Papers Relating to the Foreign Relations of the United States, Transmitted to Congress with the Annual Message of the President, December 2, 1872, Part II, Volume III

IV.—Argument of Mr. Evarts, one of the counsel of the United States, addressed to the tribunal of arbitration at Geneva, on the 5th and 6th August, 1872, in reply to the special argument of the counsel of Her Britannic Majesty. See protocols XVII and XVIII.

[August 5-6, 1872.]

Argument of Mr. Evarts.

At the Conference held on the 5th day of August Mr. Evarts addressed the Tribunal as follows:

In the course of the deliberations of the Tribunal it has seemed good to the Arbitrators, in pursuance of the provision of the fifth Article of the Treaty of Washington, to intimate that on certain specific points they would desire a further discussion on the part of the Counsel of Her Britannic Majesty for the elucidation of those points in the consideration of the Tribunal. Under that invitation the eminent Counsel for the British Government has presented an argument which distributes itself, as it seems to us, while dealing with the three points suggested, over a very general examination of the Argument which has already been presented on the part of the United States.Scope of the discussion.

In availing ourselves of the right, under the Treaty, of replying to this special argument upon the points named by the Tribunal, it has been a matter of some embarrassment to determine exactly how far this discussion on our part might properly go. In one sense our deliberate judgment is that this new discussion has really added but little to the views or the Argument which had already been presented on behalf of the British Government, and that it has not disturbed the positions which had been insisted upon, on the part of the United States, in answer to the previous discussions on the part of the British Government, contained in its Case, Counter Case, and Argument.

But to have treated the matter in this way, and left our previous Argument to be itself such an answer as we were satisfied to rely upon to the new developments of contrary views that were presented in this special argument of the British Government, would have seemed to assume too confidently in favor of our Argument, that it was an adequate response in itself, and would have been not altogether respectful to the very able, very comprehensive, and very thorough criticism upon the main points of that Argument, which the eminent Counsel of Her Majesty has now presented. Nevertheless it seems quite foreign from our duty, and quite unnecessary for any great service to the Tribunal, to pursue in detail every point and suggestion, however pertinent and however skillfully applied, that is raised in this new argument of the eminent Counsel. We shall endeavor, therefore, to present such views as seem to us useful and valuable, and as tend in their general bearing to dispose of the difficulties and counter propositions opposed to our views in the learned Counsel’s present criticism upon them.

The American Argument, presented on the 15th of June, as bearing upon these three points now under discussion, had distributed the subject under the general heads of the measure of international duties; of the means which Great Britain possessed for the performance of those duties; of the true scope and meaning of the phrase “due diligence” as used in the Treaty; of the particular application of the duties of the Treaty to the case of cruisers on their subsequent visits to British ports; and then of the faults, or failures, or shortcomings of Great Britain in its actual conduct of the transactions under review, in reference to these measures of duty, and this exaction of due diligence.

The special topic now raised for discussion in the matter of “due diligence” generally considered, has been regarded by the Counsel of the British Government as involving a consideration, not only of the measure of diligence required for the discharge of ascertained duties, but also the discussion of what the measure of those duties was; and then of the exaction of due diligence as applicable to the different instances or occasions for the discharge of that duty, which the actual transactions in controversy between the parties disclosed. That treatment of the points is, of course, suitable enough, if, in the judgment of the learned Counsel, necessary for properly meeting the question specifically under consideration, because all those elements do bear upon the question of “due diligence” as relative to the time, and place, and circumstances that called for its exercise. Nevertheless, the general question, thus largely construed, is really equivalent to the main controversy submitted to the disposition of this Tribunal by the Treaty, to wit, whether the required due diligence has been applied in the actual conduct of affairs by Great Britain to the different situations for and in which it was exacted.Due diligence.

The reach and effort of this special argument in behalf of the British Government seem to us to aim at the reduction of the duties incumbent on Great Britain, the reduction of the obligation to perform those duties, in its source and in its authority, and to the calling back of the cause to the position assumed and insisted upon in the previous Argument in behalf of the British Government, that this was a matter not of international duty, and not of international obligation, and not to be judged of in the court of nations as a duty due by one nation, Great Britain, to another nation, the United States, but only as a question of its duty to itself, in the maintenance of its neutrality, and to its own laws and its own people, in exerting the means placed at the service of the Government by the Foreign-Enlistment Act for controlling any efforts against the peace and dignity of the nation.

We had supposed, and have so in our Argument insisted, that all that long debate was concluded by what had been settled by definitive convention between the two nations as the law of this Tribunal, upon which the conduct and duty of Great Britain, and the claims and rights of the United States, were to be adjudged, and had been distinctly expressed, and authoritatively and finally established in the Three Rules of the Treaty.The Rules of the Treaty the law of this Case.

Before undertaking to meet the more particular inquiries that are to be disposed of in this Argument, it is proper that, at the outset, we should take notice of an attempt to disparage the efficacy of those Rules, the source of their authority, and the nature of their obligation upon Great Britain. The first five sections of the special argument are devoted to this consideration. It is said that the only way that these Rules come to be important in passing judgment upon the conduct of Great Britain, in the matter of the claims of the United States, is by the consent of Her Majesty that, in deciding the questions between the two countries arising out of these claims, the Arbitrators should assume that, during the course of these transactions, Her Majesty’s Government had undertaken to act upon the principles set forth in these Rules, and in them announced. That requires, it is said, as a principal consideration, that the Tribunal should determine what the law of nations on these subjects would have been if these Rules had not been thus adopted. Then, it is argued that, as to the propositions of duty covered by the first Rule, the law of nations did not impose them, and that the obligation of Great Britain, therefore, in respect to the performance of the duties assigned in that Rule, was not derived from the law of nations, was not, therefore, a duty between it and the United States, nor a duty the breach of which called for the resentments or the indemnities that belong to a violation of the law of nations. Then, it is argued that the whole duty and responsibility and obligation in that regard, on the part of Great Britain, arose under the provisions of its domestic legislation, under the provisions of the Foreign-Enlistment Act, under a general obligation by which a nation, having assigned a rule of conduct for itself, is amenable for its proper and equal performance as between and toward the two belligerents. Then, it is argued that this assent of the British Government, that the Tribunal shall regard that Government as held to the performance of the duties assigned in those Rules, in so far as those Rules were not of antecedent obligation in the law of nations, is not a consent that Great Britain shall be held under an international obligation to perform the Rules in that regard, but simply as an agreement that they had undertaken to discharge, as a municipal obligation, under the provisions of their Foreign-Enlistment Act, duties which were equivalent in their construction of the act to what is now assigned as an international duty; and this argument thus concludes:Sir R. Palmer’s attempt to disparage the Rules examined.

When, therefore, Her Majesty’s Government, by the sixth article of the Treaty of Washington, agreed that the Arbitrators should assume that Her Majesty’s Government had undertaken to act upon the principles set forth in the Three Rules, (though declining to assent to them as a statement of principles of international law, which were in force at the time when the claims arose,) the effect of that argument was not to make it the duty of the Arbitrators to judge retrospectively of the conduct of Her Majesty’s Government, according to any false hypothesis of law or fact, but to acknowledge, as a rule of judgment for the purposes of the Treaty, the undertaking which the British Government had actually and repeatedly given to the Government of the United States, to act upon the construction which they themselves placed upon the prohibitions of their own municipal law, according to which it was coincident in substance with those Rules.—(British Special Argument, p. 389.)

Now, we may very briefly, as we think, dispose of this suggestion, and of all the influences that it is appealed to to exert throughout the course of the discussion in aid of the views insisted upon by the learned Counsel. In the first place, it is not a correct statement of the Treaty to say, that the obligation of these Rules, and the responsibility on the part of Great Britain to have its conduct judged according to those Rules, arise from the assent of Her Majesty thus expressed. On the contrary, that assent comes in only subsequently to the authoritative statement of the Rules, and simply as a qualification attendant upon a reservation on the part of Her Majesty, that the previous declaration shall not be esteemed as an assent on the part of the British Government, that those were in fact the principles of the law of nations at the time the transactions occurred.

The sixth article of the Treaty thus determines the authority and the obligation of these Rules. I read from the very commencement of the article: “In deciding the matters submitted to the Arbitrators they shall be governed by the following three Bales, which are agreed upon by the High Contracting Parties as Rules to be taken as applicable to the case and by such principles of International Law not inconsistent therewith;” and then the Rules are stated.

Now, there had been a debate between the diplomatic representatives of the two Governments, whether the duties expressed in those Rules were wholly of international obligation antecedent to this agreement of the parties. The United States had from the beginning insisted that they were; Great Britain had insisted that, in regard to the outfit and equipment of an unarmed ship from its ports, there was only an obligation of municipal law and not of international law; that its duty con-concerning such outfit was wholly limited to the execution of its Foreign-Enlistment Act; that the discharge of that duty and its responsibility for any default therein could not be claimed by the United States as matter of international law, nor upon any judgment otherwise than of the general duty of a neutral to execute its laws, whatever they might be, with impartiality between the belligerents.

To close that debate, and in advance of the submission of any question to this Tribunal, the law on that subject was settled by the Treaty and settled in terms which, so far as the obligation of the law goes seem to us to admit of no debate, and to be exposed to not the least uncertainty or doubt. But in order that it might not be an imputation upon the Government of Great Britain, that while it presently agreed that the duties of a neutral were as these Rules express them, and that these Rules were applicable to this case, that a neutral nation was bound to conform to them, and that they should govern this Tribunal in its decision in order that from all this there might not arise an imputation that the conduct of Great Britain, at the time of the transactions, (if it should be found in the judgment of this Tribunal to have been at variance with these Rules,) would be subject to the charge of a variance with an acknowledgment of the Rules then presently admitted as binding, a reservation was made. What was that reservation?

Her Britannic Majesty has commanded her High Commissioners and Plenipotentiaries to declare that Her Majesty’s Government cannot assent to the foregoing Rules as a statement of principles of international law which were in force at the time when the claims mentioned in Article I arose, hut that Her Majesty’s Government, in order to evince its desire of strengthening the friendly relations between the two countries, and of making satisfactory provision for the future, agrees that, in deciding the questions between the two countries arising out of these claims, the Arbitrators should assume that Her Majesty’s Government had undertaken to act upon the principles set forth in these Rules.

Thus, while this saving clause in respect to the past conduct of Great Britain was allowed on the declaration of Her Majesty, yet that declaration was admitted into the Treaty only upon the express proviso that it should have no import of any kind in disparaging the obligation of the Rules, their significance, their binding force, or the principles upon which this Tribunal should judge concerning them.

Shall it be said that when the whole office of this clause, thus referred to, is of that nature and extent only, and when it ends in the determination that that reservation shall have no effect upon your decision, shall it, I say, be claimed that this reservation shall have an effect upon the argument? How shall it be pretended, before a Tribunal like this, that what is to be assumed in the decision is not to be assumed in the argument?

But what does this mean? Does it mean that these Three Rules, in their future application to the conduct of the United States—nay in their future application to the conduct of Great Britain, mean something different from what they mean in their application to the past? What becomes, then, of the purchasing consideration of these Rules for the future, to wit, that, waiving debate, they shall be applied to the past?

We must, therefore, insist that, upon the plain declarations of this Treaty, there is nothing whatever in this proposition of the first five sections of the new special argument. If there were anything in it, it would go to the rupture, almost, of the Treaty; for the language is plain, the motive is declared, the force in future is not in dispute, and, for the consideration of that force in the future, the same force is to be applied in the judgment of this Tribunal upon the past. Now, it is said that this declaration of the binding authority of these Rules is to read in the sense of this very complicated, somewhat unintelligible, proposition of the learned Counsel. Compare his words with the declaration of the binding authority of these Rules, as Rules of International Law, actually found in the Treaty, and judge for yourselves whether the two forms of expression are equivalent and interchangeable.

Can any one imagine that the United States would have agreed that the construction, in its application to the past, was to be of this modified, uncertain, optional character, while, in the future, the Rules were to be authoritative, binding Rules of the law of nations? When the United States had given an assent, by convention, to the law that was to govern this Tribunal, was it intended that that law should be construed, as to the past, differently from what it was to be construed in reference to the future?

I apprehend that this learned Tribunal will at once dismiss this consideration, with all its important influence upon the whole subsequent argument of the eminent Counsel, which an attentive examinatinon of that argument will disclose.

