The New York Herald Newspaper, August 26, 1872, Page 4

4 er and more inviolable position than {tts pos- sible to concede to cruisers of a recognized sov- ereign. In truth, such treatment accorded to such cruisers all the irresponsibility of pirates and ail the eenetty ‘of public ships of a recognized sov- . ‘It accorded the irresponsibility of piratee’| “t Ht from all‘con- jrates because they were exempte: trot, and there was no government behind them to be made responsible for them, to be resorted to for their correction or restraint, and to meet the re- sentments of the offended neutrals in the shape of non-intercourse, of reprisals, or of war. HOW BELLIGERENT FRANCE WOULD HAVE ACTED. ‘The action of Great Britam, under this doctrine of comity and notice as applied to the cruisers of this belligerency, really exempted them, from the be- [mary | to the end of their careers on the ocean, from all responsibility whatever. How long could such conduct toward Great Britain in violation of her neutrality, a8 was practised by this belligerent, how long could such violations of the neutrality of Great Britain have been exercised by belligerent France without remonstrance, and if that remon- strance were unheeded, without reprisals, followed finally by war? Why was not such recourse taken in respect to these cruisers, to the power behind them? There was no power behind them. AN HISTORICAL PRECEDENT. Task, also, in this connection, attention to I Phil- limore, pages 899 to 404, and especially to a passage extracted from the case of the Santissima Trint- dad, commenting upon the case of the Ex- change, which last case is cited at considerable Jength in the argument of, the eminent couusel. Now the Exchange settles noth- | ing, except that when the political autho- Tity of a government has recognized belligerency, the Courts will not exercise jurisdiction over the yank although sovereignty hus not been conceded as well. The only case in the history of our country in which the political authority was called upon to deal with a cruiser that had derived its origin in violation of our neutrality was the case of a public ship of France, the Cassius, originally Les Jumeaux. The legal report of this case is copied in fall m the appendix of the British case, It never cume to any otier determination than that France, the recognized government of France, was the sponsor for the Cassius, and it was on the respect shown to a sovereign as well as a public belligerent that the disposition of the case, exempting the vessel from judiciai process, was mace, A fi BETWEEN COUNSEL. Sir RounDBLL PaLMER—The vessel was restored, Mr, Evarts—But it was only after nor character as a war vessel had ceased. ir Rov: PaLMER—It was the government of the United States, by its executive power, that di- Tected the ship to be restored, Mr. RTS—A detailed history of this ca and political, will be found in volume VIL of the American Appendix, pages 18 to in Mr, Dana’s valuable note. It will there be seen that the occasion for our government to determine its political or executive action never arose until after the determination of the judicial proceedings and until alter the vessel had been throwu up by the French Minister, who abandoned her to the United States government, nor until after she was a worthless hulk. Sir ROUNDELL Pat —Am I not right in saying that the President of the executive government of the United States gave notice to the French Minis- ter that the ship was at his dispose!? Mr. Evarrs—After it had been andoned, after it had dd to be a cruiser capable of hostilities, and after the opportunity for its further hostilities had ceased. Lord T ERDEN—But the war still continued. Mr. Evarts—But | mean after the hostilities of that vessel came to an end, And permit me to say th this condition ot things between the United States und France, dur- ing the administration of the first President Adams, came substantially to a war between the two countries, THE GRORGIA AND SHENANDOAH, Now it is said that the application of this second clause of the first rule of the ty and this de- mand that detention or exclusion shall be exercised in respoot to cruisers on their sw quent Visits to ports do not apply either to the Georgia or Shenan- doah, because neither the Georgia nor the Shenan- doun’ received their oviginal outfit by violation of the territory of Great Britain, not even in the view of what would be such a violation taken by the United States. Iunderstand that to be the position. I will not discuss the facts of the Jeorgia and Shenandoah any more than of any other vessel in this regard. Ifthe Shenandoah and Georgia, in the conclusions that you shall arrive at upon the facts concerning their outtit, shall be pro- nounced in their original evasion not to involve culpability on the part of Great Britain and not to involve violation of Great Britain’s territory on the part of either of these cruisers—— Sir ALEXANDER CockBURN—Suppose, Mr. Evarts, that the departure was of such a nature as not to involve Great Britain in any culpability for want of due diligence, still there certainly is a violation of territory. Mr. Evanrs—That is the point I was coming to, and of that L entertain no doubt. You must find upon the facts that there was no evasion from the ports of Great Britain by either of those vessels under circumstances amounting to a violation of the neutrality of Great Britain (on the part of the vessels and on the part of those who set them forth), betore uu bring them into the situa- tion where the resentment for a violation of neu- trality, which I have insisted upon, was not re- quired to be exhibited, Tam not, however, here to discuss the questions of fact, NAVAL OPERATIONS AND MILITARY SUPPLIES. Twill take up what is made the subject of the third chapter of the special argument, which has reference to coaling and “the base of naval opera- tions” and “military supplies,’ as prohibited by the second rule of the treaty. The question of “coaling” is one question con- sidered simply under the law of hospitality or asylum to belligerent vessels in neutral ports, and quite another considered, under given facts and circumstances, as an element in the prescribed use Of neutral ports as “a base of naval operations.” At the outset of the discussion of this subject it is said that the British governsfent dealt fairly and impartially in this matter of coaling with the vessels ‘of the two belligerents, and that the real complaint on the part of the United States is of the neutrality which Great Britain had chosen to assume for such impartial dealing between the two belligerents, If that were our complaint it is certainly out of place in this controversy, for we are dealing with the con- duct of Great Britain in the situation produced by the Queen's proclamation, and there is here no room for discussion of any grievance on the part of the United States from the public act of Great Britain in issuing that proclamation, But nothing in the con- duct of the argument on our part justifies this sug- gestion of the eminent counsel. TION OF COALT not, of itself, a supply of contraband of war or of military aid, Notof itself. The grounds and ocea- sions on which we complain of coaling, and the question of fact, whether it has been fairly dealt out as between the belligerents, connect themselves with the larger subject, (which is so fully discussed under ‘this head by the eminent counsel), a topic of discussion ot which coaling is merely a branch, that is to say, the use of neutral ports and waters for coaling, victualling, repairs, supplies of sails, recruitment of men lor navigation, kc. These may or may not be obnoxious to censure under the law ef nations according as they have relation or not with facts and acts which, collectively, make up the use of the neutral ports and waters as “the bases of naval operations” by belligerents. Accordingly, the argu- ment of the eminent counsel does not stop with so easy a disposition of tl ubject of coaling, but pro- ceeds to discuss the whole question of base of perations—what it means, what it does not mean, ¢ inconvenience of a loose extension of its mean- ing—the habit of the United States in dealing with the question both iu acts of government and the prac- tce of its cruisers—the understanding of other na. tions, giving the instances arising on the corre- spondence with Brazil on the subject of the Suinter; and produces as a result of this inquiry the cénclu- sion that it was not the intention of the second rule of the treaty to limit the right of asylum, THB RIGHT OF ASYLUM. In regard to the