Doubtless it was with a sense of great relief that the agent of the United States on the afternoon of the 27th of June telegraphed to Mr. Fish: "British argument filed. Arbitration goes on." 1

ments Refused.

At the conference of June 27, 1872, Lord New General Argu. Tenterden, as British agent, stated that Sir Roundell Palmer, Her Britannic Majesty's counsel, would, with the permission of the tribunal, read a statement of certain points as to which he desired to present further arguments in answer to those contained in the argument of the United States. Sir Roundell Palmer was permitted to read the statement; but, after he had concluded, Count Sclopis announced that the tribunal had decided that, under Article V. of the treaty, the arbitrators alone had the right, if they desired the further elucidation of any point, to require a written or printed statement or argument, or oral argument, by counsel upon it, and that it was not competent for the agents or counsel to make requests of the nature of that in question. Counsel for the United States prepared a reply to Sir Roundell Palmer's statement; but, as his request was denied, the arbitrators also declined to receive the reply.3 In view of this decision, Sir Alexander Cockburn, as one of the arbitrators, at the conference on June 28 proposed to the tribunal to require a written or printed statement or oral argument by counsel on eight groups of questions, substantially covering the whole field of legal inquiry embraced in the arbitration and traversed in the cases, counter cases, and arguments already submitted. This proposition virtually involved the reopening of the argument. The tribunal, Sir Alexander Cockburn dissenting, declined to adopt it, but resolved to take up the case of each vessel in regular order and dispose of it, instead. of entering into a preliminary reargument of general principles. An adjournment was then taken till the 15th of July."

sum to the cost of the war and the suppression of the rebellion." There remained before the tribunal: "1. The claims for direct losses growing ont of the destruction of vessels and their cargoes by the insurgent cruisers. 2. The national expenditures in the pursuit of those cruisers." 1Papers relating to the Treaty of Washington, II. 580.

2 Papers relating to the Treaty of Washington, III. 375 Papers relating to the Treaty of Washington, III. 376.

4 Papers relating to the Treaty of Washington, IV. 25.

5 The tribunal decided that, in the course of its discussions and deliberations, the agents should attend the conferences, accompanied by the counsel for their respective governments, except when the tribunal should

Procedure of the
Tribunal.

Mr.

When the tribunal reassembled it took into consideration the question of procedure. Staempfli presented a programme in which he proposed that the tribunal should first consider facts and general principles of law, and then take up the case of each cruiser in regular order. Sir Alexander Cockburn, on the other hand, sought to lead the tribunal to consider abstract questions of law in advance of the facts respecting the vessels. It was decided to follow the scheme of Mr. Staempfli, but this conclusion was not reached unanimously. Sir Alexander Cockburn strongly insisted on his own plan, and when Baron d'Itajubá observed that mere theoretical discussions would consume much time and be of little practical value, exclaimed: “Provided the principles are discussed. We are here as judges, and as such must deliberate slowly and not act hastily." To which Count Sclopis replied: "It was not necessary for Lord Cockburn to state that we are here as judges. We all have felt from the commencement and still feel a deep appreciation of our duties as such. I have presided for many years in the highest tribunal of my country. There the facts are universally discussed first, then the principles which govern them.” Count Sclopis also announced that on the question of "due diligence" he had prepared his vote in writing. In reality the question of due diligence had been elaborately discussed in the Cases and Counter Cases of the two governments, and in the arguments already presented on their behalf."

Announcement by
Mr. Staempfli.

It was at the session of the 15th of July that the arbitrators were first brought face to face with the decision of the great questions which they were appointed to try. When Mr. Staempfli submitted his programme, he stated that it embodied the order which he had pursued in his examination of the evidence and the arguments, and that he had arrived at conclusions on all points, though he would not say that on consideration with his colleagues they might not be changed. "It is impossible to convey to you," said Mr. Davis, writing to Mr. Fish,3 "the

think it advisable to conduct its discussions and deliberations with closed doors. (Papers relating to the Treaty of Washington, IV. 26.) The tribunal exercised its own discretion as to the publication of any parts of its proceedings, which were usually secret. (Ibid.)

Mr. Davis to Mr. Fish, July 16, 1872 (MSS. Dept. of State).

2 Papers relating to Treaty of Washington, II. 380.

3 MSS. Dept. of State.

interest of the scene, especially when Mr. Staempfli made the declaration that his own mind was nearly made up on the question at issue." It seems that Mr. Staempfli, after he received the Cases and Counter Cases of the two governments, secluded himself in a mountain retreat in the Alps in order to master them. In this way he was enabled to come to Geneva "in due time with full abstracts of evidence and elaborately written opinions ou the main questions at issue before the tribunal to the apparent surprise of Sir Alexander Cockburn, who, confidently relying on the rupture of the arbitration, as he himself avowed, had not yet begun to examine the cause."1

