appellate tribunal is to give its decision in view of the record and proceedings (including any evidence adduced) of such original tribunal. It is hardly consistent with any reasonable theory of arbitration that an award concurred in by the arbiter of the defeated country should be appealable by that country. It is obvious, too, that the parties may properly be required to present all their facts and evidence to the original tribunal. Otherwise, and if the award is appealable in any event, the original tribunal might as well be dispensed with, since each party will be sure to make its real contest before the appellate tribunal alone.

In the second place, by the scheme as amended an award is the result of each arbitration, so that the controversy is finally ended. Under the draft as proposed, on the other hand, there will be an award only in the rare cases in which the six appellate arbiters favor it either unanimously or by a majority of five to one. Such an arrangement, it is believed, would be dangerous and rather mischievous than salutary in its operation. In all the cases in which the arbitrators were equally divided, or stood four to two, public feeling in each country would have been aroused by the protracted discussions and proceedings, and the chances of a peaceful outcome would be rather prejudiced than promoted. That would be the almost certain result in cases in which the arbiters stood four to two, and in which one judge of the highest court of his country had found himself compelled to give his vote in favor of the other country.

It is a possibility to be noted that the party defeated and disappointed by the award of the original tribunal, in a case where the stake is large and the public feeling intense, might find itself under irresistible temptation to make all subsequent proceedings purely farcical by making sure, before their selection, of the sentiments of two at least of the appellate arbiters. It is submitted that precaution becomes excessive when the entire arbitration proceedings are made abortive unless the tribunal of six judges reaches an award by a majority of at least five to one. If they stand four to two-which means that at least one judge of the highest court of his country believes that country's claim to be ill founded-it is hardly reasonable to insist that the result should not be accepted and made effective.

It is believed, also, that there can be no arbitration, in the true sense, without a final award, and that it may be better to leave controversies to the usual modes of settlement than to enter upon proceedings which are arbitral only in name and which are likely to have no other result than to excite and exasperate public feeling in both countries.

It is objected by Lord Salisbury that to insist upon the finality of an award upon the controversies described in article 4 is to enable a single foreign jurist to decide matters of great international consequence.

But, under article 4 as amended, the members added to the appellate tribunal need not be foreigners, and, if foreigners and they control the result, it must be by the votes of at least two of them.

It may be pointed out, too, that if bias on the part of foreign jurists is feared, the United States, being without alliances with any of the countries of Europe, is certainly not the party to expect any advantage from that source. Great Britain could at least not fail to know in what quarters friendliness or unfriendliness might be looked for.

It is believed that the risks anticipated from the powers given to a foreign jurist as arbiter or umpire under article 4 as amended, if not purely imaginary, may be easily exaggerated. Before the foreign jurist could act, the questions in dispute would have been thoroughly canvassed and decided, once at least, and perhaps twice; so that the risks in question may fairly be regarded as reduced to a minimum.

Finally, to insist upon an arbitration scheme so constructed that miscarriages of justice can never occur is to insist upon the unattainable, and is equivalent to a relinquishment altogether of the effort in behalf of a general system of international arbitration. An approximation to truth-results which, on the average and in the long run, conform to right and justiceis all that the "lot of humanity" permits us to expect from any plan. Not to surround an arbitration plan with all reasonably practicable safeguards against failures of justice would undoubtedly be the height of unwisdom. But beyond that, human skill and intelligence are without avail, while for actual results dependence must be placed upon the patient hearing and deliberate decision of a tribunal whose proceedings will attract the close attention and careful scrutiny of the civilized world. It may be conceded that a general arbitration scheme not perfected through repeated arbitration experiments entails the risks of erroneous awards. But in this, as in human affairs generally, there is but a choice between evils, and the nonexistence of any arbitration scheme entails the far greater risks of controversies which should be arbitrated being settled by the sword. It would seem to be the part of wisdom, therefore, to establish the principle of general arbitration even at the risk of the development of defects in the scheme originally adopted. The affirmation of the principle would of itself tend to greatly diminish the chances of a resort to war; while the imperfections of the scheme as disclosed by its actual working would be remediable at any time by the consent of the parties. That they would be so remedied, in fact, it is difficult not to believe, since a principle of such great value being once established, it is wholly unlikely that both parties would not desire to perpetuate its operation, and would not therefore be prepared to consent to reasonable changes in the necessary machinery. It would tend to insure such consent if the treaty were made terminable after a short term of years on notice by either party.

It only remains to observe that if article 4, as amended, should prove acceptable, no reason is perceived why the pend ing Venezuelan boundary dispute should not be brought within the treaty by express words of inclusion. If, however, no treaty for general arbitration can be now expected, it can not be improper to add that the Venezuelan boundary dispute seems to offer a good opportunity for one of those tentative experiments at arbitration which, as Lord Salisbury justly intimates, would be of decided advantage as tending to indicate the lines upon which a scheme for general arbitration can be judiciously drawn.

Begging that this communication-copy of which is enclosed for that purpose-may be brought to Lord Salisbury's attention at your earliest convenience, I avail myself of this opportunity to renew to Your Excellency the assurances of my highest consideration.

RICHARD OLNEY.

Lord Salisbury to Sir Julian Pauncefote.

No. 128.] FOREIGN OFFICE, May 18, 1896. SIR: I have to acknowledge Your Excellency's despatch of the 13th ultimo, inclosing a note from Mr. Olney in reply to the proposals made by Her Majesty's Government for a general treaty of arbitration.

