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IV. The Memorandum assigns as further reason for re-argument, that the British Government could not anticipate the use to be made in our Argument of the documentary evidence filed with the American Case. The suggestion is a singular one. We do not understand that when counsel put in evidence, they are required to accompany such evidence with argumentative explanations of why they put it in. The adverse party, versed in the rules of law and the practice of the courts, is to study such evidence and judge for himself of its pertinency or value. If any of the documents thus tiled were irrelevant, it was for the British Government to say so in its Counter Case or in its Argument. There was ample time for consideration, namely, in the first relation, four months, and in the second, six.
So, also, during those four or six months, there was ample time for the eminent Counsel of the British Government to study those documents, and perceive, with the practiced eye of forensic experience and science, what use might be made of these documents by the Counsel of the United States, and to anticipate such use by appropriate response or explanation.
But, in fact, we have made no use in our Argument of these documents which was not prefigured, either in the Case or the Counter Case of the American Government.
V. The Memorandum objects that cause of re-argument is furnished by “the course taken by the Government of the United States in withholding (as far as was possible) their reply as well to the Case as to the Counter Case of Great Britain, until the Argument now delivered, so as to make it impossible for the Argument, to be at the same time delivered on the part of Her Britannic Majesty's Government, to deal adequately by anticipation with many important views which it was intended by the United States to present to the Tribunal.”
The situation complained of by the Counsel of the British Governinent was precisely the situation of the Counsel of the United States. We also were bound to anticipate the use that the British Government in. tended to make of its evidence. We do not feel sure that we fully comprehend this difficulty.
The American Government did reply to the British Case in the American Counter Case. How can this act be fitly characterized as withholding as far as was possible ?"
As to the British Counter Case, how could we reply to it until it had come into our possession! We received it in April, and we replied to it at the earliest possible moment, namely, in June. Is it proper for the Memorandum to apply to this act the phrase of “withholding as far as possible ??
Our Argument was a specific reply to the British Counter Case at the earliest and only possible moment, with but cursory and incidental reference to the British Case, which was for the most part answered in the American Counter Case, with sufficient indication to eminent adverse Counsel of other points of the British Case which would require addi. tional attention in our final Argument.
VI. The Memorandum further complains of the use made in our Argument of the documents annexed to the American Counter Case.
We made only such use of these documents as might well have been anticipated by the British Government, and as their Counsel should have considered in his closing Argument.
The British Case arraigned the conduct of the United States in respect of the manner in which at various epochs of their history they had discharged their neutral obligations.
Does or can the Counsel for the British Government suppose that we should omit to respond to this arraigument by filing defensive proofs as the basis of argument?
Does or can the Counsel of the British Government suppose that we should admit the pertinency of this arraignment, or that we should fail to suggest its inappropriateness?
VII. The Memorandum suggests as a cause for re-argument, that we have referred in our Argument to the great English work of Sir Robert Phillimore on International Law, and to eminent statesmen of Great Britain. We submit that we are wholly unable to see the force of this consideration.
In our argument we quote Phillimore as we quote Wolf, Vattel, Martens, Hautefeuille, Cauchy, Calvo, or Fiore. Why not?
And why should Great Britain object to our citing her most eminent author on the subject of the law of nations? Can it be any surprise to the Counsel of the British Government? Did we not in our Case indi. cate the use to be made of Sir Robert Phillimore? (Pages 117, 123.)
Then the Memorandum objects to our citing in our Argument the eminent statesmen of Great Britain, living and dead,—the Cannings, the Castlereagbs, the Denmans, the Grants, the Hollands, the Althorps, the Peels, the Huskissons, the Colliers, thé Harcourts, the Coleridges, the Redesdales, the Russells, the Granvilles, the Cairns, the Derbys, the Hatherlys, the Salisburys, the Palmers, and the Gladstones.
If it be just cause of offense in the eyes of the Arbitrators that we have referred in honorable terms to these high names of British statesmen, we submit to the censure of the Tribunal, but we deny that the fact affords any reason why the Arbitrators should ask for elucidation on the subject, or that it justifies the application for additional argument on the part of the British Government.
