The New York Herald Newspaper, August 26, 1872, Page 5

ba if th ‘nent counsel, aah mee m3 eo the statute; but we find what the power of Parliament, or in the ba ee” administration, if adequate pariia- men P yen be made for its exercise. But is course of argument, ingenious, tle and intricate as it is, finally brings the sunt counsel around to this point, that by the common law of England within the realm there is ywer in the Crown to use all the executive au- rity of thre nation, civil and military, to prevent hostile act towards another nation within that territory. That is but another name for preroga- tive; there is no statute on that subject, and no writ (rom any Court can iasue to accomplish that object. THE OLD CONTROVERSY, If this is undouvtedly part of the common as the law of England, learned counsel states, the argument here turns upon nothing else but the old controversy between us, whether these acts were in the nature of hostile acts, under the condemnation of the law of nations as such, that ought to have been inter- cepted by the exercise of prerogative or by the power of the Crown at common law, whichever you Choose to call it. ‘The object of all the discussion of the learned counsel is crag mg oo bring it back to the point that within the Kingdom of Great Britain the Foreign Enlistment act was the sole authority for action and prevention, and if these vessels were reasonably pro- ceeded inst, under the requirements of ad- ministrative duty in enforcing the Foreign Enlist- ment act, as against personz and property for con- Mscation or for punishment, that was all that was meeessary or proper. Sir ALEXANDER CocKBURN—Am I to understand nasa lawyer to say thatit was competent for athe ‘authoritles at the port whence such a vessel ekapod to order out troops aud command them to fire Mr. Evarrs—That will depend upon the question whether that was the only way to compel her to an observance, Sir ALEXANDER CockBuRN—I put the question to you in the concrete, Mr, Evakts—That would draw me to another subject, viz. :—a discussion of the facts, But I will gay that it depends upon whether the act she 1s engaged in committing comes within the category ‘of hostile acts, Sir ALEXANDER COCKBURN—But taking this case @nd laying aside the question of due diligence, The vessel is going out of the Mersey. Do you say as a lawyer that she sould be fired upon ? Mr. Evarrs—Under proper cireamstances, yes, Sir ALEXANDER CookpuRN—But I put the circum- ces, Mr. Evarts—You must give me the attending circumstances that show such an act of force is necessary to secure the execution of the public au- thority. You do not put in the element that thav fs the only way to bring such @ vessel to. Ifyou add that element then I say yes. Sir ALEXANDER COCKBURN—She is going out of the port. They know she is trying to escape from the port. ps you, I again ask—do you, as a lawyer, fay that it would be competent for the authorities without a warrant, simply becanse this is a viola- tion of the law, to fire on that vessel ? Mr. Evarrs—Certainly, after the usual pre- fiminaries of hailing her, and firing across her bows, to bring her to. Finally, she insists on proceeding on her way, and thus raises the issue of escape from the government, er forcible arrest by the government, you are to fire into her. It becomes a ques- tion whether the government is to surrender to the ship, or the ship to the government. Of course, the lawfulness of this action depends upon the question whether the act committed 1s, under the law of nations, a violation of the neutrality of the territory, and a hostile act, as it is conceded throughout this argument, the evasion of an armed ship would be. In section sixteen of this argument you will find the statement of the learned counsel on this sub- fect ot the executive powers of the ritish Govern- ment in this behalf:— It is impossible too porateay, to deny the truth of this gasumption of too pointedly to state that if any mill: tary or naval expeditions or any other acts or operations of war against the United States in’ the true. and proper sense of these words had been attempted within British territory it have been neces- sary for the British government either to suspend the Habeas Corpus act or to rely on the Foreign Enlistment act, in order to enable it to Intercept and prevent by force such expeditions or such acts or operations of War. The whole civil police and the whole naval and military forces of the British Crown would have been lawfaily available to the executive govern- ment, by the common Jaw of the realm, for the preven- ton of such proceedings, This is the law of England, as understood by the eminent counsel who has presented tiis argument. Given the facts that make : THE EVASION FROM THE PORT OF LIVERPOOL of the vessel proposed a violation of the law of nations—because it is a hostile act against the United States, and exposes Great Britain to re- ponsibility. for the violation of neutrality—then the situation has arisen, in the failure of civil means, the failure of remonstrance, of arrest and of bring- ing to, for firing into the vessel. For certainly, if we have authority to stop, we are not to have that pathority met and frustrated by the persistence ef violent resistance to it, THE POWER OF THE EXECUTIVE. It certainly makes very little difference to us whether this authority of the executive to use all its forces for the actual prevention of the occur. rence of these hostile transactions within the realm is lodged in what he calls the common law bf Great Britain, or is found, a8 we suppose, in the prerogative of the Crown. Nor do I under- stand this argument throughout to quarrel with the proposition that an armed ship that should undertake to proceed out of the port of Liverpool would be exposed to the exercise of that power; and, of course, if the proper circum- stances arose, even to the extent to which it has been pushed {n answer to the apeeticns jut to me by one of the members of the tribunal. For if the Queen is to use all her power to prevent a hostile act, and if an armed vessel is, in its evasion ef a port, committing a hostile act, that Power can be exerted to the point of fring into such vessel, if necessary, as well as of merely exerting the slight- est touch, if that proves sufficient to accomplish the object. PREVENTIVE AND PUNITIVE POWERS OF GREAT BRITAIN. Sections 17 to 25 are occupied with a discussion concerning the preventive powers and punitive powers under the legsiation of Great Britain as compared with that of the United States. While there is here a denial that the British government ever put itself upon a necessary confinement to the punitive powers of that act, or that that act con- tains no preventive power, or that it contains not so much as the act of the United States, atill, after all, I find no this; that the preventive powers e- ed upon and thus asserted, as having origin under, and by virtue of, the act, are confined tothe prevention that springs out of the sbility to would not punish, or out of the mode in which the power to | gunish is exercised. Nor will the text of furnish any evidence th E ny power for the prevention by of the asion of such a vessel, exce; the jorm of pros- ecution for coniisew! which is one of the modes of punishment. And when this Foreign snlistment t was passed in 1819, 1f Was thus leit wv companied hy any execu- tive power of interception and prevention, for the reason, as showi in the debates, that this inter- ceptive and preventive power resided in the pre- rogative of tue Crown, and could be exercised by ts. «This will be seen from the de which we have appendéd in note & to our argument, In comparing that law with the preccding act passed in 1818 by the American government, the debates in Parliament gave as the reason tor lodgeine nt of this preventive power in the exe of the United States, by the act of Congress for its not bi nec y to lodge a SIMILAR PRE IVE LOWER IN THE BRITISH that there was no prerogative in Aimer there was in Great Britain. Yo be sure, When one of the punishments pro- vided by law is a proceeding i vem tor CONFISCATION ne en if yon serve your process at a time & cumstances to prevent a departure its