pending the motion for an adjournment, at once saw Mr. Waite and Mr. Evarts (Mr. Cushing had gone to bed) and told them what had taken place; and about midnight he had another interview with Lord Tenterden, who came to say that he had seen Sir Roundell Palmer, and that the latter had made a minute of three points which would have to be borne in mind by the arbitrators in any such step as had been suggested. These points Lord Tenterden was not authorized to communicate officially, but he read them to Mr. Davis, who wrote them down from his dictation. They were as follows: "1. That the arbitrators can not give any judgment on the indirect claims, as not being submitted to them by both parties; and that therefore any expression of opinion upon them at the present time would be simply extrajudicial. "2. That the British Government having expressly refused to allow the indirect claims to be adjudicated upon by the tribunal, it would not be consistent with the duty of the British arbitrator to take any part in any expression of opinion on the subject. "3. That any expression on the subject would not be binding upon either of the two governments unless assented to by both." Early on the morning of June 16 Mr. Davis laid these points before the counsel of the United States with some written comments, in which counsel concurred. It was agreed that Mr. Evarts should see Sir Roundell Palmer and suggest that the third point contained everything necessary for the protection of either government, and that the statement of the points of disagreement be omitted. Mr. Evarts saw Sir Roundell in the evening, and he was understood to concur in the opinion that the third point was all that need stand. As soon as counsel had completed their examination of Sir Roundell's points Mr. Evarts and Mr. Davis called upon Mr. Adams and laid the facts before him. Mr. Adams concurred in the opinion expressed by Mr. Davis that an adjournment such as was asked for would end in a rupture, and declared that he would do all in his power to prevent it. "He said," as reported by Mr. Davis in a contemporaneous memorandum,' "that he had had some conversation with Mr. Fish before leaving Washington, in which Mr. Fish had told him that he was willing to have the indirect claims decidedly adversely, and that he had said to Mr. Fish that in his judgment they ought to be so disposed of; that Mr. Fish 1 MSS. Dept. of State. had felt so much interest in the matter that he had sent a special message to him in Boston, by Mr. Boutwell, to see Sir Alexander Cockburn in London and endeavor to arrange some way to have it done; that he had seen some influential persons in London on the subject, but had not seen Sir Alexander because he did not think him the best person to see for that purpose; that he had also seen General Schenck, who was then endeavoring to arrange the matter upon the basis of an interchange of notes, and had handed him a paper containing the substance of a declaration which at that time it was thought might be desired from the arbitrators when they should assemble. Mr. Adams read a portion of this draft, from which Mr. Evarts and I gathered the opinion that it might be construed to imply a doubt of the jurisdiction of the tribunal over the indirect claims, and we so stated to Mr. Adams. He said at once that he had no doubt himself on that point, that he thought them clearly within their jurisdiction. Mr. Evarts, however, called his attention to some points in the argument of counsel bearing upon this, and laying the foundation for the contemplated action of the tribunal. It was then understood by us that Mr. Adams was to see Count Sclopis and to ascertain whether the proposed action would probably be taken." On the afternoon of the 16th of June Mr. Adams called on Mr. Davis and handed him a paper which was duly submitted by the latter to the counsel of the United States. It was subsequently amended by counsel and by Mr. Adams himself. The purport of it was that the arbitrators should declare that the indirect claims did not constitute in law a good foundation for an award of compensation in money, and that the tribunal would therefore be constrained to decide that Great Britain could not be made responsible in damages therefor. This paper was presented by Mr. Adams to Count Sclopis, who assented to it. When the tribunal met on the 17th of June it adjourned till the 19th, but the arbitrators unanimously agreed in principle upon the disposition to be made of the indirect claims. The American draft of the proposed declaration was referred to the British arbitrator, to be handed to the British agent and counsel, with the statement that the tribunal desired, if possible, to have the declaration made in a form acceptable to both parties. On the 18th of June a counter draft was received from Sir Roundell Palmer, which was so nearly acceptable that an agreement was soon reached. Declaration of the When the tribunal met on the 19th of June Count Sclopis, on behalf of all the arbitrators, declared that, without intending "to express or imply any opinion" upon the point of difference "as to the interpretation or effect of the treaty," they had “arrived, individually and collectively," at the conclusion that the indirect claims "do not constitute upon the principles of international law applicable to such cases good foundation for an award of compensation or computation of damages between nations, and should upon such principles be wholly excluded from the consideration of the tribunal in making its award, even if there were no disagreement between the two governments as to the competency of the tribunal to decide thereon." This declaration virtually disposed of the difficulty. On the 25th of June Mr. Davis informed the tribunal that he was authorized to say that, in consequence of the declaration of the arbitrators, the claims in question would not be further insisted upon, and might be excluded from all consideration in any award that might be made. On the 27th of June Lord Tenterden stated that he was authorized to say that Her Majesty's gov. ernment found in the declaration of the arbitrators nothing to which they could not assent consistently with the view of the interpretation and effect of the treaty of Washington maintained by them, and that, being informed of the statement made by the agent of the United States, and assuming that the arbitrators would upon such statement declare that the claims in question would be wholly excluded from their consideration, and would embody such declaration in the protocol of the day's proceedings, they had instructed him, upon this being done, to request leave to withdraw the application for an adjournment and to deliver the printed argument prepared on the part of the British Government. Mr. Davis said he would make no objection to the granting of the request of Lord Tenterden; and Count Selopis, on behalf of all the arbitrators, then declared that the several claims for indirect losses would be wholly excluded from the consideration of the tribunal, and directed the secretary to embody the declaration in the protocol of the day's proceedings.' The claims thus excluded were those embraced in the following classes, as stated in the American Case: "3. The loss in the transfer of the American commercial marine to the British flag. 4. The enhanced payments of insurance. 5. The prolongation of the war and the addition of a large 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.5 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 out of the destruction of vessels and their cargoes by the insurgent cruisers. 2. The national expenditures in the pursuit of those cruisers." Papers relating to the Treaty of Washington, II. 580. 2 Papers relating to the Treaty of Washington, III. 375 3 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 When the tribunal reassembled it took into consideration the question of procedure. Mr. 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.2 Announcement by 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,3 366 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.) 1 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. |