The New York Herald Newspaper, August 26, 1872, Page 3

i NEW YORK HERALD, MOND.\ GENEVA. Arguments of William M. Evarts and Caleb Cushing Before the Inter- national Tribunal. SUMMING UP THE AMERICAN CASE. Complete and Crushing Reply to the English Counsel. ; THE LAW, OF NATIONS EXPLAINED, Violation of the Laws of Neu- trality by Great Britain. Is She Exempt from Liability P The Duties of Neutrals and the Rights of Belligerents. ‘JIE TREATY OF WASHINGTON INTERPRETED SBrmed Vessels, Manned and Equipped in British Waters, to Make Wor Upon the United States, HEIR DEPARTURE CONNIVED AT How the Alabama, Shenandoah, Florida and Georgia Were Permitted to Prey Upon American Commerce. RIGHTS OF ASYLUM DEFINED. Rebel Cruisers Succored and Coaled in Colonial Ports. MUNICIPAL VS, INTERNATIONAL LAW, Qreat Britain, Under Pretence of Obeying the Former, Cannot Evade the Viola- tion of the Latter, HOW THE REBELS WERE COMFORTED Yuen, Money and Material of War » iberally Supplied, “OUR CASE” IN A NUTSHELL Chief Justice Cockburn Instructed in Geography and Law. WHAT AMERICA CLAIMS. What a Neutral is Bound To Do and What England Did Not Do. ° WHAT IS “DUE DILIGENCE” “Due Diligence” as Defined by the Treaty. Een RISES TO EXPLAIN. bahia cai The “Et Tu. Quoque” Plea of Eng- land Summarily Answered. —a—— ENGLAND, NOT AMERICA, ON TRIAL. CUSHING Me following able and eloquent arguments were 4elivered by Messrs, Evarts and Cushing in reply to the points raised by the British counsel in his ex- planations to the Court upon certain points in regard to which the arbitrators had desired information. It will be seen that these address cover nearly the whole field of the claims, and their Perusal enables us to congratulate ourselves upon the impregnable strength of our case, tainly the prospect of a settlement satisfactory to the United States seems much ‘8 we realize the conscientious diligence and inde- fatigable zeal and sleepless vigilance with which our interests aro being defended before that angust tribunal at Geneva. ARGUMENT OF MR. EVARTS “in the o es rs of the deliberations of the fribunal it has seemed good to the ar- bitrators, in pursuance of the provision the fifth article of the Treaty of Washing- ton, to intimate that on certain specific points they would desire a further discussion on the part of the counsel of Her Britannic Majesty for the elucidation of those points in the consideration of the tribunal, Under that invitation the eminent counsel for the British government has presented an argument which distributes itself, as it scems tous, while dealing with the three points sug- gested, over a very general examination of the ar- gument which has already been prescated on the part of the United States. In availing ourselves of the right, under the treaty, of replying to this special argument upon | Majesty thus expressed. On the contrary, that brighter | of | | assigned a h ining to assent to them as statement of prineiph j in force at the points nampd by the tribunal, tt has been & matter of some embarrassment to determine exactly how far this discussion on our part might properly go. In one sense, gur deliberate judg- ment is, that this new discussion has really added but little to the views or the argument which had already been presented on behalf of the British government; and that it has not disturbed the posi- tions which had been insisted upon, on the part of the United States, in answer to the previous dis- cussions on the part of the British government, contained in its case, counter case and argument. But to have treated the matter in this way, and left our previous argument to be itself such an answer as we were satisfied to rely upon to the new developments of contrary views that were pre- sented in this SPECIAL ARGUMENT OF THE BRITISH GOVERNMENT, would have seemed to assume too confidently in favor of our argument, that it was an adequate response in itself, and would have been not al- together respectful to the very able, very compre- hensive and very thorough criticism upon the main Points of that argument which the eminent coun- sel of Her Majesty has now presented. Neverthe- “ess, it seems quite foreign from our duty, and quite unnecessary for any great service to the tribunal, to pursue in detail every point and sug- tion, however pertinent and however skilfully ap- plied, that is raised in this new argument of the eminent counsel. We shall endeavor, there- fore, to present such views as seem to us useful and valuable, and as tend in their general bearing to dispose of the difficulties and counter propositions opposed to our views In the learned counsel's present criticism upon them, THE AMERICAN ARGUMENT. The American argument, presented on the 15th of June, as bearing upon these three points now under discussion, had distributed the subject under the general heads of the measure of international Guties; of the means which Great Britain possessed for the performance of those duties; of the true scope and meaning of the phrase “due diligence,” as used in the treaty; af the particular application of the duties of the treaty to the case of cruisers on their subsequent visits to British ports, and then of the faults, or tailures or shortcomings of Great Britain in its actual conduct of the transactions under review in réference to these measures of duty and this exaction of due diligence. ‘The spectal topic now raised for discussion, in the MATTER OF “DUB DIDIGRNCE” generally considered, has been regarded by the counsel of the British government as involving a consideration, not only of the measure of diligence required for the discharge of ascertained duties, but aiso the discussion of what the measure of those duties was; and, then, of the exaction of due diliv gence as applicable to the different instances or oc- casions for the discharge of that duty, which the actual transactions in’ controversy between the Partics disclosed, That treatment of the point is, of course, suitable enough if, in the judgment of the learned counsel, necessary for properly meeting the question specifically under considera- tion, because all those elements do bear upon the question of “due diligence” as relative to the time and place and circumstances that called for its ex- ercise, Nevertheless, ,the general question, thus largely construed, {s really equivalent to the maine controversy submitted to the disposition of this tribunal by the treaty—to wit, whether the required due diligence has been applied in the actual con- duct of affairs by Great Britain tothe different situ- ations for and in which it was exacted. ‘The reach and effort of this special argument in behalf of THR BRITISH GOVERNMENT seem to us to aim at the reduction of the duties in- cumbent on Great Britain, the reduction of the obligation to perform those duties in its source and in its authority amd to the calling back of the cause to the position assumed and in- sisted upon in the previous argument in