illegal errand, you do ef that is all. Tho trouble with itis only a detention of pro and trial @ question of privat of the ship, which is to be . of law and evidence which are attendant upon the exercise of authority by the Crown, in: taking away the property of ihe subject. ‘The United States wanted simple justice, it never was of any practical umportance to United states whether the British gov confiscated aslap or tinprisoned t except so far as this might indicate the feelings and sympathy of chat nation. All we wished was that the government should prevent these from going out. It Was not a question w whether they punished this or that man, or insisted upon this or that confiscation, provided the inter- ception of the cruisers was eifected. When, therefore, we claimed under the foreign entistin act or otherwise, that (hese vessels should be seized and detained, one of the iorms of punitive recourse under that act would bave operated a detention, if applied at THE YROPER TIME AX to bring to issue coutiscation all the rules THR PROPER crreum- STANCES, Confiscation had its place wivenever the yess a nee Laan ta of Pd Rovernment; but it yy interception of the enterprise that we were be benefited, That interception, by some ‘men or other, we had a right to, andif your law, if constitution, had so arrauged matiers Unt it ¢ not be had, except upon the ordinary pr » He ordinary evidence » lseation of J Property was obiained, and that provision was ret adequate to our rights, then our argumeni is that your lew needed improvement. But it is said that nothing in the conduct of Great Britain, ofpractical importance to the United States, tarned upon the question whether the British law, the Foreign Enlistment act, was applicable ouly to an armed Vessel, or was applicable to a vessel that should go out merely prepared to take ifs armanent, How is it that nothing turned upon that question ? It is so said because, as the learned counsel con- tends, the government adopted the com W that the stainte did embrace the case of a ¥ gnarmed, But take the oase of THE ALABAMA OR THR PLORIDA for an ilinstration, and see how this pretension is justified by the facts, What o oned the debates of administrative oiicers ? What raised the diMl- culties and doubts of custom house ahd other officials, eXcopt that the vessel was notarmed, when ag regards both Of these vessels the Executive gov- NEW YORK HERALD, MUNDAY, AUGU watched? Wat 1 Watched, in 1 as they were until they went out. aseritien put under the eye ofa ing supervi to have it known whether an armament went on boards 1s. order that then they might be reported, a it may be, interceptud. The whole administrative question of the practical application of authority by the British government our aid for the in- terception of these vessels turned upon the cir- cumstance of whether the vessel was armed or was not armed. Under the administration of that question they went out without armaments, not wishing to be stopped, and, by pre-arrangement, took their armanents from tenders that subse- quently brought them—which also could not be stopped, WHEN VESSELS SUOULD BE SEIZED BY A NEUTRAL. Certain observations of Baron Bramwell are ed by the learned counsel in this connection, which are useful to us as illustrating the turning point in the question as to armed and unarmed ves- sels, They are to this effect, and exhibit the British doctrine — A vessel filtted to receive her armament and armed is a yessel that should be stoppea under an. international duty. This amounts to an act of proximate hostility which a neutral is bouna to arrest, Baron Bramwell held that the emission of a vessel armed is undoubtedly a hostile expe- dition within the meaning of the Jaw of nations, But a vessel fitted to receive her armament in the neutral port, and sent out of that port by the belligerent only in that condition, he held is not an en.erprise in violation of the law of nations, and is not a hostile expedition in the sense of that law. By consequence, Baron Bramwell argued, nothing in such an enterprise of a bellige- rent from @ neutral port calls for the exercise of authority on the part of the neutral, either by law or by executive interference, and, until the arma- ment gets on board, there is nothing to bring the case Within the province of international proscrip- tion and OF INTERNATIONAL RESPONSIBILITY, It was then, he argues, only a question for Great Britain whether the provisions. of the Foreign En- listment act can touch such @ vessel, and the only question Jor the British government was as towards the United States—have they done their duty to which involves a question of international responsi- bility to the United States? We insist, therefore, that so far from nothing practical turning upon this distinction, all the doubts and diticulties turn upon it, especially in connection with the anellar voposilion that these vessels could be provided, by means of their tenders, with armaments, without any accountability for the complete hostile expedi- tion. BRITISH LAW IN 1819 AND 1870. It is said that we can draw no argument as to the deficiency of their old act from the improved provisions of the new act of 1870, Why not? When we say that your act of 1819 was not adequate to the situation, and that, if you had no pre- rogative to are its defects, you should have supplied them Y, act of Parliament—that you should have furnished by legislation the means jor the performance of a duty which required you to prevent the commission of the acts which we complain of—it is certainly competent for us to resort to the fact that, when our war was over, from thenceforth movements were made towards the amendment of your law, and that, when the late WAR ON THE CONTINENT OF EUROPE opened, your new act was immediately passed con- taining all the present provisions of practical ex- ecutive interception of such illegal enterprises—it is, Lsay, competent for us to refer to all this as a strong as well as fair argument, to show that, even in the opinion of the British Parliament, the old act was not adequate to the performance of the LSB SHaY duties of Great Britain to the United States. Sections twenty-seven to thirty of the special ar- gument are occupied with a discussion of that part of our argument which alleges, as want of due diligence, the entire failure of Great Britain to have an active, effective and spontaneous investi- gation, scrutiny, paeare and interceptive prevention of enterprises of this kind, Well, the comments upon this are of two kinds: first, concern- ing the question, under a somewhat pro- longed discussion of facts, whether the govern- ment did or did not do this, that, or the other thing ;* and, then, Convauy 3 the more general question, as to whether the rules of this treaty call upon this tribunal to imquire into any such defl- ciency of diligence which was not applicable to the case of a vessel respecting which the British gov- ernment “had reasonable ground to believe” that a violation of the law was meditated, Our answer to this latter question is, that the rules together, in thefr true construction, require the application of due diligence (particularly under the special emphasis of the third rule) ‘to pre- vent” the occurrence of any of the infractions of the law of nations proscribed by the rules. ‘There are two propositions in these rules, Ger- tain things are assigned as violations of the law of nations, and as involving a duty on the part ofa neutral government to prevent them, and besides in and towards preventing them, it is ITS DUTY TO USE DUE DILIGENCE. In regard to every class of alleged in- fractions of these rules, there comes to be an in- quiry, first, whether in the circumstances and facts which are assigned, the alleged infractions are a violation of any of the duties under the law of na- tions as hl aan! by those rules. If not, the: are dismissed from your consideration. ‘But Tt they are so found, phen, these rules, by their own vigor, become applicable to the situation, and then comes the inquiry whether Great Britain did, in 1act, use due diligence to prevent the proscribe: infractions. It is under the sections now under review, that the learned counsel suggests