special treatment of this subject of coaling provided by the regulations established by the Britisn government in 1892, it is urged that they were voluntary regulations, that the essence of them was that they should be fairly administered between the parties, and that the rights of asylum or hospitality in this regard should not be exceeded, Now, this brings up the whole question the use of Heutral ports or waters asa “base of naval opera- Sreath, which is proscribed by the second rule of the You will observe that while the first rale applies itself wholly to the particular subject of the Ae al ‘outht of a vessel which the neutral had reasonable round to believe was to be employed to cruise, €., or to the detention in port of a vessel that was in whole or in part adapted for war—while the injunction and duty of the first rule are thus Umjted, and the viomtion o° , and the responsi dility conséquent upon such v tion, are restricted ‘to these narrow subjects, the proscription of the second rule 1s as extensive as the general subject under the law of nations, of the use of ports and waters of the neutral as @ basis of naval operations, or for the renewal or augmentation of military sup- piles, or the recruitment of men, What, then, is the doctrine of hospitality or asylum, and what is the doctrine which prohibits | ‘the use (under cover of asylum, uncer cover of hos- pitality, or otherwise), of neutral ports and waters as bases of naval operations? It all rests upon the principle that, while a certain degree of protection or refuge, and a certain peaceful and innocent aid, under the stress to which maritime voyages are exposed, are not to be denied, and are not to be impeached as unlawful, yet anything that under its circumstances and in its character in the yse of a port or of waters for naval operations, is pro- scribed, although it may take the guise, much more if it be an abuse, of the privilege of asylum or hos- pitality. NEUTRALITY ON LAND AND AT SEA ALIED. There is no difference in principle, in moralit, or im duty between neutrality on land and neu- trality at sea. What, then, the familiar rules of neutrality within the territory of a neutral, in re- spect to land \ rey What atreas of the enemy, or misfortune, or e cowardice, or seeking an advantage ment, carries er drives one ot t rents or any part of his forces frontier into the neutral territory, w duty of the neutral’ It is to disarm the forces and send them into the interior till the war is | over. Theresia to be no practising with this ques- tion of neutral territory. ‘The refugecs ate not compelled by the neutral to face their enemy; they Bre bot delivered up as prisoners of Wars, they ar @ot surrendered to the immediate stress of war from which they sought refuge. But from tne moment that they come within neutral territory they are to become non-combatants, and they are toend their relations to the war. re are fa- Millar examples of this in the recent history of Europe, What is the doctrine of the law of nations in re- gard to asylum, or refuge, or hospitality, in refer- ence to belligerents at sea during war * The words themselves suficiently indicate it. The French equivalent of relache forcée equally describes the only situation ‘in which @ neutral recognizes the right of asylum and _ refuge; not in the sense of shipwreck, I agree, but in the sense in which the circumstances of ordinary navigable capacity to keep the seas, for the purposes of the voyage and the mainte- nance of the cruise, render the resort of vessels to a port or ports suitable to and conventent for thetr navigation, under actual and bona fide circum- stances requiring refuge and asylum. COMMERCIAL DEALING IN WAR MATERIALS, There is another topic which needs to be adverted to before I apply the argument. I mean the dis- | tinction between commercial Seating in the uncom- bined materials of war and the contribution of such uncombined materials of war, in the service of a belligerent, in making up military and naval ope- rations, by the use of neutral territory as the base of those contributions. What are really commercial transactions in contraband of war are allowed by the ppenosice of the United States and of Boge equally, and are not understood to be proscribed, as hostile acts, by the law of nations, and it is agreed be- tween the two countries that the second rule 1s not to be extended to embrace, by any largeness of con- struction, mere commercial transactions in contra- band of war. Sir ALEXANDER CocksuRN—Then I understand you to concede that the private subject may deal commercially in what is contraband of war’ Evarrs—I will even go further than that and t commercial dealings or transactions are not proscribed by the law of nations as violations of neu- tral territory. because they are in contraband of war. ‘Therefore I do not need to seek any aid in my pres- ent purpose of exhibiting the transactions under the second rule by these cruisers, as using Great Britain as the base for these naval operations, from any construction of that rule which would pro- scribe a mere commercial dealing in what is under- stood to be contraband of war. Such is not the true sense of the article, nor does the law of na- tions proscribe this commercial dealing as a hostile act. But whenever the neutral ports, places and markets are really used as the bases of naval ope- rations, when the circumstances show that resort and that relation and that direct and eMcient con- tribution and that complicity, and that origin and authership, which exhibit the belligerent himself drawing military supplies for the purpose of his naval operations from neutral ports, that 1s a use by a belligerent of neutral ports and waters as a base of his naval operations, and is prohibited by the second rule of the treaty. Un- doubtedly the inculpation of a neutral for permit- ting this use turns upon the question whether due diligence has been used to prevent it. The argument upon the other side ts, that the MEANING OF “THE BASE OF OPERATIONS, as it has been understood in authorities relied upon by both nations, does not permit the resort to such neutral ports and waters for the purpose of specific hostile acts, but proceeds no further. The illustrg- tive instances given by Lord Stowell or by Chancel- lor Kent in support of the rule are adduced as beiag the measure of the rule. These examples are of this nature?—A vessel cannot make an ambush for fiself in neutral waters, cannot lie at the mouth of a neu- tral river to sally out to seize its prey; cannot lie within neutral waters and send its boats to make captures outside their limits. All these things are proscribed. But they are given as instances, not of flagrant but of incidental and limited use. They are the cases that the commentators cite to show that even casnal, temporary and iimited experl- ments of this kind are not allowed, and that they are followed by all the definite consequences of an offence to neutrality aid of dispitasure to a neu- tral, to—wit, the resort by such neutral Power to the necessary methods to punish ana redress these violations of neutral territory. Now, let us see how we may, by examples, con- trast the asylum or hospitality in matter of coal or similar contributions in aid of navigable capacity, with the use of neutral ports as a base of naval operations. QUESTIONS OF FACT. I will not trespass upon a discussion of questions of fact. The facts are nay within your judg- ment, and are not embraced in the present argu- ment. But take the coaling of the Nashville, The Nashville left Charleston under circum- stances not in dispute, and Iam not now consider- ing whether Great Britain is or i¢ not responsible in reference to that ship in any other matter than that of coaling, which I will immediately introduce to your attention. THE NASHVILLE. The Nashville having a project of a voyage from Charleston, her home port, to Great Britain, in the course of which she proposed to make such captures as might be, intended originally to carry out Mason and Sitdell, but abandoned this last . intention before saillt as exposing these commissioners to un- favorable hazard from the blockading squadron. This was the project of her voyage, those the naval operations which she proposed to herself, How did she prepare within her own territory to exe- cute that project of naval warfare ? he relied substantially upon steam, and in order to be sure of going over the bar under circumstances which might give the best chance of eluding the vigilance ofthe blockaders, she took only two days’ supply of coal, which would carry her to Bermuda. The coal was exhausted when she got there; she there took in 60@ tons. ‘ SIR ALEXANDER CockBuRN—I believe, Mr. Evarts, that the figure six afterwards came down to five. Mr. Evanrs—For the purpose of my present ar- gument it is quite immaterial. Mr. Wairs.