behal¢ of the British government, that this was a matter not of international duty, and not of international obligation, and not to be judged of in the court of nations as a duty due by one nation, Great Britain, to another nation, the United States, but only as a question of its duty to itself, in the maintenance of its neutrality, ana to its own laws and to its own people, in exerting the means placed at the sérvice of the government by the Foreign Enlistment act for controlling any efforts against the peace and eS sent comes in only subsequently to the authorita- tive statement of the rules, and simply a8 a qualifi- cation attendant upon a reservation on the part of Her Majesty, that the previous declaration shall not be esteemed as an assent ON THE PART OF THE BRITISH GOVERNMENT, that those were in fact the principles of the law of nations at the time the transactions occurred. The sixth article of the treaty thus determines the authority and obligation of these rules. I read from the very commencement of the article :— “In deciding the matters submitted to the arbi- trators they shall be governed by the following three rales, which are agreed upon by the high contracting parties as rules to ne taken as applica- ble to the case and by such principles of interna- tional law not inconsistent therewith;” and then the rules are stated. Now, there had been a debate between the diplo- matic representatives of the two governments whether the duties expressed in those rules were wholly of international obligation antecedent to this agreement of the parties, The United States had from the beginning insisted that they were; Great Britain, had insisted that, in regard to the outfit and equipment of an unarmed ship from its ports, there was only an obligation of municipal law and Not of international law: that its duty concerning such outfit was wholly limitea to the execution of ite Foreign Enlistment act; thatthe discharge of that duty and its responsibility for any default therein could not be claimed by the United States as matter of international law, nor upon any judg- ment otherwise than of the general duty of a neu- tral to execute its laws, whatever they might be, with tmpartiality between the belligerents. To close that debate, and in advance of the sub- mission of any question to this tribunal, the law on that subject was settled by the treaty and settled in terms which, so tar as the obligation of the law oes, seem tous to admit ofno debate, and to be ¢xposed to not the least uncertainty ordoubt. But ti sotioas it might not be an imputation upon government of Great Britain, that while it presently agreed that the dutlea ofa neutral were as these rules express them, and that these rules were applicable to this case, thats Reutral nation ‘was bound to conform to them, and that they should govern this tribunal m its decision—in order that from all this:‘there might not\arise an imputation that the conduct of Great Britain, at the time of the transactions (if it should be found in the judgment of this tribunal to have been at variance with these rules), would be subject to the charge of @ variance with an acknowledgment of the rules then presetitly admitted as*binding, a reservation was made. What was that reservation ? Her Majesty has commanded her High C rules de ata ef principien of international law force at the time when the claims men- tioned in 1. arose, but taat Her Majesty's govern- aegeted order to evince its di of strensthening the rlendly relations between the two countries and, o mi satisfactory provisions for ), agrees th: in deciding the questions between the two countri gyicing omy of tees claims, the Arbitrators should assu that government had undertaken to act ‘upon the pi set forth in these rales. Thus, while ig saving Clause in respect to the Past conduct of Great Britain was allowed on the declaration of Her Majesty, yet that declaration ‘Was admitted into the treaty only upon the express proviso that have no import of any kind dn the obligation of the rules, their sig- nifleance, their binding force, or the principles upon which this tribunal should judge concerning them, Shall it’be said that when the whole office of this clause, thus referred to, is of that nature and ex- tent only, and when 1t ends in the determination that that reservation shall have =~ NO EFFECT UPON YOUR DECISION; shall it, I say, be claimed that this reservation shall have an effect upon the argument?’ How shall it be pretended, before a tribunal like this, that what is to be assumed in the decision fs not to be assumed in the argument ! WHAT DOES THE TREATY MEAN? But what does this mean? Does it mean that these three rules, in their iuture application to the conduct of the United States—nay, in their future application to the conduct of Great Britain, mean something different from what they mean in their application to the past? What becomes, then, of the purchasing consideration of these rules for the future—to wit, that, waiving debate, they shall be applied to the past ? ‘e must, therefore, insist that, upon the plain declarations of this treaty, there is nothing what- ever in this proposition of the first tive sections of the mew special ai ent. If dignity of the nation, there were anything 2 it, it would go We had supposed, and have so in our argument | to the rupture, almost, of the treaty; jor insisted, ; depata-wasconclaced byy| the ianguuge is plain, the motive declared, the ‘whut had been se by Gefinitive-convention roe in the future the same force between the two nations as the law of this tribu- nal, upon which the conduct and duty of Great Britain and the claims and rights of the United States were to be adjudged, and had been dis- tinctly expressed and authoritatively and finally established in the three rules of the treaty. Before undertaking to mect the more particular inquiries that are to be disposed of in this argu- ment it is proper that, at the outset, we should take notice of an attempt to disparage the efficacy of those rules, the source of their authority and the nature of their obligation upon Great Britain. The first five sections of the special argument are devoted to this consideration. It is said that the only way that these rules come to be important in passing judgment upon the conduct of Great Britain in the matter of THE CLAIMS OF THE UNITED STATES is by the consent of Her Majesty that, in deciding | the questions between the two countries arising out of these claims, the arbitrators should assume that, during the course of th transactions, Her Majesty's government had undertaken to act upon the principles set forth in these rules and in them announced. That requires, it is said, as a principal | consideration, that the tribunal should determine what the law of nations on these subjects would have been if these rules had not been thus adopted, Then it is argued that, as to the proposi- tions of duty covered by the first rule, the