whether it is supposed that this general require- ment of the use of due diligence by Great Britain is intended to cover the cases of vessels like the SHENANDOAH AND THE GEORGIA (which, it is alleged, the British government had no reasonable ground to believe were meditating or preparing an evasion of the laws or a vio- lation of the duties of Great Britain), or the cases of these tenders that supplied the Georgia and the Shenandoah and the Florida and the Alabaina, with their armaments and munitions of war—it is under these sections that this discussion arises. The answer on our part to this suggestion is, that the general means of diligence to keep the government informed of facts and enable it to judge whether there was “reasonable und to believe” In any given case, and thus enable it to be prepared to intercept the illegal enterprise, are required in cases that the rules proscribe as infrac- tions of neutrality. et I will agree that under the first clause of the first rule the duty 1s applied to a vessel concerning which the government ‘shall have reasonable ground to believe,” &c, Under the second clause of the first rule the phrase is omitted, and the question of “reasonable ground to believe” forms only an ele- ment in the more general question of ‘due dill- Under the second 1ule also the whole the use of the neutral ports and waters | as a base of naval Repti sed is open; and if there has been a defect of diligence in providing the om- cers of Great Britain with the means of knowledge and the means of ion to prevent such use of its ports and wate as a base of operations, why, | then, Great Britain is at fault in not having used due diligence to PREVENT SCCH USE OF ITS PORTS AND WATERS. That is our argument, and it seems to us it isa sound argument. It is very strange if it is not, and if the duty of a government to use due diligence to prevent its ports and waters from being used as a bi of uaval operations does not include the use of due diligence to ascertain whether they were being or were to be so used. ENGLAND'S GROSS FAUL It was a fault not to use due dilige to prevent the ports and waters of Great Britain from being used a8 a base of naval operations, or for the aug- mentation of force, or the recruitment of me And to admit that it was a fault, in any case, not to act where the government had cause to believe tha there was to be & violation of law, and yet to claim that it was no fault for the government to be guilty of negligenc ation which night give a rea jeve, seems to me absurd, FALSE REASONING EXPOSED. This, indeed, would be to stamp the lesser negli- | gence of not applying due diligence ina particular | case when there was “reasonable ground to be- lieve’ a8 a fault, entailing responsibility upon a@ neniral government and to excuse the same pov- ernment for the systematic want of due diligence through indifference to duty and volwutary ignorance, did not allow itself to be placed in a position to judge whether the ground of belief was able, or Whether there was any ground at ail The lesser fault infers that the same ponsibility 1s imputable to the greater | fault. | The sections of the special argument of the learned counsel, which are occupied with a com- ) pavison between the practical eMei of t American nnd of the English acts, a the propositions of our argument in this regard are questioned and commented upon, will be replied to by my learned associate, Mr. Cushing, in an argu. ment which he will present to the tribunal It 1s enough for ine to repeat here the observation of our argument, that the true measure of the vigor of an act is ITS JUDICIAL rene | subject of onabie ground to INTERPRETATION AND 17S PRACTICAL We do not intend Ww volved in disenssions as to the propi that construction of the Bugtish act which reduced its power, The question with us is, what were the practical interpretation and exercise of the powers of that act, as compared with the practical inte ‘a pretation and exercise of the powers of the Neu- + (rality act of the United States ¢ ‘The propositions of ow argument seem to us ed by any of the criticisms which the ned counsel has applied to them. We, rightly or wrougly, have interpreted our act, from its first enactment to the present time, as giving authority to the B. of the United States to intercept by direct ize of pow 1 these prohibited eifterprises at any stage at which he can lay his hands upon them, for the purpose ‘of their prevention, ‘The corresponden produced in our proofs, showing the action of the Executive gov- * It does not seem profitable to go into a minute exami. nation of the provts before the Tribunal to establish the Propositions of our argument specially controverted in Lions 29 and 80 of te present argument of the eminent rot k uissell, quot , refer to ce As for the t wnces ctied in which specific information | be given In yegard to this or that vessel or en | which contravenes our genvral propositions of fret in | this behall, or the intineuce of want of due diligence on the part of the British goverument which We have drawn trom those tact, themselves in the enforcement of the municipal law, | not procuring intelligence and in- | of this or | | @ will there is a w ernment on all the occasions in which this statute has been required to be enforced, will indicate that, whether it has been successful or not in the execu- tion of the duty, the government has the duty, the Executive has undertaken it, and all the subordinates have had thetr attention called to it, im the sense and to the end of prevention. All subordinates have, as well, always been stimulated to the duty of keeping the Executive, from time te time, fully and promptly supplied with information to secure the efficient éxecution of the law; and it is not improper, perhaps, for me to observe that my learned associate, MR. CUSHING, AND MYSELF, having been called upon to execute this statute in the oflice of Attorney General of the United States, we can bear testimony to its vigor and its efficiency im the every day action of the government. It is submitted to and not questioned, and produces its effect. Whether the government of the United States, possessing that power under and by author- ity of the statute, has always been successful or not, or has always used due diligence in its exercise, and whether it ls accountable to this or that mation for a faulty execution of its duties of neutrality, are questions which this tribunal cannot dispose of anc they are only remotely collateral to any discus- sions properly before the arbitrators. Sir ALEXANDER CockBURN—If you are arguing now upon that poiut, Mr. Evarts, explain this to me. By the last English act of 1870 the Secretary of State as power under certain circumstances to order @ vessel to be seized, and then it is provided that the owner of such vessel may make claim, &c., which the court shall, as soon as yoseibie, consider. 1 want to ask you what, under your act of 1818, which gives power to the President to seize, under similar circumstances, would be the course of pro- ceedings in such a case? How would the owner be able to know whether his vessel was one liable to seizure and confiscation? How would he get his ventee oa again, according to your form of pro- cedure Mr. Evanrs—I take it for granted that the deten- tion which the President might authorize, or cause to be made, would not be an indetinite detention, By the terms of the act, however, that exercise of the executive power is not, necessarily, terminated by a judicial appeal of any kind. Sir ALEXANDRE COCKBURN—D@ you mean to say that the ship shall remain in the hands of the gov- ernment? Mr. Evanrs—if the party chooses so to leave it without satisfactory explanation. The President interposes in the discha of a public duty, to Prevent the commission of an act in violation of neutrality, which he believes to be illegal. On representation to him by the aggrieved party, he Will release the vessel if he finds reason. If he docs not so release, then the vessel remains subject to the continued exercise of executive control under the same motives that first induced it, Sir ALEXANDER COCKBURN—Would not the Presi- dent, in the ordinary practice of bia direct that