"There may also be formulated a counter case.

"9. The judgment shall disclose the reasons on which it is based, and it shall be pronounced within a period of two months after the closure of the discussions. It shall be notified to the parties by the clerk.

"10. Each party has the right to interpose an appeal within three months after the notification of the judgment.

"The appeal shall be brought before the court. The members named by the states concerned in the litigation, and those who formed part of the tribunal, cannot sit in the appeal.

"The case shall proceed as in the first instance. The judgment of the court shall be definitive. It shall not be attacked by any means whatsoever.

11. The execution of the decisions of the court is committed to the honor and good faith of the litigating states.

"The court shall make a proper application of the agreements of parties who, in an arbitration, have given it the means of attaching a pacific sanction to its decisions.

12. The nominations prescribed by article 3 shall be made within six mouths from the exchange of the ratifications of the convention. They shall be brought by diplomatic channels to the knowledge of the adhering powers.

"The court shall assemble and fully organize one month after the expiration of that period, whatever may be the number of its members. It shall proceed to the election of a president, of a vice-president, and of a clerk, as well as to the formulation of rules for its interior regulation.

"13. The contracting parties shall formulate the organic law of the court. It shall be an integral part of the convention.

"14. States which have not taken part in the convention may adhere to it in the ordinary way.

"Their adhesion shall be notified to the government of the country in which the court sits, and by that to the other adhering governments."

Proposal of the New York State Bar Association.-The Bar Association of the State of New York, at its annual session held in Albany January 22, 1896, appointed a committee to consider the subject of international arbitration and to prepare a plan for a tribunal between Great Britain and the United States. The committee referred the matter to a subcommittee, which reported a plan for a more comprehensive tribunal than was at first contemplated. This plan was approved by the full committee, and afterwards, at a special meeting held in Albany April 16, 1896, was adopted by the association. It was as follows:

"First. The establishment of a permanent international tribunal, to be known as 'The International Court of Arbitration.'

"Second. Such court to be composed of nine members, one each from nine independent states or nations, such representative to be a member of the supreme or highest court of the nation he shall represent, chosen by a majority vote of his associates because of his high character as a publicist and judge and his recognized ability and irreproachable integrity. Each judge thus selected to hold office during life or the will of the court selecting him.

"Third. The court thus constituted to make its own rules of procedure, to have power to fix its place of sessions, and to change the same from

time to time as circumstances and the convenience of litigants may suggest, and to appoint such clerks and attendants as the court may require. "Fourth. Controverted questions arising between any two or more independent powers, whether represented in said 'International Court of Arbitration' or not, at the option of said powers to be submitted by treaty between said powers to said court, providing only that said treaty shall contain a stipulation to the effect that all parties thereto shall respect and abide by the rules and regulations of said court and conform to whatever determination it shall make of said controversy.

"Fifth. Said court to be opened at all times for the filing of cases and counter cases under treaty stipulations by any nation, whether represented in the court or not, and such orderly proceedings in the interim between sessions of the court, in preparation for argument and submission of the controversy, as may seem necessary, to be taken as the rules of the court provide for and may be agreed upon between the litigants.

"Sixth. Independent powers not represented in said court, but which may have become parties litigant in a controversy before it, and by treaty stipulation have agreed to submit to its adjudication, to comply with the rules of the court, and to contribute such stipulated amount to its expenses as may be provided for by its rules or determined by the court."

This plan was embodied in a petition which was duly presented to the President of the United States. In this petition a recommendation was made to the effect that negotiations be opened with Great Britain, France, Germany, Russia, the Netherlands, Mexico, Brazil, and the Argentine Republic, with a view to the establishment of such a tribunal as that suggested.

Additional Notes: Bering Sea Damage Commission.-The awards of this commission, amounting to $473,151.26, is printed at page 2131 of volume 2 of this work. By an act approved June 15, 1898, Congress made an appropriation to pay the sums awarded, at the same time declaring: "This appropriation is made without the admission that any liability exists for any loss of prospective profits to British vessels engaged in pelagic fur sealing; or for interest on the sums awarded to Great Britain, and without admitting the authority of the arbitrators to make any award on the basis of damages for the arrest or detention of vessels not included in the submission contained in the treaty." The money was paid by the Secretary of State of the United States to the British ambassador at Washington on June 16, 1898, the ambassador giving the following receipt: "JUNE 16, 1898.

"$473,151.26.

