Arbitrators.

When the tribunal met on the 19th of June Declaration of the 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 government 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 Sclopis, 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.'

1 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."

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 out of the destruction of vessels and their cargoes by the insurgent cruisers. 2. The national expenditures in the pursuit of those cruisers."

1

Papers relating to the Treaty of Washington, II. 580.

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
Tribunal.

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 Selopis 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.)

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.

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 on 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." 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 occu

pied 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 ail 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 supplies 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 suggested 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.