law of nations did not impose them, and that the obli- gation of Great Britain, therefore, in re- spect to the performance of the . du- ties assigned in that rule, was not derived from the law of nations, was nol, therefore, a duty between it and the United States, nor a duty the breach of which called for the resent- ments or the indemnities that belong to a violation of thre law of nations. Then, itis argnea that the whole duty and ponsibility and obligation in that regard, on the part of Great Britain, arose under , THE PROVISIONS OF ITS DOMESTIC LEGISLATION, under the provisions of the Foreign Halistment act, under a general obligation by which a nation, having assigned a rule of conduct for itself, is for its proper and equal performance as between and towards the two belligerents. ‘Then, it is argued that this assent of the British govera- ment that the tribunal shall régerd that govern- t as held to the performance of the’ duties in those rules, in so far as those rules were not of antecedent obligation in the law of nations, is not a consent that Great Britain stall be held under an international obligation to per- form the rules in that regard, but simply as an agreement that they had andertaken to discharge, as a municipal obligation, under the provisions of their Foreign Enlistment act, duties which were equivalent, in their construction of the act, to what is now assigned as au international duty; and Her Maiost ment. by the Treaty ashington, agreed that esty's g " principles set. forth in the three 8 of time when nt Wats not to to judge retrospec- sty's wovernment ae. » hypothesis or law or tact, but to, acknowledge, a8 a role OF judginent tor the purposes of the treaty, the undertaking Ww the British govern and given to ment had actual iupo on own inunicipal law, nt in substance Wi Argunent, section 3, Now, we may very briefly, as we think, dispose of this suggestion and of all the influences that it is appealed to to exert throughout the course of the discussion in aid of the views insisted npon by the ned counsel, In the first place it 1s not # e¢ rect statement of the treaty to say that the obiiga- tion of (hese rules and the responsibility on the part of Great Britain to have its conduct judged accord- ing to those rules arise from the assent of Her ding to Which it was cou those rules.—British Special sid c ry is to be applied in the judgment of this tribunal upon the hay Now, it is said that this declaration of the binding authority of these rules is to read in the sense of this very complicatea, somewhat unin- telligible proposition of the learned counsel. Com- pare his words with the declaration of the bindin, authority of these rules as ruies of international law actually found in the treaty, and judge for yourselves whether the two forms of expression are equivalent and interchangeable, WHAT TOE UNITED STATES AGREED TO. Can any one imagine that the United States would have agreed that the construction, in its application to the past, was to be of this modified, uncertain, optional character, while in the future the rules were to be authoritative, binding rules of the law of nations’ When the United States had given an assent, by convention, to the law that was to govern this tribunal, was it intended that that law should be construed as to the past differently from what it was to be construed in reference to the tuture ¥ 1 apprehend that this learned tribunal will at once dismiss this consideration, with all its impor- tant influence upon the whole subsequent argument of the eminent counsel, Which an attentive exaimi- nation of that argument will disclose, With this proposition falls the farther MS Nah arn already met in our former argument, that it is material to go into the region of debate as to what the \aw of nations upon tese subjects now under review was or fs, So far as it falls within the range covered by these rules of the treaty, their provisions have concluded the controversy. To what purpose. then, pursue an inquiry and a course of argument which, Whatever way in the balance of your conclu- sions {t may be determined, cannot affect your jndg- ment or your award ¢ If these rules are found to be conformed to the law of nations in the principles which it held antecedent to their adoption the rules cannot have for that reason any greater force than by their own simple, nnconfirméd authority. If they difier from, if they exceed, if they transgress the re- quirements of the law of nations, as it stood an- tecedent to the treaty, by so much the greater forse does the convention ef the parties require that for this trial and for this judgment these rules are to be the law of this tribunal, This argument is hinted at in the counter case of the British Goy- | ernment; it has been the subject of some public discussion in the press of Great Britain, But the most authoritative expression of opinion upon this point from the press of that country has not failed to stigmatize this suggestion as bitng the obligation of the rules of this treaty down to * the vanishing point. At the close of the special argument we find a | general presentation of CANONS FOR THE CONSTRUCTION OF TREATIES and some general observations as to the light or the controlling reason under which these | rules of the treaty should be construed. VTuese | suggestions may be briefly dismissed, it certainly would be & very great reproach to these nations which had deliberately Axed upon three propositions as eXpressive of tie law of na- tions, in their judgment, for the purposes of tuis trial, that A RPSORT TO GENERAL JNSTRUCTIONS, for the purpose of interpretation, was necessary. Eleven canons of interpretation, drawn from Vat- tel, are presented in order, and then se as the case suits, are applied as v; jating this or that poiat of tue rales, learned counsel has omitted to driv notice the first and most gene & to your rule of Vattel, which, being once understood, would, as we think, dispense with any consiaeration of th bordi- nate canons which Vattel has introduced to be used only in case his first geueral rule does not apply. This first proposition is that “it is not a to interpret what has no need of inter- e rules of the treaty and careful expression of the re the deliberate lof the two na- tions in establishing the law for THE GOVERNMENT OF THIS TRIBUNAL which the treaty calls into exisience, rules need no interpretation iu any general seuse. t doubtedly there may be phrases which may receive some illustration or elucidation trom the histor and front the principles of the law of nations, and | to that we have no objection, Ins es Of Ver proper application to that resoit 0 the arg ment to Which Lam now replying. but there be no possivle need to resort to any g such as those most favored and insis the learned counsel—viz., the sixth pr Vattel, that you never should accept AN INTERPRETATION THAT LEADS 10 AN ABSURDITY, { or the tenth, that you should never accept