II.—Reply of the counsel of the United States in response to the foregoing statement of Sir Roundell Palmer.1

The Counsel of the United States desire to submit to the Arbitrators some observations regarding the Memorandum of the Counsel of Great Britain, presented at the conference of the 27th instant, in support of the request of the British Government for leave to file an additional argument on behalf of his Government.Reasons why further argument should not he ordered at this stage of the proceedings.

I. The Arbitrators having already refused to grant that request as being incompatible with the first clause of the fifth article of the Treaty of Washington, no occasion remains to discuss the Memorandum in this relation, but it needs to be done in relation to the second clause of the same article of the Treaty.

The stipulation is that subsequently to the filing of written or printed arguments by both parties on the prescribed day, “the Arbitrators may, if they desire further elucidation with regard to any point, require a written or printed statement or argument or oral argument by counsel upon it.”

In construction of this clause we respectfully suggest:

1. That tinder it no question of general argument can arise until after the Arbitrators shall have themselves examined the regular Arguments of the parties, together with the respective Cases and Counter Cases, and come to the conclusion that some particular point or points may require elucidation. But this contingency cannot now have arrived, because the regular and prescribed Argument of the British Government was not filed until the same Conference, and of course there can have been as yet no such examination of the subject as the clause in question supposes.

2. The clause presupposes a requirement on the part of the Arbitrators for reason of desire of elucidation on their part. It contemplates a particular state of mind of the Arbitrators, growing out of their examination of the subject-matter, constituting a personal desire, and resulting in a requirement made of their own accord and for their own satisfaction.

Such an occasion may arise, but the Memorandum is wholly inapplicable thereto. The Memorandum does not assume, or pretend to meet, any requirement or any mental desire of the Arbitrators. On the contrary, it expresses only a desire of the Counsel of the British Government to meet alleged exigencies of that Government.

3. The clause of the Treaty contemplates argument, written, printed, or oral, for elucidation with regard to any point. These expressions manifestly imply that, on examination, the Arbitrators encounter some point, some special point, which for their own satisfaction requires further discussion in order to clear up a doubt, supply a lacuna, or otherwise afford information.

But the Memorandum proposes a re-argument of the whole case and of all the questions submitted, whether of fact or of law, which at this stage of the Arbitration is wholly incompatible with the clause of the fifth article as already decided, and equally incompatible with the second clause of the fifth article.

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What this Memorandum proposes is still more inadmissible in the last as well as in the first relation, because its professed and special object is to respond to the final Argument of the United States. That the British Government has no right to do, any more than the United States have right to respond to the final British Argument. And above all, in the present relation, such a responsive argument is inadmissible, because it is not elucidation of any particular point, and still less elucidation of any particular obscurity in the minds of the Arbitrators.

What the British Government could not do directly, in the form of new arguments, it cannot do indirectly in the form of an elucidation to be called for by the Arbitrators. Of course the Arbitrators will not of themselves intimate a desire of elucidation which does not exist, in order to enable the Counsel of the British Government to do indirectly what he has no right under the Treaty to do directly.

II. The Memorandum is still more objectionable in a general view of the nature and effect of the Treaty, and what the respective Governments have already done under it.

The Treaty definitely stipulates that the two Governments shall file simultaneously each its Case, its Counter Case, and its Argument. Why this peculiar form of procedure, so different from that in ordinary courts of justice, was adopted, we have no right to know. But we may suppose that it was adopted on a theory of perfect equality and reciprocity.

However this may be, while the arrangement gives to the United States the capability of an opening and a closing discussion in the Case and Counter Case, it gives the same capability to Great Britain.

Finally, it affords to each Government the opportunity to close on the facts as well as law, by means of the Argument, so called, two months after the filing of documentary or other evidence by either Government.

It is impossible to conceive of any arrangement more emphatically fair than this with respect to both Governments.

The Case of the United States gave general notice to Great Britain of the claims preferred, while the simultaneous Case of the British Government prevented hasty conclusion on the part of the Arbitrators.

The Counter Case of Great Britain did or might respond in full to the Case of the United States with similar consideration of the rights of the latter in their Counter Case.

Finally, each party had power to argue on the facts and law, but at the same time and on the same plane of right, so as absolutely to preclude all question of separate arguments.

The Memorandum of the Counsel of the British Government seeks to evade all these Treaty arrangements, and to tear down the edifice of perfect reciprocity and equity so carefully constructed by the stipulations of the Treaty, by putting in the very formal responsive argument so carefully prohibited by the Treaty.

