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recognition of the belligerency of the Confederates by Her Britannic Majesty and the effect of Her Britannic Majesty's Proclamation of Neutrality and the bearing of these matters upon the present controversy, notwithstanding the admission, at page 209, that such recognition of the belligerency of the Confederates is excluded by the terms of the Treaty of Washington from being admissible as a specific ground of claim before the

Tribunal. Considered United States Cou- (1) The doctrines that the pub). ter Case, p. 6. British Case, p. 24; lie ships of war of a non-sovereign British Counter Case, pp. 15 to 20; belligerent are liable to neutral British Argument, pp. 29 to 33. jurisdiction or control in cases

in which the public ships of a sovereign belligerent would not be so liable, and that it was part of the duty of Her Britannic Majesty's Government toward the United States, either by virtue of the first rule in the sixth article of the Treaty of Washington, or otherwise, to detain certain of the Confederate vessels, being public ships of war of a non-sovereign belligerency," when found within British ports, or (in the alternative) to exclude them from all access to those ports. (See pages 152 to 153, 175 to 178, and 182 of the

United States Argument.) Considered United States Case, (9.) The application attempted pp. 126, 351, 352, 159 and 160. to be made in several parts of British Counter Case, p. 1.); Brit. the United States Argument of ish Argument, pp. 33 and 31. phrases,“ base of naval operations”

and "augmentation of force," used in the second Rule, and particularly the doctrine (see pages 130 to 132, and 139) that to allow belligerent cruisers navigated by steam-power to receive supplies of coal or repairs which may make their steam. power effective” iu neutral ports, is a breach of that Rule or of any

other neutral obligation. Considered United States Case, (h.) The doctrine that the charp. 459. British Counter Case, pp. acter of acts or omissions on the 60–62; British Argument, p. 2.3–28. part of a neutral power, which

would otherwise be consistent with the due performance of neutral obligations, is altered by the circumstance that a belligerent has agents

and agencies within the neutral
territory, and has direct dealings

there with neutral citizens. Considered United States Case, (i.) The argument of the United pp. 109,212, 467-481; United States States as to the liability of Great Counter Case, Part IX. British Britain to make pecuniary compen. Case, p. 167; British Counter Case, sation to the United States if she pp. 130-142; Notes in vol. 7 of is found in any respect to have British Appendix; British Argu- failed in the performance of her ment, pp. 35-37; Annexes C and neutral obligations, and as to the D to British Argument.

measure of damages, and the prin-
ciple applicable thereto.

II.-AS TO FACTS GENERALLY.

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Considered United States Case, (j.) The argument of the United pp. 109, 110; United States Coun: States that the British Foreign-Enter Case, p. 16. British Case, p. 24; listment Act of 1819 contained no British Counter-Case, p. 7; British provisions of a preventive efiArgument, pp. 9–11. See also An- cacy, but was merely of a punitive nex B to British Counter Case. character.

Considered United States Case, (k.) The argumentative comparip.112; United States Counter Case, son between the British Foreignp. 16. British Case, p. 25; British Enlistment Act and the Foreign-EnCounter Case, p. 7; British Argu- listment Act and Executive powers ment, pp. 9, 11, See also Annex B of the United States and those of to British Counter Case.

other countries, intended to show
the inferior efficacy of the British

statute.
Considered United States Coun- (1.) The suggestion of the exist-
ter Case, pp. 6, 20. British Case, p. ence of prerogative powers in the
57; British Argument, p. 9. See Crown of Great Britain, and of
also Avnex C, British Counter Case. powers under the British customs

and navigation laws, which ought
to have been, but were not, used
for the maintenance of Her Britan-

nic Majesty's neutrality.
We cite Sir R. Philliinore and (m.) The alleged admissions of
Lord Russell, Sir Roundell Palmer, various British writers and states-
and Sir Alexander Cockburn, and men in printed books, parliament
Mr. Canning, as Great Britain ary speeches, and otherwise, of
may and do cite Wheaton, Story, principles or facts, assumed to be
Jefferson, or Washington. Why in accordance with the present
not?—we say a second time. We Argument of the United States.
find good matter, excellent matter,
in these documents.

Considered United States Case, (n.) The alleged differences be. pp. 462–166; United States Coun- tween the conduct of France and ter Case, p. 11. British Counter other countries, and the conduct of Case, pp. 119–123; British Argu. Great Britain in the observance of ment, p. 34.

neutrality during the war.

III.-AS TO ERRONEOUS VIEWS

OF BRITISH ARGUMENTS, ETC.

