CORRESPONDENCE

RELATIVE TO THE

APPOINTMENT OF UMPIRE.

No. 1.

The Honourable N. G. Upham, United States Commissioner, to Mr. Edmund Hornby, British Commissioner.

SIR,

London, September 22, 1853. 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 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 fair 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.

The 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 arbitration 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 some official of either Government, or perhaps of the executive officers themselves, and

the fact that the discussion and allowance of claims are sometimes embarrassed by partizan 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 should 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 Government 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 hope of all similar attempts at adjustment. For these reasons, I have desired to exert every possible effort for agreement between us, and purpose to repeat the considerations urged by me at various Conferences, that they may be addressed more fully to your attention, and that a more permanent record of our views and efforts on this subject may be preserved.

There are various circumstances that limit the range of selection of an umpire, that have already been adverted to, and in which you, for the most part, concurred.

1st. It is essential that any umpire appointed should be favourably known in America, and have an established reputation there for integrity and impartiality.

2nd. It is essential that whoever is selected should be immediately accessible, as the Commission must terminate within a year, and the umpire may not be called upon till near the close of it, as all claims are not necessarily to be filed until the expiration of nine months from the opening of the Commission.

3rd. From the great difficulty and delay in translating intelligently, and satisfactorily, the evidence and arguments in the several cases, as well as the very limited period of the Commission, it is essential that the umpire be intimately acquainted with the English language, and able to write and speak it with perfect ease.

4th. The very limited compensation allowed the umpire,

and the deferred terms of payment render it hardly possible for us to obtain the attendance and services of any one as umpire from the continent.

5th. From the several circumstances combined, it becomes almost essential that whoever is selected should have a residence in London.

This being the case, it is necessary to direct our attention to those persons at London, or in the vicinity, who are so impartially situated between the two countries that they may properly be designated as umpire. It may be taken for granted that Americans or Englishmen who have not had a common residence and personal reputation in both countries do not hold this position. If, however, individuals of either nation can be found, equally well known by a long residence in both countries, and with well established and unimpeached character for integrity and uprightness in each, they would seem to have all the requisites for such an appointment. Of this class of individuals, I have already named George Peabody, Esq., who has resided in London for nearly twenty years past, whose partner is an Englishman, whose business, location, and interests are all here, and who is equally well known in Europe and America.

I cannot learn, from any inquiries you have been able to make, that any doubts exist as to his impartiality and uniform uprightness and integrity. No English claimants, I believe, from their knowledge of the man, would hesitate to trust the decision of their claims to him, and I cannot believe any just doubt on this point can exist on the part of the English Government.

A suggestion has been made against him as an American; but I think that objection is fully equalized by his long residence, permanently established business location, and personal associations in London. It has been further suggested that it might be unsafe to trust the decision of claims, in which either Government is interested, to a Merchant. Mr. Peabody has been entirely out of business for years as a merchant, and his occupation is now rather that of a banker; but however this may be, it seems to me the mere fact of a

C

man's position as a merchant does not cause such bias on his judgment as to disqualify him from acting in the capacity of umpire. Such an exception would not be regarded for a moment as sound, when taken as to the constitution of a Court of Justice, or the impanelment of Jurors.

The other Commissioners are selected solely by the Governments, and this circumstance may subject them to jealousies on the part of claimants; and, while such is the case, it seems to me the rejection of an individual, solely because he is a merchant, manifests, under the circumstances, greater distrust than is necessary for the protection of the interests of the Governments.

A suggestion has been made that some foreigner, neither English nor American, should be appointed. The objections to such a selection are, that there are few foreigners here who are known in America, except persons among the Representatives of other nations at this Court, or persons who, on the continent, may have come in collision with their own Governments.

There might be objections to the selection of individuals from the latter class of persons, as having prejudices against existing forms of Government in Europe, or the mode of their exercise, while there are manifestly objections to the Representatives of foreign nations here, for the reason that similar claims may exist between our own Government and theirs, or the British Government and theirs; also from the personal official position of such Representatives at this Court, and the present intimate relations and connections between Great Britain and these nations on the continent rendering their views, feelings, and interests nearly identical.

Under the exceeding difficulties, therefore, of making a mutual selection of umpire, and the still greater difficulty of having separate umpires, to be designated in given cases by lot, I think we ought not to hesitate in naming some person from the class represented by Mr. Peabody, as standing most nearly in the position of impartiality, that would meet the approval of just men in both countries.

I would here again remind you, that by the provision of