« PreviousContinue »
event the Arbitrators could not in reason or decency have commenced their deliberations until the 1st of September; they might well have taken, as they did in fact take, three months to complete their deliberations; and thus the Arbitrators and the American Counsel [but not the English] would have been de. tained at Geneva until the 1st of December, and there. fore would not have been able to reach their homes until January
But the reargument proposed by Sir Roundell Palmer was contrary to the Treaty, which in express terms closes the rights of the two Governments as to hearing, and admits further discussion on their part only at the requisition of the Arbitrators, “if they desire further elucidation in regard to any point." [Art. V.] Which manifestly intends, not reargument of the cause, but solution of any doubt, which, after the completion of the arguments, may occur to the Tri. bunal. No consent of Counsel could annul the stipulations of the Treaty.
Of course, for reasons of right as well as expediency, we declined to accede to the proposition of Sir Roundell Palmer.
Nevertheless, at the meeting of the 27th, immediately after the conclusion of Count Sclopis's discourse, Lord Tenterden presented a motion on the part of Sir Roundell Palmer for leave to file a written argument in answer to the Argument of the United States delivered on the 15th, and requesting adjournment for that purpose until August. Sir Roundell Palmer read a brief of the points he desired to argue,
covered in effect all the points of the American “Case” and “ Argument,”--that is to say, it implied a com. plete reargument of the whole cause. It amounted to assuming or admitting that no sufficient or proper defense had yet been made by the British Govern. ment.
We, in behalf of the United States, proceeded to prepare a reply to this motion. We took it up point by point, and showed by citation of
that every one of the proposed points had been largely and amply discussed already by Great Britain in her “ Case," “ Counter-Case,” and “ Argument;" that nothing new could be said on these points; and that, in fact, the very object proposed was to reiterate arguments already adduced, but to do it in the inadmissible form of mere criticism of the American Argument. And we cited the Treaty to show that the discussion proposed was contrary to the explicit contract of the two Governments.
Meanwhile the Tribunal proceeded to decide, on suggestion of Mr. Adams, that the proposed argument was inadmissible, and that Counsel had no right to address the Tribunal unless required by it so to do for the elucidation of any point under the 5th article of the Treaty.
At the next meeting of the Tribunal, on the 28th, Sir Alexander Cockburn presented a list of eight points covering in effect the points of the rejected motion of Sir Roundell Palmer, and moved that the Tribunal require of the Counsel of the two Governments written or printed arguments on the said points;
but the Tribunal decided not at present to require such arguments.
Whether the motion of Sir Alexander Cockburn was prompted by Sir Roundell Palmer, in order to afford to the latter the desired opportunity to criticise the American “ Argument,”—or whether it was a spontaneous one arising from the former's not hav. ing studied the case, and his consequent ignorance of the fact that most of the questions proposed had already been amply and sufficiently discussed by both Governments,—does not distinctly appear. Probably both motives co-operated to induce the motion. Subsequent incidents throw some light on this point. Meanwhile it was plain to infer from the observations of the other Arbitrators, and from their deci. sion, that they were better informed on the subject than Sir Alexander Cockburn.
RULES CONCERNING THE CONFERENCES OF THE TRIBUNAL..
The Tribunal next decided that the Agents should attend all the discussions and deliberations of the Conferences, accompanied by the Counsel, except in case where the Tribunal should think it advisable to conduct their discussions and deliberations with closed doors. The practical effect of this resolution, when connected with a resolution adopted at a subsequent" meeting in regard to the course of proceeding, was to i enable and require the Agents and Counsel to assist at the judicial consultations of the Tribunal: it being understood, of course, that none others should be
pres. ent save the representatives of the two Governments.
The Tribunal then authorized publicity to be given to its declaration and to the declarations of the two Governments, relative to the national claims of the United States: after which it adjourned to the 15th of July.
Heretofore, either by intimation to the Secretary, and to the Agents and Counsel, or by formal resolution, the Tribunal had signified its desire that the, proceedings should not be committed to publicity, . unless by the will of the respective Governments. Of course, reporters for the Press, and other persons not officially connected with the Arbitration, were excluded from the sittings of the Tribunal. This reserve or secrecy of proceeding was inconvenient to the many respectable representatives of the Press of London and New York, persons of consideration, who had come to Geneva for the purpose of satisfying the public curiosity of the United States and of England regarding the acts of the Tribunal; but was dictated, it would seem, rather by considerations of delicacy toward the two Governments, than by any reluctance on the part of the Arbitrators to have their action made known day by day to the world. It was a tribunal of peculiar constitution and character; its members were responsible in some sense each to his own Government, and also to the opinion, at least, of the litigant Governments; its proceedings were not i purely judicial, but in a certain degree diplomatic; and a large part of the proceedings were in the nature not so much of action as of judicial consultation, which it might well seem unfit to communicate to the
general public as they occurred, although perfectly fit to be thus communicated to the respective Govern: ments.
The Tribunal reassembled on the 15th of July. Down to this time all the proceedings of the Arbitrators were in their nature public acts, or they have been made public through the respective Governments. All such acts were recorded in the protocols.
Hereafter, we shall have, in addition to the acts of the Tribunal recorded in protocols, a series of provisional opinions, which were also printed and distributed (or should have been] according to express order of the Tribunal. These opinions of the Arbi. trators, as well as their official acts, have already been made public by both Governments.
But, incidentally to such acts and opinions, there was much oral debate from time to time at the successive Conferences of the Tribunal. At these debates, the Agents and Counsel of both Governments were required to assist, by resolution of the Tribunal. Assisting, we necessarily heard what was said by the respective Arbitrators. We were expected to hear, it is presumable, and also to understand: otherwise, why required to attend ?
Are these debates, which occurred in the presence of so many persons, Agents, Counsel, and others, to be regarded as confidential and unfit to be disclosed now? Forget them, we can not, even if copious notes of the most important debates did not exist to aid and correct mere memory. Is it, then, improper to speak of them? I think not. I conceive that
I conceive that any of us, who