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which we ought to have settled by the mere exercise of our own judgment, and deliberative will. Calvo in his 'Le Droit International Théorique et Pratique,' (2nd edition, Paris, 1870), states briefly and well what all jurists concur in, that arbitration, though a useful aid in some cases, should not be resorted to “in those in which the honour and dignity of the country are directly involved.” And are not the honour and dignity of the British Crown involved, when we are charged with having “ failed to fulfil our duties as neutrals," and that to such an extent that, besides making an “apology" for our conduct, we are to submit ourselves to penalties before a Court of Arbitration ? Are our honour and dignity not involved, when the flag which waves over part of our possessions is menaced and put upon trial ?
Nevertheless, arbitration having been adopted, we hold to the opinion already expressed, in concurrence with the position of the United States Government, that the arbitrators had full power and discretion to decide as to what properly fell within their province, under the terms of the Treaty. We think, also, with respect to the Indirect Claims, that upon the face of the Treaty, more especially the preamble, taken in connection with the protocols relating to it, the evidence is so strong that the arbitrators, guided by the well-known rules for the interpretation oftreaties, would have had no hesitation in giving a decision against them.
We need not go at length into the principles which hold in these matters, but with regard to promises may mention
two principal canons. In the first place, when a promise is made it is to be interpreted in the way in which the promiser intended it, and had reason to believe that the promisee understood it to be made; evidence of which may be had by reference to the document itself, and other documents relating to it, or of a similar kind.
Secondly, national law recognizes two kinds of contracts, those which are “ favourable" and those which are “odious ;” “ favourable” contracts being those in which there is a mutuality of advantage, “odious” being those where the advantage is all on one side, and also those by which anything in the nature of a penalty is incurred. In “favourable" contracts, according to Grotius, “the words are to be taken in their full propriety, and, if ambiguous, in their largest sense; whereas in “odious” contracts, “the words are to be taken in a more restricted sense." Vattel observes, further, that when a great injury is likely to be inflicted by the application of the wording of an “ odious" contract, a “figurative interpretation
may be adopted in the interests of substantial justice; and adds this remarkable maxim, which is peculiarly applicable to the present unfortunate case, that in the interpretation of treaties which bear the character of one-sidedness, “ the cause of him who seeks to avoid a loss, is more favourable than that of him who seeks to procure a gain.”
Supposing it to be possible, however, that in spite of all arguments of the kind suggested, and others too voluminous to go into here, the arbitrators should have given a decision against us, accompanied
or not by an award of damages in a lump sum, we insist still that we should have done what was right in submitting to the jurisdiction of the tribunal, and that the case would not be altogether beyond the reach of remedy. Arbitration, as between private persons and between Sovereign States, differs in this essential particular, that in the case of the latter there is no power in the court to enforce its award, whilst at the same time there is no court of appeal to which the State can appeal against a wrongful decision. A Sovereign State knows no superior under heaven, and, at the same time, would have the right, and the duty, to resist an award in arbitration, not only such as a private person might appeal against, but such as in its discretion, and its sense of duty to its subjects --and this is paramount above all other considerations—it ought not to submit to. For instance, again quoting Calvo, who is here in accord with other -authorities, a Sovereign amongst other grounds, would be bound, appealing to his own conscience, to repudiate an award which “bore upon questions not pertinent,” or was "absolutely contrary to the rules of justice."
It would be an awkward alternative to have to recar to, no doubt; but still it would be open to us, should the necessity arise ; and of course the expediency of resorting to it, or not, the occasion arising, would depend in great measure upon the amount of the damage to be avoided.
As it is, through the unskilfulness of our Government, we have drifted into a very absurd and discreditable position before the Court of Arbitration
at Geneva, which, according to the terms of the Treaty, commenced its sittings on the 15th June. After three or four attempts, at the dictation of General Schenck, Lord Granville at length succeeded in framing a Supplemental Article, which the American Government consented to submit for the approval of the Senate. The Senate sanctioned it, subject, however, to certain modifications which the British Government thought it their duty not to consent to; and proposed to modify the modifications.
The chief alterations proposed by the United States were in the enactive part, which they proposed should run as follows :-"Both Governments adopt for the future the principle that claims for remote or in. direct losses should not be admitted as the result of failure to observe neutral obligations." Lord Granville, in his reply, held that the passage so worded was “so vague that it is impossible to state to what it is or is not applicable,” and as such would only lead to “misunderstanding." He proposed to substitute the words “of a like nature," instead of “ for remote or indirect losses," and the words, “such want of due diligence on the part of a neutral," instead of “for the failure to observe neutral obligations."
We confess we do not see a very clear-certainly not a broad-distinction between the two phrases ; but Lord Granville, having been “once bit," was particularly “shy” of taking anything at the suggestion of the Washington Government. It appears to us that whatever form of words had been adopted, "misunderstanding ” must have come out of them
whenever they came to be acted upon; and in this we have ample and convincing illustration of the dangers attendant upon all pretences to repeal or modify old-established principles of public law, which carry their own interpretation on their face, and in the precedents in which they have been applied.
Well, the American Government obstinately rejected Lord Granville's proposals—refused, indeed, to offer, or entertain, any further suggestions in the matter, and the Supplemental Article, from which so much was hoped, fell to the ground.
In this new dilemma, driven absolutely up into a corner, Lord Granville had to look about him to gain -that last hope of a bankrupt concern—a little time; aye, even if ever so little !-à week, a day, an hour! In the first instance, he communicated, May 28th, his impressions to the American Govern. ment that the Court of Arbitration would not have the power to adjourn its proceedings without the sanction of a short treaty between the two contracting parties. But Mr. Fish would not sign a treaty for the purpose, nor even agree to a joint application to the arbitrators for an adjournment. But this he was prepared to do, viz :-provided Lord Granville put in his “argument showing the points, and referring to the evidence upon which his Government relies,' which it was, by Article V of the Treaty, his “duty" to do, on or before the 15th June, the American Government would assent to a proposal for adjournment if made by Great Britain. Lord Granville, with the usual fatuity which attends the habitually unfortunate, did not attach any importance to this