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instead of proving to be a bond of friendship between the two proprietors, seem more likely to give rise to endless misunderstandings and conflicting interests, and therefore to become a source of perennial discord.
However, let us hope that these apprehensions may never be justified, and that a spirit of comity and good neighborhood may henceforth prevail between the two late adverse claimants. The mouths of the Orinoco have been awarded to Venezuela, their true and rightful owner; and that, after all, was the great point of contention. And, aside from all other considerations, the decision is a peaceful adjustment of a long standing and acrimonious international controversy which, otherwise, might have involved the whole continent in a war, the cost of which would have been more than a hundredfold the value of the entire territory in dispute.
THE PRINCIPLE OF INTERNATIONAL ARBITRATION 1
RBITRATION, arbitratio, is a word which seems to have an equivalent, more or less
exact, in every written language; and the thing indicated by it is probably known, in some form or other, to all peoples, whether savage or civilized.
At any rate, it is safe to assume that the principle of arbitration, as applied in the settlement of private disputes between individuals, is as old as the oldest civilization; and the probabilities all are that it is very much older. For, in the progress of society, a considerable length of time must have elapsed, after the ideas of property and exclusive rights of individuals had arisen in the minds of men, before any compulsory system of distributive justice was established. During that unsettled period, there must have arisen many disputes involving the rights of person and property; and such of these as were not appealed to arms could have been settled only in one of three ways. Some of them may have been adjusted by mutual concession and agreement between the parties themselves; others may have been settled through the intervention of friends; but perhaps the majority of the more important disputes were referred to some indifferent person or
1 This chapter embodies the substance of an address delivered by the author at the Fifth Annual Mohonk Conference on International Arbi. tration, in June, 1899.
persons in whose wisdom and equity both parties confided, — that is to say, were settled by arbitration.
Arbitration, then, as applied to the practical affairs of life between individuals, must have been coeval with the earliest dawn of civilization, if, indeed, it did not precede it. That it was the forerunner of our commonlaw courts, and the ancestor of our modern jury system, is, I think, quite obvious. Of course its exact origin is unknown and unknowable; for, like the old English common law, of which it is a part, it reaches back through mists and traditions of ages to a time quite beyond the memory of man.
In its more modern and complex form, as incorporated in the judicial systems of all civilized peoples, arbitration has been described as “an adjudication by private persons, appointed to decide a matter or matters in controversy, on a formal reference made to them for that purpose. From which it
there are three cardinal points of difference between a court of arbitration and a court of law.
In the first place, the arbitrators are “private persons,” as distinguished from officials. They hold no commission from the state, and represent no sovereign power. They cannot, therefore, compel attendance nor impose fines and penalties for contempts. Their authority may be revoked by the will of either party at any time before the award; and after the award is once made their functions cease altogether. They cannot revise their own decisions, nor can the case be reopened, except by a new agreement between the litigants.
In the second place, the proceedings in a court of arbitration, unlike those in an ordinary court of law, are governed by rules previously agreed upon by the parties in interest, or by the arbitrators themselves if so authorized, rather than by legislative enactments or judicial precedents. There are no technical pleadings, and special forms are unnecessary. In a court of law, a mere technical error in the pleadings may indefinitely delay or even wholly defeat the ends of justice; but in a court of arbitration, the litigant may state every circumstance connected with his case without apprehension of failure through ignorance of mere form.
Again, in an ordinary action at law, it is seldom possible to decide more than a single question at a time; and thus it sometimes happens that one lawsuit becomes the fruitful source of others. But a court of arbitration may decide upon all collateral issues, set one claim or injury against another, and pronounce such a sentence as will put an end to all disputes between the contending parties. It is not ordinarily essential, therefore, that an arbitrator should be a member of the legal profession; for although it is often desirable that he should be acquainted with the fundamental principles of the law, his only necessary qualification is, that he be the choice of the disputants.
Finally, the award of an arbitral tribunal, unlike the sentence of a law court, is generally supposed to have no sanction other than a sense of honor or the fear of public opinion. This was so once, but it is no longer the case; for now, in most cases of private arbitration, the exceptions have become the rule. They occur where the reference was had at the suggestion or by order of some court of law, or where there is a general statute, or a series of statutes, providing for the enforcement of awards, as, for instance, in England and in some of the states of the United States. Even under the old English common law, an award properly and fairly made was held by the courts to be obliga