—“It was subsequently proved to be 450 tons, HOW SHE WAS COALED. Mr. Evarrs. —Very well. She had no coal and she took four 450 tons or more on board vo execute the naval operations which she pro- jected when she left Charleston and did not take the means to aceomplish, but relied upon getting them in ancutral port to enable her to pursue her cruise. Now, the doctrine of rel@che forcée, or of refuge, or of asylum, or of hospitality, has noth- ing to do with a transaction of that kind. The ves- sel comes out of a port of safety, at home, with a supply from the resources of the belligerents that will only carry it to a neutral port, to take in. there the means of accomplishing its projected naval operations. And no system of relief in distress, or of allowing supply of the means of taking the seas for a voyage ated tA ot by the exhaustion of the resources originally provided, have anything to do with a case of this kind. It wasa deliberate plan, when the naval operation was meditated and concluded upon, to use the neutral port Se bag of naval operations, which plan was ¢airied Oat by the actual use of neutral territory as proposed. Te ae a THE ABUSE OF NEUTRAL TERRITORY, Now, We say, that if this tribunal, upon the facts of that case, shall find that this neutral port of Ber- muda was planned and used as the base of the naval operations, projected at the start of the vessel from Charleston, that that is the use of a neutral port as a base for naval operations. On what principle is it not? Is it true that the distance ofthe projected naval operation, or its continuance, makes a ditt ence in principle, ag.to the resort to establish a base in neutral territory or to obtain sung pee from such a base? Why, certainly not. Why, that would be to proscribe the slight and comparatively harmless abuses of neutral territory, and to permit the bold, impudent and permanent application of neutral territory ta, belligerent operations. I will not delay any further upon this illustration. THE CASE OF THE SHENANDOAH, Let us take next the case of the Shenandoah separating it from any inquiries as to culpabl escape or evasion fom the original port of Liy- erpool, The fe of the Shenandoah'’s voyage is known, It was formed within the Con- federate territory. It was that the vessel should be armed and supplied; that she should make a cireult, Passing round Cape Horn or the Cape of Good Hope; that she should put herself, on reaching the proper longitude, in a posi- tion to pursue her cruise to the Arctic Ocean, there to make a prey of the whaling flect Of the United States. To break up these whaling operations and for advantages which seemed to that belligerent to inst the ora and risk and perils of the un- dertaking. That is the naval operation, and all that was done inside the belligerent territory was to form the project of the naval operation and to communicate authority to execute it to the omicers who were outside of that territory, Now, either the Shenandoah, if she was to be obtained, prepared, armed, furnished and coaled for that extensive naval operation, was to have no base for it at all, or it was to finda base for it in neutral ports. It 1s not @ phantom ship, and it must have a base. Accordingly, as matter of fact, all that went to make up the exe- cution of that operation of maritime war was de- rived from the neutral ports of Great Britain. The ship was thence delivered and sallied forth—— Sir ALEXANDER CocKBURN—But that was not known to the government. Mr. Evarts—I am now ony showing that this occurred as matter of fact. The question whether it was known to, or Lye dere by, the government of Great Britain, as the Chief Jusiice suggests, 18 of an entirely different aspect, involving the con- siderations of due diligence to prevent. THE SUIP EQUIPPED IN NEUTRAL WATERS. The stip, then, was furnished from neutral ports and waters. Itresorted to Madeira to await the arrival of the Lanrel, which, by concert and em- | ployment tn advance of the sailing of the Shenan- | doah, was to take the armament, manitions of war, omicers and a part of the crew to complete the Shenandoah’s fitness to take the seas a8 a ship-ol- War to execute the naval project on which ste ship to ship at sea, The Island of Madeira served only a a8 rendezvous for the two yeas there had been occasion, as tn fact there was not, might have furnished shelter from storms, Thus made a fighting ship from these neutral ports, as a base, aud furnished from the same base with the complete material for the naval operation projected, the Shenandoah made captures, as with- @ut interraption of her main project she might, rounded the Cape of Good Hope and came to Mel- bourne, another British port, whence she was to take her last departure for her distant field of operations, the waters of the whaling cet of the United States in the Arctic Ocean, Sir ROUNDELL PALMER--I did not, Mr. © enter upon a treatment of each of the vessels, Mr, Evarrs—I am ooly showing that this ship did use your ports for the purposes of its tions, Sir ROUNDELL PALMER—But, Mr, EVarts, 1 only arts, | mentioned these vessela destroy the fleet was planned under motives ana | originally sailed, and which were transferred from | | Mr. EVARTS—You discussed the question of base of nava! operations, There she obtained as matter of fact 450 tons of coal, or something of that kind, and forty men, and without both of these, as well as f rtant repairs of her machinery, she could not haye carried out the naval project on which she had started, The coal taken at Melbourne was sent by appointment from Live 1, and was there to complete her re- fitment. The naval operation would have failed if the vessel had not received the replenishment of power and resources at Melbourne a4 a base. Now, aus Shenandoah was able to sail sixteen knots an Sir ALEXANDER COCKBURN—Do you mean to say sixteen knots an hour? ‘That is taster that any vessel I have ever heard of, Mr. EvanTs—Well, we will not dispute about the facts. There is no doubt, however, that it is so—she sailed on one occasion over three hundred and twenty miles in twenty-four hours, ea DERE Eat this is not sixteen knots Mr. Evarrs—I have not said that she had sailed twenty-four consecutive hourg at the rate of six- teen Knots, But she could sail sixteen knots an hour, and she could only steam ten knots an hour, I have not invented this. Her remarkable quall- ties are stated in the proofs. Her steam power was not necessary to her navigation or her speed, however, except to provide against calms and give assurance of constancy of progress in adverse wee Her great advantage, however, was in ONE OF THE FASTEST SAILING SHIPS EVER BUILT. The atimportance of her having abundance of coal at the contemplated scene of her naval operations was that she might capture these poor steer: e able to elude her, aha st cata CHIEF JUSTIOR COCKBURN INSTRUCTED. Sir ALEXANDER CockBURN—What! If she sailed sixteen knots an hour? Mr. Evants—If the Chief Justice will mark the circumstances of Arctic navigation he will under- stand that by means of their knowledge of the ice and the region generally they could seek shelter by eh 8 barriers between themselyes and their jursuer, They cid, however, become her prey; but it was only when she found them becalmed, Now, this case of the Shenandoah illustrates, by its career, on a large scale, the project of a belligerent in maritime war, which sets forth a vessel and fur- nishes it complete for war, py its naval opera- tions and executes them, and all this from neutral ports and waters, as the only base and as a sufti- cient base. WHAT THE VESSEL DID AT MELBOURNE. Melbourne was the only port fom which the She- nandoah received anything after its first supply trom the home ports of Great Britain, and it finally accomplished the main operation of its naval war- fare by means of the coaling and other refitment at Melbourne. Whether it could rely for the origin of its naval power and for the means of accomplishin; its naval Warfare upon the use of neutral ports and waters under the cover of commercial dealings in contraband of war and under the cover of the privi- lege of asylum, was the question which it proposed to itself and which it answered for itself. It is under the application of these principles that the case of the Shenandoah is supposed to be protected from being a