With this proposition falls the further proposition, already met in our former Argument, that it is material to go into the region of debate as to what the law of nations upon these subjects, now under review, was or is. So far as it falls within the range covered by these Rules of the Treaty, their provisions have concluded the controversy. To what purpose, then, pursue an inquiry and a course of argument which, whatever way in the balance of your conclusions it may be determined, cannot affect your judgment or your award? If these Rules are found to be conformed to the law of nations in the principles which it held antecedent to their adoption, the Rules cannot have for that reason any greater force than by their own simple, unconfirmed authority. If they differ from, if they exceed, if they transgress the requirements of the law of nations, as it stood antecedent to the Treaty, by so much the greater force does the convention of the parties require that, for this trial and for this judgment, these Rules are to be the law of this Tribunal. This argument is hinted at in the Counter Case of the British Government; it has been the subject of some public discussion in the press of Great Britain. But the most authoritative expression of opinion upon this point from the press of that country has not failed to stigmatize this suggestion as bringing the obligation of the Rules of this Treaty down to “the vanishing point.”¹ How far the Tribunal may resort to the rules of international law.

At the close of the special argument we find a general presentation of canons for the construction of treaties, and some general observations as to the light or the controlling reason under which these Rules of the Treaty should be construed. These suggestions may be briefly dismissed.Sir R. Palmer’s principles for the construction of Treaties examined.

It certainly would be a very great reproach to these nations, which had deliberately fixed upon three propositions as expressive of the law of nations, in their judgment, for the purposes of this trial, that a resort to general instructions, for the purpose of interpretation, was necessary. Eleven canons of interpretation drawn from Vattel are presented in order, and then several of them, as the case suits, are applied as valuable in elucidating this or that point of the Rules. But the learned Counsel has omitted to bring to your notice the first and most general rule of Vattel, which, being once understood, would, as we think, dispense with any consideration of these subordinate canons which Vattel has introduced to be used only in case his first general rule does not apply. This first proposition is, that “it is not allowable to interpret what has no need of interpretation.”

Now these Rules of the Treaty are the deliberate and careful expression of the will of the two nations in establishing the law for the government of this Tribunal, which the Treaty calls into existence. These Rules need no interpretation in any general sense. Undoubtedly there may be phrases which may receive some illustration or elucidation from the history and from the principles of the law of nations; and to that we have no objection. Instances of very proper application to that resort occur in the argument of which I am now replying. But there can be no possible need to resort to any general rules, such as those most favored and insisted upon by the learned Counsel, viz, the sixth proposition of Vattel, that you never should accept an interpretation that leads to an absurdity—or the tenth, that you never should accept an interpretation that leads to a crime. Nor do we need to recur to Vattel for what is certainly a most sensible proposition, that the reason of the Treaty—that is to say, the motive which led to the making of it and the object in contemplation at the time—is the most certain clue to lead us to the discovery of its true meaning.

But the inference drawn from that proposition, in its application to this case, by the learned Counsel, seems very wide from what to us appears natural and sensible. The aid which he seeks under the guidance of this rule is from the abstract proposition of publicists on cognate subjects or the illustrative instances given by legal commentators.

Our view of the matter is that, as this Treaty is applied to the past, as it is applied to an actual situation between the two nations, and as it is applied to settle the doubts and disputes which existed between them as to obligation and to the performance of obligations, these considerations furnish the resort, if any is needed, whereby this Tribunal should seek to determine what the true meaning of the High Contracting Parties is.

Now, as bearing upon all these three topics, of due diligence, of treatment of offending cruisers in their subsequent visits to British ports, and of their supply, as from a base of operations, with the means of continuing the war, these Rules are to be treated in reference to the controversy as it had arisen and as it was in progress between the two nations when the Treaty was formed. What was that? Here was a nation prosecuting a war against a portion of its population and territory in revolt. Against the sovereign thus prosecuting his war there was raised a maritime warfare. The belligerent itself, thus prosecuting this maritime warfare against its sovereign, confessedly had no ports and no waters that could serve as the base of its naval operations. It had no ship-yards, it had no founderies, it had no means or resources by which it could maintain or keep on foot that war. A project and a purpose of war was all that could have origin from within its territory, and the pecuniary resources by which it could derive its supply from neutral nations was all that it could furnish toward this maritime war.

Now, that war having in fact been kept on foot and having resulted in great injuries to the sovereign belligerent, gave occasion to a controversy between that sovereign and the neutral nation of Great Britain as to whether these actual supplies, these actual bases of maritime war from and in neutral jurisdiction, were conformable to the law of nations or in violation of its principles. Of course, the mere fact that this war had thus been kept on foot did not, of itself, carry the neutral responsibility. But it did bring into controversy the opposing positions of the two nations. Great Britain contended during the course of the transactions, and after their close, and now here contends, that, however much to be regretted, these transactions did not place any responsibility upon the neutral, because they had been effected only by such communication of the resources of the people of Great Britain as under international law was innocent and protected; that commercial communication and the resort for asylum or hospitality in the ports was the entire measure, comprehension, and character of all that had occurred within the neutral jurisdiction of Great Britain. The United States contended to the contrary. What, then, was the solution of the matter which settles amicably this great dispute? Why, first, that the principles of the law of nations should be settled by convention, as they have been, and that they should furnish the guide and the control of your decision; second, that all the facts of the transactions as they occurred should be submitted to your final and satisfactory determination; and, third, that the application of these principles of law settled by convention between the parties to these facts as ascertained by yourselves should be made by yourselves, and should, in the end, close the controversy and be accepted as satisfactory to both parties.

In this view, we must insist that there is no occasion to go into any very considerable discussion as to the meaning of these Rules, unless in the very subordinate sense of the explanation of a phrase, such as “base of operations,” or “military supplies,” or “recruitment of men,” or some similar matter.

I now ask your attention to the part of the discussion which relates to the effect of a “commission,” which, though made the subject of the second topic named by the tribunal, and taken in that order by the learned Counsel, I propose first to consider.Effect of a commission.

It is said that the claims of the United States in this behalf, as made in their Argument, rest upon an exaggerated construction of the second clause of the first Rule. On this point, I have first to say that the construction which we put upon that clause is not exaggerated; and, in the second place, that these claims in regard to the duty of Great Britain in respect to commissioned cruisers that have had their origin in an illegal outfit in violation of the law of nations, as settled in the first Rule, do not rest exclusively upon the second clause of the first Rule. They, undoubtedly, in one construction of that clause, find an adequate support in its proposition; but, if that construction should fail, nevertheless, the duty of Great Britain, in dealing with these offending cruisers in their subsequent resort to its ports and waters, would rest upon principles quite independent of this construction of the second clause.United States construction of the first Rule.

The second clause of that Rule is this: “And also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted in whole or in part within such jurisdiction to warlike use.”

It is said that this second clause of the first Rule manifestly applies only to the original departure of such a vessel from the British jurisdiction, while its purposes of unlawful hostility still remain in intention merely, and have not been evidenced by execution.

If this means that a vessel that had made its first evasion from a British port, under circumstances which did not inculpate Great Britain for failing to arrest her, and then had come within British ports a second time, and the evidence, as then developed, would have required Great Britain to arrest her, and would have inculpated that nation for failure so to do, is not within the operation of this Rule, I am at a loss to understand upon what principle of reason this pretension rests. If the meaning is that this second clause only applies to such offending vessels while they remain in the predicament of not having acquired the protection of a “commission,” that pretension is a begging of the question under consideration, to wit, what the effect of a “commission” is under the circumstances proposed.

I do not understand exactly whether these two cases are meant to be covered by this criticism of the learned Counsel. But let us look at it. Supposing that the escape of the Florida from Liverpool, in the first instance, was not under circumstances which made it an injurious violation of neutrality for which Great Britain was responsible to the United States, that is to say, that there was no such fault, from inattention to evidence, or from delay or inefficiency of action, as made Great Britain responsible for her escape; and supposing, when she entered Liverpool again, as the matter then stood in the knowledge of the Government, the evidence was clear and the duty was clear, if it were an original case; is it to be said that the duty is not as strong, that it is not as clear, and that a failure to perform it is not as clear a case for inculpation as if in the original outset the same circumstances of failure and of fault had been apparent? Certainly the proposition cannot mean this. Certainly the conduct of Great Britain in regard to the vessel at Nassau, a British port into which she went after her escape from Liverpool, does not conform to this suggestion. But if the proposition does not come to this, then it comes back to the pretension that the commission intervening terminates the obligation, defeats the duty, and exposes the suffering belligerent to all the consequences of this naval war, illegal in its origin, illegal in its character, and, on the part of the offending belligerent, an outrage upon the neutral that has suffered it.

Now, that is the very question to be determined. Unquestionably, we submit that, while the first clause of the first Rule is, by its terms, limited to an original equipment or outfit of an offending vessel, the second clause was intended to lay down the obligation of detaining in port, and of preventing the departure of, every such vessel whenever it should come within British jurisdiction. I omit from this present statement, of course, the element of the effect of the “commission,” that being the immediate point in dispute.

I start in the debate of that question with this view of the scope and efficacy of the Rule itself.

It is said, however, that the second clause of the first Rule is to be qualified in its apparent signification and application by the supplying a phrase used in the first clause which, it is said, must be communicated to the second. That qualifying phrase is “any vessel which it has reasonable ground to believe is intended,” &c.

Now, this qualification is in the first clause, and it is not in the second. Of course this element of having “reasonable ground to believe” that the offense which a neutral nation is required to prevent is about to be committed, is an element of the question of due diligence always fairly to be considered, always suitably to be considered in judging either of the conduct of Great Britain in these matters, or of the conduct of the United States in the past, or of the duty of both nations in the future. As an element of due diligence, it finds its place in the second clause of the first Rule, but only as an element of due diligence.Effect of the words “reasonable ground to believe.”

Now, upon what motive does this distinction between the purview of the first clause and of the second clause rest? Why, the duty in regard to these vessels embraced in the first clause applies to the inchoate and progressive enterprise at every stage of fitting out, arming, or equipping, and while that enterprise is, or may be, in respect to evidence of its character, involved in obscurity, ambiguity, and doubt. It is, therefore, provided that, in regard to that duty, only such vessels are thus subjected to interruption in the progress of construction at the responsibility of the neutral as the neutral has “reasonable ground to believe” are intended for an unlawful purpose, which purpose the vessel itself does not necessarily disclose either in regard to its own character or of its intended use. But, after the vessel has reached its form and completed its structure, why, then, it is a sufficient limitation of the obligation and sufficient protection against undue responsibility, that “due diligence to prevent” the assigned offense is alone required. Due diligence to accomplish the required duty is all that is demanded, and accordingly that distinction is preserved. It is made the clear and absolute duty of a nation to use due diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war against a power with which it is at peace, such vessel having been specially adapted in whole or in part within such jurisdiction to warlike use. That is, when a vessel has become ready to take the seas, having its character of warlike adaptation thus determined and thus evidenced; so upon its subsequent visit to the neutral’s port, as to such a vessel, the duty to arrest her departure is limited only by the――

Chief Justice Cockburn. “What should you think, Mr. Evarts, of such a case as this? Suppose a vessel had escaped from Great Britain with or without due diligence being observed—take the case of the Florida or the Shenandoah—take either case. She puts into a port belonging to the British Crown. You contend, if I understand your argument, that she ought to be seized. But suppose the authorities at the port into which she puts are not aware of the circumstances under which the vessel originally left the shores of Great Britain. Is there an obligation to seize that vessel?”

Mr. Evarts. That, like everything else, is left as matter of fact.

The Chief Justice. “But suppose the people at the place are perfectly unaware from whence this vessel――”

Mr. Evarts, I understand the question. We are not calling in judgment the authorities at this or that place. We are calling into judgment the British nation, and if the ignorance and want of knowledge in the subordinate officials at such a port can be brought to the fault of the Home Government in not advising or keeping them informed, that is exactly the condition from which the responsibility arises. It is a question of “due diligence,” or not, of the nation in all its conduct in providing, or not providing, for the situation, and in preparing, or not preparing, its officials to act upon suitable knowledge.

We find nothing of any limitation of this second clause of the first Rule that prevents our considering its proper application to the case of a vessel which, for the purpose of the present argument, it must be conceded ought to be arrested under it, and detained in port if the “commission” does not interpose an obstacle.