"Received of the Secretary of State of the United States the sum of four hundred seventy-three thousand one hundred fifty-one 26/100 ($473,151.26) dollars, in full of the amount awarded by the commissioners appointed pursuant to the stipulations of the convention of February 8, 1896, between the United States and Great Britain, providing for the settlement of the claims presented by the latter against the former in virtue of the convention of February 29, 1892, also in full payment of the damages, which, by agreement between the Secretary of State and Her Britannic Majesty's ambassador at Washington, were determined by said commission and were found and assessed in favor of the following claimants, to wit: James

Gaudin, master of the Ada, for claim arising in 1887, and the claimant of the Black Diamond for claim arising in 1886, the above payments being made in accordance with an act of appropriation approved June 15, 1898, entitled, 'An act making an appropriation to pay the Bering Sea awards.' "(Signed) JULIAN PAUNCEFOTE."

The Cheek Case.-At page 1899 of volume 2 of this work, an account is given of the claim of Dr. Cheek against Siam, upon which an award was made by Sir Nicholas Hannen on March 21, 1898. The award was as follows:

"Whereas by an agreement dated the 6th day of July 1897 between His Royal Highness Prince Devawongse Varoprakar, minister for foreign affairs of His Majesty the King of Siam, and John Barrett, minister resident and consul general of the United States of America, it was agreed to refer every matter of dispute, both facts and law, brought into issue between the Siamese Government and the estate of the late Marion A. Cheek to the decision of me, Sir Nicholas John Hannen, knight, chief justice of Her Britannic Majesty's supreme court for China and Japan; and

"Whereas in conformity with Article III. of the said agreement I sat in Bangkok on the 1st day of February 1898 and on nine subsequent days and examined the statements, pleadings, documents, proofs, and other matter submitted to me, and also listened to the arguments presented to me on behalf of the parties; and

"Whereas all other preliminary matters referred to in the said agreements were duly carried out by the parties. Now having fully taken into considertion the said agreement and also the cases, counter-cases, documents, evidence, and arguments, and likewise all other communications made to me by the parties during the progress of the sittings, and having impartially and carefully examined the same, I have arrived at the decision embodied in the present award:

"Whereas on and after the 20th day of August 1892 the Siamese Government seized and entered into possession of property in the possession of and under the control of Marion A. Cheek; and

"Whereas I am of opinion that such seizure and entry into possession was a violation of the second article of the treaty of 1856 between the United States of America and the Kingdom of Siam; and

"Whereas in justification of the said seizure and entry into possession it has been alleged that the said Dr. Marion A. Cheek made default in the performance of certain conditions of certain agreements made between him and the Siamese Government, one of which conditions was alleged to be the payment of interest upon a loan made by the Siamese Government to the said Dr. Marion A. Cheek upon the 31st day of March of each year; and

"Whereas it is necessary that before default in the performance of a condition can be proved, the existence of the condition in the contract must first be demonstrated; and

"Whereas I am of opinion that it was not proved to my satisfaction that the said contracts contained, or that their wording necessarily implied, in the minds of the parties such a condition as was alleged to have been broken; and

"Whereas it has not been proved to my satisfaction that the said Dr.

Marion A. Cheek did make default in the performance of any other of the conditions alleged to have been contained in the said agreement so as to justify the Siamese Government in its action; and

"Whereas on the 15th day of July 1893 the Siamese Government issued or permitted to be issued an order alluded to in the correspondence and at the hearing as the Chieng Mai order, which was in my opinion unjustifiable and which said order was calculated to and did greatly injure the said Dr. Marion A. Cheek; and

"Whereas I am of opinion that the estate of the late Dr. Marion A. Cheek should as far as possible be placed in the same position as it would have been in had not the Siamese Government seized the property in the control and possession of Dr. Cheek in August 1892 and had not the said government issued or permitted to be issued the Chieng Mai order, I hereby award to the estate of the late Dr. Marion A. Cheek the sum of ticals 706,721 (seven hundred and six thousand seven hundred and twenty-one) as the indemnity to be paid by the Siamese Government for the satisfaction of all claims referred to my consideration, and I further award that the "bill of sale mortgage" of the 23d April 1889 is now void, the amount of the loan together with the interest for which it was given, having been taken into account by me in reckoning the sum due by the Siamese Government to the Cheek estate, and the property by the said bill of sale; and

"Whereas it was alleged by the said Dr. Marion A. Cheek and by his representatives that the Siamese Government had promised to grant to the said Dr. Cheek the lease of certain forests in the correspondence and at the hearing referred to as "The Nan Forest" and compensation for the nonfulfillment of the said promise was claimed by the Cheek estate; and

"Whereas it was not proved to my satisfaction that any such promise was ever made, I hereby decide and award that the Cheek estate shall not recover anything from the Siamese Government upon this portion of their claim. In testimony whereof this present decision and award has been made in duplicate and signed by me this 21st day of March 1898 at Shanghai in the Empire of China.