Evidently the two Governments did not intend that the Argument of either should be a criticism on that of the other. But that is what the Memorandum proposes to have done. Nay, the Memorandum itself constitutes an inadmissible argumentative criticism on the Argument of the United States.

III. As to the particular ships in question, the Memorandum suggests that the United States have brought forward new matter in their Argument. We are not aware of any such matter in our Argument.

The Memorandum further assumes that hereafter, if occasion should arrive, the Arbitrators would ask for explanation in regard to the ships. We do not admit the assumption, and will not argue the question by anticipation.

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

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

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

V. The Memorandum objects that cause of re-argument is furnished by “the course taken by the Government of the United States in withholding (as far as was possible) their reply as well to the Case as to the Counter Case of Great Britain, until the Argument now delivered, so as to make it impossible for the Argument, to be at the same time delivered on the part of Her Britannic Majesty’s Government, to deal adequately by anticipation with many important views which it was intended by the United States to present to the Tribunal.”

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

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

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

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

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

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

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

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Does or can the Counsel for the British Government suppose that we should omit to respond to this arraignment by filing defensive proofs as the basis of argument?

Does or can the Counsel of the British Government suppose that we should admit the pertinency of this arraignment, or that we should fail to suggest its inappropriateness?

VII. The Memorandum suggests as a cause for re-argument, that we have referred in our Argument to the great English work of Sir Robert Phillimore on International Law, and to eminent statesmen of Great Britain. We submit that we are wholly unable to see the force of this consideration.

In our argument we quote Phillimore as we quote Wolf, Vattel, Martens, Hautefeuille, Cauchy, Calvo, or Fiore. Why not?

And why should Great Britain object to our citing her most eminent author on the subject of the law of nations? Can it be any surprise to the Counsel of the British Government? Did we not in our Case indicate the use to be made of Sir Robert Phillimore? (Pages 117, 123.)

Then the Memorandum objects to our citing in our Argument the eminent statesmen of Great Britain, living and dead,—the Cannings, the Castlereaghs, the Denmans, the Grants, the Hollands, the Althorps, the Peels, the Huskissons, the Colliers, the Harcourts, the Coleridges, the Redesdales, the Bussells, the Granvilles, the Cairns, the Derbys, the Hatherlys, the Salisburys, the Palmers, and the Gladstones.

If it be just cause of offense in the eyes of the Arbitrators that we have referred in honorable terms to these high names of British statesmen, we submit to the censure of the Tribunal, but we deny that the fact affords any reason why the Arbitrators should ask for elucidation on the subject or that it justifies the application for additional argument on the part of the British Government.

VIII. The Memorandum enumerates under three heads, with subdivisions, the main reasons of the British Government for desiring further argument.

It is remarkable that each one of the points thus suggested has been already argued by the British Government, except one which it purposely omitted, either in its Case, Counter Case, or Arguments. We do not say that all these points have been fully argued by the British Government: that was for their Counsel to judge. But they were argued, and in a much larger number of words than appear in the discussions on the side of the United States.

Reduced to the same standard, (that of the page of the British Case,) we have the following state of things:

Pages.
British Case 168
British Counter Case 154
British Argument and Notes 91
Total pages 413
American Case 128
American Counter Case 11
American Argument 200
Total pages 339

Surely, in view of this comparison, the British Government has no [Page 380] cause to come forward now and supply deficiencies in its Cases and Argument.

To show that every point on which the British Government now desires to be reheard is discussed in as ample manner (or that it deliberately refused to discuss it at all) as it pleased, with six, four, or two months’ time of reflection, and with all the bar of Great Britain at its back, we now proceed to prove by the following tabular statement, the right column of which contains the points which Sir Rundell Palmer desires to argue stated in his own words, and our comments thereon being as in the left-hand column:

1.—As to principle.
This doctrine is referred to in all the Cases and Arguments. It is not a new suggestion of principle in our final Argument. (a.) The doctrine of general international obligation asserted more particularly at pages 20 to 23 of the United States Argument.
Considered United States Case, p. 149, et seq. British Case, pp. 3, 23, and 24; British Counter Case, pp. 11 to 23; British Argument, pp. 7 and 8. (b.) The view submitted in the United States Argument (pages 146 to 147 and elsewhere) of the effect in the present controversy of Her Majesty’s consent that the three Rules embodied in the sixth article of the Treaty of Washington may be applied by the Tribunal as rules of judgment to the facts of the present case.
Considered United States Case, pp. 150 to 158; United States Counter Case, p. 6. British Case, p. 24; British Counter Case, pp. 21 and 22; British Argument, p. 8. (c.) The doctrines as to due diligence and as to the practical consequences of the obligation of such diligence, and of the omission in any case to use it, advanced more particularly at pages 154 to 162, 148 to 149, and 186 of the United States Argument.