an in- terpretation that leads to a crime. Nor do we need to recur to Vattel for what is certainly a most Sensible proposition, that the reason of the treaty— that is to say, the motive which led to the making | of it and the object in contemplation at the t is the most certain clue to lead us to the discovery of its true meaning. | But the inference drawn from that proposition, in its applicatiou to this case by the learned coun- sel, seems very wide from What to us appears nafnral and sensible, ‘The aid which ne seeks under the guidance of thig rule is from $he abstract i- can ral rouies npow by ition of TUG 2h, tyro Of punneists ou puNerio UF fhe trative foro given y iegal ‘commen- Our view of the matter is, that, as this treaty is applied to the past, as it is applied toan actual situ- ation between the two nations, and as it is nesiied to settle the doubts and disputes which existed be- tween them as to tion and to the perform- ance of obligations, t! considerations furnish the resort, i’ any is needed, whereby this tribunal should seek to determine what the true meaning of the high contracting is, THE OFPENDING CRUISERS, Now, as bearing ups all these three topics of due diligence, treatment of oifen: ing cruisers in their subsequent visits to Britis! Pe and of their supply, as from a of operations, with the means of con- Unuing the war, these ruies are to be treated in reference to the coutroversy as it had arisen and as it was in progress between the two nations when the treaty was formed. What was that ? Here was @ nation prose: @ war against a portion of its population and territory in revolt, Against the Sovereign thus prosecuting his war there was raised a maritime warfare. The belligerent itself thus prosecuting this maritime warfare against its sovereign coplessedly had no ports and no waters that could serve ag the base of its naval operations. It had no ship y! it had no. foundries, it had no means or resources by which it could maintain or keep on foot that war, A project and a purpose of ‘War waé ail that could have origin from within tts territory, and the pecuniary resources by which it could derive ita supply irom neutral nations was all that it could farnish towards this maritime war. Now, that war having in fact been kept on foot and having resulted in great injurics to the sov- bel ent, gave occasion to a controversy between that seve and the neutral nation of Great Britain as to whether these actual supplies, these actual bases of maritime war from and in neutral jurisdiction, were CONFORMABLE TO THE LAW OF NATIONS orin violation of its principles. Of course, the mere fact that this war had thus been kept on foot did not, of Dig carry the neutral responsibility, But it did bring Into pon npr ae oppost | sitions of the two nations. Great iain gomtaided during the course of the trans ng, and after their close, and now here contends, that, however much to be regretted, these trans- actions did not place any responsiblity upon the neutral, because they had been effected only by such communication of the resources ot the people of Great Britain as under international law was uw and protected; that commercial com- munication and the resort for asylum or hospitality im thé ports was the entire measure, comprehen- sion and character of all that had occarred within the ne@utral jurisdiction of Great Britain, The United Staige contended to the contrary, THE LAW OF NATIONS, ‘Whiat, them was the solution of the matter which seti amicably this Frees dispute? Why, first, that principles of the law of nations should be set by eanvention, as they have been, and that they should furnish the guide and the control of bh, decision; second. that all the facts of the raat as they occurred should be submitted to your final and satisfactory determination; and, third, that the application of these principles of law settled by convention between the parties to these facts as ascertained by yourselves should ve made by yourselves, and shouid, in the end. close the controversy, and be accepted as satisfactory to both parties, In this yiew, we must insist that there is no o¢- casion to go into any very considerabie discusgion as to the meaning of these rules, unless in the very subordinate sense of the explanation of a phrase, such a3 “base of operations,” or “military sp- plies,” or ‘“fecruitment of men,” or some similar matter, Tnow ask your attention to the part of the discus. sion which.relates to the effect of a “commission,” which, though made the subject of the second topic named by the tribunal, and taken in that order by the learned counsel, I bier) first to consider. It is said that the claims of the United States in this behalf, 28 made in their a an exaggerated construction of the second clause of the frst rule. On this point, I have first to say, that the construction which we put upon that clause is not exaggerated d,in the second place, that these claims in regard to the duty of Great Britain in respect to commissioned cruisers that have had their origin im gn illegal outfit in violation of the law of nations «4 settled in the first rule, do not rest exclusively upon the second clause of the first rnie, They, undoubtedly, in one construction of that clause, find an adequate support in its proposition ; but if that’ construction should fall, nevertheles: the duty of Great Britain in dealing with these of- fending cruisers in their subsequent resort to its pore and waters, would rest upon principles quite al ument, rest upon dent of this construction of the second a £ ‘The second clause of that rule is thi: to use like diligence to prevent the dep: its juriadiction of any vessel intended TO CRUISE OR CARRY ON WAR. a8 above, uch vessel having been specially adapted Heyeals oe in part within auch jurisdiction to war- e use.’ . It is said that {his second clause of the first rule manifestly errtes only to the original departure of such @ Veasel from the British jurisdiction, while its urposes of unlawfnl hostility still remain in inten- on merely, and have not been evidenced by exe- cution. A NEUTRAL'S RESPONSIBILITY. If this means that @ vessel that had made tte first evasion from @.British port, under circumstances which did not inculpate Great Britain for falling to arrest her, and then had come within British portsa second time, and the evidence, as then developed, would have a pai Great Britain to arrest her, and would have inculpated that nation for failure so to do, js not within the operation of this rule, I “And al80 arture from ® loss to understaud upon what Pi ple nn retension rests. if the ie that this second ap- ajanse only, plies -t0 such offending vessels while they remain in the predicament of not having ac- quired the protection ofa “commission,” that pre- tension ts a begging of the question under consid- eration, to wit, what the effect of a “commission” is under the circumstances proposed, 1do not understand exactly whether these