the mattter should be submitted to judicial deter- mination? Mr. Evarts—This executive interception carries no confiscation. It merely detains the vessel, and the owner can apply for its release, giving an ex- planation of the matter, But the executive may say, “I am not satistied witn your explanation; if you have nothing else to say I will keep your ves- sel;” or he may send # to the courts to eniorce its confiscation, Sir ALEXANDER COCKBURN—Which dees he prac- tically do? i Mr. Evarts—lIle practically, when not satisfied to release it, usually sends it to the court, bévause the situation admits of that- disposition of it, Under the act of the United States, there is the same actual interceptiop by the Executive which your act of 1870—_ Sir ALEXANDER CockBuRN—Under our act the Ex- ecutive has no discretion; it must send it to the courts, 4 Mr. Evarts—Under our act, we trust the Execu- tive for a proper exercise of the official authority entrusted to him. In the American case some instances of the exer- cise of this power on a very considerable scale wil be found. (Page 126 of the French translation.) The documents explaining these transactions are collected at length in the Appendix to the Ameri- can counter case. Sections 38 to 41 of the special argument call in Anentiony our position as to onus pro- bandit. It is said that we improperly undertake to shift, generally, the burden of proof, and require Great Britain to discharge itself from liability by afirmative proof, in all cases where we charge that the act done is within the obligation of the three rules. This criticism is en- forced by reference to a case arising in the public action of the United States under the treaty of 1794 with Great Britain. THE PROPOSITIONS OF THE AMERICAN ARGUMENT. I will spend but a few words here, The propositions of our argument are easily understood upon that point. They come to this: that, whenever the United States, by its proofs, have brought the case in hand to this stage, that the acts which are complained of, the action and the result which have arisen from it are violations of the requirements of the law of nations as laid down in the three rules, and this ac- tion has taken place within the jurisdiction of Great Britain (se that the principal fact of accountabilit within the nation is established), then, on the ordi- nary prihciple that the affirmative is to be taken up by that party which needs its exercise, the proof of “due diligence” is to be ee by Great Britain. How is a foreigner, outside of the government, un- informed of its conduct, having no access to its de- liberations or the movements of thegovernment, to supply the proof of the want of due diligence? We Tepose, then, upon the ordinary principles of foren- sic and judicial reasoning, When the act complained of 18 at the fault of the been done within its jurisdiction, and ix a violation of the law of nations, for which there is an accountability provided by these tnree rules, the point of determination whether due diligence has been exercised by the autnorities of the country to prevent it, or it has bappened in spite of the exercise of due diligence— the burden of the proof of “due diligence” is upon the party charged with its exercise. Let us look at the CASE OF THE ELIZABETH, nation, having which 1s quoted in section 41. It is a long quotation, and 1 will read, therefore, only the concluding part. It will be found on page 60 of the French translation of the special argument. The question was as to the burden of proof under the obligation that had been assumed by the United States :— The promise was conditional. We will restore in all those cases of complaint where it shall be established by suiticient testimony that the facts are true which torm the basis of our promise—that is, that the property claimed belongs to Bri subjects; that it was taken either within the jurisdictional or, on the then by some _ vessel iNegally armed ports, ana that the property so taken has been brought within our ports. By ‘whom Were these facts to be proved? According to every principle of reason, justice or equity, it belongs to him Who claiins the benefit of a promise to prove that he is the person in whose favor or under the circumstances in which the promise was intended to operate. THE UNITED STATES PROVES ITS CASE. Acareful pee of this passage is sutticient to show that the facts here insisted upon as necessary to be proved by the claimant are precisely equiva- lent to the facts which the United States are called upon Lo prove in this case. These facts, as I have before stated, bring the circumstances of the claim to the point where it appears that the responsibility for the injury rests upon Great Britain, unless due diligence was used by the government to prevent the mischievous conduct of the subjects or residents of that Kingdom which has produced the les com- plained of. In the absence of this due diligence on the part of that government the apparent responsi- bility rests undisturbed by the exculpation whit the presence of due diligence will furnish. The party needing the benefit of this proof, upon every principle of sound reason, must furnish it. This is all we have insisted upon in the matter of the bur- den of proof, In conclusion of the first chapter of this special argument, the eminent counsel, at section 43, takes up the “Yerceira aifair,” and insists that if Britain, in a particular situation for the cise of duties of neutrality, took extraord Measures it does not prove that the government were under obligations to take the same measures in every similar or comparable situation, We rred to the Te eira affair for the pur- of showing that the Crown, by its prerogative, ssed authority for the interception of Protection, enterprises originating within the Kingdom for the violation of neutrality, 1 sation, whether the executive will us it, is at its discretion, The power we prove, and in the discussions in both houses of Parliament it was not denied in any quarter that the power sted to the extent that we call for its exerci: ‘thin British jurisdiction, The question in co: troversy then was (although a great majority of both Houses voted against the resolutions con- demning the action of the government), whet in the waters of Portugal or upon the seas, the government could, with strong hand, seize or punish vessels which had violated the neutrality ot Great Britain by a hosttl though unarmed, expedition from its ports. ‘th resolutions in both Houses of Parliament received the support of ouly @ small minorit Mr. Philli- nore, however, says the learned counsel, exp) ses the opinion in bis valuable work that the mi- nority were right. Sir ALEXANDER CocknuRN—I confess I always thought so myself. Mr, Evarts—But the point now anq here in dis- cussion is, What were the powers of the Crown within the limits of British jurssdidtion, and it is not ne sary to consider who were right or who were wrong in the divisions in Parliament. What ail agreed in Was that the fault charged upon the gov- ernment was the invasion of the territorial rights of another nation, But we cited the Terceira affair for the addi- tional purpose of showing the actual exercise of the power Ip question by the Crown in that case, This ‘was important to us in ourargament; itjustiy gave support to the imputation that the powers of the gov- ernmen! Were not diligently exercised during the Americas Rebeiion in our behalf, Where there is . and diligence means the use 4 necessary and suitable to the 0) tue propesed end, MK PERORATION. Now, in conclusion, it must be apparent that the great interest, bot in regard to the important con- troversy between the high contracting parties and ‘m repard to the principles of the law of nations to be here establisued turns upon your award. That award is to setts two great questions: whether the acts which form the subject of the accusation and the defence, are siown to be acts that are pro- seribed by the law of nations, as expressed in the three ruies of the treaty, You cannot atter the nature of the case ‘tween the two nations, as shown by the proof. ite facts being indisputably established i ae p of ail the lacuit accomplishinen | | v'% you ave then to pass upon | | ert Phillimore have a general application and ii | Let us take any kind of the questi ! outfit of these tenders, to carry 1 ment of the hostile expe- dition to! itside of Great Britain, is according tions or not. When y: question whether this 1s a violatio ; rule, you upon the question, nations, whether an obli- | gation of allow a hostile expedition to go fort am be evaded by having it sent fort! having the combination made out ou cannot so decide in this case, and oarties, without establish- ing by yo neral proposition, that the law of na’ a such hostile expeditions, Tay be W * » oly set at nought by this equivocation . 