Considered United States Case, pp. 106, 118 to 122; United States Counter Case, pp. 6 and 7. British Counter Case, p. 5; British Argument, p. 9, et seq. See also Annex “C,” British Counter Case.

In this paragraph of the Memorandum our Argument is erroneously stated. We say that the Queen’s prerogative is a part of the common law of England. We deny that the British Foreign-Enlistment Act was the only law of Great Britain. If so, it should have been amended.

(d.) The doctrines that a sovereign power, in repressing acts contrary to its neutrality, ought to act by prerogative and not by law, and that any reference to the internal laws of a neutral State ought to be rejected as irrelevant to the question whether that State has used due diligence in the performance of its international obligations. (Pages 20, 24 to 26, 27, 149 to 152, and 165 of the United States Argument.)
Considered United States Case, pp. 63 and 64; United States Counter Case, p. 7. British Case, pp. 4 to 7; British Argument, p. 30. (e.) The doctrines as to belligerency and neutrality in cases of civil war set forth particularly at pages 7 to 13, 19, and 27 of the United States Argument, and the conclusion thence drawn as to the [Page 381] recognition of the belligerency of the Confederates by Her Britannic Majesty and the effect of Her Britannic Majesty’s Proclamation of Neutrality and the bearing of these matters upon the present controversy, notwithstanding the admission, at page 209, that such recognition of the belligerency of the Confederates is excluded by the terms of the Treaty of Washington from being admissible as a specific ground of claim before the Tribunal.
Considered United States Counter Case, p. 6. British Case, p. 24; British Counter Case, pp. 15 to 20; British Argument, pp. 29 to 33. (f.) The doctrines that the public ships of war of a non-sovereign belligerent are liable to neutral jurisdiction or control in cases in which the public ships of a sovereign belligerent would not be so liable, and that it was part of the duty of Her Britannic Majesty’s Government toward the United States, either by virtue of the first rule in the sixth article of the Treaty of Washington, or otherwise, to detain certain of the Confederate vessels, being public ships of war of a “non-sovereign belligerency,” when found within British ports, or (in the alternative) to exclude them from all access to those ports. (See pages 152 to 153, 175 to 178, and 182 of the United States Argument.)
Considered United States Case, pp. 126, 351, 352, 459 and 460. British Counter Case, p. 15; British Argument, pp. 33 and 34. (g.) The application attempted to be made in several parts of the United States Argument of phrases, “base of naval operations” and “augmentation of force,” used in the second Rule, and particularly the doctrine (see pages 130 to 132, and 139) that to allow belligerent cruisers navigated by steam-power to receive supplies of coal or “repairs which may make their steam-power effective” in neutral ports, is a breach of that Rule or of any other neutral obligation.
Considered United States Case, p. 459. British Counter Case, pp. 60–62; British Argument, p. 25–28. (h.) The doctrine that the character of acts or omissions on the part of a neutral power, which would otherwise be consistent with the due performance of neutral obligations, is altered by the circumstance that a belligerent has agents [Page 382] and agencies within the neutral territory, and has direct dealings there with neutral citizens.
Considered United States Case, pp. 109,212,407–481; United States Counter Case, Part IX. British Case, p. 167; British Counter Case, pp. 130–142; Notes in vol. 7 of British Appendix; British Argument, pp. 35–37; Annexes C and D to British Argument. (i.) The argument of the United States as to the liability of Great Britain to make pecuniary compensation to the United States if she is found in any respect to have failed in the performance of her neutral obligations, and as to the measure of damages, and the principle applicable thereto.
II.—As to facts generally.
Considered United States Case, pp. 109,110; United States Counter Case, p. 16. British Case, p. 24; British Counter-Case, p. 7; British Argument, pp. 9–11. See also Annex B to British Counter Case. (j.) The argument of the United States that the British Foreign-Enlistment Act of 1819 contained no provisions of a preventive efficacy, but was merely of a punitive character.
Considered United States Case, p. 112; United States Counter Case, p. 16. British Case, p. 25; British Counter Case, p. 7; British Argument, pp. 9,11. See also Annex B to British Counter Case. (k.) The argumentative comparison between the British Foreign-Enlistment Act and the Foreign-Enlistment Act and Executive powers of the United States and those of other countries, intended to show the inferior efficacy of the British statute.
Considered United States Counter Case, pp. 6, 20. British Case, p. 57; British Argument, p. 9. See also Annex C, British Counter Case. (l.) The suggestion of the existence of prerogative powers in the Crown of Great Britain, and of powers under the British customs and navigation laws, which ought to have been, but were not, used for the maintenance of Her Britannic Majesty’s neutrality.
