and Colombia might convince the President of the United States that he is not functus officio as to the matter in hand. "It is also possible that the President might on full consideration hesitate to apply the technical principles recited by the Secretary of State if he should become convinced that the matter is one in which the two Governments might find many insuperable objections to a new submission and arbitration, but could well agree in asking the discharge under the original submission and arbitration of an admitted duty pertaining to the office of arbitrator, accepted by the President of the United States as a friendly act to both Governments. "If in either of these modes it shall be made to appear that by the fifth article of the award the President of the United States has, through error or misapprehension, clearly exceeded the power and jurisdiction conferred on him by the two parties to the protocol, it is conceived that the chosen arbitrator, who is the President of the United States, and not the individual who made the award, or his successor in office as an individual, can not hesitate as to the question of power or duty in the premises." Mr. Rengifo, Colombian chargé, to Mr. Sherman, Sec. of State, May 15, 1897, For. Rel. 1898, 251, 253. "In view of the fact that the arbitration was undertaken by President Cleveland and closed by an award under his Administration and by his direction, it is only proper to state now the views of the present incumbent of the Presidency of the United States; nor is it necessary to discuss whether the submission to arbitration having been accepted by Mr. Cleveland could be taken up by his successor in office. It was intended to state in the note of May 5 the views entertained by President McKinley as to the application to take action in this award, which was supposed to have been completed under Mr. Cleveland. These views are: The President would not undertake to reinvest himself with the function of arbitrator after an award, particularly after a change in the Presidential office, but could only be invited to assume arbitral powers by the joint action of the two parties to the arbitration. Whether this would technically amount to a new submission or not is of little consequence. "The subject of new action, if any, would have to be defined by the joint request of the parties to the arbitration. It is not here intended to suggest that it would not be competent for them to agree in asking new consideration, and with their joint consent it might properly be asked of the late arbitrator, Mr. Cleveland. Should they see fit, however, to make a joint request of the present incumbent of the Presidential office, the agreement of the parties should define how, and to what extent, the powers conferred are to be exercised, and how far the arbitration is to cover new ground, if at all. As the international function of arbitrator is not one springing from any duty of the Presidential office under the laws of the United States, so the President does not wish to constrain in any way the course of friendly States in jointly resorting to these good offices for the disposition of their disputes among themselves. The point to be emphaized is that President Cleveland having undertaken to dispose of the matter, nothing short of the joint request of the contracting parties could invoke the action of the present Executive. "Trusting that these statements may serve to dispel the misapprehension to which your note of the 1st instant and my reply of the 5th appear to have unintentionally given rise, I take pleasure in informing you, by the President's direction, that he will be happy to consider any request which the Governments of Colombia and Italy may jointly agree to submit to him relative to the fifth article of President Cleveland's award, and to further state that it is impossible now for him to subject himself to acquiescence in such request, or to say that he would undertake any further duty in the matter. It will be impossible for him to consider any representations by either party alone in that regard, or in any wise prejudice full liberty of action should a joint request be made to him by the former contracting parties." Mr. Sherman, Sec. of State, to Mr. Rengifo, Colombian chargé d'affaires, "Under date of the 22d of June last, His Excellency Baron de Fava addressed me in the matter of President Cleveland's award in the claim of the Italian subject, Ernesto Cerruti, against the Government of Colombia, informing me that, as appeared by eorrespondence had at Rome with the Colombian minister, controversy had arisen as to the manner of making the payments provided in the fourth article of said award, and that, the two parties being unable to agree upon the interpretation thereof, his Government had accepted Mr. Hurtado's proposal to refer it indefinitely to the arbitrator for decision.' Baron de Fava accordingly, under his instructions, requested the President, through the Secretary of State, to be pleased to determine himself, in his capacity as arbitrator, and inform the embassy the true meaning of his decision as regards the manner of payment and the computation of the amount due.' "The request so conveyed was not without embarrassment from the merely formal point of view, in that the request was not jointly preferred on behalf of the two Governments concerned, and I awaited the corresponding identical request from your Government before giving the subject its regular course of submission to the President with a view to ascertaining his disposition in the matter. "A week later you, as Colombian chargé d'affaires at this capital, addressed me a note, under date of June 29, stating that as the Italian Government, in lieu of a concerted application, had presented its request independently you would follow the same course on behalf of your Government, but that you would need time in order to accompany your presentation of such request by a statement of the ground on which the Colombian Government based its interpretation of the concluding portion of article 4 of the decision of March 2, 1897. A further delay in the matter thus became necessary. "On the 13th of July last you addressed to me an elaborate argument setting forth the interpretation which, according to the view of your Government, should prevail in deciding the intendment of article 4 of President Cleveland's award. "This diverse manner of presentation of the matter by the two representatives of the Governments at issue did not remove the embarrassment under which I had labored from the outset; but rather than provoke discussion of a formal point of procedure I endeavored, through unofficial suggestion to the respective counsel of the Colombian Government and of the claimant, Cerruti, to pave the way for a joint submission by the two Governments of a simple question of interpretation of the language of article 4 of President Cleveland's award, which the actual President might take up and render an opinion upon as an independent act of friendliness to both the parties, without regarding himself as the official arbitrator, in continuing function, by whom the original award had been made. These suggestions bore no fruit, and the matter has