violation of the law of nations, which prohibits the use of ports and waters of a neutral 8 a base of naval operations. I do not provose to argue upon the facts of the case of the Shenandoah, but only to submit the principles on which they are ' to be considered, ‘ A QUESTION ANSWERED. Sir ALEXANDER CockBuRN—I would like to ask you, Mr. Evarts, whether your proposition involves this: that every time a belligerent steam vessel puts into a neutral port for the purpose of getting coal; and then goes forward upon her further object of war, that there is a violation of neutral territory. I just want te draw your attention to this point. What I want to understand Is, what difference there is between the ships of one nation and the ships of another nation as regards this matter of coal. Would the principle of your argument apply to the vessels of other belligerenta? Mr. EVARTS—Of course it is to be applied to all | belligerents, and when the case arises for com- plaint it 1s to be Judged in view of all the facts and circumstances, whether it falls within the license of hospitality or whether it is a resort as te a base of operations; that is to say, whether the whole trans- acon in all its features amount to a concerted and planned use, i Sirf?ALEXANDER CockRURN—Planned by whom? Mr. Evarts—Why, planned by the belligerent. Sir ALEXANDER COCKBURN—A ship gocs into a neutral port without intimating its purpose or dis- closing whether it belongs to one belligerent or another. i ews. Mr. -Take the case of the Nashville. fitak Lord ‘enrénbEN—Take the Vanderbilt, Sir ALEXANDER CockBurn—Well, let us take that case. She goes into a neutral port and wauts coal for the purpose of going torth again on her mission of war. No question is asked. The ship, I grant you, comes with the object of getting coal for the purpose of going out on her errand of war, and, in one sense, Uses neutral territory asa base. But the neutral knows nothing about the course of the ves- sel or its destination, except he takes it for granted itis a ship of war. How can he be said to allow ihe territory to be made the vase of operations, except so far a8 applies to the ships of a belligerent ? Mr. Evarts—It does apply; but I have not said that this alone rendered the neutral responsible. 1 have merely laid down the facts. The magnitude of the operations and the completeness of their re- lations to the base of supplies do not alter the ap- plication of principles, After all there is left, of course, the mngeeon of whether you have suffered or allowed these things, or have used due diligence to prevent them, and upon the discussion of that subject I shall not trespas: Sir ALEXANDER COCKBL question. Mr. EVARTs—But that question could not arise untilit was determined whether the belligerent liad, #5 2 matter of fact, made the neutrai port a base of operations. All that [ have said has been intended to show that what was done by these cruisers did make the neutral ports a base, just as much as if a shallop was stationed at the mouth of a neutral river and sent out a boat to commit hostilities, In either case the neutral is not responsible unless it has failed to exercise due dilligence, But there is this further consequence carrying responsibility, that when the neutral does not know of suchan act until after it has been committed it is its duty to resent it and to prevent its repetition and to deny hospitality to the vessels that have consummated it. Now, these questions can certainly be kept distinct. If the fact is not known, and if there is no want of due diligence, then the nentral is not in fault. If the facts are afterwards known, then the cruiser that has committed the violation of neutrality is to be roscribed, to be denied hospitality, to be detained in port or excluded from port, alter notice, or with- out notice, as the cage eae Pee ‘The question then ariséy Wiléther a nation, thus Qealt with by 9 LATS sel. and having the power to stop the course of naval operations thus based, if it purposely omits so to do, does not make itself rears naible for their continuance. Ido not desire to be drawn into a discussion upon the facts which is not included in the range of the present arguments, 1, now, am simply en- deavoring to show that the — illustrations of Kent and Stowell, taken from navigation and maritime war then prevailing, do not furnish the rule or the limit of the responsibility of neutrals in respect of allowing such use of naval bases nor of circumstances which make up the prohibited uses of neutral ports for such bases, I proceed to another branch of the subject.* It is said that the concerted setting forth of the Laurel from the neutral i git) to carry the arma- ment an‘ the munitions of war, and the officers and the crew to be combined outside the neutral juris- diction with the Shenandoah, already issued from anotlier port of the same neutral, is only a dealing in contraband of war, Ldeny that such @ transac- tion has any connection with dealing in contra- band of war. cruiser of its supply of armament, munitions and men and officers from a neutral port. There may be no fault on the part of the neutral in not preventing it. That will depend on the question of ‘due diligence to prevent,” ‘reason- able ground to believe,” &c, But the principle of contraband of war does not protect such a transac- tion, and that is the only principle appealed to by the British government in the discussions of this matter to justify it, The facts of this vessel going out were known—— Sir ALEXANDER CockBcRN—Not until afterward Mr. Evarrs—The law of nations was violated ; your territory had been used, as a matter of fact, We claim, as the base of naval operations, and it was not a dealing in contraband of war. It was not & commercial transaction. It was @ direct furnishing of a cruiser with armament from your port. It might as well have been accompiished within three miles of your coast. Yet, it is said this is no offence against your law. Sir ALEXANDER CocKBURN—I do not say that. Mr. Evarts—Unfortunately for the United States, hrongn the whole war, we had quite other doc- trine from those who laid down the law for Great Britaln in these matters. Fortunately, we have better doctrine here and now. But according to the law as administered in England such combina- tions of the materials of naval war could be made outside of her ports, by the direct action of.the belligerent government, deriving all the materials sy} ee ports and planning thus to combine them outside. N—But that is the very HOW MR. EVARTS GIVES LAW. Sir ALEX4nDER CockBURN—If that mad been shown, Mr. Evarts—The proofs do show it, and that the doctrine was that it was lawful and should not be | interfered with, Idisciaim any desire or purpose of arguing upon the facts of particular vesaeis. Iam merely laying down principles applicable to supposed facts. If the principles were conceded I would have no occasion to deal with questions of fact at all. ‘The learned Chief Justice has very satisfactorily— certainly to us—presently expres: certain legal opinions on this heal but I must say that they were not entertained by the government of Great Britain and did not control its action, 1 think that the PROOFS BEFORE THE TRIM can be easily referred to, to confirm NAL the position I *In connection with this discussion, 1 ask attention to f Brazil in Le ne course taken by the government ment and punishment for the inctde neutrality by the Florida (within the ne by the Shenandoah Consular seal ot rd one of the Shenan- doah’s prizes. In both instances the offending cruisers were perpetually excluded from the ports of the Empire, and the exclusion embraced any other oraiser tha be commanded by the captain of the Shenandoah. The treatment of the may Peascaneek by the French government, which detained her tn port till the close of the war, ts well worthy of attention. The transaction is . detailed ia the Apv, Ath, Couater-Case, pp. 917-010, r violating the It is a direct obtaining by a projected - 4 | of what is called “di | the law of nations, would not have inclined me to ‘ have taken as to the doctrine held in England in reference to this subject of the base of operations, In contradiction of that doctrine we now insist, a8 our government all thro the war insisted, this is not dealing tn contraband of war; itis using neutral territory as a base of operations, Whether there was, or should be, no res} lity for it, because it was not known or could not be prevented, isan entirely different question, But I undertake to as matter of fact that the doctrine of the Englt law, during all those proceedings, was, that such projects and their execution a8 a con- tributory concurrence with the outfit of the principal cruisers for naval operations such cases as those of the Laurel, the lar, the Agrippina, the Bahama and similar yes- sels), were lawful and could not and should not be prevented, Sir ALEXANDER CockBuRN—I would be very much oe if you will refer me to some autliority for at. Mr. EvaRTSs—I will. One of the arbitrators (Mr. Adams), from his knowledge.of the course of the correspondence, knows that I do not deceive myself in that respect. 