On the 16th of July the tribunal decided to Case of the "Florida." take up on the following day the case of the Florida. The consideration of this case occupied the arbitrators from the 17th of July till the 22d. Sir Alexander Cockburn read a long opinion, holding that Her Majesty's government was free from all liability on account of the acts of this vessel. Count Sclopis, Mr. Staempfli, Baron d'Itajubá, and Mr. Adams all expressed contrary opinions, reserving, however, the question of the effect of a commission. Sir Alexander Cockburn then, in vigorous language, and with great warmth of manner, urged the tribunal to permit an argument on the meaning of the words "due diligence," on the effect of a commission, and on the law respecting supplies of coal.2

Neither the agent of the United States nor Special Arguments. the arbitrators were indisposed to hear further argument within properly defined limits. The treaty, however, after providing for the filing by each side of a Case, a Counter Case, and an argument, did not permit either government to offer anything more, but merely authorized the arbitrators, if they desired "further elucidation with regard to any point," to "require" an argument by counsel upon it, allowing to the other party an opportunity to reply either orally or in writing. In the exercise of this power the arbitrators ordered from time to time, always on the suggestion of Great Britain, special arguments (1) on the meaning of the words "due diligence," (2) on the effect of a commission on an offending vessel, (3) on supplies of coal, (4) on the recruitment of men for the Shenandoah at Melbourne, (5) on the effect of

1 Cushing's Treaty of Washington, 83.

2 Papers relating to the Treaty of Washington, IV. 7.

the entry of the Florida into the port of Mobile, (6) on the question of interest, and (7) on the general subject of the statement of claims. In each instance the British counsel lead in the discussion, and the counsel of the United States replied. To the supplemental argument of British counsel on the three questions of due diligence, the effect of a commission, and sup plies of coal, an oral reply was made on the part of the United States by Mr. Evarts, and a written reply by Mr. Cushing. Mr. Waite presented a special written argument on the subject of supplies of coal.

August 15, 1872, Lord Tenterden, as British agent, submitted in respect of one of the vessels before the tribunal certain documents showing that Her Majesty's government had done certain things which the argument of the United States sug gested that that government ought to have done. The agent of the United States said, in reply, that he had examined the documents and that they contained nothing which he regarded as important in itself, but that, as he could find no authority in the treaty for the tribunal either to call for or to admit new evidence, he must leave the tribunal to act on the application as its judgment might direct.

The tribunal decided to receive the documents."

At its twenty-fifth conference, which was Decision of Questions held on the 23d of August, after argument on of Liability. the first four questions above enumerated had been concluded, the tribunal proceeded, in accordance with the requirement of the seventh article of the treaty, "to determine as to each vessel separately," whether Great Britain had incurred any liability. This question was first put as to the Sumter.

The tribunal unanimously answered, "No."

The same question was asked as to the Nashville, and the tribunal unanimously replied, "No."

The same question was renewed as to the Retribution. Mr. Adams answered: "Yes, for all the acts of this vessel." Mr. Staempfli answered: "Yes, as to the loss of the Emily Fisher."

Sir Alexander Cockburn, Viscount d'Itajubá, and Count Sclopis answered "No."

The oral argument of Mr. Evarts, which was made in English, was taken down in shorthand, and translated into French.

2 Papers relating to the Treaty of Washington, IV. 33.

The same question was asked as to the Georgia, and the tribunal unanimously answered "No."

The same question was repeated as to the Tallahassee and the Chickamauga, separately, and the tribunal unanimously answered "No" for each of these vessels.

The same question having been repeated as to the Alabama, the tribunal unanimously answered "Yes."

The same question was renewed as to the Shenandoah, and Mr. Adams, Mr. Staempfli, and Count Sclopis answered: "Yes; but only for the acts committed by this vessel after her departure from Melbourne on the 18th of February 1865." Viscount d'Itajubá and Sir Alexander Cockburn answered "No."

1

The final vote on the Florida, which was postponed for the completion of the special argument proposed by Sir Alexander Cockburn on the effect of her entry into the port of Mobile, was taken on the 26th of August. All the arbitrators answered "Yes," except Sir Alexander Cockburn, who answered "No."2

Agreement on a Gross
Sum.

The deliberations of the tribunal on the subject of damages were held with closed doors, and I have not found any authentic statement of all the precise grounds on which it arrived at the sum embraced in its award. Some of the principles on which it acted are disclosed in the Digest, but it is understood that the exact amount awarded was the result of mutual concession. "The neutral arbitrators and Mr. Adams," says Mr. Davis, "from the beginning of the proceedings, were convinced of the policy of awarding a sum in gross. For some weeks before the decision was given I felt sure that the arbitrators would not consent to send the case to assessors until they should have exhausted all efforts to agree themselves upon the sum to be paid. We therefore devoted our energies toward securing such a sum as should be practically an indemnity to the sufferers." 3 The determination to award a gross sum of $15,500,000 was reached at the conference of the 2d of September by a majority of four votes to one, Sir Alexander Cockburn dissenting."4

1 Protocol XXV. Papers Relating to the Treaty of Washington, IV. 36–37. Protocol XXVI. Id. 38.

3 Papers Relating to the Treaty of Washington, IV. 8.

By Sir Alexander Cockburn's opinion it appears that the tribunal allowed interest at the rate of 6 per cent. per annum in gold. (Papers Relating to the Treaty of Washington, IV. 543.)