4 practised upon it; that this can be done, not by surprise—for saying can be done by surprise-——but that it can be done openly and of right. These methods of com- bination outside of the neutral territory may be re- sorted to, for the violation of the obligations of neutrality, and yet the neutral nation, knowingly suffering and permitting it, is free from respon- sibility! This certainly is a great question. If, a8 we must anticipate, you deeide that these things are proscribed by the law of nations the next question is, was “due diligence’ used by Great Britain to prevent them. THE JUDGMENT REQUIRED. The measure of diligence actually used by Great. Britain, the ill consequence to the United States from a failure on the part of Great Britain to use a greater and better measure of diligence, are evident to all the worn, Your judgment, then, upon the second apestions is to pronounce whether that mea- sure of diligence which was used and is known to have been used, and which produced no other re- sult than the maintenance, for four years, of a maritime war, upon no other base than that fur- nished from the ports and waters of a neutral ter- ritory, is the measure of “due diligence,” to pre- vent such use of neutral territory, which is required ¥ the three rules of the Treaty of Washington for the exculpation of Great Britain, ARGUMENT OF GENERAL CUSHING. MR. PRESIDENT AND GENTLEMEN OF THE TRI- BUNAL—We are approaching, Ihope, the end of these long debates, The two governments have presented their cases and counter cases, supported by voluminous documents, They have also presented their respective arguments, the whole conforming to the stipulations of the Treaty of Washington (articles 4 and 5), Thus have the regular debates prescribed by the treaty been closed. But now, by request of one of the honorable arbitrators, the tribunal has required of England explanations upon certain fixed points, viz. — 1. The question of due diligence treated in a general way. 2. The special question as to what has been the effect of the commissions held by the different Confederate war vessels which have entered into British ports, 3, The special question as to the supply of coal awarded to Confederate vessels in Bri ports. The counsel of Great Britain has employed this opportunity to discuss the points proposed and to comment upon the arguments of the United States. T do not complain of this, but I state the fact. We, the counsel of the United States, accept the situa, tion, such as it is, for we have no desire to occupy any longer the attention of the tribunal, My two colleagues have just amply discussed the second and the third points. They have scarcely left me anything to say with regard to the first point. Indeed, there only devolves upon me the task of resuming the question and adding a few special ebservations. I venture to address the tribunal in French, in order to economize its valuable time and to arrive as soon as possible at the conclusion of the debates. With this view I willingly sacrifice all pretensions to oratory. I try to make myself un- derstood ; that is all I aspire to. THE QUESTION OF DUE DILIGENCE. It now behooves me to speak of the question of “due diligence” in a general way. What is the meaning of this sentence? Does the tribunal ask a professor's lesson as to what constitutes “due diligence?” I think not. Such a discussion would be perfectly useless for the following reasons :— 1. The theory of this question has already been discussed in a fulsome manner, Great Britain has discussed it three times in its case as well as in its defence, and she has taken fully eleven months to reflect upon it and to accumulate arguments and quotations for the instruction of the tribunal. We, in the name of the United States, have not lavished 80 many words, but we have said all we desire to bring to the knowledge of the honorable arbi- trators. 2. The two parties have agreed that the theory of the question docs no longer merit their atten- tion. ‘e therefore shall not retrace our steps and discuss anew questions which have already been completely exhausted and even recognized as inop- portune by the two parties, 3. I do not recognize any other “due diligence’ than that of the treaty. The counsel of Great. Britain attempts to establish rules of “due dili- nce" outside of the treaty. It is too late to enter into this, After the progress which the tribunal has already inade in its work it is no longer worth while to re-embark upon these breakers. We sgajl a maintain THE EXPLICIT WORDS OF THE TREATY, which subordinate the common law to the stipula- tion of the three rules—a stipulation which ex- pressly applies ‘due diligence” to the special cases treated in these rules. For this last reason I refuse to follow the counsel of Great Britain into the discussion of the question as to the difference, if there exists any, according to common law, between the duty of neutrals with regard to vessels armed during the war and their duty re- garding vessels cartiped for the war and not yet armed. The treaty decides this question in a de- finite'manner, it suffices to draw attention to the first rule contained in the treaty :— A neutral government is bound ; 1. To use ull due diligence to prevent a vessel in the limits of its jurisdiction trom Being enabled to go to sea, from being ‘armed or equipped, when that government has sufficient reason to think that that vessel is intended for cruising or for committiny of war acainst a Power with which it is at pe . That government shall also use due diligence to prevent a vessel in d for cruising or for committing acts of war f the limits of its jurisdiction in case she should hi: wholly, or partly—fitted out for warlike purposes. THE THREE FIRST CLAUSES. Let us note the three first clause: “To prevent a vessel from being enabled to go to sea’’ (this is Without any reason omitted from the English translation), ‘from being armed,” and “irom being equipped.”’ Let us also note the following two equally clear clauses of the rule >A yessel Intended for cruising or for Piperetiet diy? of war,” or “A vessel sp clally fitted out, be it wholly or partly, for warlike uses. In hooking at these clauses, so clearly and fi- nitely lild down, to which the “dne diligence” of the Treaty ought to be applied, and in considering the manifest uselessness of further discussion out- side of the three ruies, it might well be sus- pected that the counsel of Great Britain had the intention to make a convenient preface to the re- marks which follow and to weaken if possible the force of the words expressed by Sir Robert Philli- more and Sir Roundell Paimer quoted in the argu- ment of the United States, SIR ROBERT PHILLIMORR, We have quoted from Sir Robert Phillimores’ “Comment: 4 of International Right” the follow- ing passages :— ‘There remains a question of the greatest importance— namely, the responsibility of the State with regard to the acts of fis citizens—which includes the duty of a neutral to prevent armaments and war vossels from leaving its earn ports for the service of # belligerent, although tho ament Mi aw that in ail that concerns nh governments the will of the subject shail be i wnity with that of his sovereign. m that every State has the right to expec the fulfilment of international i ag (0 What may be the munici- pal tueans it in order to enforce them. The act ofa single eitizen or a small number of citizens shall not, without evident proof, be imputed to the government whieh they the ubjecst. A government ean t knowledge ang Joleration as weil as_ by direct