We cite Sir R. Phillimore and Lord Russell, Sir Bounded Palmer, and Sir Alexander Cockburn, and Mr. Canning, as Great Britain may and do cite Wheaton, Story, Jefferson, or Washington. Why not?—we say a second time. We find good matter, excellent matter, in these documents. (m.) The alleged admissions of various British writers and statesmen in printed books, parliamentary speeches, and otherwise, of principles or facts, assumed to be in accordance with the present Argument of the United States.
Considered United States Case, pp. 462–466; United States Counter Case, p. 11. British Counter Case, pp. 119–123; British Argument, p. 34. (n.) The alleged differences between the conduct of France and other countries, and the conduct of Great Britain in the observance of neutrality during the war.
III.—As to erroneous views of british arguments, etc.
Considered United States Case, [Page 383] pp. 250–256; United States Counter Case, p. 7. British Case, p. 24. (o.) The assertion that Great Britain has made her own municipal legislation the measure of her international obligations, and has pleaded any supposed inefficiency of her laws as an excuse for the non-performance of such obligations, which she has never done.
Considered United States Case, pp. 113–116. British Counter Case, pp. 8, 9. (p.) The inference that because Great Britain has thought it right to legislate, since the war, so as to enlarge the legal control of her Government over certain classes of transactions by her citizens, calculated to lead to difficulty with foreign Powers, she has thereby or otherwise admitted the insufficiency of her laws, during the civil war, for the performance of her neutral obligations.
We do not understand that, because the British Government refused to discuss this point in its Counter Case, we are, therefore, deprived of the right to discuss it. Besides, why seek for re-argument on a point which she refused to discuss? (q.) The manner in which it has been thought fit, in the Argument of the United States, to treat the refusal of Great Britain in her Counter Case to enter into any detailed justification of her Government against the imputation of insincere neutrality, and unfriendly motives toward the United States, as a virtual admission of such insincere neutrality and such unfriendly motives.
Considered United States Counter Case, pp. 13–16. British Case, pp. 25–29; British Counter Case, pp. 25–47; British Argument pp. 8, 9. (r.) The erroneous representation in the same argument, of the purpose for which numerous historical instances of the extension and persistent violation of the neutral or friendly obligations of the United States toward other powers, by citizens of the United States acting contrary to their laws, have been referred to in the Counter Case of Her Britannic Majesty’s Government, and the attempt to escape from the direct bearing of those instances upon the question, whether the views of the preventive power which a belligerent has a right to exact from a neutral State, and of the measure of the due diligence with which it is incumbent upon a neutral State to use its preventive powers, insisted upon by the United States in the present controversy against Great Britain, are historically well founded, or politically possible or [Page 384] consistent with the practice and experience of the United States themselves, who have appealed in their own Case and Counter Case, and in the Appendix to their Counter Case, to most of the very same transactions (which Great Britain is now alleged to have improperly brought forward) as actually furnishing evidence of the efficacy of their laws, and of the diligence and good faith with which those laws have been executed.

IX. In conclusion, we respectfully submit to the Arbitrators that the sense of the treaty is plain, and that it imperatively forbids any such action, direct or indirect, as is proposed in the Memorandum.

In preparing their arguments the Counsel on both sides considered the question, and without mutual conference they both came to the same conclusion, and expressed it in substantially the same spirit, with difference of language only. In the expression of courteous deference to the Arbitrators, we beg the Tribunal on this point to look at page 1 of the British, and page 6 of the American Argument.

We have not discussed here the argumentative points of the Memorandum, as we might well have done, considering all such discussion inappropriate at this time.

Finally, we need say little on the question of convenience; but we cannot forbear to say that as to the Arbitrators, as we may well suppose, but certainly for ourselves, for whom alone we have a right to speak, prolonged debate involves cares, and inconveniences of separation from home and from our personal and professional affairs, which do not apply to the Counsel of the British Government.

In this view and in other relations, we respectfully suggest that the Arbitrators, if they need elucidation of any point, should propose specifically such point and require Counsel to argue viva voce, face to face, in the presence of the Tribunal.

C. Cushing.
Wm. M. Evarts.
M. R. Waite.
  1. The Arbitrators declined to receive this Reply, having denied the request of the British Counsel.