two cases are meant to be covered by this criticism of i ema counsel, But letus look at it. Suppos- ing that ‘THE ESCAPE OF THE FLORIDA a‘ from Liverpool, in the first instance, was not under circumstances which made it an injurious violation of neutrality for which Great Britain was respon- sible to the United States; that is to say, that there was no such fault from inattention to evidence or from delay or inefficiency of action, as made Great Britain responsible for her escape ; and supposing when she entered Liverpool again, asthe matter then stood in the knowled; of the government, the evidence was clear and the duty was clear, ifit were an original case; 1s it to be said that the duty is not as strong, that it is not as clear, and that a failure to perform it is not as clear a case for inculpation as if in the original out- set the same circumstances of failure and of fault had been apparent ¢ tee the proposition can- not mean this. Certainly the conduct of Great Britain in regard to THE VESSEL AT NASSAU, a British port, into which she went after her escape from Liverpool, ‘loes not conform to this suggestion. But, if the proposition does not come to this then it comes back to the pretension that the commission intervening terminates the obligation, defeats the duty and exposes the suffering belligerent to all the consequence of this naval war, illegal in its origin, Meal in its character, and, on the part of the of- fending belligerent, an outrage upon the neutral that has suffered it. THE QUESTION TO RE DETERMINED, Now that is the very question to be determined, Unquestionably, we subinit that while the first clause of the first rule is, by ita terms, limited to an original be ie wove or outfit of an offending vessel, the second clause was intended to lay down the obligation of detaining in port dnd of preventing the departure of every such vessel whenever it should come within British jurisdiction. I omit from this present statement, of course, the element of the effect of the “commission,” that being the linmediate point in dispute, Istart in the debate of that question with this view of the scope and eificacy of the rule itself. itis said, however, that the second clause of the first rule is to be qualified in its apparent significa- tion and application by the supplying @ phrase used in the frst clause, which, it is said, must be commu- nicated to the second. That qualifying phrase ia “any vessel which it has reasonable ground to be- lieve is intended,” &c, Now, this qualffication is in the first clause, andit is not in the second. Of course, this element of having “reasonable ground to believe’ that the offence which a neutral nation is required to prevent. is about to be committed, is an element of the ques- tion of due diligence always ae to be considered, always suitably to be considered in judgment either of the conduct of Great Britain in these matters, or of the conduct of the United States in the past, or of the duty of bot nations in the future. As an ele- ment of due diligence, it finds its place in the sec- ond clange of the first rule, but only as an element | of due diligence, Now, upon what motive does this distinction be- 1 the purview of the first clause and of the sec- ond clause rest ? Mos the duty in regard to these vessels embraced in the first clause applies to the inchoate and progressing enterprise at every stage of fitting out, arming or equipping, and while that enterprise 1s, or may be, in respect to evidence of its char involved in opacity ambiguity and (loubt. It is, therefore, provided that, in regard to that duty, only such vessels are -thus subjected to interraptign in the progress of construction at the responsibility of the neutral, as the neutral bas “reasonable ground to believe” are intended for an unlawful purpose, which pw fe the vessel itself does not necessarily disclose either in regard to its | own character or of its intended use, Bat, after the vossel has reached its form and completed its structure, why then it is @ sufticient limitation of | the obligation and sufficient protection against un- | due responsibility, that “due diligence to prevent” | the assigned offence 18 alone required, Due dili- | gence to accomplish the required duty all that is demanded, and ge pp A that distinction is preserved, It is made the clear and absolute duty of a nation to use due diligence to prevent the departure from its juris- | diction of any vessel intended to crulae or carry on war agalost a Power with which it is at peace, such vessel having been specially adapted in whole or in part within such jurisdiction to waritke use. That is, When @ vessel has become ready to take the seas, having its character of warlike adaptation | thus determined and thus evi d, 80 Upon its subsequent visit to t eutral’s port, as to sucha vessel, the duty to arrest her departure is limited only by the-— 3 se] had escaped from Great Britatn with or without due diligence being observed— take the case of the Florida or the Shenandoah—take either case. She uts into a het belonging to the British Crown, ‘ou contend, if I understand your argument, that she ought to be seized. But suppose the authori- ties at the port. into which she puts are not aware of the circumstances under which the vessel origi- nally leit the shores of Great Britain. Is there an obligation to seize that vessel!” Mr. Evanrs—That, like everything else, is left as matter of fact. Tue Cuter Jostice—But suppose the people at the place are perfectly unaware from whence this vessel— Mr. Evarts—I understand the not calling in Judgment the authorities at this or that place. We are calling into judgment the British nation, and if the ignorance and want of knowled in the subordinate officials at such a port can be brought to the fault of the home government in not advising or keeping them informed that is exactly the condition from which the responsibility arises. It is a question of ‘due diligence” or not, of the nation in all ite conduct in providing or not pro- viding for the situation, and in preparing or not yreoating. its officials to act upon suitable knowl- edge. We find nothing of ad limitation of this second clause of the first rule that prevents our consider- ing ite er T application to the case 0! a vessel which, for the purpose of the present argument, it must be conceded ought to be arrested under it and detained in port if the “commission” does not interpose an obstacle. We have iaid down at pages from 331 to 333 in onr argument what we consider the rules of law im regard to the effect of a “‘commission’’ of a sov- ereign nation, or of # belligerent not recognized asa sovercign, in the circumstances involved in this inquiry. ‘They are very simple. I find nothin; in the argument of Nae learned frtend, careful an: intelligent as it is, that disturbs these rules as Tules of law. The public ship of a nation received into the waters or ports of another nation is, by