permission i the nets of its subjects, who nages toa foreign be able to prevent not prevent fron State, A covernment its subjects wathin the In ernational obligations, javie responsible for all that is done ; for it must presumed tobe. al * committed within its territor: sequently responsible for such ie of individuals’ which are acts of hostility premeditated. | ag ust a nation with which the government of those i diy MILITARY OR NAVAL EXPEDITION ? Now the counsel of Great Britain asserts that all those expressions of Sir Robert Phillimore only meant to apply to the case of a vessel ar in war, or to that of aimilitary and not naval ex- pedition, Ideny the possibility of this distinction, It has no foundation in the words of the author. Lap- peal on this to the opinion of the honorable arbi- trators. But, even supposing that this distinction be well founded, it would not justify th conclusions of the counsel of Great Britain, because the principles laid down by Sir clude all ible cases, arity of “due diligence” to be used on the part of a neutral government towards a belligerent govern- ment, and even in such acase Sir Robert Philll- more informs us in what manner and in con- formity with what bpm ge} the neutral government must act. it must fulfil its interna- tional obligations “without regard to what may be the municipal means it possesses to enforce them.” Moreover “a government may by knowledge and toleration, as Well as by direct permission, become responsible for its subjects whom it does not pre- vent from committing damages to a foreign State." Such is the argument on the subject of “due dil- gence” treated in a general way, which the coun- Ag wae States have always maintained and hich Great Britain has always op- joxed = in =oher = case = and —sher_— defence, Now the duty incumbent upon Great Britain is defined by the three rules, aud we have ™ simply detained. m- | furnished and the vessel built and rd ‘ * * ea t | well said its of its territory trom violat- | 8, nals declares that it entertains iriendly or neuiral | | relauons, ed | 1872—TRIPLE SHSET, the right to consider the general maxims of Sir Robert Phitlimore by the light of these rules, And ‘this is what we have done in our argument, THE LAIRD RAMS. But let us see what the counsel of Great Britain will say concerning @ quotation which we have made from from Sir Roundell Palmer's speech on the “Laird rams.” I draw the attention of the tribunal to the very words of this speech :— “Tdo not hesitate,” says Sir Roundell Palmer, “to say boldly and in the face of the whole country that the gov- ernmient has detained them on its own responsibility. An investigation was made — which, however {i- periect, lett on the mind of the government strong reasons to believe that it will be posmble to afirm that those yersels were intended for an illegal purpose, and that if they left the country the law would be vio: lated and great injury caused to a Iriendly Power. The government has not seized those vessels; it has done nothing to seize them or to stop them, but on its own respousibility it has notified the’ parties interested that the law shall not be eluded until the investigation commenced shall have been ter- minated and antl the government shall know whether the investigation will establish safficient reason to | authorize or not the departure of the — vessels. misdemeanor were if any ether at about” to. be. “committed, would it. be possitle to doubt that the governinent was not justified in taking Measures to prevent any person whose conduct was under investigution from escaping justiee until that, in- vestigation shat have been terminated ¥ 1 a cause we know that the ordinary step is to go betore a magistrate. Information is taken to justify the of the criminal to prison await . In the interval the prisoner is several times taken before the police mayiatrate. But such a course cannot be pursued in case of the seizure of a vessel of this kid. The does not give us the mean: nd is thus that the govern- to act and has acted . responsibility in deciding that what had taken place in the case of the Alabama shall not hap Pen again in the case of these vessels, and that they shall not leave the Mersey to join the navy of the belligerent power contrary | to) our laws, as long | as the pending investigation shall not have led to & conclusion enmbling the government whether these vessels were really inte offensive purpose. The government has de the investigation antit {th clusion, in ord: tlons prove, whe for the Confede to permit that the ends of just den departure of the vessels trom the river. ossible to bring the case of the government before the “hamber, but the government has acted under a serious sud- is im- sense of ‘its duty to. it Her and to the United States, "our nations with which Her Maios 1 with any of which arise. ‘The sentiment of this is neither a question to be lightly treated nor a ques- tion without Imponance, If there was really tion to clude the law of the kingdom, it was’ the duty of the truth aud to prevent: the evasion of vessels intended for the attack of # friendly power. SIR ROUNDELL RULOGIZE! The sentiments expressed in this 9) to the man and the statesman, Ht c be recognized the language of an enlightened’ c science and of a juris consulle up tothe height of his great duty, instead of the excuses and Weaknesses Which fill the correspondence of Lord Russell. Every word of this memorable speech is worthy of consideration. Here it was the government which has acted on its own responsi- bility and detained the suspicious vessels. lt was the government which has notified the parties in- terested that the law shalt not be eluded and that the vessels shall not leave the Mersey until after the investigation had proved whether or not those vessels were intended for the Confed- erates, It was the government which was bound to act in deciding that what had taken place in the case of the Alabama (and I add, par paranthese, in the case of the Florida), shall not be renewed in the case of these vessels, and the government has acted under a serious sense of its duty to itsell, to Her Majesty, to the United States, and to all other na- tions with which Her Majesty has relations of friendship and alliance as with the United States, Let us remember that, according to the ad of Sir Roundell Palmer, the government had un- dertaken a regular prosecution against the Alex- andra and the Pampero. And it was the govern- ment which acted, prompted by the sense of its duty toward the United States. WHAT A CONTRAST with what it did not do relative to the Alabama and the Florida! The government had thrown upon Mr. Adams and Mr, Dudley all blame with regard to the Alabama and the Florida, Refusing to act on its responsibility, it had disdainfully asked the United States to act on their responsibility. It crossed its arths while shameless rogues deceived it as to the owners anit the desti- nation of these vessels. There was no prelgninary investigation, no initiative on the part of the gov- ernment, but absolute refusal to act otherwise than by a legal prosecution, and that due to the initia- tive of the United States. Well, then, what has the government done, act- of its own accord and under its own responsl- bility, in the case of the rams’ Has it undertaken @ legal prosecution? Has it seized the vessels ¢ Has it stopped them? Has it acted on testimony sufficient to ine seizure—testimony which was demanded of Mr. Adams and i. Dudley with regard to the Florida and the Alabama? No; none of these precautions were taken; but the government ordered an investigation similar to that which Mr. Adams requested tt to make in the case of the Florida, and has detained the rama to await the result of the investigation, ‘in order to employ all possible means to ascertain the trath and to prevent the evasion of vessels intended for the attack of a friendly Power.” Such is the “due diligence” of the rules of the treaty: % “To employ all possible means to ascertain the truth and to prevent the evasion of vessels." GREAT BRITAIN HAS NOT USED DUE DILIGENCE. dn order, therefore, to establish the absolute-evi~ dence that the English government had not nsed “due