VIII. The Memorandum enumerates under three heads, with subdivisions, the main reasons of the British Government for desiring further argument.
It is remarkable that each one of the points thus suggested has been already argued by the British Government, except one which it purposely omitted, either in its Case, Counter Case, or Arguments. We do not say that all these points have been fully argued by the British Gov. ernment: that was for their Counsel to judge. But they were argued, and in a much larger number of words than appear in the discussions on the side of the United States.
Reduced to the same standard, (that of the page of the British Case,) we have the following state of things:
Pages. British Case..
168 British Counter Case.
154 British Argument and Notes.
Surely, in view of this comparison, the British Government has no
cause to come forward now and supply deficiencies in its Cases and Argument.
To show that every point on which the British Government now desires to be reheard is discussed in as ample manner (or that it deliberately refused to discuss it at all) as it pleased, with six, four, or two months' time of reflection, and with all the bar of Great Britain at its back, we now proceed to prove by the following tabular statement, the right column of which contains the points which Sir Rundell Palmer desires to argue stated in his own words, and our comments thereon being as in the left-hand column:
1.-AS TO PRINCIPLE.
This doctrine is referred to in all (a.) The doctrine of general in. the Cases and Arguments. It is ternational obligation
obligation asserted not a new suggestion of principle inore particularly at pages 20 to in our final Argument.
23 of the United States Argu
ment. Considered United States Case, (b.) The view submitted in the p. 149, et seq. British Case, pp. 3, United States Argument (pages 23, and 24; British Counter Case, 146 to 147 and elsewhere) of the pp. 11 to 23; British Argument, effect in the present controversy pp. 7 and 8.
of Her Majesty's consent that the three Rules embodied in the sixth article of the Treaty of Washington may be applied by the Tribunal as rules of judgment to the
facts of the present case. Considered United States Case, (c.) The doctrines as to due dilipp. 150 to 158; United States gence and as to the practical conCounter Case, p. 6. British Case, sequences of the obligation of such p. 24; British Counter Case, pp. diligence, and of the omission in 21 and 22 ; British Argument, p. any case to use it, advanced more 8.
particularly at pages 154 to 162, 148 to 149, and 186 of the United
States Argument. Considered United States Case, (d.) The doctrines that a soverpp. 106, 118 to 122 ; United States eign power, in repressing acts conCounter Case, pp. 6 and 7. British trary to its neutrality, ought to act Counter Case, p. 5; British Argu- by prerogative and not by law, ment, p. 9, et seq. See also Annex and that any reference to the in“C,” British Counter Case.
ternal laws of a neutral State In this paragraph of the Memo- ought to be rejected as irrelevant randum our Argument is errone- to the question whether that State ously stated. We say that the has used due diligence in the perQueen's prerogative is a part of formance of its international oblithe common law of England. We gations. (Pages 20, 24 to 26, 27, deny that the British Foreign-En- 149 to 152, and 165 of the United listment Act was the only law of States Argument.) Great Britain. If
it should have been amended.
Considered United States Case, (e.) The doctrines as to belligerpp. 63 and 64; United States ency and neutrality in cases of Counter Case, p. 7. British Case, civil war set forth particularly at pp. 4 to 7; British Argument, p. pages 7 to 13, 19, and 27 of the 30.
United States Argument, and the conclusion thence drawn as to the
1109 elib two tits the
I in rted 1 to rgu
recognition of the belligerency of
in which the public ships of a sov-
a erency,” 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, 459 and 460. to be made in several parts of British Counter Case, p. 15; 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 "re. pairs which may make their steampower 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. 23–28. 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 compenCase, 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 principle applicable thereto.
II.-AS TO FACTS GENERALLY.
Considered United States Case, (3.) 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 effiArgument, 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 Actand 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 existter 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 Annex 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 vite Sir R. Phillimore and (m.) The alleged admissions of Lord Russell, Sir Roundell Palmer, various British writers and statesand Sir Alexander Cockburn, and men in printed books, parliamentMr. 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 bepp. 462–466; 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 BRITISII ARGUMENTS, ETC.
Considered Uuited States Case,