the practice of nations, as a concession to the sove- reign’s diguit , exempt from the jurisdiction of the courts.and ali judicial process of the nation whoxe waters it visits. This isa CONCESSION, MUTUAL, RECIPROCAL, between nations having tls kind of inter- course, and resting upon the best and surest principles of international comity. But there is no concession of extra ter torlality to the effect or extent that the sovereign visited is predominated over by the sovereign re- ceiving hospitality to its public vessels, The prin- ciple simply is that the treatment of the vessel rests upon considerations between the nations as sovereign and in their political capacities as matter to be dealt with directly between them, under re- ciprocal responsibility for oifence on cither side, and under the oF of preserving relations of peace and good will if you please,but, nevertheless, to be controlled by reasons of State. THE LIABILITY OF NATIONS, Any construction of the rule that would allow the visiting vessel to impose its own sovereignty upon the sovereign visited, would to push the rule to an extreme that would deteat its purpose. It is © the equal- ity of sovereigns that requires that the process and the jurisdiction of courts should not be extended to public vessels. But all other qualifications as to how the sove- reign’ visited shall deal with public vessels rest in ‘the discretion of the sovereign, If offence is com- mitted by such vessels, or any duty arises in respect to them, he, at his discretion and under international responsibility, makes it the subject of remonstrance, makes {t the subject of resent- ment, makes it the subject of reprisal, or makes it the subject of an immediate exercise of force if the circumstances seem to exact it. What, then, is the tenor of the authorities in respect to a public vessel not of a sovereign, but of a belligerent who has not been recognize as a sovereign? The courts of the country, when the question arises as a judicial one, turn to the political authority and ask how that has determined the question of the public character of such vessels; and if that question (which is a political one) has been deter- mined in recognition of the belligerency, then the vessel of the belligerent is treated as exempt from judicial process and from the jurisdiction of the courts, But that vessel remains subject to the control, subject to the dominion of the sovereign whose ports it has visited, and it remains there under the character of a limited recognition, and not in\the public character of a representative of rece sovereignty, we understand the motives by which bellig- erency ig recognized while sovereignty is refused. They are the motives of human- ity; they are the motives of fair play; they are the motives of neutral recog- nitlon of the actual features of the strife of violence that is in progress, But it is in vain to RECOGNIZE BELLIGERENCY AND DENY SOVEREIGNTY, if you are going to attract one by one all the traits of sovereignty, in the relation with a Power merely recognize ‘as belligerent and to whom sovereignty has been denied, HOW CONTRABAND VESSELS SHOULD BE DEALT WITH. ‘What is the difference of predicament? Why, the neutral nation, when it has occasion to take offence or exercise its rights with reference to a beiliger- ent vessel not representing @ sovereign, finds no sovereign behind that vessel to which it can ap- eal, to which it can remonstrate, by which Paro’ th diplomacy, by which through reprisals, by which resentments it can make itself felt, its dominion respected and its author- ity obeyed. It then deals with these belli- Fores vessels, not unjustly, not capriciously, for Injustice and caprice are wrong toward whomso- ever they are exercised; but, nevertheless, upon the responsibility that Its dealing must reach the conduct, and that the vessel and its conduct are the only existing power and force to which it can Snply itself, Sane that there is no authority from any book that disturbs in the least this proposition, or carries the respect to beigerént vessels’ beyoud the exemption from jurisdiction of courts and judicial process. The rule of law being of this nature the question, then, of how a neutral shalt deal with one of these cruisers that owes its existence TO A VIOLATION OF ITS NEUTRAL RIGHTS, and then presents itself for hospitaiity in @ port of the neutral, 1s a question for the neutral to determine according to its duty to itselt in respect to its violated neutrality and its duty to the sovereign belligerent, who will lay to its charge the consequences and the responsibility for this offending belligerent. THE POWER OF A SOVEREIGN. Now, I find in the propositions of the eminent counsel a clear recognition of these principles of power on the part of the sovereign, and of right on the part of the sovereign, requiring only that the power should be exercised suitably and under cir- cumstances which will prevent it from working op- Pression or unnecessary injury. That makes it a question, therefore, as to the dealing of the sove- for which the law of nations ap- plies no absolute rule. It then becomes a question for the tribunal whether (under these circumstances of crulsers, that owe their origin, or their power to commit these in- juries, to their violation of neutrality), Great ritain is responsible to the Injured sovereign, the United States, for this breach of neutrality, for this unlawful birth, for this unlawful support of these offending cruisers. As to what the duty of a neu- tral nation is in these circumstancrs and_ in these relations, when the offending cruiser is again placed within its power, I find really no objection made to the peremptory course we insist upon, except that seizing such a vessel, without previous notice, would be impolite, would be a violation of comity, would be a violation of the decorous prac- tice of nations, and would be so far a wrong, THE REAL QUESTION. Well, let us not discuss these questions in the ab- stract merely; let us apply the inquiry to the ac- uestion. We are reign, tual conduct of Great Britain in the actual cireum- | ¢ stances of the career of these cruisers. If Great Britain claimed exemption from liability to the United States by saying that, when these cruisers had, confessedly, in fact escaped in violation of neu- trallty, and confessedly were on the seas propagat- ing those enormous injuries to the property and commerce of a friendly nation, it had promptly given notice that no one of them should ever alter enter its ports, and that If it did enter tts ports it would be seized and detained, then this charge that the conduct of Great Britain towards these cruisers in their subsequent visits to its ports was such as to make it responsible for their original escape or for their subsequent career would be met by this palliation or this defence, But no such case arises upon the proofs, You have then, on the | one hand, a clear duty towards the,otfended