The federal courts ultimately came to the nation’s rescue. In 1794, the Supreme Court abruptly reversed course and decided that federal judges could adjudicate cases arising from captures made by French privateers operating from the United States. British officials were initially skeptical about vindicating their sovereign’s rights through the courts, but they came to embrace litigation as a useful weapon in their global struggle with revolutionary France. French diplomats resented judicial interference with privateering, and they demanded that executive branch officers intervene in proceedings to defend France’s prerogatives under treaty and international law. But the Washington administration refused. The courts, in Thomas Jefferson’s words, were “liable neither to controul nor opposition from any other branch of the Government.” Judges continued to have doubts about their role in resolving international legal disputes, but they came to accept responsibility for establishing American sovereignty. This tale of judicial ascendancy might seem at odds with our usual understanding of the courts as the “least dangerous branch” of the early federal government, but the truth is that American policymakers deliberately sought to make the courts supreme, at least at sea.

Two dominant constitutional issues in the 1790s illustrate the fluid nature of constitutional meaning in the early republic. One issue was whether the Constitution permitted individuals to sue states in federal court. The Supreme Court’s decision in Chisholm v. Georgia (1793) generated widespread state interposition to resist the Court’s broad interpretation of a constitutional clause and resulted in the Eleventh Amendment. A second constitutional issue generating interposition in 1796 was whether President Washington had exceeded his authority in negotiating the Jay Treaty with Great Britain. Federalists argued that the Constitution’s text clearly provided presidential authority while Republicans wanted Congress to speak for the sovereign people and have a vital role in assessing a treaty’s constitutionality. Both sides considered it important to understand the intent of those who drafted and ratified the Constitution and to employ that history in interpreting the document. Yet, this process of constitutional interpretation allowed inferences fromthe Constitution’s text, reliance on memory, and even thoughts about the framers’ intentions.

This chapter asks whether, and to what extent, modern international arbitration practice is related to pre-twentieth-century dispute settlement methods. It argues that international arbitration can be analyzed within (1) the narrow context of (private) arbitrations practiced in local trade associations and (2) the broader context of (public) international adjudication, which has evolved considerably over time. While it does not claim that these forms of arbitration, which were important mechanisms in the late eighteenth and the nineteenth centuries, are the sole “ancestors” of the modern international arbitration system, it shows how some of their characteristics were developed and became defining features of modern international arbitration practice. This chapter thus attempts to explore the complex genealogy (or genealogies) of international arbitration by exploring two influential lines that can be identified at a time when “arbitration” had various meanings and the field was less structured than it is today.