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.

ARGUMENT OF MR. EVARTS.

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

Scope of the disvassion.

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.

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.

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

Case.

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 dispr 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:

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 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?

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.

al law.

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 rerules of internation: 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.

struction of Treaties examined.

1 London Times, February, 1872.