Her Majesty's advisers have received Mr. Olney's despatch with great satisfaction, in that it testifies clearly to the earnest desire which animates the Government of the United States to make effective provision for removing all differences of opinion which can arise between the two nations. They regret that in some essential particulars the opinions of the two Governments do not as yet seem to be sufficiently in accord to enable them to come to a definitive agreement upon the whole of this important subject. It appears to them, however, that there are some considerations bearing upon this matter to which the attention of the Government of the United States should be more particularly invited before the attempt to arrive at a general understanding ought to be laid aside.

I would say, in the first place, that Mr. Olney somewhat mistakes my meaning when he says that, in raising this question, I "in terms excluded the consideration of the Venezuelan boundary dispute." I wished to state our views upon the question of general arbitration without touching upon certain points in relation to which the two questions do not cover the same field. But I was well aware that any settlement to which we might arrive must, in its general principles, be applicable to disputes, not only between Great Britain and the United States, but between either of them and any other government; and, therefore, with certain adaptations of detail, it would

apply to a dispute between Great Britain and Venezuela. In this view, I am glad to observe that I am at one with Mr. Olney, because I hold that, in discussing the safeguards by which a general system of arbitration should be sanctioned, it is important to bear in mind that any system adopted between our two nations ought to be such as can in principle be applied, if necessary, to their relations with other civilized countries. Mr. Olney is satisfied with the provisions of Article III. of my proposals and the plan of arbitration which it contains.' The only fault he finds with them is that they are too limited in their application. He thinks that they "hardly cover other than controversies which as between civilized states could almost never endanger their peaceful relations." It is possible that the language of the article may be modified with advantage. It certainly was not intended to apply only to controversies of a practically unimportant character. The discussions which arise out of disputed claims to territory, which are dealt with in Article IV., are, or may be, much graver, as well as much more difficult to decide. But it would not, I think, be difficult to show by a consideration of the history of the present century that controversies which have issued in warlike action, have not arisen exclusively or even mainly from disputed questions of territorial ownership.

To examine the individual instances would involve a somewhat lengthy investigation, which is not necessary now. It is more material on the present occasion to dwell upon the encouraging fact that Her Majesty's Government and the Government of the United States are entirely agreed in approving the language of article No. 3 and the policy it is designed to sanction. Under these circumstances it appears to me to be a matter for regret that the two Governments should now neglect the opportunity of embodying their common view, so far as it is ascertained, in a separate convention. To do so would not be to prejudice in the slightest degree the chance of coming to an agreement on the more difficult portion of the subject which concerns territorial claims. The first step would not prevent the ulterior steps being taken; it would rather lead to them.

With respect to the mode of dealing with territorial claims, the views of the two Governments are still apart. The United States Government wish that every claim to territory preferred by one neighbor against another shall go, as of right, before a tribunal, or tribunals, of arbitration, save in certain special

1 Article III. runs as follows: "III. Complaints made by the nationals of one Power against the officers of the other; all pecuniary claims, or groups of claims, amounting to not more than £100,000, made on either Power by the nationals of the other, whether based on an alleged right by treaty or agreement or otherwise; all claims for damages or indemnities under the said amount; all questions affecting diplomatic or consular privileges; all alleged rights of fishery, access, navigation, or commercial privilege; and all questions referred by special agreement between the two parties shall be referred to arbitration in accordance with this treaty; and the award thereon shall be final."

cases of an exceptional character, which are to be solemnly declared by the legislature of either country to involve the "national honor or integrity;" and that any dispute once referred under the treaty to arbitration shall be decided finally and irrevocably, without the reservation of any further powers to either party to interfere. Her Majesty's Government are not prepared for this complete surrender of their freedom of action until fuller experience has been acquired. In their view, obligatory arbitration on territorial claims is, in more than one respect, an untried plan, of which the working is consequently a matter of conjecture. In the first place, the number of claims which would be advanced under such a rule is entirely unknown. Arbitration in this matter has as yet never been obligatory. Claims by one neighbor to a portion of the land of the other have hitherto been limited by the difficulty of enforcing them. Hitherto, if pressed to the end, they have meant war. Under the proposed system, self-defense by war will, in these cases, be renounced, unless the claim can be said to involve "the national honor and integrity." The protection, therefore, which at present exists against speculative claims will be withdrawn. Such claims may, of course, be rejected by the arbiter; if they are, no great harm is done to the claiming party. In the field of private right, excessive litigation is prevented by the judg ment for costs against the losing party; but to a national exchequer, the cost of an arbitration will be too small to be an effective deterrent. Whenever the result is, from any cause, a fair matter of speculation, it may be worth the while of an enterprising government to hazard the experiment. The first result, therefore, of compulsory arbitration on territorial claims will, not improbably, be an enormous multiplication of their number. Such litigation can hardly fail, from time to time, in a miscarriage of justice; but there will be a far more serious and certain evil resulting from it. Such litigation is generally protracted; and while it lasts the future prospects of every inhabitant of the disputed territory are darkened by the gravest uncertainty upon one of the most important conditions that can affect the life of a human being, namely, the character of the government under which he is to live. Whatever the benefits of arbitration may be in preventing war from arising out of territorial disputes, they may well be outweighed if the system should tend to generate a multiplicity of international litigation, blighting the prosperity of the border country exposed to it, and leaving its inhabitants to lie under the enduring threat either of a forcible change of allegiance or of exile.

The enforcement of arbitration in respect to territorial rights is also an untried project in regard to the provisions of the international law by which they are to be ascertained. This is in a most rudimentary condition; and its unformed and uncertain character will aggravate the other dangers on which I have dwelt in a previous despatch-the danger arising from the doubts which may attach to the impartiality and the competence of the arbitrators.