diligence” in the case of the Florida and in that of the Alabama, it suffices tonote what that government has obstinately refused, or certainly neglected to do, concerning these vessels, and what it has done of its own accord concerning the rams. The comparison necessarily leads to aconclusion which is against Great Britain. And Sir Hugh Cairns was perfectly right in say- ing on that occasion:—“Kither the govern- ment must acknowledge that what it has done in the case of the rams was not constitutional, or it ought to have acted in the same manner with regard to the rams.” Sir Roundeil Palmer affirms that those vessels had not been seized, but detained. He repeats this decia- vation. In another speech, it is true, in speak- ing of the Alexandra, he says that the government thought it its duty to seize that vessel according to the regulations imposed by the Customs laws. But such was not the proceeding taken with regard to the rats, for they were not seized at all; they were But detained how ? It is clearly shown that they were detained by a notice on the part of the government to the builders and provenyea owners, no doubt with the correspond- ing orders sent to the oiticers of the customs, e counsel of Great Britain affirms loudly and pesitively that the means adopted on the respon- sibility of the government—that is, by the spontaneous motion ofthe Ministers of the Crown— were perfectly legal and constitutional. We, the counsel of the United Stutes, are happy to be in that respect of the same opinion. But this ‘dae diligence” was not ogg with gard to the Florida and the Alabama. The consequence ts in- evitable. In the extract from the speech of Sir Roundell Palmer, on the subject of the Alexandra, | find a | sentence which strikes my attention. It says:— cannot stop her by going to’ the Magistrate. It is necessary that it should be done on the responsibility of the How? It is necessary that it | under the responsibility of | the customs oMecers there e Mr. Dudley, or else wittingly d | commending him to commence | ings on his own responsibility upon hit, | Dudley. When also Lord Kuasell demanded the proofs from Mr. Adams, the latter was un- | doubtedly right in answering that he had neither | the power nor the means to inaugurate judicial | bpd in England. has totally failed in its duty of observing due dili- | gence in the cases of the Alabama and Florida, THE POWERS OF THE LISH CROWN. The counsel on behalf of ¢ t Britain attempts to answer the arguments of the United States rela- | tive to the powers of the Crown by loud declama- | tion, by speaking of arbitrariness aid the Violation | Of the laws and constitution of England. Let us consider these possesses the means of hindering the belligerent | enterprise of unauthorized individuals within her | territorial juvisdiction or whether she does not | them. We cannot avoid this dilemma. ise them she treaty, government.” uid be done mment! Then ther played upon ved him in re- she possesses and does not exe fails in the “due diligence’ of th If she does not possess them bi she has permitted her jurists to impose upon her, | and if from this cause she has arrived at the point | of abdicating her national sovereignty, she still fails | in the “due diligence” of the treaty, Vattel has the Kreat a 10 less them | nation she wrong to the eutire nation than if he maitreate hunselt. | As says Phillimore:—“Everg State has a right to expect irom another the accomplishment of inter- national obligations, without regard to what muni- cipal means he may possess for compeiling them to be observed,’ | Sueh is the recognized common law. sel of Great Britain admits it. The counsel seems to pretend that what 1s done by any government outside of the provisions of a written law is arbitrary. Lwnderstand this idea in | speaking of a government really constitutional, such | as Italy, Brazil, Switzerland and the United states, Tn these countries the functionaries of the execu- tive—king, emperor, president or whatever their title may be—and the functionaries of the legis- lative have each their duties and their powers | marked out in advance by a written na- | tional pact. There, when the government acts, lit cts in conformity with the pact, the constitution and by the agency of funcflonaries | Specially designated by the constitution. But | where is the constitution of England to be found ? | Everybody knows that what in England is calied | “the constitation” is nothing but, a collation of legislative acts, customs, ut 8 and recognized traditions, | is the Crown, haan tien by its responsible Minis- | ters, who, in these later tines, have arrogated to themseives the title of “government; there 1% | the Parliament, which makes taws and controls the Ministers, and, through the’ he Crown; th The ooun- are the tribunals, which inte the written laws and which also interpret the customs, the usages, the traditions having the force of laws, and as for public opinion there are the London newspapers. Now the Ministers, in their capacity derived from the Crown and Parliament, declare war, con- Clude treaties, reorganize new States, control and direct the exterior relations of the Kingdom, Is the government to employ all possible means to ascertain | jucicial proceed- | The government, then, | : | ints, Whether England use Of the fetters | For the executive administration there | eee esa SK | that arbitrariness* Ideny it. It is the law which has established itself by tradition, precisely as has been established Parliament and the privileges of the Peers, But the act of declaration of war by the crown or the conclusion of @ treaty profoundly disturbs individual interests, Among the least of its effects would be to impose obstacles to the departure of merchant vessels from the ports of the kingdom, Still, ta this con- trov we are invited to belleve that it would be arbitrary to cause to be detained provistonally a merchant vessel for the purpose of a simple in- quiry into the legality of its equipment and its destination, The power of Parliament—that is arbitrary. For & Parliament, intended to be all-powerful, which can drive away and even judge a King, to introduce a new dynasty, and to abolish hereditary right and all its legisiative and judicial privileges, to change the religion of the State, to contseate the goods of the Church and to take away from the Crown the administration of the country—is not that the reign of an arbitrary power? But up till now Parliament has not taken away | from the Crewn—that is to say, from the Minis- ters—the direction of foreign atulre, It may arro- gate to itself a part of that direction, as has been done in other constitutional countries, but as to arrogating to itself such a thing entirely, that would be dificnit in the actual state of Europe, SUGAR-COATING A PILL, Thonor England, The foundation and even the form of the institutions of the United States are borrowed from the mother country. We are what we are because we are of British race, language, religion, genius, Character and education, have studied England as she is at home and in her colo- nies, in her establishments beyond the sea, and, above all, in her magnificent Lndian Empire. She is rich great, powerful, aga State, not, as I think, because of the subjection of her Ministers to the | minute and daily criticism of the House of Commons, but in spite of it, as I remember wis said once by the late Lord Palmerston, That is not the strong side—it is rather the weak side of her government. We see it, for that matter, in this controy It is not worth while, then, to refuse necessary preventive powers for Kingdom—not even in the case of acry of “arbitrary rule’’—in preseace of the recog- nized omnipotence—that is to say, of the absolute and arbi sway of Parliament, of which the | Peal force tends each day to concentrate itseit more and more in the House of Commons, Such a constitution, thus indetermined, contin- ues to rule, thanks above all to the good sen the English people, to its wholesome respect for its traditions, to its special genius ior goverament, to its latdable national pride and to the elasticity of its political forms—an elasticity which permits the eption and the placing in the governing class who, no matter whence, within the limits of the Empire, stand out conspicuously by reason of their eminent ability, A POLITICAL PRINCIPLE. Thus liberty and order find themselves concil- ated, But liberty, as well as order, demand that the public peace should not be troubled by the in- trignes and the mercenary interests of individuals; for the want of a little repressive power not being confided to the hands of the Crown. Parliament, in its omnipotence, would have been fully able to remedy the defects of the municipal law if it had wished to do so, It has done so singe then, Butit has not done so in season, and it is that which constitutes a faiiure of the “due dili- gence” of the treaty, America, on the other hand, has done so several times in good season, in the inteyest of its iriendly relations with Great Britain, THE RUSSIAN VESSELS. The counsel cites and aporo: the opinion of the English judges in Fortescue’s Reports. They were of opinion “that the Crown had not the power, according to the laws, to forbid the construction of ships of war, or vessels of great power, for the use of strangers in one of the dominions of Her Majesty” (p. 16). 