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I. Statement of Sir Roundell Palmer, June 27th, 1872.
the Arbitrators of July 25, 1872. Filed July 29, 1872.
tion of the supplies of coal.
the Shenandoah, at Melbourne.
ida into Mobile.
Palmer on the special question of the legal effect of the entry of the Florida
Palmer on the question of interest.
August, 1872, in compliance with the request of the Tribunal.
1872, in compliance with the request of the Tribunal.
Agent of Her Britannic Majesty on the call of the Tribunal for elucidation in
respect to the Tables presented by the two Governments. XVI. A note on some observations presented by Mr. Bancroft Davis, on the 29th of
1.-STATEMENT OF SIR ROUNDELL PALMER, MADE AT THE
SEVENTH CONFERENCE, ON THE 27TH JUNE, 1872.
Further argument appears to Her Britannic Majesty's Counsel to be
necessary on the following, among other points, as to all he deires further ar which he is prepared to show that the new arguments now
advanced by the Counsel of the United States are either wholly erroneous and unwarranted, or calculated to mislead, unlesscorrected by proper explanations and qualifications.
[The statement then continues, as shown post, pages 380 to 384 inclusive, and closes as follows: IV.-As to the particular skips, Florida, Alabama, Georgia, and Shenan
Her Britannic Majesty's Couusel does not here particularize various new matters now brought forward or suggested in the Argument of the United States as to each of these ships. If those matters should appear to the Arbitrators to be of any importance, it is not doubted that they will ask for and receive the explanations and answers concerning them, which Her Majesty's Counsel will be ready at the proper time to give. General reasons.: why further arguments on the above points should be
allowed. 1. The character of the documentary evidence presented in the several volumes of the Appendix to the Case of the United States, containing a large mass of miscellaneous papers, or extracts from papers, laid before the Congress of the United States, as to much of which it was necessarily impossible for Her Britannic Majesty's Government to anticipate the use which would be made of them in argument until the present Argument of the United States was presented.
2. The course taken by the Government of the United States in withholding (as far as was possible) their reply as well to the Case as to the Counter Case of Great Britain until the Argument was delivered, so as to make it impossible for the arguments to be at the same time delivered on the part of Her Britannic Majesty's Government, to deal adequately by anticipation with many important views which' it was intended by the United States to present to the Tribunal.
3. The new and copious use made in the Argument by the United States of extracts froin the works of Sir Robert Phillimore, and from speeches and writings of various British statesmen in Parliament and elsewhere, to many of which no reference had been before made, and some of which are actually now appended as new matter to the Argument itself.
? This application was denied, and the reply which follows was not received by the Tribuna).
II.-REPLY OF THE COUNSEL OF THE UNITED STATES IN
RESPONSE TO THE FOREGOING STATEMENT OF SIR ROUNDELL PALMER.
The Counsel of the United States desire to submit to the Arbitrators
some observations regarding the Memoranduin of the Counther argumew should sel of Great Britain, presented at the conference of the 27th stage of the proceed instant, in support of the request of the British Government
for leave to file an additional argument on behalf of his Gov. ernment.
1. The Arbitrators having already refused to grant that request as being incompatible with the first clause of the fifth article of the Treaty of Washington, no occasion remains to discuss the Memorandum in this relation, but it needs to be done in relation to the second clause of the same article of the Treaty.
The stipulation is that subsequently to the filing of written or printed arguments by both parties on the prescribed day, "the Arbitrators may, if they desire further elucidation with regard to any point, require a written or printed statement or argument or oral argument by counsel In construction of this clause we respectfully suggest:
1. That under it no question of general argument can arise until after the Arbitrators shall have themselves examined the regular Arguments of the parties, together with the respective Cases and Counter Cases, and come to the conclusion that some particular point or points may require elucidation. But this contingency cannot now have arrived, because the regular and prescribed Argument of the British Government was not filed until the same Conference, and of course there can have been as yet no such examination of the subject as the clanse in question supposes.