'It is this contributory furnishing of armament and munitions and men which rendered thy ine mischief, and without which their evasions from port were of little consequence, and without the expectation of which they never would have been planned, T now refer to a paper that will show that I have been right in my proposition as to the construction of English law as held during tle oceurrence of these transactions. In vol. iil. of American Appendix (p. 58), in a re- rt to the Board of Trade by the Commissioners of ‘ustoms, occurs this passage :— Custom House, September 25, 1862, Your lordships having, by Mr. Arbuthnot’s letter of the 16th inst., transmitted to us, with reference to Mr, Ham- ilton’s letter of the 2d ult,,'the enclosed communication from the Foreign Office, with copies of a further letter and its enclosures from the United States Minister at this court, respecting the suppty of cannon and munitions of war to the gunboat No. 2), recently built at Liverpool, and now in the service of the so-called Confederate States of America: and your lordships having desired that we would take such’ steps as might scem to be re quired in view of the facts therein represented, and re- port the result to your lordships, we have now to report “That, assuming the statement set forth in the aftidavit of Reddin (who salled trom Liverpool in the vessel), which accompanted Mr. Adams’ letter, to Harl Kuasell, to he correct, the furnishing of arms, &c., to the gunboat not appear to have taken ery in Lea inert of the in United Kingdom or of Her Majesty's dominions, but in or near Angra Bay, part of the Azores, part of the Portu uese dominions. ‘No offence, therefore, cogni: he laws of this conntey, appeaks to have been co ted by the parties engaged in the transaction alluc in the affidavit.” LORD RUSSELL’S COMMUNICATION. From Lord Russell’s communication of this re- port to the American Minister it will be seen that the accepted opinion of the govern- ment was that such operations could not be interfered with, and therefore would not be interfered with. That may be a correct view of the Foreign Enlistment act of Great Bri- tain, and hence the importance of reducing the obligations of a neutral nation, to prevent viola- tions of international law to some settled meaning. This was done by convention BETWKEN THE HIGH CONTRACTING PARTIES, and appears in the rules of the treaty. Under these rules is to be maintained the inculpation which We bring against Great Britain, and which I have now discussed, because the subject is treated in the special argument to whichI am replying. ‘The instances of neutral default announced under the second tule are made penal by the law oi na- tions, They are proscribed by the second rule. They are not protected as dealings in contraband of war, They are not protected under the right of asylum. The’ are uses of neutral orts and waters as bases of naval operations, and {if not prohibited by the Foreign Enlistment act, and if the British executive government could not and would nof prevent them, and that was the limit of their duty under the Foreign Enlistment act, still we come here for judgment, whether a nation is not responsible that deals thus in the contribution of military supplies; that suffers ship after ship to ‘© on these errands, makes no effort to stop them, but, on the contrary, announces, as the result of the deliberation of the law officers, to the subordi- nate officials, to the Minister of the United States, to all the world, that these things are not prohibited by the law of Great Britain and cannot be p the t [pela by executive government, and, therefore, cannot and will not be stopped, That t his was the doctrine of the English government will be seen from a letter datea the 2d of April, 1863, of Lord Russell, found, in part, in Vol. II., American Appendix, p, 404, and, in part, jn Vol, [., id,, p, 590i But the quéstion really is, has there been any act done in England both contrary to the obligations of neu- trality as recognized by Great Britain and the United States, and capable of being made the subject of a crlm- inal prosecution? I can only repeat that, In the opinion of Her Majesty's government, no such act is specified in the papers wlilch you have submitted to me, T, however, willingly assure you that, in view of thé statements contained in the intereopted corres- jondence, Her Majesty's government have renewed the Instructions already given to the Custom Hougs authori. ties of the several British ports where ships-ot-war may be constructed, and by the Secretary of State tor the Home Department to Various authorities with whom he is in communication, to endeavor to dtscover and obtain legal evidence of any violation of the Foreign Enlistment act, with a view to the strict enforcement of that statute whenever it can really be shown to be infrmged. It seems clear, on the principle enunciated in these thorities, that, except on the ground of any proved vio! tion of the Foreign Enlistment act, Her Majesty's govern- ment cannot interfere with commercial dealings between British subjects and the so-styled Confederate States, whether the subject of those dealings be money or contra- and goods, or even ships adapjed for warlike purposes. These were instances in which complaints were made of these transactions and in which it was answered that the British y hanced charged it- self with no duty of due diligence, with no duty of remonstrance, with no duty of prevention or de- nunciation, but bey of with bpp ot prosecu- tions for crimes against the Foreign Enlistment act. What I have sald of the Shenandoah distin- guished her from the Florida and the Alabama and the Georgia only in the fact that from the begin- ning to the end of THE SHENANDOAH’S CAREER she had no port of any kind and had no base of any kind, except the ports of the singlo na- tion of Great Britain. But as to the Florida and the Alabama, one (the Alabama) was supplied by a tug or steamer, that took out her armament to Angra Bay, the place of her first resort; the other (the Florida) was supplied py a vessel sent out to Nas- sau to meet her, carrying all her armament and munitions of war, and which she took out in tow, transhipping her freight of war material outside the line of neutral waters. THE ATTORNEY GENERA OF ENGLAND AS A WIT- NESS, That is called dealing in contraband, not pro- scribed PR the law of nations, not proscribed by apy hitinitipal law, and not involving any duty of Great Britain to intercept, to discourage or de- nounce it. That is confounding substance with form. But let me use the language of an Attorney General of England, employed in the Parhamentary discussions aes attended the enactment of the Foreign Enlistment act of 1819. From this debute in Parliament it will be seen what the principal law adviser of the Crown then thought of carrying on war by “commercial trans- actions” :— - Such an enactment, he sald, was required by every rinciple of justice; for when ‘the state says, “We will fave nothing to do with the war waged between two separate Powers,” and the subjects, In opposition to it, fay, "We will, however, interiere in it” surely the Housé would see the nececsily of enacting some penal statutes to prevent them from doing so, unless, indecd, was to be contended that the ‘state and the 'sub- jects who composed that state might take distinct and opposite sides in the quarrel, He | should now allude to the petitions which had that evening been presented to the House against the bill; and here he ould not but observe, that they had either totally misun- derstood or else totally misrepresented its intended ob- ject. They had stated that it was calculated to check the commercial transactions and to injure the commerctal in- terests of this country. If by the words *c terests and commercial tratisactions’ were meant M like adventures,” he allowed that it would; but it it were intended to argue that it would diminish a fair and legal and pacific commerce, he must enter his protest against any such doctrines. Now, he maintained, that as war was actually carried on against Spain by what the peti- toners called ‘commercial transactions,’ it way the duty OF the 1Touse to check and injure them is speedily as pos- Note B, American Argument, p. Fr. tr. Ap- pendice, p. 488.) i WAR AGAINST THE UNITED STATES CARRIED ON UNDER A SILLY PRETEXT. War against the United States, maritime war, was carried on under cover of what was called right of asylum and commercial transactions ia contraband of war. We are now under the law of nations, by virtue of this second rule, which says that the use of “ports and waters as the base of naval operations, or for the purpose of the renewal or augmentation of military supplies or arms or the recruitment of men’ shall not be allowed, and if the facts of such dealing shall be found, and the proof of due diligence to prevent them shall not appear in the proofs, under that second rule all four of these cruisers must be condemned by the tribunal. Ido not pass, nor venture to pass, in the present argument, upon the question whether there has been in this matter A LACK OF DUE DILIGENCE. In the discussion of my learned friend every one of these instances is regarded as a case not within the second rule, and ds a simple dealing in contra- band of war. Sir RoUNDELL PALMER.