We have laid down at pages from 152 to 154 in our Argument, what we consider the rules of law in regard to the effect of the “commission” of a sovereign nation, or of a belligerent not recognized as a sovereign, in the circumstances involved in this inquiry. They are very simple. I find nothing in the argument of my learned friend, careful and intelligent as it is, that disturbs these rules as rules of law. The public ship of a nation, received into the waters or ports of another nation, is, by the practice of nations, as a concession to the sovereign’s dignity, exempt from the jurisdiction of the courts and all judicial process of the nation whose waters it visits. This is a concession, mutual, reciprocal between nations having this kind of intercourse, and resting upon the best and surest principles of international comity. But there is no concession of extra-territoriality to the effect or extent that the sovereign visited is predominated over by the sovereign receiving hospitality to its public vessels. The principle simply is, that the treatment of the vessel rests upon considerations between the nations as sovereign, and in their political capacities, as matter to be dealt with directly between them, under reciprocal responsibility for offense on either side, and under the duty of preserving relations of peace and good-will if you please, but nevertheless to be controlled by reasons of state.The rules of law respecting the effect of a commission. Extent of the right of exterritoriality given to ships of war.

Any construction of the rule that would allow the visiting vessel to impose its own sovereignty upon the sovereign visited, would be to push the rule to an extreme that would defeat its purpose. It is the equality of sovereigns that requires that the process and the jurisdiction of courts should not be extended to public vessels.

But all other qualifications as to how the sovereign visited shall deal with public vessels rest in the discretion of the sovereign. If offense is committed by such vessels, or any duty arises in respect to them, he, at his discretion and under international responsibility, makes it the subject of remonstrance, makes it the subject of resentment, makes it the subject of reprisal, or makes it the subject of an immediate exercise of force if the circumstances seem to exact it.

What, then, is the tenor of the authorities, in respect to a public vessel not of a sovereign, but of a belligerent, who has not been recognized as a sovereign? The courts of the country, when the question arises as a judicial one, turn to the political authority, and ask how that has determined the question of the public character of such vessels; and if that question (which is a political one) has been determined in recognition of the belligerency, then the vessel of the belligerent is treated as exempt from judicial process and from the judisdiction of the courts. But that vessel remains subject to the control, subject to the dominion of the sovereign whose ports it has visited, and it remains there under the character of a limited recognition, and not in the public character of a representative of recognized sovereignty.

We understand the motives by which belligerency is recognized while sovereignty is refused. They are the motives of humanity; they are the motives of fair play; they are the motives of neutral recognition of the actual features of the strife of violence that is in progress. But it is in vain to recognize belligerency and deny sovereignty, if you are going to attract one by one all the traits of sovereignty, in the relations with a power merely recognized as belligerent and to whom sovereignty has been denied.

What is the difference of predicament? Why, the neutral nation, when it has occasion to take offense or exercise its rights with reference to a belligerent vessel not representing a sovereign, finds no sovereign behind that vessel to which it can appeal, to which it can remonstrate, by which through diplomacy, by which through reprisals, by which in resentments, it can make itself felt, its dominion respected, and its authority obeyed. It then deals with these belligerent vessels not unjustly, not capriciously, for injustice and caprice are wrong toward whomsoever they are exercised, but, nevertheless, upon the responsibility that its dealing must reach the conduct, and that the vessel and its conduct are the only existing power and force to which it can apply itself.Recognition of belligerency not a recognition of sovereignty.

I apprehend that there is no authority from any book that disturbs in the least this proposition, or carries the respect to belligerent vessels beyond the exemption from jurisdiction of courts and judicial process. The rule of law being of this nature, the question, then, of how a neutral shall deal with one of these cruisers that owes its existence to a violation of its neutral rights, and then presents itself for hospitality in a port of the neutral, is a question for the neutral to determine according to its duty to itself, in respect to its violated neutrality and its duty to the sovereign belligerent, who will lay to its charge the consequences and the responsibility for this offending belligerent.

Now, I find in the propositions of the eminent Counsel a clear recognition of these principles of power on the part of the sovereign, and of right On the part of the sovereign, requiring only that the power should be exercised suitably and under circumstances which will prevent it from working oppression or unnecessary injury. That makes it a question, therefore, as to the dealing of the sovereign for which the law of nations applies no absolute rule. It then becomes a question for the Tribunal whether (under these circumstances of cruisers that owe their origin or their power to commit these injuries to their violation of neutrality) Great Britain is responsible to the injured sovereign, the United States, for this breach of neutrality, for this unlawful birth, for this unlawful support of these offending cruisers. As to what the duty of a neutral nation is in these circumstances and in these relations, when the offending cruiser is again placed within its power, I find really no objection made to the peremptory course we insist upon, except that seizing such a vessel, without previous notice, would be impolite, would be a violation of comity, would be a violation of the decorous practice of nations, and would be so far a wrong.

Well, let us not discuss these questions in the abstract merely; let us apply the inquiry to the actual conduct of Great Britain in the actual circumstances of the career of these cruisers. If Great Britain claimed exemption from liability to the United States by saying that, when these cruisers had, confessedly, in fact escaped in violation of neutrality, and confessedly were on the seas propagating those enormous injuries to the property and commerce of a friendly nation, it had promptly given notice that no one of them should ever after enter its ports, and that, if it did enter its ports, it would be seized and detained, then this charge that the conduct of Great Britain toward these cruisers in their subsequent visits to its ports was such as to make it responsible for their original escape or for their subsequent career, would be met by this palliation or this defense. But no such case arises upon the proofs. You have then, on the one hand, a clear duty toward the offended belligerent, and on the other only the supposed obligation of courtesy or comity toward the offending belligerent. This courtesy, this comity, it is conceded, can be terminated at any time at the will of the neutral sovereign. But this comity or this courtesy has not been withdrawn by any notice, or by any act of Great Britain during the entire career of these vessels.Application of the principles.

We say then, in the first place, that there is no actual situation which calls for a consideration of this palliative defense, because the circumstances do not raise it for consideration. On the contrary, the facts as recorded show the most absolute indifference, on the part of Great Britain, to the protracted continuance of the ravages of the Alabama and of the Florida, whose escape is admitted to be a scandal and a reproach to Great Britain, until the very end of the war.

And, yet, a subtraction of comity, a withdrawal of courtesy, was all that was necessary to have determined their careers.

But, further, let us look a little carefully at this idea that a cruiser, illegally at sea by violation of the neutrality of the nation which has given it birth, is in a condition, on its first visit to the ports of the offended neutral, after the commission of the offense to claim the allowance of courtesy or comity. Can it claim courtesy or comity, by reason of anything that has proceeded from the neutral nation to encourage that expectation? On the contrary, so far from its being a cruiser that has a right to be upon the sea, and to be a claimant of hospitality, it is a cruiser, on the principles of international law, (by reason of its guilty origin, and of the necessary consequences of this guilt to be visited upon the offended neutral,) for whose hostile ravages the British Government is responsible. What courtesy, then, does that Government owe to a belligerent cruiser that thus practiced fraud and violence up its neutrality and exposed it to this odious responsibility? Why does the offending cruiser need notice that it will receive the treatment appropriate to its misconduct and to the interests and duty of the offended neutral? It is certainly aware of the defects of its origin, of the injury done to the neutral, and of the responsibility entailed upon the neutral for the injury to the other belligerent. We apprehend that this objection of courtesy to the guilty cruiser that is set up as the only obstacle to the exercise of an admitted power, that this objection which maintains that a power just in itself, if executed without notice, thereby becomes an imposition and a fraud upon the offender because no denial of hospitality has been previously announced, is an objection which leaves the ravages of such a cruiser entirely at the responsibility of the neutral which has failed to intercept it.

It is said in the special argument of the learned Counsel, that no authority can be found for this exercise of direct sovereignty on the part of an offended neutral toward a cruiser of either a recognized or an unrecognized sovereignty. But this after all comes only to this, that such an exercise of direct control over a cruiser, on the part of an offended neutral, without notice, is not according to the common course of hospitality for public vessels whether of a recognized sovereign or of a recognized belligerent. As to the right to exercise direct authority on the part of the displeased neutral to secure itself against insult or intrusion on the part of a cruiser that has once offended its neutrality, there is no doubt.

The argument that this direct control may be exercised by the displeased neutral without the intervention of notice, when the gravity and nature of the offense against neutrality on the part of the belligerent justify this measure of resentment and resistance, needs no instance and no authority for its support. In its nature, it is a question wholly dependent upon circumstances.

Our proposition is, that all of these cruisers drew their origin out of the violated neutrality of Great Britain, exposing that nation to accountability to the United States for their hostilities. Now, to say that a nation thus situated is required by any principles of comity to extend a notice before exercising control over the offenders brought within its power, seems to us to make justice and right, in the gravest responsibilities, yield to mere ceremonial politeness.

To meet, however, this claim on our part, it is insisted, in this special argument, that the equipment and outfit of a cruiser in a neutral port, if it goes out unarmed (though capable of becoming an instrument of offensive or defensive war by the mere addition of an armament) may be an illegal act as an offense against municipal law, but is not a violation of neutrality in the sense of being a hostile act, and does not place the offending cruiser in the position of having violated neutrality. That is but a recurrence to the subtle doctrine that the obligations of Great Britain in respect to the first Rule of the Treaty are not, by the terms of the Treaty, made international obligations, for the observance of which she is responsible under the law of nations, and for the permissive violation of which she is liable, as having allowed, in the sense of the law of nations, a hostile act to be perpetrated on her territory.

This distinction between a merely illegal act and a hostile act, which is a violation of neutrality, is made of course, and depends wholly, upon the distinction of the evasion of an unarmed ship of war being prohibited only by municipal law and not by the law of nations, while the evasion of an armed ship is prohibited by the law of nations. This is a renewal of the debate between the two nations as to what the rule of the law of nations in this respect was. But this debate was finally closed by the Treaty. And, confessedly, on every principle of reason, the moment you stamp an act as a violation of neutrality, you include it in the list of acts which by the law of nations are deemed hostile acts. There is no act that the law of nations prohibits within the neutral jurisdiction that is not in the nature of a hostile act, that is not in the nature of an act of war, that is not in the nature of an application by the offending belligerent of the neutral territory to the purposes of his war against the other belligerent. The law of nations prohibits it, the law of nations punishes it, the law of nations exacts indemnity for it, only because it is a hostile act.Acts done in violation of neutrality are hostile acts.

Now, suppose it were debatable before the Tribunal whether the emission of a war-ship without the addition of her armament, was a violation of the law of nations, on the same reason, and only on that, reason, it would be debatable whether it were a hostile act. If it were a hostile act, it was a violation of the law of nations; if it were not a violation of the law of nations, it was not so, only because it was not a hostile act. When, therefore, the Rules of the Treaty settle that debate in favor of the construction claimed by the United States in its antecedent history and conduct, and determine that such an act is a violation of the law of nations, they determine that it is a hostile act. There is no escape from the general proposition that the law of nations condemns nothing done in a neutral territory unless it is done in the nature of a hostile act. And when you debate the question whether any given act within neutral jurisdiction is or is not forbidden by the law of nations, you debate the question whether it is a hostile act or not.

Now, it is said that this outfit without the addition of an armament is not a hostile act under the law of nations, antecedent to this Treaty. That is immaterial within the premises of the controversy before this Tribunal.

It is a hostile act against Great Britain, which Great Britain――

Sir Alexander Cockburn. “Do I understand you, Mr. Evarts, to say that such an act is a hostile act against Great Britain?”

Mr. Evarts. Yes, a hostile violation of the neutrality of Great Britain, which, if not repelled with due diligence, makes Great Britain responsible for it as a hostile act within its territory against the United States.

This argument of the eminent Counsel concedes that if an armament is added to a vessel within the neutral territory it is a hostile act within that territory, it is a hostile expedition set forth from that territory. It is therefore a violation of the law of nations, and if due diligence is not used to prevent it, it is an act for which Great Britain is responsible. If due diligence to prevent it be or be not used, it is an offense against the neutral nation by the belligerent which has consummated the act.

A neutral nation, against the rights of which such an act has been committed, to wit, the illegally fitting out a war-ship without armament, (condemned by the law of nations as settled by this Treaty,) is under no obligation whatever of courtesy or comity to that cruiser. If, under such circumstances, Great Britain prefers courtesy and comity to the offending cruiser and its sponsors, rather than justice and duty to the United States, she does it upon motives which satisfy her to continue her responsibility for that cruiser rather than terminate it. Great Britain has no authority to exercise comity and courtesy to these cruisers at the expense of the offended belligerent, the United States, whatever her motives may be. Undoubtedly the authorities conducting the rebellion would not have looked with equal favor upon Great Britain if she had terminated the career of these cruisers by seizing them or excluding them from her ports. That is a question between Great Britain and the belligerent that has violated her neutrality. Having the powers, having the right, the question of courtesy in giving notice was to be determined at the cost of Great Britain and not at the expense of the United States. But it ceases to be a question of courtesy when the notice has not been given at all, and when the choice has thus been made that these cruisers shall be permitted to continue their career unchecked.The neutral whose neutrality has been violated is under no obligation of comity to the violator.

