent; Sir Travers Twiss, of London, and Mr. Westlake, of London. The rules adopted were as follows:

"The Institute, desiring that recourse to arbitration for the settlement of international difficulties should be practised more and more by civilized peoples, hopes to contribute toward the realization of this end by proposing for courts of arbitration the following provisional rules of procedure. It recommends them for adoption, in whole or in part, by states that may conclude agreements to arbitrate.

"ART. 1. The agreement to arbitrate is concluded by a valid international treaty.

"It may be so concluded:

"(a) By anticipation, whether for any and every difference, or for those of a certain class specially to be designated, that may arise between the contracting states;

"(b) For one or more differences already existing.

"ART. 2. The agreement to arbitrate gives to each of the contracting parties the right to appeal to the tribunal of arbitration which it designates for the decision of the question in dispute. If the agreement to arbitrate does not designate the number and names of the arbitrators, the tribunal of arbitration shall proceed according to the provisions laid down in the agreement to arbitrate or in some other agreement.

"If there be no such provisions, each of the contracting parties shall choose an arbitrator, and the two arbitrators thus appointed shall choose a third arbitrator or name a third person who shall appoint him.

"If the two arbitrators appointed by the parties cannot agree on the choice of a third arbitrator, or if one of the parties refuses the cooperation which, according to the agreement to arbitrate, he should give to the

Mr. Neill to Mr. Sherman, July 24, 1897, MS. dispatches from Peru.

formation of the court of arbitration, or if the person named refuses to choose, the agreement to arbitrate is annulled.

"ART. 3. If in the first instance, or because they have not been able to agree on the choice of arbitrators, the contracting parties have agreed that the tribunal of arbitration should be formed by a third person named by them, and if the person named undertakes the formation of the tribunal, the course to be followed shall depend, first, on the provisions of the agreement to arbitrate. If there be no such provisions, then the third person so named may either himself appoint the arbitrators or propose a certain number of persons, among whom each of the parties shall choose.

"ART. 4. The following shall be eligible for appointment as international arbitrators: Sovereigns and heads of governments, without any restriction, and all persons who are competent according to the law of their country to exercise the functions of arbitrator.

"ART. 5. If the parties have agreed upon individual arbitrators, the incompetency of or the allegation of a valid objection to one of such arbitrators invalidates the whole agreement to arbitrate, unless the parties can agree upon another competent arbitrator.

"If the agreement to arbitrate does not prescribe the manner of selecting another arbitrator in case of incompetency or of the allegation of a valid objection, the method prescribed for the original choice must again be followed.

"ART. 6. The acceptance of the office of arbitrator must be in writing. "ART. 7. If an arbitrator refuses the office, or if he resigns after having accepted it, or if he dies or becomes mentally incompetent, or if he is validly challenged on account of inability to serve according to the terms of art. 4, then the provisions of art. 5 shall be in force.

"ART. 8. If the seat of the tribunal of arbitration is not named either by the agreement to arbitrate or by a subsequent agreement of the parties, it shall be named by the arbitrator or by a majority of the arbitrators.

"The tribunal of arbitration is authorized to change the place of its sessions only in case the performance of its duties at the place agreed upon is impossible or manifestly dangerous.

"ART. 9. The tribunal of arbitration, if composed of several members, chooses a president from among its own number and appoints one or more secretaries.

"The tribunal of arbitration decides in what language or languages its deliberations and the pleadings of the litigants shall be conducted and the documents and other evidence be presented. It keeps minutes of its sessions.

"ART. 10. The tribunal of arbitration sits with all its members present. It may, however, delegate one or more of its members or even commission outside persons to draw up certain preliminary proceedings.

"If the arbitrator is a state or its head, a commune or other corporation, an authority, a faculty of law, a learned society, or the actual president of the commune, corporation, authority, faculty, or society, all the pleadings may be conducted, with the consent of the parties, before a commissioner appointed ad hoc by the arbitrator. A protocol of such pleadings shall be kept.

"ART. 11. No arbitrator can without the consent of the litigants name a substitute for himself.

"ART. 12. If the agreement to arbitrate or a subsequent agreement of the parties prescribes the method of procedure to be followed by the court of arbitration or prescribes to it the observance of a definite and positive law of procedure, the tribunal of arbitration must conform thereto. If there be no such provision, the procedure to be followed shall be freely prescribed by the tribunal of arbitration, which is in such case required to conform only to the rules which it has informed the parties it would observe.

"The control of the discussions belongs to the president of the tribunal. "ART. 13. Each of the parties may appoint one or more persons to represent it before the tribunal.

"ART. 14. Exceptions based on the incompetency of the arbitrators must be taken before any others. In case of the silence of the parties any later contestation is excluded, except for cases of incompetency that have subsequently supervened.

"The arbitrators must pronounce upon the exceptions taken to the incompetency of the court of arbitration (subject to the appeal referred to in the next paragraph) and must pronounce in accordance with the provisions of the agreement to arbitrate.

"There shall be no appeal from the preliminary judgments on the question of competency, except in connection with the appeal from the final judgment in the arbitration.

"In case the doubt on the question of competency depends upon the interpretation of a clause of the agreement to arbitrate, the parties are deemed to have given to the arbitrators full power to settle the question, unless there be a clause to the contrary.

"ART. 15. Unless there be provisions to the contrary in the agreement to arbitrate, the tribunal of arbitration has the right

"1. To determine the forms, and the periods of time, in which each litigant must, by his duly authorized representatives, present his conclusions, support them in fact and in law, lay his proofs before the tribunal, communicate them to his opponent, and produce the documents the production of which his opponent demands.

"2. To consider as conceded the claims of each party which are not plainly contested by his opponent, as for instance the alleged contents of documents which the opponent, without sufficient reason, fails to produce. "3. To order new hearings of the parties, and to demand from each of them the clearing up of doubtful points.

"4. To make rules of procedure (for the conduct of the case), to compel the production of evidence, and, if necessary, to require of a competent court the performance of judicial acts which the tribunal of arbitration is not qualified to perform, notably the swearing of experts and of witnesses. "5. To decide with its own free judgment on the interpretation of the documents produced, and in general on the merits of the evidence presented by the litigants.

"The forms and the periods of time, mentioned in clauses 1 and 2 of the present article shall be determined by the arbitrators by a preliminary order.