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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 gov ern 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 examination of that argument will disclose.
rules of internation
With this proposition falls the further proposition, already met in How far the Tribu- our former Argument, that it is material to go into the renal may resort to the gion 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
Sir R. Palmer's
At the close of the special argument we find a general presentation of canons for the construction of treaties, and some general principles for the con- 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.
1 London Times, February, 1872.
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 gov ernment 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.
United States con
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, aud taken in that order by the learned Counsel, I propose first to consider. It is said that the claims of the United States in this behalf, as made in their Argument, rest upon an exaggerated construction struction of the first 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 coustruction 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.
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."
Effect of a commis101.
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 sec
Effect of the words
ond. Of course this element of having "reasonable ground "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 dili gence, it finds its place in the second clause of the first Rule, but only as an element of due diligence.
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 equip ping, 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 argament, 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. e are calling into judg ment 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