stood in this unsatisfactory posture until now, the notes of yourself and Baron de Fava remaining unanswered, in the hope that time might bring a satisfactory solution of the problem presented. Longer silence appears, however, not now to be possible in the light of the pressure of the Italian Government for an answer, as stated in Count Vinci's note of December 5 and since by him in oral interviews. "The merely formal irregularity in the presentation of the several requests for an expression of the President's opinion as to the true intendment of President Cleveland's language in the fourth article of his award is, however, not the only embarrassment that meets me in dealing with the case. Your several notes have advised me that the Colombian Government absolutely denies the validity of the fifth article of that award, claiming that, in deciding as he did, the arbitrator went outside of the submission made to him by the two Governments under the treaty they had concluded for the arbitration of the Cerruti dispute; and, besides, the notification so made to this Government on the 3d of March and the 1st of May last, setting forth such denial and asking the ratification in toto of said fifth article, I was advised by Baron de Fava's oral inquiry of May 6, and by his note of the 30th of May last, that a similar notification had been made to the Italian Government, and had been rejected by it. "To your notification and request answer was made on the 5th of May last to the effect that the President of the United States, whether he were the individual who acted as arbitrator or his successor in office, became, under any circumstances, functus officio, so far as the arbitration was concerned, upon the rendition of his award, and could not undertake to reopen the arbitration and reconsider the award under any just view of the powers conferred upon him as arbitrator by the protocol under which he acted; but that, should the parties to the arbitration invite the reconsideration of the award in question, in whole or in part, or request its interpretation in any respect, that could only be accomplished by a new submission presenting the point or points in dispute. A note of similar tenor was addressed to Baron de Fava on the 7th of May last. "You, having subsequently raised the question as to what constituted a new submission,' were informed on May 19, 1897, that President McKinley would not undertake to reinvest himself with the function of arbitrator after an award, particularly after a change in the Presidential office, but could only be invited to assume arbitral powers by the joint action of the two parties to the arbitration, and that whether this would technically amount to a new submission or not was of little consequence, inasmuch as the subject of new action, if any, would have to be defined by the joint request of the parties to the arbitration. "The President was not moved to reach this conclusion save by weighty considerations. Apart from the sound doctrine of finality which is expressed as a binding rule in the agreement to arbitrate, and which constrains the arbitrator to regard his function and office as alike terminated on the rendition of his award, there is good precedent for such a view of his capacity and duty. It recently happened that, in the case of an arbitration by the President of a boundary dispute between Costa Rica and Nicaragua, the parties found themselves unable to give effect to a certain detail of the award, but not until a conventional agreement between them and the express submission by them jointly of a request to that end did the President find himself in a position to aid in the determination of the controversy by appointing an expert engineer as umpire to fix the point at issue. "Had the Governments of Colombia and Italy jointly requested the President to lend his offices toward an interpretation of the stated terms of the fourth article of the award of March 2, 1897, and thereby presented that point as an independent proposition, not involving any supposed capacity or duty on his part to revise the arbitration itself in the continuing character of the original arbitrator, but by way of a particular submission, the case would have offered little difficulty as an isolated proposition. It has not, how ever, been so presented to him. Although the Italian request independently presented, as has been seen, is silent as to the dispute touching the fifth article of the award, except so far as to indicate that the Colombian Government adhered to the exception it had taken to said fifth article, the Colombian request of July 13 explicitly declared that the payments made by the Government of Colombia to the Royal Government of Italy, under the fourth article of if any, would have to be defined by the joint request of the parties the award, were under the most positive reservations as regards the validity of article 5 of the decision, and without changing, abandoning, or in any way modifying the position which it has assumed towards the President of the United States of America by means of my [your] communications of March 3 and May 1 last, and towards the Government of the Kingdom of Italy in the notes addressed by its representative at Rome to his excellency the minister of foreign affairs, bearing date of May 1, 12, and 29, and of June 5 and 12 of the present year, of which I [you] have the honor herewith to inclose copies, since they are directly connected with the present request for an explanation of article 4 of the decision." "It is impossible for the President to accede to the separate and importantly variant requests of the Governments of Colombia and Italy that he interpret the controverted provisions of article 4 of the award, without encountering at the outset the existent fact of a graver dispute as to the fifth article, and without facing the inconsistency of seeming to recognize in himself a continuing, unexhausted and valid function as arbitrator for the purpose of reviewing article. 4, while holding that he, as President, is functus officio as to article 5 thereof. He can not thus contradictorily divide his function in relation to the subject-matters. He is constrained to hold, on every sound rule applicable to the case, that he can not revive the personal character of arbitrator which his predecessor discharged by the rendition of his award. "At the same time, as the impartial friend of both the disputants, he deems it not out of place for him to point out alike to the Colombian Government and to that of Italy the superior importance of the controversy as to article 5 over that raised in regard to article 4, and to suggest to them that, even did he deem himself free to intervene in order to give the desired interpretation to the latter, his doing so would not terminate the difference between the two Governments growing out of the award made by the President of the United States. He can not lose sight of the fact that the Government of Italy, in the correspondence succeeding the award, has not in any wise admitted the invalidity of any part of the award or the right of the Republic of Colombia to seek a reconsideration of the fifth article, whatever may be its view as to an interpretation |