bel- ligerent, and on the other only the supposed obii- ation of courtesy or comity towards the offending Betigerent. This courtesy, this comity, it is con- ceded, can be terminated at any time at the will of the neutral sovereign. But this comity or this courtesy has hot been withdrawn by any notice or by any act of Great Britain during the entire career | of these vessels, We say then, in the first place, that there is no actual situation which calls for a consideration of this palliative defence, because the circumstances do not raise it for consideration. On the contrary, | the facts as recorded show the most absolute INDIFFERENCE ON THE PART OF GREAT BRITAIN: | to the protracted continuance of the ravages of the Alabama nnd of the Florida, whose exeape is ad- mitted to be a scandal and areproach to Great Britain, until the very end of the war, And yet a subtraction of comity, a withdrawal of courtesy Was all that was necessary to have deter- mined their careers, AN ILLEGAL CRUISER NOT ENTITLED TO COURTESY. But, farther, let us look a little carefully at this idea that a cruiser, illegally at sea “by vio- lation of the neutrailty of the nation which has given it birth, is in a condition, on its first visit to ihe ports of the offended neutral, after the commis- sion of the offence, to claim the allowance ot cour- tesy or comity, Can it claim courtesy or comity by reason of anything that has pro- eveded from the neutral nation to encourage that | expectation’ On the contrary, so far from its being a craiser that eer to be upon the sea, and to be ® claimant of hospitality, it is a cruiser on the principles of international law (by reason of its guilty origin and of the necessary consequences of this guilt to be visited upon th offended neutral), for whose hostile ‘ages the British Government is responsible. What courtesy, then, does that government owe to a belhgerent cruiser that thus practised fraud and violenve upon its neutrality and exposed it to this odious respon- sibility? hy \loes the offending cruiser need | notice that it Will receive the treatment apprepri- ate to its misconduct and to the interests and duty of the oifended neutraly It is certainly aware of the defects of its origin, of the injury done to the neu- AN INTERRUPTION. Chief Justice CocksuRN—What should you think, Mr, Evarts, of such @ case as this? Suppose a ves- | tral and of the responsibility entailed upon the neutral for the injury to the Olver belligerent, We ty cruiser, that {s set up as the only obstacle fie exercise of an admitted power, that this objec- tion which maintains that a power just in itself, if executed without notice, thereby becomes an im- position and a fraud upon the offender, because no denial of hospitality has been previously an- nounced, is an objection which leaves the ravages ofsuch a cruiser entirely at the responsioility of the neutral which haB failed to intercept it. DIRECT CONTROL SHOULD BE EXERCISED. It 1s said in the special argument of the learned counsel that no authority can be found for this exercise of direct sovereignty on the part of an offended neutral towards & cruiser of either a recognized or an unrecog- nized sovereignty. But this, after all, comes only to this, that such an exercise of direct control over a cruiser on the part ofan offended neutral, without notice, is not according to the common course of hospitality for public vessels, whether of @ recognized sovereign or of a recognized belliger- ent. As to the right to exercise direct authority on the part of the Sepiceien neutral to secure itself against insult or intrusion on the part of a cruiser that has once offended its neutrality there is no doubt, The argument that this direct control may be ex- ercised by the displeased neutral, without the inter- vention of notice, when THE GRAVITY AND NATURE OF THE OFFENCE against neutrality on the part of the belligerent justify this measure of resentment and resist- ‘ance, needs no instance and no authority for its support. In its nature it is a question wholly de- pendent upon circumstances. THE VIOLATED NEUTRALITY OF GREAT BRITAIN. Our Bryposition is that all of these cruisers drew their origin out of the vio'ated neutrality of Great Britain, exposing that nation to accountability to the United States for their hostilities. Now, to say that a nation thus situated ts required by any prin- ciples of comity to extend a notice before exercis- ing control over the offenders brought within its power secms to us to make justice and right, in the gravest responsibilities, yield to mere ceremonial politeness, To meet, however, this claim on our part, it is insisted, in this special argument, that the equip- ment and outfit of a cruiser im @ neutral port, if it goes out unarmed, though capable of becommg an instrument of offen- sive or defensive war te the mere addition of an armament), inay be an legal act a8 an oifence against municipal law, but is not a violation of neutrality in the sense of being a hostile act, and does not place the onending cruiser in the position of having vioiated neutrality. That is but a recur- rence to the subtle doctrine that the obligations of eat Britain in respect to the tirst rule of the treaty are not, by the termaof the treaty, made international obligations, for the observance of which she is responsible under the law of nations, and for the permissive violation of which she is lia- ble, as having allowed, in the sense of the law of nations, a hostile act to be perpetrated on her ter~ ritory. This distinction between a MERELY ILLEGAL ACT AND A HOSTILE ACT, , which is a violation of neutrality, is made, of course, and depends wholly upon the distinetion of the evasion of an unarmed ship of war being pro- hibited only by municipal law and not by the law of nations, while the evasion of an armed ship is prohibited by the law of nations. This is a renewal of the debate between the two nations as to what the rule of the law of nations in this respect was. But this debate was finally closed by the treaty! And, confessediy, on every principle of reason, the moment you stamp an act as a violation of neu- trality you include it im the list of acts which by the law of nations are deemed hostile acts. There is no act that the law of nations prohibits within the neutral jurisdiction that is not in the nature of a hostile act, that fs not in the nature of an act of war, that is not in the nature of an new by the offending belligerent of tie neutral terri- tory to the proses of his war against the other belligerent, The law of nations prohibits it, the law of nations punishes it, the law of nations exacts indemnity for it, only because it is a hostile act. Now, suppose it were debatable before the tribu- nal whether the emission of A WAR SHIP WITHOUT THE ADDITION OF HER ARMA- (ENT to was 4 violation of the law of nations, on the same reason, and only on that reagon, tt would be debata- ble whether it were @ hostile act. If it were @ hos- tile act it was a violation of the law of nations; if it were not a violation of the law of nations it was not so only because it was not a hostile act. When, therefore, the rules of the treaty settle that debate in favor of the constraction claimed by the United States in its antecedent history and conduct, and determine that such an act 18 a violation of the law of ni they determine that it is a hostile-act. re is DO escape from the general proposition that law of nations condemns nothing done in a neutral terri- tory unless it is done in the nature of a hostile act. And when you debate the question whether any ven act within neutral jurisdiction is or is not forbidden by the law of nations, you debate the question whether it is a hostile act or not. Now, it is said that this outht without the addi- tion of au armament is not a hostile act under the law of nations antecedent to this treaty. That is immaterial within the premises of the controvers; before this tribunal. CHIEF JUSTICE COCKBURN AGAIN, It is @ hostile act against Great Britain which Great Britain— Sir ALEXANDER CockBurN—Do I understand) you, Mr. Evarts, to say that such an act is a hostile ‘act ugainst Great Britain ? } Mr. Evarrs—Yes, a hostile violation of the neu- trality of Great Britain, which, if not repelied with due diligence, makes Great Britain responsible for’ it asa hostile act within its territory against the United States. This argument of the eminent counsel concedes: that if an armament is added toa vessel within: the neutral tore eey. it is @ hostile act within, that territory; it Is a hostile expedition set, forth from ‘that territory. It therefore, ® vbolattiow of the Jaw of nations, and,. if due ailigen te ig not used to prevent it, it isan’! act for which Great Britain is responsible. If aue diligence to prevent it be or be not used, it is an offence against the neutral nation by the belliger- ent which has consummated the act. HOW GREAT BRITAIN SINNED, " A neutral nation, against the rights of which such: anact has been committed—to wit, the illegally} fitting out a war ship without armanent (condemned! by the law of nations as settled by this treaty), isi under no obligation whatever of courtesy or comity! to that cruiser. If, under such circumstances, Great: Britain prefers courtesy and comity to the offend-! ing cruiser and its sponsors rather than justice and duty to the United States, she does it upon motives which satisfy her to continue her responsi- bility for that cruiser rather than terminate it. Great Britain has no authority to exercise comity; and courtesy to these cruisers at the expense of the offended belligerent, the ited) States, whatever her motives may be. Undoubt-, ediy the authorities conducting the rebellion would not have looked with equal favor upon, Great Britain if she had terminated the career of, these cruisers by seizing them or excluding them! from her ports. That is a question between Great’ Britain and the belligerent that has violated her, neutrality. Having the powers, having the right, the question of courtesy in giving notice was to be determined at the cost of Great Britain and not: at the expense of the United States, But it ceases to be a question of courtesy when the notice has not. been given at all, and when the choice has thus been made that these cruisers shall be permitted to continue their career unchecked, Now, on this question, whether the building of a vessel of this kind without the addition of arma ment is proscribed by the law of nations, and pro- scribed as a hostile act and as a violation of neu- tral térritory (outside of the rules of the treaty): which is so much debated in this special argument, lask attention toa few citations, most of which have been already referred to in the American case, Hautefeuille, as cited upon page 170, says:— Le fait de construire un batiment de guerre pour lo compte dun belligerant ou de Varmer dans les vtats ation du territoire, * * * Tl peut du batiment illegale~ nir, s'il entre: tw jusqu’a ce qu'ik Ortolan, as quoted on page 182 of the same case, passes upon this situation, which we are now dis- cussing, a8 follows :— Nous nous rattacherons pour resoudre en droit des gens leg diffenites que presente cette nouvelle siiuation. & un rics se abli, qiti se formule en ce pew fe mots. “inviolabl rritoire neutre.”” Cet invio- labilite est un droit pour Vetat neutre, dont le territolre ne dolt pag étre atteint par les faite de guerre, mais elle impose aussi & ce meme vtat neutre une etroite obligation, celle de ne pas permettre, celle d@empecher, activement au besoin, Vemplol de ce. territoire par une aries ou a profit de Vune des parties belligerantes dans un but hostile a autre partic, And this very question, THE DISTINCTION BETWEEN AN ARMED VESSEL AND AN UNARMED VESSHL, was met by Lord Westbury, in observations made by him, and which are quoted in the American case at page 185. He said:— ., There was one rule of conduct which undoubtedly civ: ilized nations had agreed to observe, and it was that the territory of & neutral should not be the base of military operations by one of two belligerents against the other. In speaking of the base of operations, he must to a ‘tain degree differ from the noble earl (Bart Russell). It was not a question whether armed ships had actually left our shores, but it was & question whether ships with ylew | to war had been built in our ports by one of two bel- ligerents. They need not have been armed; butif they had been laid’ down and built with @ view to warll operations by one of two belligerent knowingly permitted to be done by Was unquestionably a breach of neutrality Chancellor Kent, in a passage cited by the learned counsel with approv: speaking of the action of the United States as shown in the rules of President Washington’s administration (which rules are also subsequently quoted with approval in this argument) says (Vol. page 122) :— The Sgyernenens of the United States was wi and this w utral pow ranted i’ e law and practice of nations, im the declaration made 1798 of the rules of neutrality, which were particularly recog- nized as necessary to be observed by the belligerent i powers, in. their intercourse with this country. These ules wore thatthe original srming oF equipping of ves. sels in our poris, by Of the powers at war, tary service, ny titled toan No vessel thus equipped WAS ENTITLED TO AN ASYLUM in the ports of the nation whose neutrality had been violated. ‘The tribunal will not fail to ob- serve that these principles were applied by Presi- dent Washington to cruisers even of an independ. ent nation, recognized as a sovereign. It was the cruisers of France that were under consideration. But the propositions of this speciai argument, ang the course actually pursued by Great Brit in according its homage to their apprehend that this objection of courtesy ‘0 the ain, fla; placed these insurgent cruisers on & mt