Now on this question, whether the building of a vessel of this kind without the addition of armament is proscribed by the law of nations, and proscribed as a hostile act and as a violation of neutral territory, (outside of the Rules of the Treaty,) which is so much debated in this special argument, I ask attention to a few citations, most of which have been already referred to in the American Case.Authorities to show that the construction in neutral territories of a ship intended to carry on war against a belligerent is forbidden by the law of nations.

Hautefeuille, as cited upon page 170, says:

Le fait de construire un bâtiment de guerre pour le comte d’un belligérant ou de l’armer dans les états neutres est une violation du territoire. * * * Il peut egalement réclamer le désarmement du bâtiment illégalement armé sur sou territoire et même le détenir, s’il entre dans quelque lieu soumis à sa souveraineté jusqu à ce qu’il ait été désarmé.

Ortolan, as quoted on page 182 of the same Case, passes upon this situation, which we are now discussing, as follows:

Nous nous rattacherons pour résoudre en droit des gens les difficultés que presente cette nouvelle situation, à un principe universellement établi, qui se formule en ce peu de mots “inviolabilité du territoire neutre.” Cet inviolabilité est un droit pour l’état neutre, dont le territoire ne doit pas être atteint par les faits de guerre, mais elle impose aussi à ce même état neutre une étroite obligation, celle de ne pas permettre, celle d’empêcher, activement au besoin, l’emploi de ce territoire par une des parties ou au profit de l’une des parties belligérantes dans un but hostile à l’autre partie.

And this, very question, the distinction between an armed vessel and an unarmed vessel, was met by Lord Westbury, in observations made by him, and which are quoted in the American Case at page 185. He said:

There was one rule of conduct which undoubtedly civilized nations had agreed to observe, and it was that the territory of a neutral should not be the base of military operations by one of two belligerents against the other. In speaking of the base of operations, he must, to a certain degree, differ from the noble earl, (Earl Russell.) It was not a question whether armed ships had actually left our shores; but it was a question whether ships with a view to war had been built in our ports by one of two belligerents. They need not have been armed; but if they had been laid down and built with a view to warlike operations by one of two belligerents, and this was knowingly permitted to be done by a neutral power, it was unquestionably a breach of neutraltiy.

Chancellor Kent, in a passage cited by the learned Counsel with approval, speaking of the action of the United States as shown in the rules of President Washington’s administration, (which rules are also subsequently quoted with approval in this Argument.) says, (vol. i, page 122:)

The Government of the United States was warranted by the law and practice of nations, in the declaration made in 1793 of the rules of neutrality, which were particularly recognized as necessary to be observed by the belligerent powers in their intercourse with this country. These rules were that the original arming or equipping of vessels in our ports by any of the powers at war, for military service, was unlawful; and no such vessel was entitled; to an asylum in our ports.

No vessel thus equipped was entitled to an asylum in the ports of the nation whose neutrality had been violated. The Tribunal will not fail to observe that these principles were applied by President Washington to cruisers even of an independent nation, recognized as a sovereign. It was the cruisers of France that were under consideration. But the propositions of this special argument, and the course actually pursued by Great Britain in according its homage to their flag, placed these insurgent cruisers on a much higher and more inviolable position than it is possible to concede to cruisers of a recognized sovereign. In truth, such treatment accorded to such cruisers all the irresponsibility of pirates, and all the sanctity of public ships of a recognized sovereignty. It accorded the irresponsibility of pirates, because they were exempted from all control, 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 resentments of the offended neutrals in the shape of non-intercourse, of reprisals, or of war.

The action of Great Britain, under this doctrine of comity and notice, as applied to the cruisers of this belligerency, really exempted them, from the beginning 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, as was practiced 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 remonstrance 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.

I ask, also, in this connection, attention to 1 Phillimore, pp. 399 to 404, and, especially, to a passage extracted from the case of the Santissima Trinidad, commenting upon the case of the Exchange, which last case is cited at considerable length in the argument of the eminent Counsel. Now the Exchange settles nothing, except that when the political authority of a Government has recognized belligerency, the courts will not exercise jurisdiction over the vessels although sovereignty has 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 full in the Appendix of the British Case. It never came to any other 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 judicial process, was made.

Sir Roundell Palmer. “The vessel was restored.”

Mr. Evarts. But it was only after her character as a war-vessel had ceased.

Sir Roundell Palmer. “It was the Government of the United States, by its executive power, that directed the ship to be restored.”

Mr. Evarts. A detailed history of this case, legal and political, will be found in vol. vii of the American Appendix, pp. 18 to 23, 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 after the vessel had been thrown up by the French Minister, who abandoned her to the United States Government, nor until after she was a worthless hulk.

Sir Roundell Palmer. “Am I not right in saying that the President of the Executive Government of the United States gave notice to the French Minister that the ship was at his disposal?”

Mr. Evarts. After it had been abandoned, after it had ceased to be a cruiser capable of hostilities, and after the opportunity for its further hostilities had ceased.

Lord Tenterden. “But the war still continued.”

Mr. Evarts. But, I mean, after the hostilities of that vessel came to an end.

And permit me to say that this condition of things between the United States and France, during the administration of the first President Adams, came substantially to a war between the two countries.¹

Now, it is said that the application of this second clause of the first Rule of the Treaty, and this demand that detention or exclusion shall be exercised in respect to cruisers on their subsequent visits to ports, do not apply either to the Georgia or Shenandoah, because neither the Georgia nor the Shenandoah received their original 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. I understand that to be the position. I will not discuss the facts of the Georgia and Shenandoah any more than of any other vessel in this regard. If the Shenandoah and Georgia, in the conclusions that you shall arrive at upon the facts concerning their outfit, shall be, pronounced 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――The applicability of the rule to the Georgia and the Shenandoah.

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. Evarts. That is the point I was coming to, and of that I 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) before you bring, them into the situation where the resentment for a violation of neutrality, which I have insisted upon, was not required to be exhibited.

I am not, however, here to discuss the questions of fact.

I will 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 operations” and “military supplies,” as prohibited by the second Rule of the Treaty.

The question of “coaling” is one question considered 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.”The question of coaling is a branch of the greater question of the use of British ports as bases of operations.

At the outset of the discussion of this subject it is said that the British Government 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 conduct 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 conduct of the argument on our part justifies this suggestion of the eminent Counsel.

On the subject of “coaling,” it is said that it is not, of itself, a supply of contraband of war or of military aid. Not of itself. The grounds and occasions 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 of which coaling is merely a branch, that is to say, the use of neutral ports and waters for coaling, victualing, repairs, supplies of sails, recruitment of men for navigation, et cet. These may or may not be obnoxious to censure under the law of 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 argument of the eminent Counsel does not stop with so easy a disposition of the subject of coaling, but proceeds to discuss the whole question of base of operations—what it means, what it does not mean, the inconvenience of a loose extension of its meaning; the habit of the United States in dealing with the question both in acts of Government and the practice of its cruisers; the understanding of other nations, giving the instances arising on the correspondence with Brazil on the subject of the Sumter; and produces as a result of this inquiry the conclusion, that it was not the intention of the second Rule of the Treaty to limit the right of asylum.

In regard to the special treatment of this subject of coaling provided by the Regulations established by the British Government in 1862, 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 neutral ports or waters as a “base of naval operations” which is proscribed by the second Rule of the Treaty.

You will observe that while the first Rule applies itself wholly to the particular subject of the illegal outfit of a vessel which the neutral had reasonable ground to believe was to be employed to cruise, et cet., 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 limited, and the violation of it, and the responsibility consequent upon such violation, are restricted to those narrow subjects, the proscription of the second Rule is as extensive as the general subject, under the law of nations, of the use of ports and waters of the neutral as the basis of naval operations, or for the renewal or augmentation of military supplies, 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, under cover of hospitality, 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 is the use of a port or of waters for naval operations is proscribed although it may take the guise, much more if it be an abuse, of the privilege of asylum or hospitality.The doctrine of asylum considered.

There is no difference in principle, in morality, or in duty, between neutrality on land and neutrality at sea. What, then, are the familiar rules of neutrality within the territory of a neutral, in respect to land warfare?

Whenever stress of the enemy, or misfortune, or cowardice, or seeking an advantage of refreshment, carries or drives one of the belligerents or any part of his forces over the frontier into the neutral territory, what is the duty of the neutral? It is to disarm the forces and send them into the interior till the war is over. There is to be no practicing with this question of neutral territory. The refugees are not compelled by the neutral to face their enemy; they are not delivered up as prisoners of war; they are not surrendered to the immediate stress of war from which they sought refuge. But from the moment that they come within neutral territory they are to become non-combatants, and they are to end their relations to the war. There are familiar examples of this in the recent history of Europe.Analogy between the duties of a neutral on land and his duties at sea.

What is the doctrine of the law of nations in regard to asylum, or refuge, or hospitality, in reference to belligerents at sea during war? The words themselves sufficiently indicate it. The French equivalent of “relâche forcée” equally describes the only situation in which a 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 maintenance of the cruise, render the resort of a vessel to a port or ports suitable to, and convenient for, their navigation, under actual and bona fide circumstances requiring refuge and asylum.

There is another topic which needs to be adverted to before I apply the argument. I mean the distinction between commercial dealing in the uncombined materials of war and the contribution of such uncombined materials of war, in the service of a belligerent, in making up military and naval operations, 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 practice of the United States and of England equally, and are not understood to be proscribed, as hostile acts, by the law of nations, and it is agreed between the two countries that the second Rule is not to be extended to embrace, by any largeness of construction, mere commercial transactions in contraband of war.Limitation of the right of commercial dealings in contraband of war.

Sir Alexander Cockburn. “Then I understand you to concede that the private subject may deal commercially in what is contraband of war?”

Mr. Evarts. I will even go further than that and say that commercial dealings or transactions are not proscribed by the law of nations as violations of neutral territory, because they are in contraband of war. Therefore I do not need to seek any aid in my present 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 proscribe a mere commercial dealing in what is understood to be contraband of war. Such is not the true sense of the article, nor does the law of nations proscribe this commercial dealing as a hostile act. But whenever the neutral ports, places, and markets are really used as the bases of naval operations, when the circumstances show that resort and that relation and that direct and efficient contribution and that complicity and that origin and authorship, which exhibit the belligerent himself, drawing military supplies for the purpose of his naval operations from neutral ports, that is 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. Undoubtedly the inculpation of a neutral for permitting this use turns upon the question whether due diligence has been used to prevent it.Use of a neutral port as a base of hostile operations: what it is.

The argument upon the other side is 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 illustrative instances given by Lord Stowell or by Chancellor Kent in support of the rule are adduced as being the measure of the rule. These examples are of this nature: A vessel cannot make an ambush for itself in neutral waters, cannot lie at the mouth of a neutral river to sally out to seize its prey, cannot lie within neutral waters and send its boats to mate 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 casual, temporary, and limited experiments of this kind are not allowed, and that they are followed by all the definite consequences of an offense to neutrality and of displeasure to a neutral, to wit, the resort by such neutral power to the necessary methods to punish and redress these violations of neutral territory,

Now let us see how we may, by examples, contrast 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.

I will not trespass upon a discussion of questions of fact. The facts are wholly within your judgment, and are not embraced in the present argument. But take the coaling of the Nashville. The Nashville left Charleston under circumstances not in dispute, and I am not now considering whether Great Britain is or is not responsible in reference to that ship in any other matter than that of coaling, which I will immediately introduce to your attention.In the case of 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 Slidell, but abandoned this last intention before sailing, as exposing these Commissioners to unfavorable 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 execute that project of naval warfare? She 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 of the 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 six hundred tons.

Sir Alexander Cockburn. “I believe, Mr. Evarts, that the figure six afterward came down to five.”

Mr. Evarts. For the purpose of my present argument, it is quite immaterial.

