CHAPTER XX

SUNDRY ARBITRATIONS BETWEEN THE UNITED STATES AND LATIN-AMERICAN COUNTRIES

T

O judgment! thou art fled to brutish beasts,

And men have lost their reason.

SHAKESPEARE: Julius Cæsar.

HE following are the principal arbitrations between the United States and the countries of Latin America, Mexico excepted. The results of these arbitrations constitute a failure of justice such as can have no parallel in the history of the world's judiciary.

I. PANAMA RIOT AND OTHER CLAIMS UNDER THE CONVENTION OF SEPTEMBER 10, 1857

The massacre of American citizens at Panama on April 15, 1856, is described in another chapter. President Franklin Pierce seemed disposed to ignore or minimize this atrocious crime against defenceless men, women, and children. In his Message to Congress in December, 1856, President Pierce referred to this affair, but his language was brief and perfunctory. Instead of seeing to it that justice, summary and dreadful, was meted out to the perpetrators of that awful carnage, and that swift financial redress was awarded to the victims or their representatives, the State Department (administrations of Pierce and Buchanan) drifted along for about a year and a half, until, on September 10, 1857, a convention with New Granada was executed at Washington to submit to a Board of Commissioners all claims against New Granada "which shall have been presented prior to the 1st day of September, 1859." An additional year or two was spent in the exchange of "ratifications" by the two governments, but finally the Commission met, in Washington, on June 10, 1861.

Elias W. Leavenworth, of New York, was the Commissioner for the United States; José Marcelino Hurtado, for New Granada; and N. G. Upham, of New Hampshire, was selected as umpire.

The Commission, after having spent much time over questions of procedure and other technicalities, began in December, 1861, to call the calendar of claims. Some of the quibbles raised by New

Granada's agent, Mr. James M. Carlisle, indicate the spirit that animated his principal; thus, although, by the first article of the convention, New Granada had expressly acknowledged and assumed liability for the injuries and losses of citizens of the United States by reason of the riot of April 15, 1856, Mr. Carlisle argued that the Commission should dismiss all the cases on the ground that "the language of the first article was a mere confession on the part of New Granada of liability to have the claims made against her, and not of liability for their payment"!

At last the Commission got to work upon the 262 separate claims filed. Before its work was half finished, however, it adjourned sine die, on March 9, 1862. The time had now expired within which, under the convention, the Commission could decide; yet it had been frittering away months of valuable time over technicalities and inane quibbles.

On March 11, 1862, United States Commissioner Leavenworth reported to Secretary of State William H. Seward, that the Commission had decided 109 cases, and also had made two partial awards; that 107 cases still remained unsettled; that of the 111 cases decided, 89 were by agreement of the Commissioners, and 22 by the umpire; that of the 89 cases decided by the Commissioners, 51 were decided in whole or in part favorably to the claimants, and 38 were wholly disallowed.

The 51 awards made by the Commissioners were:

Thus did the mountain labor and bring forth a mouse. The Board of Commissioners rejected many claims on technicalities, either the proofs were not satisfactory, or the claim was presented too late, or it was not within the treaty. The Board adopted a cheese-paring policy with the claims it did allow; it made the whole subject of arbitration seem absurd, if not odious; and yet this Board was one of the very best and most efficient arbitration commissions that has convened throughout our dealings with the Latin-American countries. Especially was the umpire a man of brains and integrity.

THE "UMPIRE CASES"

Among the claims referred to Umpire Upham (the Commissioners disagreeing) were five which became noted, as showing the perversity of mixed arbitral commissions. The umpire's awards in these cases were as follows:

In each case the records showed that the Commissioners had disagreed, and that the Secretary had been directed in regular form to submit the papers, briefs, opinions, etc., to the umpire. The case of Gibbes was submitted to the umpire on February 5, 1862; the Good Return, Medea, and John D. Danels cases, on February 18, 1862; and La Constancia, on March 2, 1862.

On March 9, 1862, the umpire handed down his awards as above stated.

Señor Hurtado entered a protest against these decisions, on the alleged ground that these cases (known as the "Umpire Cases") had been submitted to the umpire on some collateral question, and not on the main issue; he therefore refused to sign the awards, and demanded their withdrawal. Commissioner Leavenworth filed a counter protest, showing the absurdity and bad faith of Hurtado's contention. The umpire likewise made a statement to this effect. Nevertheless, General Herran, the Minister of New Granada to the United States, forwarding to Secretary Seward on March 16, 1862, a list of awards, omitted from his list the awards under discussion. Secretary Seward in acknowledging the receipt of this list remarked upon the absence therefrom of the awards in the cases of Gibbes, Danels, Good Return, La Constancia, and Medea, suggested that the journal of the Commission showed these cases to have been duly and regularly submitted to the umpire, and added: "These awards, I have the honor to inform you, have been transmitted to the Treasury, with those bearing the certificates of both Commissioners, and will be fully protected by the government of the United States.'

These are statesmanlike words, but unfortunately Mr. Seward, in his subsequent acts, failed to "make good." For this result, however, Attorney-General Speed appears to have been at least partly responsible.

II. CONVENTION BETWEEN THE UNITED STATES AND

COLOMBIA, FEBRUARY 10, 1864

In order that the large number of claims not disposed of by the previous Commission might be taken up, a new Board of Arbitrators was agreed upon, with Sir Frederick W. A. Bruce, of the British Legation at Washington, as umpire. Colombia was steadily not only refusing to pay but even to recognize the awards in the "Umpire Cases." Moreover, revolutions were rife throughout Colombia, the disorder bordered on anarchy, and payments on awards were not being made promptly even to the extent of the trivial amounts acknowledged to be due.

In this conjuncture Attorney-General Speed advised Secretary Seward that the new Commission was merely a continuation of that under the convention of 1857 (a most preposterous opinion, because it was created under the convention of 1864, an entirely new convention); that the new Commission had power "only to determine such claims as were presented to and left undetermined by the former joint Commission," and that it "must of necessity determine what cases had been decided by the old Commission." The Attorney-General thus assumed that the new Commission was invested with certain authority which clearly appertained exclusively to the State Department, namely, the right to decide what claims should, and what should not, be considered by the Arbitrators.

Under this ruling of the Attorney-General, Umpire Sir Frederick W. A. Bruce, on April 25, 1866, announced as his opinion that all the "Umpire Cases" "must be submitted de novo to the actual Commission with a view to a fresh re-examination and decision on their merits." And so the Commission of 1864 proceeded to reopen and redetermine these cases, the awards upon which Secretary Seward had declared would be "fully protected by the government of the United States."

The counsel for Gibbes protested and withdrew the claim. The other "Umpire Cases" were taken up by this new Commission, and Sir Frederick Bruce, the new umpire, in each instance disallowed the claim, a record of judicial iniquity and miscarriage of justice which must shock every right-thinking man.

Referring now to the other claims, in a few cases insignificant damages were allowed. After waiting for years, men and women who had been wounded and whose health had been shattered in the murderous affair at Panama, received in several instances only fifty or a hundred dollars. About two hundred claims were wholly disallowed.

The Commission finished its work on May 18, 1866. Its total awards amounted to $88,367.69, a sum which was probably no more than the actual counsel fees of the claimants. (For a full ac