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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 diplomatic 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.
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.
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 1. ade 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
the British Government or its agents in the distribution of the fund awarded under the treaty, and that the record did not show that the fund in controversy had ever been “voluntarily paid into court by the agent of that Government."
As to the adjudication of conflicting claims to an award, see Comegys v. Vasse, 1 Peters, 123; Clark v. Clark, 17 Howard, 315; Judson v. Corcoran, 17 Howard, 612.
The act of June 23, 1874, by which a court was erected for the distribution of the Geneva award, proceeded upon the theory of distributing the money, so far as practicable, among the classes of persons on whose claims the award appeared to be based, and the jurisdiction of the court was restricted to claims directly resulting from damage caused by the inculpated cruisers. The judgments of the court amounted to $9,315,735. Claims were subsequently presented to Congress for the distribution of the remainder of the award fund, together with increments arising from interest on the securities in which the fund had been invested as well as from other sources. These claims proceeded chiefly from insurers, who claimed a right of subrogation, from persons who had paid war premiums, and from persons who had suffered damage by the acts of the exculpated cruisers. In support of these claims (except those of the insurers) it was argued that the claims at Geneva and the wrongs on which they were based were national; that all who had suffered loss by reason of the presence of the Confederate cruisers on the sea were entitled to compensation; and that in any event the fund belonged to the United States and might be distributed among such beneficiaries as that Government should designate. By an act of June 5, 1882, a new court was erected for the distribution of the unappropriated moneys. It designated as the beneficiaries of the existing fund (1) claimants on account of damage done by the exculpated cruisers, and (2) claimants who sought reimbursement for the payment of premiums for war risks. The act thus proceeded on the theory of the national ownership of the fund.
Moore, Int. Arbitrations, V. 4657-4661.
In support of the view embodied in the act of 1882, see report of Mr. Reid from the Committee on the Judiciary, Feb. 8, 1882, H. Rept. 207, 47 Cong. 1 sess.; United States v. Weld, 127 U. S. 51; Williams v. Heard, 140 U. S. 529; Rustomjee v. Queen, L. R. 1 Q. B. D. (1876), 487; L. R. 2 Q. B. D. (1876–77), 69.
(12) BARRING OF UNPRESENTED CLAIMS.
It is usual in general claims conventions to insert a stipulation expressly barring all claims, falling within the jurisdiction of the tribunal, which were not presented to it.
"While the claim of Mrs. Stevens presents analogies of treatment with the other cases to which you refer, it stands on a distinct footing of its own, being one of a class heretofore declared to be proper for adjudication on the merits by a specially provided tribunal of arbitration. If the Mexican Government should set up the late claims convention, and the failure to submit the claim to the commission organized thereunder, as a bar, it has the right to do so. We, however, have no right to debar the claimant from the possible benefits of an appeal for a hearing on the merits, for the Mexican Government has full liberty of waiver in respect of such bar, and may, at its own pleasure, consent and agree to permit the claimant's case to be stated and heard. All that we ask is that the Mexican Government avail itself of the opportunity to manifest its sense of magnanimity and justice in this regard, if its dispassionate examination of the appeal shall warrant it in doing so. If the result be to set up the treaty as a bar, we would not hesitate to concede its effectiveness, as we should expect Mexico to concede our position were the case reversed and our answer made in those terms. But Señor Mariscal can not be unmindful of the fact that this very treaty bar has only recently been the subject of consideration between the two Govern.ments, by reason of the Mexican appeal in the Weil and La Abra cases, and that the United States have met Mexico halfway in an earnest effort to secure the ends of equity and justice, by providing a resort not contemplated when the treaty was framed, and, indeed, barred by its express terms."
Mr. Bayard, Sec. of State, to Mr. Jackson, min. to Mexico, Jan. 26, 1886,
The view expressed in this paper is not that on which the Government of
"It might, indeed, be argued that the adoption and execution of the agreement of 1871, and the final disposition and satisfaction of all claims allowed under it, preclude the presentation by this Department of a claim against Spain for losses suffered by Mr. Morrell between 1870 and 1875. But the agreement contains no provision barring as against Spain all existing claims not presented to the arbitrators, and the present claim does not appear to be so far barred by the agreement or by the proceedings under it as to preclude its presentation to the Spanish Government. Should the minister of state be indisposed to make a present adjustment of this claim, you will endeavor to have