Mr. Waite. “It was subsequently proved to be four hundred and fifty tons,”

Mr. Evarts. Very well. She had no coal, and she took four hundred and fifty tons or more on board to execute the naval operation which she projected when she left Charleston and did not take the means to accomplish, but relied upon getting them in a neutrel port to enable her to pursue her cruise. Now, the doctrine of rélâche forcée, or of refuge, or of asylum, or of hospitality, has nothing to do with a transaction of that kind. The vessel comes out of a port of safety at home, with a supply from the resources of the belligerent 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 interrupted by the exhaustion of the resources originally provided, have anything to do with a case of this kind. It was a deliberate plan, when the naval operation was meditated and concluded upon, to use the neutral port as a base of naval operations, which plan was carried out by the actual use of neutral territory as proposed.

Now we say, that if this Tribunal, upon the facts of that case, shall find that this neutral port of Bermuda 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? It is true that the distance of the projected naval operation, or its continuance, makes a difference inprinciple as to the resort to establish a base in neutral territory or to obtain supplies 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 to belligerent operations. I will not delay any further upon this illustration.

Let us take next the case of the Shenandoah, separating it from any inquiries as to culpable escape or evasion from the original port of Liverpool. The project of the Shenandoah’s voyage is known. It was formed within the Confederate territory. It was that the vessel should be armed and supplied, that she should make a circuit, passing round Cape Horn or the Cape of Good Hope, that she should put herself on reaching the proper longitude in a position to pursue her cruise to the Arctic Ocean, there to make a prey of the whaling fleet of the United States. To break up these whaling operations and destroy the fleet was planned under motives and for advantages which seemed to that belligerent to justify the expense, and risk, and perils of the undertaking. 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 officers who were outside of that territory.In the case of the Shenandoah.

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 find a base for it in neutral ports.

It is not a phantom ship, and it must have a base. Accordingly, as matter of fact, all that went to make up the execution of that operation of maritime war was derived 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 Governments.”

Mr. Evarts. I am now only showing that this occurred as matter of fact. The question whether it was known to or permitted by the Government of Great Britain, as the Chief Justice suggests, is of an entirely different aspect, involving the considerations of due diligence to prevent.

The ship, then, was furnished from neutral ports and waters. It resorted to Madeira to await the arrival of the Laurel, which, by concert and employment in advance of the sailing of the Shenandoah, was to take the armament, munitions of war, officers, and a part of the crew to complete the Shenandoah’s fitness to take the seas as a ship of war to execute the naval project on which she originally sailed, and which were transferred from ship to ship at sea. The island of Madeira served only as rendezvous for the two vessels, and if there had been occasion, as in fact there was not, might have furnished shelter from storms. Thus made a fighting-ship from these neutral ports, as a base, and furnished from the same base with the complete material for the naval operation projected, the Shenandoah made captures, as without interruption of her main project she might, rounded the Cape of Good Hope and came to Melbourne, another British port, whence she was to take her last departure for her distant field of operations, the waters of the whaling fleet of the United States in the Arctic Ocean.

Sir Roundell Palmer. “I did not, Mr. Evarts, enter upon a treatment of each, of the vessels.”

Mr. Evarts. I am only showing that this ship did use your ports for the purposes of its operations.

Sir Roundell Palmer. “But, Mr. Evarts, I only mentioned these vessels.”

Mr. Evarts. You discussed the question of base of naval operations.

There she obtained as matter of fact four hundred and fifty tons of coal, or something of that kind, and forty men, and without both of these, as well as important repairs of her machinery, she could not have carried out the naval project on which she had started. The coal taken at Melbourne was sent by appointment from Liverpool, and was there to complete her refitment. The naval operation would have failed if the vessel had not received the replenishment of power and resources at Melbourne as a base. Now, this Shenandoah was able to sail sixteen knots an hour.

Sir Alexander Cockburn. “Do you mean to say sixteen knots an hour? That is faster than any vessel I have ever heard of.”

Mr. Evarts. 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.

Lord Tenterden. “But that is not sixteen knots an hour.”

Mr. Evarts. I have not said that she had sailed twenty-four consecutive hours at the rate of sixteen 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 qualities 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 weather. Her great advantage, however, was in being one of the fastest sailing ships ever built. The great importance of her having abundance of coal at the contemplated scene of her naval operations was, that she might capture these poor whalers, who understood those perilous seas, and if they could only get up steerage way, would be able to elude her.

Sir Alexander Cockburn. “What! if she sailed sixteen knots an hour!”

Mr. Evarts. If the Chief Justice will mark the circumstances of Arctic navigation, he will understand that, by means of their knowledge of the ice and the region generally, they could seek shelter by interposing barriers between themselves and their pursuer. They did, 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 furnishes it complete for war, plans its naval operations and executes them, and all this from neutral ports and waters as the only base, and as a sufficient base. Melbourne was the only port from which the Shenandoah received anything after its first supply from the home ports of Great Britain, and it finally accomplished the main operation of its naval warfare 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 accomplishing 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 privilege 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 as a base of naval operations. I do not propose to argue upon the facts of the case of the Shenandoah, but only to submit the principles on which they are to be considered.

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 to 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 belligerents?”

Mr. Evarts. Of course is to be applied to all belligerents; and when the case arises for complaint, it is 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 to a base of operations—that is to say, whether the whole transaction, in all its features, amounts to a concerted and planned use.

Sir Alexander Cockburn. “Planned by whom?”

Mr. Evarts. Why, planned by the belligerent.

Sir Alexander Cockburn. “A ship goes into a neutral port without intimating its purpose or disclosing whether it belongs to one belligerent or another.’’

Mr. Evarts. Take the case of the Nashville.

Lord Tenterden. “Take the Vanderbilt.”

Sir Alexander Cockburn. “Well, let us take that case. She goes into a neutral port, and wants coal for the purpose of going forth 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 as a base. But the neutral knows nothing about the course of the vessel or its destination, except he takes it for granted it is a ship of war. How can he be said to allow the territory to be made a base of operations, except so far as it applies to the ships of a belligerents?”

Mr. Evarts. It does apply, but 1 have not said that this alone rendered the neutral responsible; I have merely laid down the facts. The magnitude of the operations, and the completeness of their relations to the base of supplies, do not alter the application of principles. After all there is left, of course, the question 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 trespass.The question of the use of the neutral port as a base of operations being established, there remains the inquiry whether the neutral did or did not exercise due diligence to prevent it.

Sir Alexander Cockburn. “But that is the very question.”

Mr. Evarts. But that question could not arise until it was determined whether the belligerent had, as matter of fact, made the neutral port a base of operations. All that I 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 diligence. But there is this further consequence carrying responsibility, that when the neutral does not know of such an 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 neutral is not in fault; if the facts are afterward known, then the cruiser that has committed the violation of neutrality is to be proscribed, to be denied hospitality, to be detained in port, or excluded from port, after notice, or without notice, as the case may be.

The question then arises whether a nation thus dealt with by a belligerent, and having the power to stop the course of naval operations thus based, if it purposely omits so to do, does not make itself responsible for their continuance. I do not desire to be drawn into a discussion upon the facts which are not included in the range of the present argument. I now am simply endeavoring 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 the circumstances which make up the prohibited uses of neutral ports for such bases.

I proceed to another branch of the subject.¹

It is said that the concerted setting forth of the Laurel from the neutral port, to carry the armament and the munitions of war and the officers and the crew to be combined outside the neutral jurisdiction with the Shenandoah, already issued from another port of the same neutral, is only a dealing in contraband of war. I deny that such a transaction has any connection with dealing in contraband of war. It is a direct obtaining by a projected cruiser of its supply of armament, munitions, and men and officers from a neutral port.Such proceedings are not mere dealing in contraband of war.

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,” “reasonable ground to believe,” &c., &c. But the principle of contraband of war does not protect such a transaction, and that is the only principle that has been 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 Cockburn. “Not until afterwards.”

Mr. Evarts. The law of nations was violated, your territory had been used, as matter of fact, we claim, as the base of naval operations, and it was not a dealing in contraband of war. It was not a commercial transaction. It was a direct furnishing of a cruiser with armament from your port. It might as well have been accomplished within three miles of your coast. Yet, it is said this is no offense against your law.

Sir Alexander Cockburn. “I do not say that.”

Mr. Evarts. Unfortunately for the United States, through the whole war, we had quite other doctrine from those who laid down the law for Great Britain in these matters. Fortunately, we have better doctrine here and now. But according to the law as administered in England such combinations 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 from her ports and planning thus to combine them outside.

Sir Alexander Cockburn. “If that had been shown.”

Mr. Evarts. The proofs do show it, and that the doctrine was that it was lawful and should not be interfered with.

I disclaim any desire or purpose of arguing upon the facts of particular vessels. I am 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 expressed certain legal opinions on this subject; but I must say that they were not entertained by the Government of Great Britain and did not control its action.

I think that the proofs before the Tribunal can be easily referred to to confirm the position I have taken as to the legal doctrine held in England in reference to this subject of the base of operations. In contradiction of that doctrine we now insist, as our Government all through the war insisted, this is not dealing in contraband of war; it is using neutral territory as a base of operations. Whether there was or should be no responsibility for it, because it was not known or could not be prevented, is an entirely different question. But I undertake to say, as matter of fact, that the doctrine of the English law during all those proceedings was that such projects and their execution as a contributory concurrence with the outfit of the principal cruisers for naval operations (such cases as those of the Laurel, the Alar, the Agrippina, the Bahama, and similar vessels) were lawful, and could not and should not be prevented.

Sir Alexander Cockburn. “I would be very much obliged if you will refer me to some authority for that.”

Mr. Evarts. 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 the principal cruisers efficient instruments of all the mischief, and without which their evasions from port were of little consequence, and without the expectation of which they never would have been planned.

I 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 the occurrence of these transactions.

In vol. iii of American Appendix, (p. 53,) in a report to the Board of Trade by the Commissioners of Customs, occurs this passage:

Custom House, September 25, 1862.

Your lordships haying, by Mr. Arbuthnot’s letter of the 16th instant, transmitted to us, with reference to Mr. Hamilton’s letter of the 2d ultimo, the inclosed communication from the Foreign Office, with copies of a further letter and its inclosures from the United States Minister at this Court, respecting the supply of cannon and munitions of war to the gun-boat No. 290, 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 seem to be required in view of the facts therein represented, and report the result to your lordships, we have now to report:

That, assuming the statement set forth in the affidavit of Reddin, (who sailed from Liverpool in the vessel,) which accompanied Mr. Adams’s letter to Earl Russell, to be correct, the furnishing of arms, &c., to the gun-boat does not appear to have taken place in any part of the United Kingdom or of Her Majesty’s dominions, but in or near Angra Bay, part of the Azores, part of the Portuguese dominions. No offense, therefore, cognizable by the laws of this country, appears to have been committed by the parties engaged in the transaction alluded to in the affidavit.

From Lord Russell’s communication of this Report to the American Minister, it will be seen that the accepted opinion of the Government 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 Britain, and hence the importance of reducing the obligations of a neutral nation to prevent violations of international law to some settled meaning.

This was done by convention between 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 which I am replying. The instances of neutral default announced under the second Rule are made penal by the law of nations. 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. They are uses of neutral ports 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 not prevent them, and that was the limit of their duty under their 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 go 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 subordinate 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 prohibited by the Executive Government, and therefore cannot and will not be stopped. That this was the doctrine of the English Government will be seen from a letter dated the 2d of April, 1863, of Lord Russell, found, in part, in vol. ii, American Appendix, p. 404; and, in part, in vol. i, ibid., p. 590:

But the question really is, has there been any act done in England both contrary to the obligations of neutrality as recognized by Great Britain and the United States, and capable of being made the subject of a criminal prosecution? I can only repeat that, in the opinion of Her Majesty’s Government, no such act is specified in the papers which you have submitted to me.

* * * * * * *

I, however, willingly assure you that, in view of the statements contained in the intercepted correspondence, Her Majesty’s Government have renewed the instructions already given to the custom-house authorities of the several British ports where ships of war may be constructed, and by the Secretary of State for the Home Department to various authorities with whom he is in communication, to endeavor to discover 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 infringed.

* * * * * * * *

It seems clear, on the principle enunciated in these authorities, that, except on the ground of any proved violation of the Foreign-Enlistment Act, Her Majesty’s Government cannot interfere with commercial dealings between British subjects and the so-styled Confederate States, whether the subject of those dealings be money or contraband goods, or even ships adapted for warlike purposes.