—I must be permitted to say that I have not felt myself at liberty to go into a discussion of individual cases, Mr. Evarts.—The vessels are treated in the argu- ment of the learned counsel. Sir ROUNDELL PALMER.—There may be passages in reference to some of the eke toples which have been mentioned, but [have avoided entering upon any elaborate consideration of each particu- lar vessel, There 1s no distinct enumeration of the vessels. Mr. Evants—There is, so distinct as this; it is ex- pressly stated that under the daw neither the Georgia nor the Shenandoah, nor the subsidiary vessels that carried their armaments to the Georgia and Shenandoah, and to the Florida and Aiabuma, had, in so doing, committed a breach of neutrality. THE SECOND RULE OF THE TREATY. Tam arguing now under the second rule. Ihave not felt that I was transcending the proper limits | of tnis debate, because, in answer to the spectal argument of the eminent counsel, I have argued in this way. My own view as to the extension of the argument of the learned counsel in his discussion » diligence” as a doctrine of expect so large a field of discussion as he covered, But, as 1 have admitted in my introductory remarks, the question of due diligence connects itself with the measure of duty and the manner in which It was performed, and I felt no dificuity tn thinking that the line could not be very distinctly drawn. Thave undertaken to argue this questson under a principal cruisers efficient instruments of all | NEW YORK HERALD} MONDAY, AUGUST 26, 1872.—TRIPLE SHEET. state vf facta, which shows that a whole naval ject is supplied, from the first outfit of the c: 7 to the final end of the cruise, by means of this sort of connection with neutral ports and waters as a base of naval operations; and I have insisted that such naval operations are not excluded from the ie of the second rule, by what is claimed the argument of the learned counsel, as the doc- trine of contraband of war and the doctrine of asylum. lere @ recess was taken and Mr, Evarts con- cluded for the day. The Sccond Day’s Argument. THE FOREIGN ENLISTMENT ACT. | I was upon the point of the doctrine of the British | overnment, and its action under that doctrine, as earing upon the outiit of the contributory pro- visions of armament, munitions, and men, set forth in such vessels as the Bahama, the Alar, and the Laurel. The correspondence is full of evidence that I was correct in my statement of the doctrine of the British government, and of its action trom beginning to end being controlled by that doctrine; and alls the remonstrances of the United States were met by the answer that the law of nations, the Foreig:: Enlistinent uct, the duty of neutrality, had nothing whatever to do with that subject, as it was simply, dealing in contraband of war, The importance of this view, of course, and its immense influence in producing the present troversy between the two nations, are obvious. whole mischief was wrought by the, co-operating force of the two legal propositions:—(1) That the unarmed cruiser was not itselfa weapon of war, an instrument of war, and, therefore, was not to be intercepted as committing a violation of the law of nations; and (2) that the contributory pro- vision by means of her supply ships, of her arma- ment, munitions, and men, to make her a complete instrument of naval hostilities, was also not a yio- lation of the law of nations, but simply ‘@ commer- cial ones in contraband. It was only under those combined doctrines that the cruiser ever came to be im the position of an instrument of offensive and defensive war, and to be able to assume the “com- mission’’ prepared for her, and which was thence- forth to protect her from interference on the doc- trine of comity to sovereignty. So, too, it will be found, when we come to con- sider the observations of the eminent counsel on the subjeet of due diligence, to which I shall have occasion soon to reply, that the question whether these were HOSTILE ACTIONS UNDER THE LAW OF NATHONS * was the turning point in the doctrine of the gov- ernment of Great Brirain, and of its action, as to whether it would intercept these euterprises by the exercise of executive power, as a neutral gov- ernment would intercept anything in the nature of @ hostile act uader the law of nations, The doc- trime was that these were not hostile acts sepa- rately, and that no hostile act arose unless these separate contributions were combined in the ports of Great Britain; that there was no footing otherwise for the obligation of the law of nations to establish itself upon; that there was no remissness of duty on the part of the neutral in respect of them; and finally that these operations were not violations of the Foreign Enlistment act. All this is shown by the whole correspondence and by the decisions of the municipal Courts of England, in Tegard to the only question passed upon at all, that of unarmed vessels, so far as they ever passed even, upon that question. . It has seemed to be intimated by observations which the learned counsel has done me the honor to make during my present consideration of this topic, that my argument has transcended the proper limit of wth to the special argument which the eminent counsel himseif has made on the same topic, A reference to the text of that argument will, I think, set this question at rest, In the fifteenth section of THE FIRST CHAPTER OF HIS ARGUMENT he does us the honor to quote certain observations in our principafmrgument, to which he proposes to reply. He quotes, at page 17 of his argument, as follows: 2. The next great fallure of Great Britain “to nse due diligence to prevent” the violation of its neutrality in the matters within the jurisdiction of the tribunal is shown in its entire omission to exert the direct executive authority, lodged in the royal prerogative, to in- tercept the preparations and outfits of the’ offend ing vessels, and the contributory provisions of armament, munitions and men, which were emitted from various ports of the’ United Kingdom. We do not find in the British case or counter case any serious contention, but that such powers as pertain to the rerogative, in the maintenance of International rela- Eons, have prevented the esca| very one of t me e of evi i stiatindey alte equipment and 2 would ofc) 01 elnited of sie equfpinent and Sup: plies which set theni forth and kept them on foot for the maritime hostilities which they maintained, The comment of the learned counsel Saal this passage is found on the same page (17) of his argu- ment, as follows:— 2 With respect to the second passage, it Is to be observed that it not only imputes as a'want of due diligence, the abstinence from the use of arbitrary power to supply a supposed deficiency of legal powers, burit assumes that the United States hada. right, by iu: ternational law, to request Great Britain to prevent the exportation from her territory of what it describes as “contributory provisions,” arins, munitions and “sun- sidiary aids of warlike equipment and supplies,” though such elements of armament were Uuncom- bined, and were nat destined to be combined, within British Jurisdiction, but were exported from that territory nider the conditions of ordinary exports of articles contraband of war. For such a pretension no ant can be found, either in international law, or in any muncipal law of Great Britaln, or in any one’ of the three rules contained in the sixth article of ihe Treaty of Washington. Trespecttully submit, therefore, that in the obser- vations I have had the honor to make upon this subject, I can hardly be said to have exceeded the due limits of an argument in reply. I fail to find in what the eminent counsel here advances in behaif of his government any answer to my assertion that, during THE WHOLE COURSE OF THE WAR, a period when he as Solicitor Gencral or as Attorney General of England wasioné of toe faw advisers of the government, the accion of Great Britain was governed vy the doctrine which I have stated.’ This was publicly announced, and it was so under-- stood by the rebel agents, by the interests involved in these maritime hostilities, by the United States Minister, by the officials of the British overnment, by everybody who had to act or ask for action in the premises. ‘and are exercised ay such by other great Yowers, he $ “TH ALABAMA. The first instance arising was of the vessel that carried out the armament and munitions for the Alabama, and the answer was as I read from the report of the Commissioners of Customs to the Board of Trade. This official paper stated that the Commissioners found nothing in that affair that touched the obligations of Great Britain. This was communicated to Mr, Adams, and that, thence- forth, was the doctrine and action of the govern- ment of Great Britain. VIEWS OF AN EMINENT FRENCH PUBLICIST. The view of an eminent publicist on this point, asaquestion of international law, may be scen from an extract found at page 177 of the case of the United States, M. Rolin-Jacquemyns say: poe Ti nous semble que ladoption d'une pasejlé sition equivandrait h Pinetination aan ie pape PPh at 4 dun #5 heuhddation, surson,territoire. dexpcal i ion, sur son territoire d’expeditions Siuitaives au service Aup des belligerants. “Wl suitira, s'il s’agit d'une entrepris® OQ sine de far part en deus ou trots (ols les, clematis Hl 18 constituent: gavord le vaisseau, pals les hommes, puis les armes, e? Bt fod cos elements ne se rejoignent que hors des eaux ite Ia uissahice neutre qui les a laisses partir, In neutrality sera miacte. Nous pensons que cette interpretation de la lol internationale n’est ni raisonable ni equitable. It will be, then, for the trivunal to decide what the law of nations {is on this subject, If the tribunal shall assent to the principles which I have insisted upon, and shall find them to be embr: i within the provisions of the three rules of this treaty, and that the facts in the case require the application of these principles, it stands admitted that Great Britain has not used and has refused to use any means whatever for the interruption of these contributory provisions of armament and munitions to the offending cruisers. GREAT BRITAIN TAKING SHELTER IN MUNICIPAL LAW. It is not for me to dispute the ruling of the eminent lawyers ef Great Britain upon their Foreigu Enlistment act; but, for the life of m I cannot see why the Alar and the Bahama and the Laurel, when they satled from the sgh of Eng- land with no cargo whatcver except the armament and inunitions of war of one of these cruisers, and with no crrand and no employment except tiat of the rebel government, through its agents, to transport these armaments and munitions to the cruisers which awaited them, were not “trans- ports” in the service of one of the belligerents within the meaning of the Foreign Enlistment act ofGreat Britain. That, however, is a question of municipal law. If 18 WITH INTERNATIONAL LAW THAT WE ARE DEALING NOW AND HERE. The whole argument to escape the consequences Which international law visits upon the neutral for its infractions, has been, that whatever was blame- worthy was so only as an infraction of the munt- cipal law of Great Britain. And when you come to transactions of the kind 1 am now discuss- ing, as they were not deemed violations of the Foreign Enlistment act nor of international law, and as the powers of the government by force to intercept, though the exercise of prerogative, or otherwise, did not come into play, the argument is that there were no consequences whatever to re- sult from these transactions. They were merely considered as commercial transactions in contra- band of war. But the moment it is held that these things were FORBIDDEN BY THE LAW OF NATIONS then of course it is mo answer to say, you cannot indict anybody for them under the law of Great ‘Britain. Nor does the law of nations, having laid down a duty and estab- lished its Violation as a crime, furnish no means of redressing vhe injury or of correcting or punishing the evil. What course does it sanction when neu- tral territory is violated by taking prizes within itt | When the prize comes within Sad Ap at of the neutral he is authorized to take ft from the oifend- ing belligerent by force and release it? What course does it sanction when a cruiser has been armed within neutral territory? When the vessel | comes within the jurisdiction of the neuturaLhe is authorized to disarm tt, ‘THE CRUISERS SHOULD HAVE BEEN DISARMED. Now, our proposition is that these cruisers, thus deriving their force jor war by these outfits of ten- ders with their armament and munitions and men, | when brought betore the British jurisdiction, should | have been disarmed because they had been armed, | in the sense of the law of nations, by using as a base of their maritime hostilities, or thetr maritime | fitting for hostilities, the ports and waters of this neutral state, Why, what would be thought of 9 cruiser of the United States lying off the port of Liverpool, or the port of Ushant, in France, and awaiting there the arrival o! ming from Liverpool, or from ‘Southampton, by pre-arrangement, with an aug: 1 ——<—<——— 9} mentation of her battery and the supply of her - fighting crew? Would it, because the vessel had not entered the port of Southampton or the port of Liverpool, be less a violation of the law of nations which prohibited the augmen- tation of the force of a fighting vesse! of any belligerent from the contributions of the ports of the neutral + The FOURTH CHAPTER OF THIS SPECIAL ARGUMENT is occupied, as [have already suggested, with the consideration of the true interpretation of the rules oi the brag under general canons of criticism, and under the light which should be thrown upon their interpretation by the doctrines and pratices of nations. Irespectiully submit, however, that the only really useful instruction that shouid be sought, or can be applied, in aid of your interpretation of rules, if their interpretation needs any aid, is crawn from the situation of the parties and ents Of the Controversy between them, for the settlement and composition of which these rules were framed, and this tribunal was created to investigate the facts and to apply the rules to them in iis award. is TE MEANING OF THE TREATY, The whole ground of this controversy is exe pressed in the irmest and most distinct manner by the statesmen on both sides who had charge of the negotiations between the two countries, and who could not misunderstand what were the sitna- tion and fleld of debate, for application to which the high contracting parties framed these rules, And what were they? Why, primarily, it was this very question of the various forms of contributory aid from the neutral ports and waters of Great Britain, by which the Confederate Navy had been made, by which it was armed, by which it was supplied, by which it was kept on foot, by which, Without any base within the belligerent territory, it maintained a maritime war, GLADSTONE AND EARL RUSSELL, Anterior to the negotiation which produced the treaty, there is this public declaration made by Mr. Gladstone, and cited on page 215 of the Case of the United States There isho doubt that Jeverson Davis and other leaders of tho South have made an army; they are making, it appears, a pavy."