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instructed its Agent, to assent to a motion for adsjournment on the part of Great Britain, provided the British Argument were filed in good faith, without offensive notice, or other objectionable accompaniment.
Thus it became necessary for the British Government to decide for itself how to act in the premises. The course adopted by it was to withhold its Argument, and to file a statement, setting forth the recent negotiations for the solution of the difficulty between the two Governments, and the hope that, if time were afforded, such a solution might be found practicable; and thereupon to move an adjournment of eight months, with reserve of all rights in the event of an agreement not being finally arrived at, as expressed in the note which accompanied the British Counter-Case.
DECISION OF THE ARBITRATORS RESPECTING NATIONAL
These acts having been performed, the Arbitrators adjourned, first to the 17th, and then to the 19th of June, in order to afford time for reflection to them. selves and to the two Governments.
It will be taken for granted that in the interval between the 15th and the 19th of June communications by telegraph passed between the respective Agents and their Governments, and consultations took place between the Counsel of both sides and the respective Agents, either orally or in writing, and, with more or less formality, among the Arbitrators, the result of which was announced by Count Scloris as follows:
“The Arbitrators do not propose to express or imply any opinion upon the point thus in difference between the two Governments as to the interpretation or effect of the Treaty, but it seems to them obvious that the substantial object of the adjournment must be to give the two Governments an opportunity of determining whether the claims in question shall or shall not be submitted to the decision of the Arbitrators, and that
any difference between the two Governments on this point may make the adjournment unproductive of any useful effect, and, after a delay of many months, during which both nations may be kept in a state of painful suspense, may end in a result which it is to be presumed both Governments would equally deplore, that of making this arbitration wholly, abortive. This being so, the Arbitrators think it right to state that, after the most careful perusal of all that has been urged on the part of the Government of the United States in respect of these claims, they have arrived, individually and collectively, at the conclusion that these 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. With a view to the settlement of the other claims, to the consideration of which by the Tribunal no exception has been taken on the part of Her Britannic Majesty's Government, the Arbitrators have thought it desirable to lay before the parties this expression of the views they have formed upon the question of public law involved, in order that, after this declaration by the Tribunal, it may be considered by the Government of the United States whether any course can be adopted respecting the first - mentioned claims which would relieve the Tribunal from the necessity of deciding upon the present application of Her Britannic Majesty's Government.”
Count Sclopis added that it was the intention of the Tribunal that this statement should be consid
ered for the present to be confidential,—that is, subject to the discretion of either of the two Governments,
But what is the “question of public law involved ?" Is it the question of claim for indirect or consequential damages, as argued by the British Government? By no means.
Observe, no suggestion of any distinction between direct and indirect claims is to be found in the declaration of the Arbitrators. And their declaration can not be explained by reference to any such order of ideas.
The significant words are: “These 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."
Why do they not? Because they are indirect ? Because they are consequential? No such objection is intimated.
But although, in making this declaration, a mere conclusion of mind, the Arbitrators abstained at the time from assigning any reasons for such conclusion, yet they supplied this omission subsequently, as we shall plainly see when we come to review the ensemble of all the acts of the Tribunal. We shall then be able to appreciate the importance and value of this declaration to the United States.
The Counsel of the United States advised the acceptance of this declaration by the Government, as follows:
“We are of opinion that the announcement this day made by the Tribunal must be received by the United States as determinative of its judgment on the question of public law involved, as to which the United States have insisted on taking the opinion of the Tribunal. We advise, therefore, that it should be submitted to, as precluding the propriety of further insisting upon the claims covered by this declaration of the Tribunal, and that the United States, with a view of maintaining the due course of the arbitration on the other claims without adjournment, should announce to the Tribunal that the said claims covered by its opinion will not be further insisted upon before the Tribunal by the United States, and may be excluded from all consideration by the Tribunal in making its award.”
In response, the Secretary of State communicated the determination of the President, as follows:
“I have laid your telegrams before the President, who directs me to say that he accepts the declaration of the Tribunal as its judgment upon a question of public law, which he had felt that the interests of both Governments required should be decided, and for the determination of which he had felt it important to present the claims referred to for the purpose of taking the opinion of the Tribunal.
“This is the attainment of an end which this Government had in view in the putting forth of those claims. We had no desire for a pecuniary award, but desired an expression by the Tribunal as to the liability of a neutral for claims of that character. The President, therefore, further accepts the opinion and advice of the Counsel as set forth above, and authorizes the announcement to the Tribunal that he accepts their declaration as determinative of their judgment upon the important question of public law as to which he had felt it his duty to seek the expression of their opinion; and that, in accordance with such judgment and opinion, from henceforth he regards the claims set forth in the Case presented on the part of the United States for loss in the transfer of the American commercial marine to the British flag, the enhanced payment of insurance, and the prolongation of the war, and the addition of a
large sum to the cost of the war and the suppression of the Rebellion, as adjudicated and disposed of; and that, consequently, they will not be further insisted upon before the Tribunal by the United States, but are henceforth excluded from its consideration by the Tribunal in making its award.”
This conclusion was announced to the Tribunal by the Agent of the United States on the 25th of June in the following words:
“The declaration made by the Tribunal, individually and collectively, respecting the claims presented by the United States for the award of the Tribunal for, first, the losses in the transfer of the American commercial marine to the British flag; second, the enhanced payment of insurance; and, third, the prolongation of the war, and the addition of a large sum to the cost of the war and the suppression of the Rebellion, is accepted by the President of the United States as determinative of their judgment upon the important question of public law involved.”
On the 27th, the British Agent announced the acquiescence of his Government in this arrangement, withdrew his motion of adjournment, and filed the British Argument.
And in this manner the controversy, which for so many months had engrossed the attention of the two Governments, was finally disposed of as the Govern. ment of the United States had constantly contended it should be (unless otherwise settled by treaty], that is, by the declaration of the judgment or opinion of the Arbitrators, in such form as to constitute, in effect, a rule of law, morally binding on Great Britain and the United States.
The President of the Tribunal, Count Sclopis, then proceeded to pronounce an appropriate and wellwritten discourse, expressing satisfaction at the re