These were instances in which complaints were made of these transactions, and in which it was answered that the British Government charged itself with no duty of due diligence, with no duty of remonstrance, with no duty of prevention or denunciation, but simply with municipal prosecutions for crimes against the Foreign-Enlistment Act.

What I have said of the Shenandoah, distinguished her from the Florida, and the Alabama, and the Georgia, only in the fact that, from the beginning 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 single nation 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 by a vessel sent out to Nassau to meet her, carrying all her armament and munitions of war, and which she took out in tow, transshipping her freight of war-material outside the line of neutral waters.

That is called dealing in contraband, not proscribed by the law of nations, not proscribed by any municipal law, and not involving any duty of Great Britain to intercept, to discourage or denounce it. That is confounding substance with form. But let me use the language of an Attorney-General of England, employed in the Parliamentary discussions which attended the enactment of the Foreign-Enlistment Act of 1819.

From this debate in Parliament, it will be seen what the principal law-adviser of the Crown then thought of carrying on war by “commercial transactions:”

Such an enactment [he said] was required by every principle of justice; for when the State says, “We will have nothing to do with the war waged between two separate powers,” and the subjects in opposition to it say, “We will, however, interfere in it,” surely the House would see the necessity of enacting some penal statutes to prevent them from doing so; unless, indeed, it was to be contended that the State, and the subjects 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 could not hut observe, that they had either totally misunderstood or else totally misrepresented its intended object. They had stated that it was calculated to check the commercial transactions and to injure the commercial interests of this country. If by the words “commercial interests and commercial transactions” were meant “warlike adventures,” he allowed that it would; but if 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 petitioners called “commercial transactions” it was the duty of the House to check and injure them as speedily as possible.—(Note B. American Argument, p. 231; Fr. tr. Appendice, p. 488.)

War against the United States, maritime war, was carried on under cover of what was called right of asylum and commercial transactions in 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.

I do 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 as a simple dealing in contraband 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 argument of the learned Counsel.

Sir Roundell Palmer. “There may be passages in reference to some of the principal topics which have been mentioned, but I have avoided entering upon any elaborate consideration of each particular vessel. There is no distinct enumeration of the vessels.”

Mr. Evarts. There is, so distinct as this it is expressly stated that under the law neither the Georgia, nor the Shenandoah, nor the subsidiary vessels that carried their armaments to the Georgia and Shenandoah and to the Florida and Alabama, had, in so doing, committed a breach of neutrality.

I am arguing now under the second Rule. I have not felt that I was transcending the proper limits of this debate, because, in answer to the special 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 of what is called “due diligence,” as a doctrine of the law of nations, would not have inclined me to expect so large a field of discussion as he covered. But, as I 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 difficulty in thinking that the line could not be very distinctly drawn.

I have undertaken to argue this question under a state of facts, which shows that a whole naval project is supplied, from the first outfit of the cruiser 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 proscription of the second Rule, by what is claimed in the argument of the learned Counsel as the doctrine of contraband of war and the doctrine of asylum.

At the Conference of the Tribunal, held on the 6th day of August, Mr. Evarts continued as follows:

I was upon the point of the doctrine of the British Government, and its action under that doctrine, as bearing upon the outfit of the contributory provisions of armament, munitions, and men, set forth in such vessels as the Bahama, the Alar, and 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 from beginning to end being controlled by that doctrine; and all the remonstrances of the United States were met by the answer that the law of nations, the Foreign-Enlistment Act, 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 controversy between the two nations, are obvious. The whole mischief was wrought by the co-operating force of the two legal propositions: (1.) That the unarmed cruiser was not itself a 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 provision by means of her supply-ships, of her armament, munitions, and men, to make her a complete instrument of naval hostilities, was also not a violation of the law of nations, but simply a commercial dealing in contraband. It was only under those combined doctrines that the cruiser ever came to be in the position of an instrument of offensive and defensive war, and to be able to assume the “commission” prepared for her, and which was thenceforth to protect her from interference on the doctrine of comity to sovereignty.Statement of the British argument on this point.

So, too, it will be found, when we come to consider the observations of the eminent Counsel on the subject of due diligence, to which I shall have occasion soon to reply, that the question whether these were hostile acts, under the law of nations, was the turning point in the doctrine of the Government of Great Britain, and of its action, as to whether it would intercept these enterprises by the exercise of executive power, as a neutral government would intercept anything in the nature of a hostile act under the law of nations. The doctrine was that these were not hostile acts separately, 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 regard 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 reply to the special argument which the eminent Counsel himself 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 principal Argument to which he proposes to reply. He quotes, at page 17 of his argument, as follows:

(2.) The next great failure of Great Britain “to use 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 intercept the preparations and outfits of the offending 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 Prerogative, in the maintenance of international relations, and are exercised as such by other great powers, Would have prevented the escape of every one of the offending vessels emitted from British ports, and precluded the subsidiary aids of warlike equipment and supplies which set them forth, and kept them on foot, for the maritime hostilities which they maintained.¹

The comment of the learned Counsel upon this passage is found on the same page (17) of his argument, as follows:

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, but it assumes that the United States had a right, by international law, to request Great Britain to prevent the exportation from her territory of what it describes as “contributory provisions,” arms, munitions, and “subsidiary aids of warlike equipment and supplies,” though such elements of armament were uncombined, and were not destined to be combined, within British jurisdiction, but were exported from that territory under the conditions of ordinary exports of articles contraband of war. For such a pretension no warrant can be found, either in international law, or in any municipal law of Great Britain, or in any one of the Three Rules contained in the sixth Article of the Treaty of Washington.

I respectfully submit, therefore, that in the observations 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 behalf of his Government, any answer to my assertion that, during the whole course of the war, (a period when he, as Solicitor-General or as Attorney-General of England, was one of the law-advisers of the Government,) the action of Great Britain was governed by the doctrine which I have stated. This was publicly announced and it was so understood by the rebel agents, by the interests involved in these maritime hostilities, by the United States Minister, by the officials of the British Government, by everybody who had to act, or ask for action, in the premises.

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, thenceforth, was the doctrine and action of the Government of Great Britain.

The view of an eminent publicist on this point, as a question of international law, may be seen from an extract found at page 177 of the Case of the United States. M. Rolin-Jacquemyns says:

Il nous semble que l’adoption d’une pareille proposition équivaudrait à l’inclination d’un moyen facile d’éluder la règle qui déclare incompatible avec la neutralité d’un pays l’organisation, sur son territoire d’expéditions militaires au service d’un des belligérants. Il suffira, s’il s’agit d’une entreprise maritime, de faire partir en deux ou trois fois les élements qui la constituent; d’abord le vaisseau, puis les hommes, puis les armes, et si tous ces éléments ne se rejoignent que hors des eaux de la puissance neutre qui les a laissés partir, la neutralité sera intacte. Nous pensons que cette interprétation de la loi internationale n’est ni raisonable, ni équitable.

It will be, then, for the Tribunal 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 embraced 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.

It is not for me to dispute the ruling of the eminent lawyers of Great Britain upon their Foreign-Enlistment Act; but, for the life of me, I cannot see why the Alar, and the Alabama, and the Laurel, when they sailed from the ports of England with no cargo whatever except the armament and munitions of war of one of these cruisers, and with no errand and no employment except that of the Rebel Government, through its agents, to transport these armaments and munitions to the cruisers which awaited them, were not “transports” in the service of one of the belligerents within the meaning of the Foreign-Enlistment Act of Great Britain. That, however, is a question of municipal law. It is 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 blameworthy was so only as an infraction of the municipal law of Great Britain. And when you come to transactions of the kind I am now discussing, 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 result from these transactions. They were merely considered as commercial transactions in contraband of war.

But the moment it is held that these things were forbidden by the law of nations, then of course it is no 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 established its violation as a crime, furnish no means of redressing the injury or of correcting or punishing the evil. What course does it sanction when neutral territory is violated by taking prizes within it? When the prize comes within the jurisdiction of the neutral, he is authorized to take it from the offending 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 neutral he is authorized to disarm it.The arming and equipping the cruis era was forbidden by the law of nations.

Now, our proposition is that these cruisers, thus deriving their force for war by these outfits of tenders with their armament and munitions and men, when brought within 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 their maritime fitting for hostilities, the ports and waters of this neutral state.They should therefore have been disarmed when they came again within British ports.

Why, what would be thought of a cruiser of the United States lying off the port of Liverpool, or the port of Ushant in France, and awaiting there the arrival of a tender coming from Liverpool, or from Southampton, by pre-arrangement, with an augmentation 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 augmentation of the force of a fighting-vessel of any belligerent from the contributions of the ports of the neutral?

The fourth chapter of this special argument is occupied, as I have already suggested, with the consideration of the true interpretation of the rules of the Treaty, under general canons of criticism, and under the light which should be thrown upon their interpretation by the doctrines and practices of nations. I respectfully submit, however, that the only really useful instruction that should be sought, or can be applied, in aid of your interpretation of these rules, if their interpretation needs any aid, is to be drawn from the situation of the parties and the elements 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 its award.The construction of the rules of the Treaty.

The whole ground of this controversy is expressed in the firmest 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 situation and the field 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.

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 is no doubt that Jefferson Davis and other leaders of the South have made an army; they are making, it appears, a navy.”

There is the speech of Lord Russell on the 26th of April, 1864, also cited on the same page:

It has been 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 conflict the Confederate States have no ports except those of the Mersey and of the Clyde, from which they fit out ships to cruise against the Federals; and having no ports to which to bring their prizes, they are obliged to burn them on the high seas.

There is, furthermore, the declaration of Mr. Fish, made as Secretary of State, in his celebrated dispatch of the 25th of September, 1869, in which he distinctly proposes to the British Government, in regard to the claim of the United States in this controversy, that the rebel counsels have made Great Britain “the arsenal, the navy-yard, and the treasury of the insurgent Confederates.”

That was the controversy between the two countries, 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 opportunities of keeping on foot these maritime hostilities was practiced. The first rule covers all questions 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 their 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 second rule, under which the present discussion arises, is conformed to the pre-existing law of nations.

We find, however, in this chapter of the special argument, another introduction of the retroactive effect, as it is called, of these Rules as a reason why their interpretation should be different from what might otherwise be insisted upon. This is but a re-appearance of what I have already exposed as a vice in the argument, viz, that these Rules, in respect to the very subject for which they were framed, do not mean the same thing as they are to mean hereafter, when new situations arise for their application. Special methods of criticism, artificial limits of application are resorted to to disparage or distort them as binding and authoritive rules in regard to 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 governed 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 construction of them, I assent 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.

I now come to the more general chapter in the argument of the learned Counsel, the first chapter, which presents under forty-three sections a very extensive and very comprehensive, and certainly a very able, criticism upon the main Argument of 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 application 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 itself 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 authorities which sustain them, of their applicability, and of the result which they lead to—the inculpation 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.”Review of Sir R. Palmer’s criticism upon the Argument of the United States.

The sections from seven to sixteen, (the earlier sections having been already considered,) are occupied 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 justice and their procedure. Although we may not pretend to have as accurate views of constitutional questions pertaining to the nation of Great Britain, or to the general principles of her common law, or of the effect of her statutory regulations, and of her judicial decisions as the eminent Counsel of Her Britannic Majesty, yet I think it will be found that the criticisms upon our Argument in these respects are not, by any means, sound. It is, of course, a matter of the least possible consequence to us, in any position which we occupy, either as a nation before this Tribunal or as lawyers in our Argument, whether or not the sum of the obligations of Great Britain in this behalf under the law of nations was referred for its execution to this or that authority under its constitution, or to this or that official action under its administration. One object of our Argument has been to show that, if the sum of these obligations was not performed, it was a matter of but little 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 petitio principii, of begging the question, that the sum of her obligations was not performed by Great Britain.The prerogative of the Crown.

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 has assigned to the prerogative of the Crown, savors of arbitrary or despotic power. We have no occasion to go into the history of the prerogative of the British Crown, or to consider through what modifications it has reached its present condition. When a 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 pleasure, and when every instrument of the Crown, in the exercise of the prerogative, is subject to impeachment for its abuse.

The prerogative is trusted under the British Constitution with all the international intercourse of peace and war, with all the duties and responsibilities of changing 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 nations. Of that general proposition there seems to be no dispute. But it is alleged that there is a 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 to do with persons and property within the kingdom. This prerogative, it is insisted, gives no power over persons and property within the kingdom of Great Britain, and it is farther insisted that the Foreign-Enlistment Act was the whole measure of the authority of the Government, and the whole measure, therefore, of its duty, within the kingdom. It is said the Government had no power by prerogative to make that a crime in the kingdom which is not a crime by the law, or of punishing a crime in any other manner than through the courts of justice. This of course is sound, as well as familiar, law. But the interesting question is, whether the nation is supplied with adequate legislation, if that is to furnish the only means for the exercise of international duty. If it is not so supplied, that is a fault as between the two nations; if it is so supplied, and the powers are not properly exercised, that 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 dilemma, the actual conduct of the British Government must be impaled.

