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possess knowledge of those debates, have perfect right to refer to them on all fit occasions.
I propose, however, on the present occasion, to exercise this right sparingly, and that only in two rela. tions, namely, first, very briefly, where such reference involves mere formality, and is almost inseparable from acts recorded in the protocols; and, secondly, with a little more fullness at the close, and with some retrospection, for the purpose of explaining the final act of the British Arbitrator.
DISCUSSIONS OF THE TRIBUNAL. At the meeting of the 15th, discussion arose immediately as to the method and order of proceeding to be adopted in the consideration of the subjects referred to the Tribunal.
Mr. Stæmpfli then suggested that in his opinion the proper course was to take up the case of some vessel, as expressly required by the Treaty, and consider whether on that vessel Great Britain was responsible to the United States. He had directed his own inquiries in this way, and in this way had arrived at satisfactory conclusions. His plan had been to select a vessel,—to abstract the facts proved regarding her, 1-and then to apply to the facts the special rules of the Treaty.
Debate on this proposition ensued between Sir Alexander Cockburn, on the one hand, and the rest of the Arbitrators on the other hand; the former desiring to have preliminary consideration of “principles," that is, of abstract questions of law, and the lat
ter insisting that the true and logical course was that of the Treaty, namely, to take up a case, to examine the facts, and to discuss and apply the law to the facts thus ascertained, as proposed by Mr. Stæmpfli.
Finally it was concluded, on the proposition of Count Sclopis, to follow substantially the programme of Mr. Stæmpfli
, that is, to take up the inculpated vessels, seriatim, each Arbitrator to express an opinion in writing thereon, of such tenor as he should see fit, but these opinions to be provisional only for the pres. ent, and not to conclude the Arbitrator, or to prevent his modifying such opinion, on arriving at the point of participation in the final decision of the Tribunal.
On the 16th, consideration of the programme of Mr. Stæmpfli was resumed. It consisted of the fol. lowing heads, which deserve to be set forth here, in order to show how thoroughly the subject had been examined and digested by Mr. Stæmpfli. “ (A.) Indications générales :
1. Question à decider.
3. Principes généraux.
(c) Jugement." [Follow the names of the other vessels, with similar sub-division of heads of inquiry.]
“(C.) Détermination du Tribunal d'adjuger une somme en bloc. “ (D.) Examen des éléments pour fixer une somme en bloc.
“ (E.) Conclusion et adjudication définitive d'une somme en bloc.”
The completeness and exactness of this programme are self-evident; and by these qualities it really imposed itself on the Tribunal, in spite of all objection, and of occasional temporary departures into other lines of thought. There will be occasion hereafter to remark on the precision and concision of the opinions of Mr. Stæmpfli.
SIR ALEXANDER COCKBURN'S CALL FOR REARGUMENT. Sir Alexander Cockburn then renewed his proposition for a preliminary argument by Counsel, setting forth analytically the various objects of inquiry involved in the claims of the United States, and concluding as follows:
That, looking to the difficulty of these questions, and the conflict of opinion which has arisen among distinguished jurists on the present contest, as well as to their vast importance in the decision of the Tribunal on the matters in dispute, it is the duty, as it must be presumed to be the wish, of the Arbitrators, in the interests of justice, to obtain all the assistance in their power to enable them to arrive at a just and correct conclusion. That they ought, therefore, to call for the assistance of the eminent counsel who are in attendance on the Tribunal to assist them with their reasoning and learning, so that arguments scattered over a mass of documents may be presented in a concentrated and appreciable form, and the Tribunal may thus have the advantage of all the light which can be thrown on so intricate and difficult a matter, and that its proceedings may hereafter appear to the world to have been characterized by the patience, the deliberation, and anxious desire for information on all the points involved in its decision, without which it is impossible that justice can be duly or satisfactorily done."
“To obtain all the assistance in their power to en:
able them to arrive at a just and correct conclusion," -“ to call for the assistance of the eminent counsel who are in attendance on the Tribunal to assist them with their reasoning and learning.”
Analyzing the proposition, and omitting the introductory and concluding phrases of more or less irrelevant and diffuse appeal to extraneous considerations, the essence of the proposition is to call on Counsel to assist the Tribunal, “ so that arguments scattered over a mass of documents may be presented in a concentrated and appreciable form.”
Now, passing over the looseness and inaccuracy of expression in this statement, it plainly is incorrect in substance. The considerations of law or fact necessary for the instruction of the Tribunal are not "scattered over a mass of documents;" they are presented in a concentrated ... form” (we do not say appreciable, because that is not a quality intelligible as applied to form] in the three arguments of each of the Governments,—that is to say, “Cases," “CounterCases,” and “ Arguments.” The proposition betrays singular confusion of mind on the part of a nisi prius lawyer and judge. The subjects or elements of argument are, it is true,"scattered over a mass of documents;" but it is quite absurd to apply this phrase to the Arguments themselves, in which the two Gorernments had each labored, we may suppose, to exhibit their views of the law and the facts in a manner to be readily comprehended and appreciated by the Tribunal. In the Arguments
In the Arguments proper, filed on the 15th of June, each Agent had, as the Treaty requires,
delivered to each of the said Arbitrators and to the Agent of the other party a written or printed argument showing the points and referring to the evidence on which his Government relies.” These “ Arguments” were freshly in the possession of the Arbi. trators. To call on Counsel, for the reason assigned, to reargue the matters therein argued, was just as unreasonable as it would be for a judge presiding at a hearing in common law, equity, or admiralty, to call on the counsel, who have just finished their arguments, to do something for the “assistance" of the Court,-it would be difficult to see what,--to the end “that arguments scattered over a mass of documents may be presented in a concentrated and appreciable form.” And if in this case such arguments had been filed in print, it would be natural for counsel to say that they had just done the thing required of them, as the Court would perceive if it would please to read those arguments: which, in the present case,
it would seem, Sir Alexander had neglected to do; and, instead of doing it, he had got bewildered by plunging unpreparedly into the mass of documents” filed by the two Governments.
After discussion, the Tribunal decided to proceed with the case of the Florida, according to the programme of Mr. Stæmpfli
, that is, in effect, overruling the motion of Sir Alexander Cockburn.
The Tribunal, it would seem, could not perceive the advantage of discussing speculative general questions, as in a moot court; and, more especially, ques. tions of law, which had already been discussed abun.