is the best guarantee possible for the discovery of any Chapter V hidden fact which might have the effect of correcting an error, or of making reparation for an injustice. New facts cannot be forged nor manufactured, at least not by civilized Governments. In fact, every Government will hesitate to expose its country to the humiliation which would undoubtedly attach to an unsuccessful attempt for a rehearing of the litigation upon a pretended discovery of new facts, the existence of which would be denied by the tribunal. More over, one should not lose sight of the fact that for the purpose of having a rehearing, the very tribunal, composed of the same judges who have pronounced the award, must declare that a manifest error has been committed. This is saying, in other words, that the new fact which has been discovered is of a nature to have influenced the decision of the tribunal. Before the decision has been rendered it is not always possible to know what species of fact or what argumentation has made the greatest impression upon the judges and has determined their decision. "Take, for example, the question in controversy at this moment before the Court of Arbitration of which our honorable colleague from Russia is acting so worthily as president the question of the frontier between British Guiana and Venezuela. In this case - the delay of three or six months could not be truly called anything but minimal, in view of the fact that this difference has existed and gone on for three or four years, and, in a form more or less obscure, for more than eighty years. It would therefore be un Chapter V Holls. important whether the decision should be rendered Reply of Mr. on the first of October or the first of January, by comparison with the danger arising from a manifestly erroneous or unjust decision. Among other things this controversy implies the interpretation of treaties made more than two hundred and fifty years ago; it includes a great number of historical precedents, of questions about colonization, of jurisdiction over barbarous tribes, as well as questions of the weight and authority to be given to different maps. Upon these latter both parties will lay great stress, in order to prove that their contentions have already been recognized and admitted. Up to the moment of the decision of the tribunal it will be impossible to know what kind of facts and what argumentation have determined the award. Now the seeking of new facts is limited to that category. If that inquiry should be successful, for example, if a new map or a new document of incontestable and unquestioned authority should be found, it is evident that the interested party would refuse to submit to an award which could not be rectified in a legal and regular manner. I confess that I was greatly astonished to hear M. de Martens say that the moral authority of the Court of Arbitration would be impaired by our Article, and that the sentiment of responsibility would disappear in the minds of the arbitrators. On the contrary, I maintain that the moral authority of the judgment will be enhanced by the fact that there is in existence a provision for correcting errors, of which the losing party may take advantage, during a Chapter V term which should not be too long, and that at the end of that term the civilized world ought to admit, and surely will admit, that substantial justice has been done between the two parties. Furthermore, the responsibility of the arbitrators is enhanced rather than diminished by their power and their duty to reconvene again upon their own judgment in a proper case. It seems to me that M. de Martens most assuredly made a mistake in saying that tradition and the force of precedent is opposed to a rehearing in cases of arbitration. I must admit that in all the treaties of arbitration for special cases up to this time, there has not been a provision for a rehearing, and in the particular special treaties of the future there will no longer be any necessity for it. The reason for this is that the entire idea of arbitration is relatively new, and that it has hitherto been considered only as a temporary method of settling controversies as they arose. The only general treaty of arbitration which has been ratified, and which is to-day in force, is that concluded between the Kingdom of Italy and the Argentine Republic. This provides for a rehearing, showing the tendency of public opinion and also of the most competent opinion of experts in international law. "But, as I have already said, our duty in this Conference is not to legislate for particular cases, but to uphold an ideal, to declare to the world that which the representatives of all the civilized nations consider desirable and practically attainable. We can Chapter V Speech of not possibly put professional regularity or pedantic. rules of procedure above the attainment of substantial justice. We have succeeded, after much labor and by reason of mutual concessions, in elaborating a project for the peaceable settlement of international conflicts. It is of the last importance that this project should contain, however simply, at least all essential features guaranteeing in the greatest possible measure international justice. "The representatives of the United States of America considering this Article, or some other provision equally efficacious to rectify manifest errors, as an essential part of an acceptable project, would have to ask for new instructions from their Government, giving them power to join their colleagues of the Conference in any plan which should not contain a similar provision. It is for this reason that they make a most warm and urgent appeal to the Committee to leave intact the principle expressed in the Article proposed in the name of the Government of the United States." Chevalier Descamps said that he had listened with great attention to the two arguments upon the subject of a rehearing. That which, according to his idea, constituted the difficulty of the subject was the conflict of two principles, equally just, which either side had put forth. It was right that justice should be done; therefore, how was it possible to accept the establishment of an evident error? It was also right that controversies between nations should not be allowed to go on indefinitely. How could this result be attained and still leave open the door for a new Chapter V judgment? The defenders of the rehearing, according to him, had the side which was the more noble and beautiful. Their ideal of justice was perhaps somewhat higher than that of their adversaries, but these again are struck by the fallibility of all human justice, and believe that for the redressing of exceptional errors it was not right to compromise the force and stability of the judicial system. Was it not to be feared that solicitude for a few very rare cases might endanger the entire principle? The partisans of a rehearing, according to him, did not put the question of a rehearing in its proper position. In general rules for all controversies of all States, was it right to formulate a principle at the risk of impairing the entire institution of arbitration? It seemed to him more natural to put into an international code nothing but principles which should consolidate the institution. Contracting parties who are impressed from the point of view of justice, with scruples like those of the United States, should foresee the case and provide for a rehearing in a special agreement. To have no rehearing was more in conformance with the efficiency of arbitration, so that this should be the rule, and a rehearing the exception. We should be doing a poor service to the Governments in permitting a rehearing as the general rule. The Governments would risk being no longer their own masters, they would be forced and every one would try to have them invent new facts to |