We are instructed in this special Argument as to what, in the opinion of the eminent Counsel, belongs to prerogative, and what to judicial action under the statute; but we find no limitation of what is in the power of Parliament, or in the power of administration, if adequate parliamentary provision be made for its exercise. But all this course of Argument, ingenious, subtle, and intricate as it is, finally brings the eminent Counsel around to this point, that by the common law of England within the realm, there is power in the Crown to use all the executive authority of the nation, civil and military, to prevent a hostile act towards another nation within that territory. That is but another name for prerogative, there is no statute on that subject, and no writ from any Court can issue to accomplish that object.

If this is undoubtedly part of the common law of England, as the 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 intercepted 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 continually to 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 proceeded against, under the requirements of administrative duty in enforcing the Foreign-Enlistment Act, as against persons and property for confiscation or for punishment, that was all that was necessary or proper.

Sir Alexander Cockburn. “Am I to understand you as a lawyer to say that it was competent for the authorities at the port whence such a vessel escaped to order out troops and command them to fire?”

Mr. Evarts. 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. Evarts. That would draw me to another subject, viz, a discussion of the facts. But I will say that it depends upon whether the act she is engaged in committing comes within the category of hostile acts.

Sir Alexander Cockburn. “But taking this case, and laying aside the question of due diligence. The vessel is going out of the Mersey. Do you say as a lawyer that she should be fired upon?”

Mr. Evarts. Under proper circumstances, yes.

Sir Alexander Cockburn. “But I put the circumstances.”

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 authority. You do not put in the element that that is the only way to bring such a vessel to. If you 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. Do you, I again ask—do you, as a lawyer, say that it would be competent for the authorities without a warrant, simply because this is a violation of the law, to fire on that vessel?”

Mr. Evarts. Certainly, after the usual preliminaries of hailing her, and firing across her bows, to bring her to. Finally, if she insists on proceeding on her way, and thus raises the issue of escape from the Government, or forcible arrest by the Government, you are to fire into her. It becomes a question 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 is, 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 subject of the executive powers of the British Government in this behalf:

It is impossible too pointedly to deny the truth of this assumption, or too pointedly to state that, if any military 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 would not have been necessary 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 lawfully available to the Executive Government, by the common law of the realm, for the prevention of such proceedings.

This is the law of England as understood by the eminent Counsel who has presented this 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 responsibility for the violation of neutrality—then, the situation has arisen, in the failure of civil means, the failure of remonstrance, of arrest and of bringing to, for firing into the vessel. For certainly, if we have authority to stop, we are not to have that authority met and frustrated by the persistence of violent resistance to it.

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 occurrence of these hostile transactions within the realm is lodged in what he calls the common law of Great Britain, or is found, as we suppose, in the prerogative of the Crown. Nor do I understand 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 circumstances arose, even to the extent to which it has been pushed in answer to the questions put 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 of a port, committing a hostile act, that power can be exerted to the point of firing into such vessel, if necessary, as well as of merely exerting the slightest touch, if that proves sufficient to accomplish the object.¹

Sections seventeen to twenty-five are occupied with a discussion concerning the preventive powers and punitive powers under the legislation 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 contains no preventive power, or that it contains not so much as the Act of the United States, still, after all, I find no progress made beyond this: that the preventive powers, thus relied upon and thus asserted, as having origin under, and by virtue of, the act, are confined to the prevention that springs out of the ability to punish, or out of the mode in which the power to punish is exercised.Preventive and punitive powers of each government.

Nor will the text of the Foreign Enlistment Act famish any evidence that it provides any power for the prevention by law of the evasion of such a vessel, except in the form of prosecution for confiscation, which is one of the modes of punishment. And when this Foreign Enlistment Act was passed in 1819, it was thus left unaccompanied by any executive power of interception and prevention, for the reason, as shown in the debates, that this interceptive and preventive power resided in the prerogative of the Crown, and could be exercised by it. This will be seen from the debates which we have appended in Note B to our Argument.

In comparing that law with the preceding act passed in 1818 by the American Government, the debates in Parliament gave as the reason for the lodgment of this preventive power in the Executive of the United States, by the act of Congress, and for its not being necessary to lodge a similar preventive power in the British Crown, that there was no prerogative in America, while there was in Great Britain.

To be sure, when one of the punishments provided by law is a proceeding in rem for confiscation of the vessel, if you serve your process at a time and under circumstances to prevent a departure of the vessel on its illegal errand, you do effect a detention. But that is all. The trouble with that detention is, that it is only a detention of process, to bring to issue and to trial a question of private right, a confiscation of the ship, which is to be governed by all the rules of law and evidence, which are attendant upon the exercise of authority by the Crown, in taking away the property of the subject.

It never was of any practical importance to the United States, whether the British Government confiscated a ship or imprisoned the malefactors, except so far as this might indicate the feelings and sympathy of that nation. All we wished was, that the Government should prevent these vessels from going out. It was not a question with us, whether they punished this or that man, or insisted upon this or that confiscation, provided the interception of the cruisers was effected. When, therefore, we claimed under the Foreign Enlistment Act or otherwise, that these vessels should be seized and detained, one of the forms of punitive recourse under that act would have operated a detention, if applied at the proper time and under the proper circumstances. Confiscation had its place whenever the vessel was in the power of the Government; but it was only by interception of the enterprise that we were to be benefited. That interception, by some means or other, we had a right to; and if your law, if your constitution, had so arranged matters that it could not be had, except upon the ordinary process, the ordinary motives, the ordinary evidence, and the ordinary duty by which confiscation of private property was obtained, and that provision was not adequate to our rights, then our argument is that your law needed improvement.

But it is said that nothing in the conduct of Great Britain, of practical importance to the United States, turned upon the question whether the British law, the Foreign Enlistment Act, was applicable only to an armed vessel, or was applicable to a vessel that should go out merely prepared to take its armament. How is it that nothing turned upon that question? It is so said because, as the learned Counsel contends, the Government adopted the construction that the statute did embrace the case of a vessel unarmed. But take the case of the Alabama, or the Florida, for an illustration, and see how this pretension is justified by the facts. What occasioned the debates of administrative officers? What raised the difficulties and doubts of custom-house and other officials, except that the vessel was not armed, when, as regards both of these vessels, the Executive Government had given orders that they should be watched? Watched! watched, indeed! as they were until they went out. They were put under the eye of a watching supervision, to have it known whether an armament went on board, in order that then they might be reported, and, it may be, intercepted. The whole administrative question of the practical application of authority by the British Government, in our aid, for the interception of these vessels, turned upon the circumstance 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 armaments from tenders that subsequently brought them, which, also, could not be stopped.

Certain observations of Baron Bramwell are quoted 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 vessels. They are to this effect, and exhibit the British doctrine:

A vessel fitted to receive her armament and armed, is a vessel that should be stopped under an international duty. This amounts to an act of proximate hostility which a neutral is bound to arrests. Baron Bramwell held that the emission of a vessel armed is, undoubtedly, a hostile expedition within the meaning of the law 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 enterprise 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 belligerent from a neutral port calls for the exercise of authority on the part of the neutral, either by law or by executive interference, and, until the armament gets on board, there is nothing to bring the case within the province of international proscription and of international responsibility. It was then, he argues, only a question for Great Britain whether the provisions of the Foreign Enlistment Act can touch such a vessel, and the only question for the British Government was as towards the United States, have they done their duty to themselves in the enforcement of the municipal law, which involves a question of international responsibility to the United States? We insist, therefore, that so far from nothing practical turning upon this distinction, all the doubts and difficulties turn upon it, especially in connection with the ancillary proposition that these vessels could be provided, by means of their tenders, with armaments, without any accountability for the complete hostile expedition.¹

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 prerogative to supply its defects, you should have supplied them by Act of Parliament—that you should have furnished by legislation the means for 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 toward the amendment of your law, and that, when the late war on the continent of Europe opened, your new Act was immediately passed containing all the present provisions of practical executive interception of such illegal enterprises—it is, I say, 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 international duties of Great Britain to the United States.

Sections 27 to 30 of the special argument 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 investigation, scrutiny, report, and interceptive prevention of enterprises of this kind. Well, the comments upon this are of two kinds: first, concerning the question, under a somewhat prolonged discussion of facts, whether the Government did or did not do this, that, or the other thing;² and, then, concerning the more general question, as to whether the Rules of this Treaty call upon this Tribunal to inquire into any such deficiency of diligence which was not applicable to the case of a vessel respecting which the British Government “had reasonable ground to believe” that a violation of the law was meditated.The failure of Great Britain to originate investigation or proceedings.

Our answer to this latter question is, that the Rules together, in their true construction, require the application of due diligence (particularly under the special emphasis of the third Rule) “to prevent” the occurrence of any of the infractions of the law of nations proscribed by the Rules.The “due diligence” required by the Rules is a diligence to prevent a hostile act.

There are two propositions in these Rules. Certain things are assigned as violations of the law of nations, and as involving a duty on the part of a neutral Government to prevent them; and besides in and toward preventing them, it is its duty to use due diligence. In regard to every class of alleged infractions of these Rules, there comes to be an inquiry, 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 nations as prescribed by those Rules. If not, they are dismissed from your consideration. But if they are so found, then these Rules, by their own vigor, become applicable to the situation, and then comes the inquiry whether Great Britain did, in fact, use due diligence to prevent the proscribed infractions. It is under the sections now under review that the learned Counsel suggests whether it is supposed that this general requirement 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 violation of the duties of Great Britain,) or the cases of these tenders that supplied the Georgia and the Shenandoah and the Florida and the Alabama 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 ground 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 infractions of neutrality.

I will agree that under the first clause of the first Rule the duty is applied to a vessel concerning which the Government “shall have reasonable ground to believe,” &c. Under the second clause of the first Rule, this phrase is omitted, and the question of “reasonable ground to believe” forms only an element in the more general question of “due diligence.” Under the second Rule also, the whole subject of the use of the neutral ports and waters as a base of naval operations is open; and, if there has been a defect of diligence in providing the officers of Great Britain with the means of knowledge and the means of action, to prevent such use of its ports and waters as a base of operations, why, then, Great Britain is at fault in not having used due diligence to prevent such use of its ports and waters. That is our argument; and it seems to us it is a 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 base of naval operations does not include the use of due diligence to ascertain whether they were being, or were to be, so used.

It was a fault not to use due diligence to prevent the ports and waters of Great Britain from being used as a base of naval operations, or for the augmentation of force, or the recruitment of men. And to admit that it was a fault, in any case, not to act where the Government had cause to believe that there was to be a violation of law, and yet to claim that it was no fault for the Government to be guilty of negligence in not procuring intelligence and information which might give a reasonable ground to believe, seems to me absurd.

This, indeed, would be to stamp the lesser negligence, of not applying due diligence in a particular case when there was “reasonable ground to believe,” as a fault, entailing responsibility upon a neutral Government, and to excuse the same Government for the systematic want of due diligence which, through indifference to duty and voluntary ignorance, did not allow itself to be placed in a position to judge whether the ground of belief was reasonable, or whether there was any ground at all for its action. The lesser fault infers that the same or greater responsibility is imputable to the greater fault.

The sections of the special Argument of the learned Counsel which are occupied with a comparison between the practical efficiency of the American and of the English Acts, and in which 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 argument which he will present to the Tribunal. It is enough for me to repeat here the observation of our Argument, that the true measure of the vigor of an act is its judicial interpretation and its practical execution. We do not intend to allow ourselves to be involved in discussions as to the propriety of this or that construction of the English 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 interpretation and exercise of the powers of the Neutrality Act of the United States?Comparison between the statutes of the two nations.

