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of the two nations.
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 wen the soutes 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 ?
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 testiinony to its vigor and its efficiency, in the every day 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 circuinstances, 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 ag. grieved 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 indaced it.
Sir ALEXANDER COCKBURN. “ Would not the President, in the or dinary 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 con. fiscation.
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 iuterception 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 es. ercise 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 po.
sition 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
The burden of prooi,
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.
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 delib. erations 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 sitticient 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 “ Terceira af: fair,"and insists that if Great Britain, in a particular situation for the exercise of duties of neutrality, took extraordinary measures, it
The Terceira aftsir,
does not prove that the Government were under obligation to take the same measures in every similar or comparable situation.
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 uce 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 COCKBURN. “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 evercised 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.
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 baving 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 ques. tion.
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.