'wo judges had given this opinion in 1718; other Judges (we are not told how many) gave the same opinion in 1721. Vessels were constructed for Rus- ia, and in opposition to the remonstrances of Sweden. In 1718 there was open war between Russia and Sweden. That was four years beiore the battle of Pultowa. Charles XIL had taken refuge in Turkey, and the Sultan tried in vain to persuade him that he ought to return to his own dominions. The Elector of Hanover, having become King ot England, had just taken part in the plunder of Charles XIL Russia had conquered Finland. In 17l4the Russians burned and destroyed the Swedish fleet before the Island of Aland, | Ifit is true that the Czar had had vessels made in Eng- land it Is beyond question that these vessels contri- buted to the victory of Aland. Aud now for theend, In 1713 the interests of the Elector of Hanover made him favor, or at least not to hinder, the policy of the Czar, and the opinions of the two judges then were opinions without any weight whatever, As to the opinion of 1721, the wind had then changed. England favored Sweden; the peace of Henstadt had not been concluded, and the construc- tion of vessels of war for the service of the Czar was no longer in conflict with the common law of Europe. THE POWER OF THE CROWN. Let us retusn to the question of the power of the Crown. Were these war vessels or not war ves- sels that were constructed for the Czar? History is not explicit upon that point. In the first case, there would have been, in 1713, & manifest violation of the common law. Then there 1# ground to be- lieve that these vessels were not war vessels. ‘The Report says “of the dominions of His Majes- Lom What dominions? England? 1 doubt about if But suppose that from 1713 to the law of 1819 there should not have been in England any law, any coercive power capable of hindering in her ports the construction, equipment and expedition of vessels of war destined to ight against a friendly State and ally of England Then, during that great eighteenth century, and during we know not how many Dap Mh ond ages, England lived in a state of complete impotence to ntain its own sovereignty and to protect its friends against the attacks of foreigners, who made. of her territory a base for belligerent operations. I do not believe, and I shall never belteve, that such could have been the national impotence of England, and Ido not understand how any one could wish to pul the exaggeration of private liber- ty to the point of annihilating all national sover- e ety and of making of England the involuntary acconiplice of all the maritime wars of Europe. Therefore I cut from the question the reputed opinions of Fortescue. It is not for me to pene- trate that mystery; but assuredly there is a mys- tery there, and I beg the arbitrators to consult carefully the numerous contrary opinions assem- bled in the note (B) annexed to the argument of the United States, THE LAWS OF FOREIGN COUNTRIES, The case of Great Britain had affirmed that the United States and Great Britain are the only two countries which have municipal laws proper to ensure tie observance of neutrality. In reply to that assertion we have cited and commented upon the laws of séveral foreign countries and the ob- servations of lawyers of those countries, and these citations show that such laws exist in Europe and America, The counsel! contests this proposition in drawing attention to the brevity o1 the laws of the greater part of these foreign countri and to the imper- fect appreciation of a Netherlands stateman. with- | Out examining the text of these laws and the com- ments upon them of national lawyers, which establish their true character. In this the counsel forgets the characteristic quailty of all the laws of these countries—I mean their comparative brevity when placed side by side | with the laws of Great Britain and of its imitator, the United States, In all the laws entitled “of neutrality,” in what- ever country they 1 exist, there are two Capital objects: firstly, to defend the national territory; against any entanglement with foreigners; and, | secondly, to hinder individuals, whether natives or aliens, from committing on their own individual | anthority acts of foreign hostility in the national | territory, calculated to expose the State to a decla- | ration of war or to reprisals from another State, | Such are the provisions of the various codes, as | for ample those of France, Italy, the Low Coun- tries, Portugal, Spain and Belgium. | WHY SOME CODES DO: NOT PROVIDR PENALTIES. it strikes the eye that these provisions of the nal ¢ les of the various countries of Kurope em- e same subject and have the same object id the American law, omitting, verywhere the details of procedure. But in France, in Italy and elsewhere, we find the rules of procedure in the codes of procedure, and it becomes jnopportune and useless to repeat these rules apropos of each article of the penal code, | The Netherlands Minister in the despatch cited | indicates the neutrality law of his country, after | having inconstaerately sald that there existed no | Such law, It is upon an equivocation of words | alone that the counsel founds the extravagant in- | ductions to which this despatch has given ground. Isut the Netherlands law is copied from the French | penal code, Jt is impossible to mistake its tenor and its meaning. Further, this law 1s at iongth commented upon by French writers of an incontestible authority— Dalloz, Chauveau et Hélie, Bourguignon, Carnot and others, who all follow the sense of our argu: ment. All this is found in the justificatory doc ments annexed to our counter case, And we ha’ added to it an opinion of the late M. Berryer, who shows that these articles of the French ‘code are applicable to certain actions of the Confederates, ih Support of this conclusion we have also cited decisions of Freneh tribunals. The same principle prevails in Italy. We have cited Italian commentators in support of our | proposition, and those commentators, in explain- | ing their own law, adopt the conclusions of French commentators. We find the same ideas again in the Spanish and Portuguese commentators on the subject of like rovisions Of their codes. We cite Silva Ferrao for Portugal and Pacheco and Gomez de la Serna for Spain, (“Ubi Supra,’ pp. 553, 656.) These com- mentators reason as we do, a8 it seems to me, on | the subject of military expeditions and of | corsairs, I cannot conceive this disdainful | attitade with reference to fore laws. It is ; Searcely reasonabie to believe that all juridical knowledge (savoir juridique), and all morality in | logisiative ideas are the exclusive and absolute ap- | panage of paens and the United States. The counsel glides very lightly over the laws of | Switzerlana and Brazil. | | however, TUB EXAMPLE OF BRAZIL. In studying the laws ot Brazil, we find that the | definitions of crimes of this category are more com. ehensive and more complete than the laws of ngland, Among the annexed papers to the British cage CONTINUED ON EIGHTH PAGh.