2. The clause presupposes a requirement on the part of the Arbitrators for reason of desire of elucidation on their part. It contemplates a particular state of mind of the Arbitrators, growing out of their examination of the subject matter, constituting a personal desire, and resulting in a requirement made of their own accord and for their own satisfaction.
Such an occasion may arise, but the Memorandum is wholly inapplicable thereto. The Memorandum does not assume, or pretend to meet, any requirement or any mental desire of the Arbitrators. On the contrary, it expresses only a desire of the Coursel of the British Government to meet alleged exigencies of that Government.
3. The clause of the Treaty contemplates argument, written, printed, or oral, for elucidation with regard to any point. These expressions manifestly imply that, on examination, the Arbitrators encounter some point, some special point, which for their own satisfaction requires further discussion in order to clear up a doubt, supply a lacuna, or otherwise afford information.
But the Memorandum proposes a re-argument of the whole case and of all the questions submitted, whether of fact or of law, which at this stage of the Arbitration is wholly incompatible with the clause of the fifth article as already decided, and equally incompatible with the second clause of the fifth article.
? The Arbitrators declined to receive this Reply, having denied the request of the British Counsel.
What this Memorandum proposes is still more inadmissible in the last as well as in the first relation, because its professed and special object is to respond to the final Argument of the United States. That the British Government has no right to do, any more than the United States have right to respond to the final British Argument. And above all, in the present relation, such a responsive argument is inadmissible, because it is not elucidation of any particular point, and still less elucidation of any particular obscurity in the minds of the Arbitrators.
What the British Government could not do directly, in the forin of new arguments, it cannot do indirectly in the form of an elucidation to be called for by the Arbitrators. Of course the Arbitrators will not of themselves intimate a desire of elucidation which does not exist, in order to enable the Counsel of the British Government to do indirectly what he has no right under the Treaty to do directly.
II. The Memorandum is still more objectionable in a general view of the nature and effect of the Treaty, and what the respective Governments have already done under it.
The Treaty definitely stipulates that the two Governments shall file sim. ultaneously each its Case, its Counter Case, and its Argument. Why this peculiar form of procedure, so different from that in ordinary courts of justice, was adopted, we have no right to know. But we may suppose that it was adopted on a theory of perfect equality and reciprocity.
However this may be, while the arrangement gives to the United States the capability of an opening and a closing discussion in the Case and Counter Case, it gives the same capability to Great Britain.
Finally, it affords to each Government the opportunity to close on the facts as well as law, by means of the Argument, so called, two months after the filing of documentary or other evidence by either Government.
It is impossible to conceive of any arrangement more emphatically fair than this with respect to both Governments.
The Case of the United States gave general notice to Great Britain of the claims preferred, while the simultaneous Case of the British Gov. ernment prevented hasty conclusion on the part of the Arbitrators.
The Counter Case of Great Britaiu did or might respond in full to the Case of the United States with similar consideration of the rights of the latter in their Counter Case.
Finally, each party had power to argue on the facts and law, but at the same time and on the same plane of right, so as absolutely to preclude all question of separate arguments.
The Memorandum of the Counsel of the British Government seeks to evade all these Treaty arrangements, and to tear down the editice of perfect reciprocity and equity so carefully constructed by the stipulations of the Treaty, by putting in the very formal responsive arguinent so carefully prohibited by the Treaty.
Evidently the two Governments did not intend that the Argument of either should be a criticism on that of the other. But that is what the Memorandum proposes to have done. Nay, the Memorandum itself constitutes an inadmissible argumentative criticism on the Argument of the United States.
III. Ay to the particular ships in question, the Memorandum sug. gests that the United States have brought forward new matter in their Argument. We are not aware of any such matter in our Argument.
The Memoranduin further assumes that hereafter, if occasion should arrive, the Arbitrators would ask for explanation in regard to the ships. We do not admit the assumption, and will not argue the question by anticipation,