"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 Lot 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 of a part of the fourth article; neither can he overlook the circumstance that more than once in that correspondence the Government of Italy insists upon the execution of the award 'pure and simple in all its parts,' a proposition which the Government of Colombia in turn denies as to the fifth article. In this view of an apparently irreconcilable situation, which he can not regard without solicitude, especially as it grows out of a service done by the President of the United States 'as a friendly act to both Governments,' and even setting aside further insistence upon his conviction that he possesses no continuing arbitral function in the matter, motives of delicacy and high regard would still counsel him to take no imperfect step toward a settlement of the controversies between the Governments of Colombia and Italy, which would not even palliate their essential cause of difference. Like motives of delicacy would necessarily lead him to refrain from putting forth any suggestion that the parties enlarge the request already made, and he feels that he should confine himself to expressing, for the purposes of this present communication, the gratification it would afford him were the two Governments to see their way to composing all the unfortunate issues that have sprung from the award of March 2. 1897. It is proper for me to add that I have, under this date, addressed a substantially identical note, mutatis mutandis, to the chargé d'affaires of the Royal Government of Italy in this capital." Mr. Sherman, Sec. of State, to Mr. Rengifo, Colombian chargé d'affaires, “Following close upon the rendition of the award of my predecessor "A naval demonstration by Italy resulted in an engagement to pay the liabilities claimed upon their ascertainment; but this apparent disposition of the controversy was followed by a rupture of diplo- ̧ matic intercourse between Colombia and Italy which still continues, although fortunately without acute symptoms having supervened. Notwithstanding this, efforts are reported to be continuing for the ascertainment of Colombia's contingent liability on account of Cerruti's debts, under the fifth article of the award." (President McKinley, annual message, Dec. 5, 1898, For. Rel. 1898, LXXIII.) (10) TESTIMONIAL AND EXPENSES. § 1078. It is customary to present to arbitrators some testimonial, either in the form of plate or other token, or in money. Where the arbitrator is the head of a state, the only acknowledgment given of his services is an expression of thanks, and the more substantial testimonial, whatever it may be, is bestowed upon the persons to whom he may have delegated the discharge of certain functions, such as the examination of documents and perhaps the making of a report. The expenses of the arbitration are usually borne by the parties in equal proportion, but each side pays its own agent and counsel, as well as its own individual expenses, such as the printing of its case, documents, and proofs. Dr. Vincente G. Quesada, Argentine minister at Madrid, who acted as arbitrator between the United States and Mexico in the OberlanderMessenger case, declined "any pecuniary testimonial, on the ground that his sense of the confidence with which he was honored by the two governments in their selection of him as arbitrator could not be measured in money." He further declared that it was sufficient for him to have justified the confidence placed in him by the two Governments and to have decided the case according to his conscience and the best of his knowledge and understanding. The delicacy of sentiment shown by Dr. Quesada was thought to render it impracticable to press upon him the acceptance of any testimonial in a pecuniary form. Mr. Moore, Act. Sec. of State, to Mr. Godoy, Mexican chargé, Sept. 8, 1898, MS. Notes to Mexican Leg. X. 437. (11) PAYMENT AND DISTRIBUTION OF AWARD. $ 1079. Where, by the convention of 1853 with Great Britain, it was agreed that all moneys awarded by the commissioners on account of any claim should be paid by one Government to the other, it was held that the moneys found due from the foreign Government to claimants, who were citizens of the United States, were to be paid to the Secretary of State, whose duty it was to have the same paid to those entitled to receive them. It was also held to be the appropriate duty of the disbursing clerk of the State Department to take charge of and disburse such moneys. He was not entitled, therefore, to commissions on the fund for any services rendered in keeping and disbursing the same. Bates, At. Gen., 1861, 10 Op. 31. The umpire of the mixed commission under the convention between the United States and Peru of January 12, 1863, awarded on the claim of Stephen G. Montano, a citizen of Peru, against the United States the sum of $24,151.29, with interest at the rate of six per cent per annum from September 2, 1851; all payable in the current money (moneda corriente) of the United States. When Montano, in July, 1864, applied to the United States for payment, it was offered in paper currency, which was then greatly depreciated. He demanded payment in gold, but Mr. Bates, the Attorney-General, on July 12, 1864, advised Mr. Seward that under the award the debtor had "the option to pay in Treasury notes or in specie." Montano protested against this view, and the question was referred to the mixed commission under the convention between the United States and Peru of December 4, 1868, the umpire of which decided that payment should be made in American gold. Moore, Int. Arbitrations, II. 1638, 1645, 1649. For the opinion of the Attorney-General, see 11 Op. 52. For the views of Mr. Seward, see Mr. Seward, Sec. of State, to Mr. Montano, Feb. 5, 1866, 72 MS. Dom. Let. 18; Mr. Seward to Messrs. Embry et al., May 20, 1867, id. 184. By the commission under Article XII. of the treaty of Washington of May 8, 1871, an award of $197,190 was made in favor of Augustine R. McDonald, a British subject, on a cotton claim. Subsequently a bill in equity was filed against him in the supreme court of the District of Columbia by two persons, one of whom was McDonald's assignee in a voluntary bankruptcy, in order that the award might be devoted to the benefit of creditors. A decree was afterwards entered by consent of parties by which one half of the award was to go to the payment of the expenses of prosecuting the claim, while the other half was to be placed in the hands of a receiver, who was not a party to the litigation, and to whom the money was paid by the British agent. The case finally went on appeal to the Supreme Court of the United States, where it was contended on behalf of the appellant (1) that the claim against the United States passed by the assignment in bankruptcy, and (2) that, even if the fund had been in England and in the hands of the British Government, the parties were subject to the jurisdiction of the court and could be compelled by process in personam to obey its decree. The court sustained these contentions, but at the same time observed that the money had been delivered to the receiver by consent of parties and that no objection had been heard in behalf of the British Government, without the voluntary concurrence of whose agent the receiver could do nothing. Phelps r. McDonald, 99 U'. S. 298. Mr. Justice Miller, with whom Mr. Justice Field concurred, dissented on the ground that the courts of the United States had no control over |