The propositions of our Argument seem to us untouched by any of the criticisms which the learned Counsel has applied to them. We, rightly or wrongly, have interpreted our act, from its first enactment to the present time, as giving authority to the Executive of the United States to intercept, by direct exercise of power, all these prohibited enterprises at any stage at which he can lay his hands upon them, for the purpose of their prevention. The correspondence produced in our proofs, showing the action of the Executive Government 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 execution of the duty, the Government has recognized the duty, the Executive has undertaken it, and all the subordinates have had their attention called to it, in 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 to time, fully and promptly supplied with information to secure the efficient execution of the law. And it is not improper, perhaps, for me here to observe, that my learned associate, Mr. Cushing, and myself, having been called upon to execute this statute in the office of Attorney-General of the United States, we can bear testimony to its vigor and its efficiency, in the everyday 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 authority of the statute, has always been successful or not, or has always used due diligence in its exercise, and whether it is accountable to this or that nation for a faulty execution of its duties of neutrality, are questions which this Tribunal cannot dispose of, and they are only remotely collateral to any discussions properly before the Arbitrators.

Sir Alexander Cockburn. “If you are arguing now upon that point, Mr. Evarts, explain this to me. By the last English Act of 1870, the Secretary of State has power, under certain circumstances, to order a 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 possible consider. I 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 proceedings 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 vessel back again according to your form of procedure?

Mr. Evarts. I take it for granted that the detention which the President might authorize, or cause to be made, would not be an indefinite 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 Alexander Cockburn. “Do you mean to say that the ship shall remain in the hands of the Government?”

Mr. Evarts. If the party chooses so to leave it without satisfactory explanation. The President interposes in the discharge 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 does 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 President, in the ordinary practice of things, direct that the matter should be submitted to judicial determination?”

Mr. Evarts. This Executive interception carries no confiscation. It merely detains the vessel and the owner can apply for its release, giving an explanation of the matter. But the Executive may say, “I am not satisfied with your explanation; if you have nothing else to say, I will keep your vessel;” or he may send it to the courts to enforce its confiscation.

Sir Alexander Cockburn. “Which does he practically do?”

Mr. Evarts. He practically, when not satisfied to release it, usually sends it to the court, because the situation admits of that disposition of it. Under the Act of the United States, there is the same actual interception by the Executive which your Act of 1870――

Sir. Alexander Cockburn. “Under our Act the Executive has no discretion; it must send it to the courts.”

Mr. Evarts. Under our Act, we trust the Executive for a proper exercise of the official authority intrusted to him.

In the American Case, some instances of the exercise of this power on a very considerable scale will be found. (Page 126 of the French translation.) The documents explaining these transactions are collected at length in the Appendix to the American Counter-Case.

Sections 38 to 41 of the special argument call in question our position as to onus probandi. It is said that we improperly undertake to shift, generally, the burden of proof and require Great Britain to discharge itself from liability by affirmative proof in all cases where we charge that the act done is within the obligation of the Three Rules. This criticism is enforced by reference to a case arising in the public action of the United States under the Treaty of 1794 with Great Britain.The burden of proof.

I will spend but 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 action has taken place within the jurisdiction of Great Britain, (so that the principal fact of accountability within the nation is established,) then, on the ordinary principle that the affirmative is to be taken up by that party which needs its exercise, the proof of “due diligence” is to be supplied by Great Britain. How is a foreigner, outside of the Government, uninformed of its conduct, having no access to its deliberations or the movements of the Government, to supply the proof of the want of due diligence? We repose, then, upon the ordinary principles of forensic and judicial reasoning. When the act complained of is at the fault of the nation, having been done within its jurisdiction, and is a violation of the law of nations for which there is an accountability provided by these Three Rules, the point of determination whether due diligence has been exercised by the authorities of the country to prevent it, or it has happened 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, which is quoted in section 41. It is a long quotation and I will read, therefore, only the concluding part. It will be found on page 50 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 sufficient testimony that the facts are true which form the basis of our promise; that is, that the property claimed belongs to British subjects; that it was taken either within the line of jurisdictional protection, or, if on the high seas, then by some vessel illegally armed in our ports; and 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 claims 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.

A careful perusal of this passage is sufficient to show that the facts here insisted upon as necessary to be proved by the claimant are precisely equivalent to the facts which the United States are called upon to prove in this case. The 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 injuries complained of. In the absence of this due diligence on the part of that Government, the apparent responsibility rests undisturbed by the exculpation which 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 burden of proof.

In conclusion of the first chapter of this special argument, the eminent Counsel, at section 43, takes up the “Tereeira affair.” and insists that if Great Britain, in a particular situation for the exercise of duties of neutrality, took extraordinary measures, it does not prove that the Government were under obligation to take the same measures in every similar or comparable situation.The Terceira affair.

We referred to the Terceira affair for the purpose of showing that the Crown by its prerogative possessed authority for the interception of enterprises originating within the kingdom for the violation of neutrality. The question, whether the Executive will use 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 existed to the extent that we call for its exercise within British jurisdiction. The question in controversy then was (although a great majority of both Houses voted against the resolutions condemning the action of the Government) whether, in the waters of Portugal or upon the seas, the Government could, with strong hand, seize or punish vessels which had violated the neutrality of Great Britain by a hostile though unarmed expedition from its ports. The resolutions in both Houses of Parliament received the support of only a small minority. Mr. Phillimore, however, says the learned Counsel, expresses the opinion in his valuable work that the minority were right.

Sir Alexander Cookburn. “I confess I always thought so myself.”

Mr. Evarts. But the point now and here in discussion is, what were the powers of the Crown within the limits of British jurisdiction, and it is not necessary to consider who were right or who were wrong in the divisions in Parliament. What all agreed in was, that the fault charged upon the Government was the invasion of the territorial rights of another nation.

But we cited the Terceira affair for the additional purpose of showing the actual exercise of the power in question by the Crown in that case. This was important to us in our argument; it justly gave support to the imputation that the powers of the Government were not diligently exercised during the American Rebellion in our behalf. Where there is a will, there is a way; and diligence means the use of all the faculties necessary and suitable to the accomplishment of the proposed end.

Now, in conclusion, it must be apparent that the great interest, both in regard to the important controversy between the High Contracting Parties, and in regard to the principles of the law of nations to be here established, turns upon your award. That award is to settle two great questions: whether the acts which form the subject of the accusation and the defense, are shown to be acts that are proscribed by the law of nations, as expressed in the Three Rules of the Treaty. You cannot alter the nature of the case between the two nations, as shown by the proofs. The facts being indisputably established in the proofs, you are then to pass upon the question whether the outfit of these tenders to carry forward the armament of the hostile expedition to be joined to it outside of Great Britain is according to the law of nations or not.Conclusion.

When you pass upon the question whether this is a violation of the second Rule, you pass upon the question, under the law of nations, whether an obligation of a neutral not to allow a hostile expedition to go forth from its ports can be evaded by having it sent forth in parcels, and having the combination made outside its waters. You cannot so decide in this case, and between these parties, without establishing by your award, as a general proposition, that the law of nations proscribing such hostile expeditions may be wholly evaded, wholly set at naught by this equivocation and fraud practiced upon it; that this can be done, not by surprise—for anything can be done by surprise—but that it can be done openly and of right. These methods of combination outside of the neutral territory may be resorted to, for the violation of the obligations of neutrality, and yet the neutral nation, knowingly suffering and permitting it, is free from responsibility! This certainly is a great question.

If, as we must anticipate, you decide 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 measure of diligence actually used by Great Britain, the ill consequences 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 world. Your judgment, then, upon the second question, is to pronounce whether that measure of diligence which was used and is known to have been used, and which produced no other result than the maintenance, for four years, of a maritime war, upon no other base than that furnished from the ports and waters of a neutral territory, is the measure of “due diligence,” to prevent such use of neutral territory, which is required by the Three Rules of the Treaty of Washington for the exculpation of Great Britain.

1. London Times, February, 1872.

1. A passage from Mr. Dana’s note, already referred to, puts this matter in a very clear light.

   As the Cassius was taken into judicial custody, within twenty-four hours of her arrival, and remained in that custody until after she had been disarmed and dismantled by the French Minister, and formally abandoned by him to the United States Government with a reclamation for damages, the political department of the United States Government never had practically before it the question, what it would do with an armed foreign vessel of war within its control, which had, on a previous voyage, before it became a vessel of war, and while it was a private vessel of French citizens, added warlike equipments to itself within our ports, in violation of our statutes for the preservation of our neutrality. When it came out of judicial custody, it was a stripped, deteriorated, and abandoned hulk, and was sold as such by public auction. The only political action of our Government consisted in this: It refused to interfere to take the vessel from the custody of the judiciary, but instructed its attorney to see that the fact of its being a bona fide vessel of war be proved and brought to the attention of the court, with a motion for its discharge from arrest on the ground of its exemption as a public ship, if it turned out to be so. What course the Executive would have taken as to the vessel, if it had passed out of judicial custody before it was abandoned and dismantled, does not, of course, appear. And that is the only question of interest to international law.—VII American Appendix, p. 23; Choix de Pieces, etc., t. ii, p. 726.

1. In connection with this discussion, I ask attention to the course taken by the Government of Brazil in resentment and punishment for the incidental violation of its neutrality by the Florida, (within the neutral waters,) and by the Shenandoah, by her commander violating the Consular seal of Brazil on board one of the Shenandoah’s prizes. In both instances, the offending cruisers were perpetually excluded from the ports of the empire; and the exclusion embraced any other cruiser that should be commanded by the captain of the Shenandoah.

   The treatment of the Rappahannock by the French Government, which detained her in port till the close of the war, is well worthy of attention. The transaction is detailed in the App. Am. Counter Case, pp. 917–946.

1. An error has occurred in the French translation of this passage of the American Argument. In the fifteenth and sixteenth lines of page 343, the words “l’armement de navires hostiles et les fournitures de vivres,” should read, “Fequipment de navires hostiles, et les fournitures subsidiaires.”

1. It would seem to be quite in accordance with the ordinary course of Governments in dealing with armed (or merchant) ships, that refuse obedience to a peaceful summons of sovereignty to submit to its authority, to enforce that summons by firing into the contumacious ship.

   In “Phillimore,” vol. iii, pp. 231–4, will be found the orders of the British Government in the matter of the “Terceira Expedition,” and an account of their execution. Captain Walpole “fired two shots, to bring them to, but they continued their course. The vessel, on board of which was Saldanha, although now within point blank range of the Ranger’s guns, seemed determined to push in at all hazards. To prevent him from effecting his object, Captain Walpole was under the necessity of firing a shot at the vessel, which killed one man and wounded another.” (P. 232.)

   The eighth article of the Brazilian Circular of June 23, 1863, provides for the necessary exhibition of force, as follows:

   “8. Finally, force shall be used (and in the absence or insufficiency of this, a solemn and earnest protest shall be made) against a belligerent who, on being notified and warned, does not desist from the violation of the neutrality of the Empire. Forts and vessels of war shall be ordered to fire on a belligerent, who shall,” &c. (7 Am. App., p.113.)

   Indeed, there is no alternative, unless the solution of the difficulty laid down by Doggberry is preferred:

   “Dogberry. You are to bid any man stand in the prince’s name.

   “Watch. How if he will not stand?

   “Dogberry. Why, then, take no note of him, but let him go; and presently call the rest of the watch together, and thank God you are rid of a knave.”

   [Shakespeare, Much Ado about Nothing, Act iii, Sc. 3.

1. Mr. Théodore Ortolan, in a late edition of his “Diplomatie de la mer,” tome ii, says:

   “Nous nous rattacherons, pour résoudre en droit des gens les difficultés que présente cette nouvelle situation, à un principe universellement établi, qui se formule en ce peu de mots: ‛Inviolabilité du territoire neutre.’ Cette inviolabilité est un droit pour l’état neutre, dont le territoire ne doit pas être atteint par les faits de guerre, mais elle impose, aussi, à ce même état neutre, une étroite obligation, celle de ne pas permettre, celle d’empêcher, activement au besoin, l’emploi de ce territoire par l’une des parties, ou au profit de l’une des parties belligérantes, dans un but hostile à l’autre partie.”—Case of the U. S., p. 182.

2. It does not seem profitable to go into a minute examination of the proofs before the Tribunal to establish the propositions of our Argument specially controverted in sections 29 and 30 of the present argument of the eminent Counsel. Although the letter of Earl Russell, quoted by the learned Counsel, does, incidentally, refer to certain instructions having been given to subordinate officials, yet we look in vain, through the proofs of the British Government, for the text or date or circulation of these instructions. As for the rest, we find nothing in the instances cited, in which specific information happened to be given in regard to this or that vessel or enterprise, which contravenes our general propositions of fact, in this behalf, or the influence of want of due diligence on the part of the British Government, which we have drawn from those facts.