"(Signed)

NICHOLAS J. HANNEN.

"Signed by the said Sir Nicholas John Hannen in the presence of "(Signed) R. S. MANSFIELD, "H. B. M. Acting Consul-General.

"MEMORANDUM.

"I am of opinion that, whether a breach of the conditions of the agreement or mortgage of the 23d day of April 1889 had taken place on the 20th of August 1892 or not, the Siamese Government adopted a wrong course in entering into possession of the mortgaged property.

"There was, in my opinion, at this time a dispute within the meaning of Article II. of the treaty of 1856, and it was not competent to one of the parties to this dispute to determine that its view was the correct one, and act upon that view without reference to the authorities of the other party to the dispute.

"The Siamese Government was bound to appeal to the United States consul before taking any action with regard to the property in the possession of a United States citizen.

5627-VOL. 5—43

"The next question which I have to determine is whether there had been a default made by M. A. Cheek in the performance of the conditions of the mortgage or in the performance of the conditions of the articles of

agreement.

"Until such default had been made, by the express terms of the agreement M. A. Cheek was to have the management of the said teakwood and elephants,' that is, of the teakwood and elephants mortgaged to the Siamese Government.

"Before any default in the performance of the conditions of the agreement or mortgage can be said to have been made, it is for the party alleging the default to prove that the conditions alleged to have been broken exist in the contract.

"What were the conditions alleged to have existed in the contract which it is said that M. A. Cheek broke?

"1. The payment of interest on the 31st of March 1891 and on the 31st of March 1892.

"2. An undertaking not to submortgage any of the property. "3. To deal with the property in certain specified ways.

"4. To deliver to Prince Warawannakorn proper accounts.

"These conditions I take from Mr. Carver's opening statement on behalf of the Siamese Government.

"Now none of these conditions are specifically contained in the agreemeut or in the mortgage, except the undertaking to furnish proper accounts, au with regard to this I find that Dr. Cheek furnished to the Prince reasonably proper accounts, and that the Prince waived the production of further and better accounts.

"With regard to the condition 2, I do not think that it can be reasonably imported into the agreement, and I do not think Dr. Cheek did anything which can be construed into an improper submortgage of the property mortgaged to the Siamese Government.

"He endeavored to make that property liable to the Borneo Company for the payment of certain sums of money, but those payments were such as in any case would have been a first charge upon the wood.

These were payments in order to obtain possession of and convey the wood to Bangkok and sell it there, and must necessarily have come out of the proceeds before these were handed over to the Siamese Government.

"As to condition 3, I do not think the Siamese Government seriously contend that there was any such breach of it as would have justified them in their course of action, apart from any other breaches, and I find that Dr. Cheek did not deal with the property in a manner contrary to the agreement. In fact, from the letter of Prince Nara to Dr. Eaton, and the whole of the correspondence, as also from the evidence of Prince Nara given before me, I distinctly came to the conclusion that all these alleged breaches were not in the mind of the Siamese Government at the time of the seizure, and it never would have occurred to the Siamese Government to make the seizure had the interest on the loan been paid. The main, and until lately the only, breach which the Siamese Government relied upon was the first viz, the nonpayment of interest on the 31st of March 1891 and the 31st of March 1892. That interest at the rate of 74 per cent per annum upon the loan was payable is undoubtedly one of the conditions of the mortgage.

"It is alleged by the Siamese Government that this interest was payable on the 31st of March of each year.

"There is no undertaking, in so many words, to do this to be found in the agreement or the mortgage, and the usual clause in mortgages by which the mortgagor undertakes to pay the interest on certain fixed days is not to be found in the documents.

"From the evidence and from the letters of the parties it is evident that Prince Warawannakorn had not at the time of entering into the contract any distinct idea as to the time at which the interest was payable. He at first thought it should be paid monthly, then quarterly, and finally he wrote and said that he was willing that it should be calculated yearly. "From this it is clear that one party to the agreement did not at the time of entering into it imagine that the other had promised to pay the