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5. The adn.tted
parties as to the sa
dent with, and not to exceed, the previously known rules of international law. Great Britain, though taking a different tention of both view of the other Rules, has also expressly declared, in her ond Rule. Counter Case, that she too regards the second Rule as in no way enlarg. ing the previously known prohibitions of international law, on the subject to which it relates. The practice of the United States, by habitually receiving supplies of coal in British ports during the war, was in accordance with the views of international law, applicable to this subject, which had been previously announced and acted upon by all the highest political and judicial authorities of that country. Thus it is made quite apparent that the construction now sought to be placed by the United States upon this second Rule is at variance with the real intention and meaning of both the Contracting Parties; and therefore with the 1st and 4th of the principles extracted from Vattel, as well as with the others already specified.
But further: not only did Great Britain consent to the retrospective application of those Rules, upon the footing formerly ex- 6. Inluence upor plained, to the determination of what she understood as the construction of "the claims generically known as the Alabama Claims," pose the three Rates growing out of acts committed by particular vessels which had historically given rise to that designation, and of no other kind of claims; not only did the two Contracting Parties agree to observe these Rules as between themselves in future;" but they also agreed to "bring them to the knowledge of other maritime Powers, and to invite them to accede to them."
for general adoption to other maritine na tions.
They did not attempt to make a general code of all the rules of international law connected with the subject; they were not careful, and did not attempt, to express the explanation or qualifications of any expressions used in these particular Rules, which a sound acquaintance with the rules and usages of international law would supply. Rules of this nature, which could rationally be supposed proper to be proposed for general acceptance to all the maritime Powers of the civilized world, must evidently have been meant to be interpreted in a simple and reasonable sense, conformable to, and not largely transcending the views of international maritime law and policy which would be likely to commend themselves to the general interests and intelligence of that portion of mankind. They must have been meant to be definitely, candidly, and fairly interpreted; not to be strained to every unforeseen and novel consequence, which perverse latitude of construction might be capable of deducing from the generality of their expressions. They must have been understood by their framers, and intended to be understood by other States, as assuring the continuance, and involving in their true interpretation the recognition of all those principles, rules, and practical distinctions, established by international law and usage, a departure from which was not required by the natural and necessary meaning of the words in which they were expressed; they cannot have been meant to involve large and important changes, upon subjects not expressly mentioned or adverted to by mere implication; nor to lay a series of traps and pitfalls, in future contingencies and cases, for all nations which might accede to them. Great Britain certainly, for her own part, agreed to them, in the full belief that the Tribunal of Arbitration, before which these claims would come, might be relied upon to reject every strained application of their phraseology, which could wrest them to purposes not clearly within the contemplation of both the Contracting Parties, and calculated to make them rather a danger to be avoided than a light to be followed by other nations.
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 COUN SEL OF HER BRITANNIC MAJESTY. SEE PROTOCOLS XVII AND XVIII.
ARGUMENT OF MR. EVARTS.
At the Conference held on the 5th day of August Mr. Ecarts addressed the Tribunal as follows:
In the course of the deliberations of the Tribunal it has seemed good Scope of the dis- 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.
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 judg ment 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 Ar gument 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 considération, 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.
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.
The Rules of the
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 Treaty the law of this 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.
Sir R. Palmer's atthe Rules examined,
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 tempt to disparige 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 bellige rents. 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:
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 Govern ment 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 Rules, 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 conconcerning 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, but 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?