I.-STATEMENT OF SIR ROUNDELL PALMER, MADE AT THE SEVENTH CONFERENCE, ON THE 27TH JUNE, 1872.'

Points upon which

Further argument appears to Her Britannic Majesty's Counsel to be necessary on the following, among other points, as to all he desires 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, unless corrected by proper explanations and qualifications.

gument.

[The statement then continues, as shown post, pages 380 to 384 inclusive, and closes as follows:]

IV. As to the particular ships, Florida, Alabama, Georgia, and Shenandoah.

Her Britannic Majesty's Counsel 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 from 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 Tribunal.

II.-REPLY OF THE COUNSEL OF THE UNITED STATES IN RESPONSE TO THE FOREGOING STATEMENT OF SIR ROUNDELL PALMER.'

Reasons why fur

The Counsel of the United States desire to submit to the Arbitrators some observations regarding the Memorandum of the Coun sel of Great Britain, presented at the conference of the 27ta instant, in support of the request of the British Government for leave to file an additional argument on behalf of his Gov

ther argument should stage of the proceed

Rot be ordered at this

ings.

ernment.

I. 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 upon it."

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 clause 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 Counsel 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 form 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 simultaneously 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 Government prevented hasty conclusion on the part of the Arbitrators.

The Counter Case of Great Britain 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 edifice of perfect reciprocity and equity so carefully constructed by the stipulations of the Treaty, by putting in the very formal responsive argument 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. As to the particular ships in question, the Memorandum suggests that the United States have brought forward new matter in their Argument. We are not aware of any such matter in our Argument. The Memorandum 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.

IV. The Memorandum assigns as further reason for re-argument, that the British Government could not anticipate the use to be made in our Argument of the documentary evidence filed with the American Case. The suggestion is a singular one. We do not understand that when counsel put in evidence, they are required to accompany such evidence with argumentative explanations of why they put it in. The adverse party, versed in the rules of law and the practice of the courts, is to study such evidence and judge for himself of its pertinency or value. If any of the documents thus filed were irrelevant, it was for the British Government to say so in its Counter Case or in its Argument. There was ample time for consideration, namely, in the first relation, four months, and in the second, six.

So, also, during those four or six months, there was ample time for the eminent Counsel of the British Government to study those documents, and perceive, with the practiced eye of forensic experience and science, what use might be made of these documents by the Counsel of the United States, and to anticipate such use by appropriate response or explanation,

But, in fact, we have made no use in our Argument of these documents which was not prefigured, either in the Case or the Counter Case of the American Government.

V. The Memorandum objects that cause of re-argument is furnished by "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 now delivered, so as to make it impossible for the Argument, 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."

The situation complained of by the Counsel of the British Government was precisely the situation of the Counsel of the United States. We also were bound to anticipate the use that the British Government intended to make of its evidence. We do not feel sure that we fully com prehend this difficulty.

The American Government did reply to the British Case in the Amer ican Counter Case. How can this act be fitly characterized as "withholding as far as was possible?"

As to the British Counter Case, how could we reply to it until it had come into our possession? We received it in April, and we replied to it at the earliest possible moment, namely, in June. Is it proper for the Memorandum to apply to this act the phrase of "withholding as far as possible?”

Our Argument was a specific reply to the British Counter Case at the earliest and only possible moment, with but cursory and incidental ref erence to the British Case, which was for the most part answered in the American Counter Case, with sufficient indication to eminent adverse Counsel of other points of the British Case which would require additional attention in our final Argument.

VI. The Memorandum further complains of the use made in our Argument of the documents annexed to the American Counter Case.

We made only such use of these documents as might well have been anticipated by the British Government, and as their Counsel should have considered in his closing Argument.

The British Case arraigned the conduct of the United States in respect of the manner in which at various epochs of their history they had discharged their neutral obligations.