Considered United States Case,

(0.) The assertion that Great

Pp. 250-256 ; United States Coun- Britain has made her own munici. ter: Case, p. 7. British Case, p. 21. pal legislation the measure of her

international obligations, and has pleaded any supposed inefficiency of her laws as an excuse for the non-performance of such obliga

tions, which she has never done. Considered United States Case, (p.) The inference that because pp. 113–116. British Counter Case, Great Britain has thought it right Pp. 8, 9.

to legislate, since the war, so as to enlarge the legal control of her Government over certain classes of transactions by her citizens, calculated to lead to difficulty with foreign Powers, she has thereby or otherwise admitted the insuffici. ency of her laws, during the civil war, for the performance of her

neutral obligations. We do not understand that, be- (9.) The manner in which it has cause the British Government re- been thought fit, in the Argument fused to discuss this point in its of the United States, to treat the Counter Case, we are, therefore, de- refusal of Great Britain in her prived of the right to discuss it. Counter Case to enter into any deBesides, why seek for re-argument tailed justification of her Governon a point which she refused to dis- ment against the imputation of incuss?

sincere neutrality, and unfriendly motives toward the United States, as a virtual admission of such insincere neutrality and such un

friendly motives. Considered United States Coun- (r.) The erroneous representation ter Case, pp. 13-16. British Case, in the same argument, of the purpp. 25–29; British Counter Case, pose for wbich numerous historical pp. 25–47 ; British Argument, pp. instances of the extension and per

sistent violation of the neutral or friendly obligations of the United States toward other powers, by citizens of the United States acting contrary to their laws, have been referred to in the Counter Case of Her Britannic Majesty's Government, and the attempt to escape from the direct bearing of those instances upon the question, whether the views of the preventive power which a belligerent has a right to exact from a neutral State, and of the measure of the due diligence with which it is incumbent upon a neutral State to use its preventive powers, insisted upon by the United States in the present controversy against Great Britain, are historically well founded, or politically possible or

8, 9.

consistent with the practice and experience of the United States themselves, who have appealed in their own Case and Counter Case, and in the Appendix to their Counter Case, to most of the very same transactions (wbich Great Britain is now alleged to have improperly brought forward) as actually furnishing evidence of the efficacy of their laws, and of the diligence and good faith with which those laws have been executed.

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

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

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

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

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

C. CUSHING.
Wu. M. EVARTS
M. R. WAITE.

III.-ARGUMENT OF SIR ROUNDELL PALMER ON THE QUESTIONS

OF “DUE DILIGENCE," THE “EFFECT OF COMMISSIONS UPON THE INSURGENT CRUISERS,” AND THE SUPPLIES OF COAL TO SUCH CRUISERS IN BRITISH PORTS.”

[Filed July 29.-See Protocol xv.]

1. On the sources

CHAPTER 1.-ON THE QUESTION OF “ DUE DILIGENCE” GENERALLY

CONSIDERED. When the inquiry is, whether default has been made in the fulfill, ment of a particular obligation, either by a state or by an individual, it is first necessary to have an accurate view of of the obligation. the ground, nature, and extent of the obligation itself.

The examination of this question will be simplified by consideringin the first instance, such a case as that of the Alabama, at the time of her departure from Great Britain, namely, a vessel built and made ready for sea, with special adaptation for warlike use, by British shipbuilders in the course of their trade, within British territory, to the order of an agent of the Confederate States, but not armed, nor capable of offense or defense at the time of her departure.

Any obligation which Great Britain may have been under toward the United States, in respect of such a vessel, could only be founded, at the time when the transaction took place, (1) upon some known rule or principle of international law; or (2) upou some express or implied engagement on the part of Great Britain.

The three rules contained in the VIth Article of the treaty of Washington become elements in this inquiry solely by virtue of the declaration made in that article, that

Her Majesty's government cannot assent to the foregoing rules as a statenent of principles of international law which were in force at the time when the claims mentioned in Article I arose ; but that Her Majesty's government

agree that, in deciding the questions between the two countries arising out of those claims, thé arbitrators should assume that Her Majesty's government had undertaken to act upon the principles set forth in those rules.

In order rightly to understand the effect of the agreement embodied in this declaration, it is important to see how the question between the two goveruments would have stood without it.

I.-As to the rules and principles of international law.

2. Source I. Rules

ternational law.

These must be obtained from the authorities which show what had previously been received and understood among nations as to the obligations of neutral states toward belligerents; and principles of inremembering always, that what is called international law (in the absence of particular compacts between states) is imposed only by the moral power of the general opinion and practice of civilized nations; that, (in the words of Lord Stowell, quoted with approval by the great American jurist, Wheaton, “Histoire des Progrès du Droit des Gens," vol. i, p. 134,) “ une grande partie du droit des gens est basée sur l'usage et les pratiques des nations. Nul doute qu'il a été introduit

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