? There is the speech of Lord Russell on the 26th of April, 1864, also cited on the same page:—‘It has beet usual for a Power carrying on war upon the seas to possess ports of its own in which vessels are built, equipped and fitted, and from which they issue, to which they bring their prizes, and in which those prizes, when, brought before a court, are either condemned or restored. But it so happens that in this .conilict the Confed- erate ptates have no ports, except those of the Mersey and of tte Clyde, from which they fit out ships to cruise against the federals; and having no ports to which to bring their priz ey they are obliged to burn them on the high seas.” There is, furthermore, the declaration of Mr, Me made, as Secretary of State, in his celebrated despatch of the 26th of September, 1869, in which he distinctly proposes to the British government, in regard to the ciaim of the United States in this controversy, that the rebel counsels have made Great Britain “the arsenal, the navy yard and the treasury o! the Insurgent Confederates.” ‘ ‘That was the controversy between the two coun- tries, for the solution of which the rules of this treaty and the deliberations of this tribunal, were to be called into action; and they are intended to cover, and do cover, all the forms In which this use of Great Britain for the means and the opportuni- ties of keeping on foot these MARITIME. HOSTILITIES WAS PRACTISED. The first re covers all Gueations of the outfit of the cruisers themselves; the second rule covers all the means by which the neutral ports and waters of Great Britain were used as bases for the rebel maritime operations of these cruisers, and for the provision, the renewal or the augmentation of thelr force of armament, munitions and men. «Both nations so agreed. The eminent counsel for the British government, in the special argument to which I am now replying, also agrees that the sec- ond rule, under which the present discussion arises, is conformed to the pre-existing law of nations. RETROACTIVE EFFECT OF THESE RULES. We find, however, in this chapter of the specia® argument another introduction of the retroactive effect, as it is called, of these rules, asa reason why their interpretation should be diferent from what might otherwise be insisted upon, This is but a re- appearance of what I have already exposed as @ vice in the argument, viz., that these rules, in re- spect to the ver; Bublect for which they were framed, do not méan the same thing as they are to mean hereafter, when new situations arise tor thelr application, Special methods of criticism, artificial limits of application are resorted to, to disparage or sly them, as binding and authoritative rules, in regar : + -40 THE PAST CONDUCT OF GREAT BRITAIN. Why, you might as well tear the treaty in pieces, as to introduce and insist upon any proposition, whether of interpretation or of application, which results in the demand that the very controversy for which they were framed is not‘really to be gov- erned by the rules of the treaty. The concluding observations of this chapter that the invitation to other Powers to adopt these rules as binding upon them, contained in the treaty, should discourage a forced and exaggerated con- struction of them. Lassent to; not so much upon the motive suggested, as upon the principle that a forced and exaggerated construction should not be resorted to upon either side, upon any motive whatever. ‘A COMPLIMENT TO THE OTHER SIDE. Inow come to the more general chapter in the argument of the learned counsel, the first chapter, which presents under forty-three sections, a very Setenilve and very comprehensive, and, certainly, a very able criticism upon the main argument ot the United States upon ‘due diligence”? and upon the duties in regard to which due diligence was required and in regard to the means for the performance of those duties and the fp ol ay of this due diligence, possessed by Great Britain. Certainly these form a very material portion of the argument of the United States; and that argument, as I have said, has been subjected to a very extensive criticism. Referring the tribunal to our argument ftsclf as furnishing, at. least, what we suppose to be a clear And intelligible view of our propositions of the grounds upon which they rest, of the reasoning which supports them, of the authority which sus- tain them, of their applicability ana of the result which they lead to—the incuipation of Great Britain in the matters now under judgment, we shall yet think it right to pass under review a few of the general topics which are considered in this discussion of “due diligence.” SIR ROUNDELL PALMER DISSECTED, The sections from seven to sixteen (the earlict sections having been already considered) are occu- pied with a discussion of what are supposed to be the views of the American argument on the subject of prerogative or executive power, as distinguished from the ordinary administration of authority through the instrumentality of courts of jnstice and.their procedure, Altholgh we may pot pre. tend to have as focuraye views of coistitutioOnal questions pert to the nation of Great Britain ral principles of her common law, or ‘ ne f het statutory regulations and of ber judicial decisiéis ae 2 $55.08 4 THE EMINENT coueEt OF HER BRITANNIC MAJESTY, yet I think it will be found that the criticisms upon our arguments in these respects are not, by any eaiis, Bound, It is, of course, a matter of the st possible Sopmerueno’ to Us, in aDy position which We occupy, elther as a nation before this triunal or 48 lawyers in our argument, whether or not the sum of the obligations of Great Brituin in this behalf, under the law of hations,, was re: for its execution to this or that authority er its constitution or to this or that official action un- der {ts administration. One object of our argu ment has been to show that, if the sum of these obligations was not performed, it was a matter of but littie importance to us or to this tribunal where, in the distribution of administrative duty, or where, in the constitutional disposition of authority, the defect, either of power or in the due exercise of power. was found to be the guilty cause of the result, Yet, strangely enough, when, in a certain section of our argument, that'is laid down as one proposition, we are accused by the learned counsel of a petitjo prin- cipit, of begging the question, that the sum of her obligations Was not periormed by Great Britain. THE LIMIT OF PREROGATIVE. With regard to prerogative the learned counsel seems to think that the existence of the supposed executive powers under the British constitution, and which our argument bas assigned to the rerogative of the Crown, savors of arbitrary or despotic power. We have no occasion to go into the history of the prerogaive of the British Crown, or to consider through what modifications it has reached its present condition. Whena free nation like Great Britain assigns certain functions to be executed by the Crown there does not seem to be any danger to its liberties from that distribution of authority when we remember that Parliament has full power to arrange, modify or curtail the prerogative at its jieasure and when every instrument of the Crown, fi the exercise of the prerogative, is subject to im- peachment for its abuse. The ge is trusted under the British con. stitution, with all the international intercourse ot peace and war, with all the duties and responsibill- ues of fate peace to war, or war to peace, and also in regard to all the international obligations and responsibilities which grow out of a declared or actual situation of neutrality when hostilities are pending between other natious, Of that gen- eral proposition there seems to be no dispute, But itis alleged that there is @ strange confusion of ideas in our minds and in our argument in not drawing the distinction between what is thus properly ascribable to extra territoriality or ad extra administration, what deals with outward relations and what has todo with per- sons and property Within the Kingdom. This pre- rogative, it 18 insisted, gives no power over persons and property within the Kingdom of Great britain; and it 18 further insisted that the Foreign Enlist- ment act was the whole measure of the authority of the government, and the whole measure, thereiore, of ss dnty within the Kingdom: It is said the government ul no power by prerogative to moke that a crime in the Kingdom which is not @ crime by the law, or of punishing @ crime in any other’ manner than through the courts of justice. Thia, of course, is SOUND AS WELL AS FAMILIAR LAW, But the interesting question is, whether the na- ton is supplied with adequate legislation, if that is to furnish the only means for the exercise of inte national duty. If itis not so supplied that is fault as between the two nations; ti it ied, and the powers are not propert; hat is equally a fault as between the two nations. ‘The course of the American argument is to show that, either on the one or the other of the horns of this dilemina, the actual conduct of the British government inust be impaled, SUBTLE ARGUMENT WILL NOT EXCUSE ENGLAND. We are instructed in this agecial argument a8 to