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 deliberations 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 sufficient 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 affair," and insists that if Great Britain, in a particular situation for the exercise of duties of neutrality, took extraordinary measures, it

The Terceira affair.

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 we 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 exercised 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 Conclusion. 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 having 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 question.

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.

[Translation.']

V.-ARGUMENT OF MR. CUSHING, IN REPLY TO THE SPECIAL ARGUMENT OF SIR ROUNDELL PALMER, AUGUST 6. (SEE PROTOCOL XVIII.)

Mr. PRESIDENT AND GENTLEMEN OF THE TRIBUNAL: We are approaching, as I hope at least, the end of these long debates.

The two Governments had presented their Cases and Counter Cases, supported by voluminous documents. They had also presented their respective Arguments, the whole in conformity with the stipulations of the Treaty of Washington, (Articles IV and V.)

Thus the regular arguments prescribed by the Treaty have been closed.

Now, at the request of one of the honorable Arbitrators, the Tribunal has requested from England, as it had the right to do, explanations on certain definite points, namely:

1. The question of due diligence, generally considered.

2. The special question as to the effect of the commissions held by Confederate ships of war entering British ports.

3. The special question as to supplies of coal in British ports to Confederate ships.

The Counsel of Great Britain has taken advantage of this opportunity to discuss the points laid down, and in reference to them to comment on the Argument of the United States.

I do not complain of this, but I state the fact.

We, the Counsel of the United States, accept the situation such as it is made for us; for we had no desire further to occupy the attention of the Tribunal.

V.-PLAIDOYER DE MR. CUSHING, CONSEIL DES ÉTATS-UNIS, DEVANT LE TRIBUNAL ARBITRAL DE GENÈVE, EN RÉPONSE À L'ARGUMENT DU CONSEIL DE SA MAJESTÉ BRITANNIQUE.

MONSIEUR LE PRÉSIDENT ET MESSIEURS DU TRIBUNAL: Nous approchons, je l'espère du moins, de la fin de ces longs débats.

Les deux gouvernements avaient présenté leurs mémoires et leurs contre-mémoires, appuyés sur des documents volumineux. Ils avaient aussi présenté leurs plaidoyers respectifs, le tout conformément aux stipulations du traité de Washington, (Art. IV et V.)

Ainsi ont été clos les débats réguliers prescrits par le traité.

Maintenant, sur la demande d'un des honorables arbitres, le tribunal a requis de l'Angleterre, comme il en avait le droit, des explications sur certains points déterminés, à savoir:

1. La question des dues diligences, traitée d'une manière générale.

2. La question spéciale de savoir quel a été l'effet des commissions possédées par les vaisseaux de guerre confédérés qui sont entrés dans les ports britanniques.

3. La question spéciale des approvisionnements de charbon accordés aux vaisseaux confédérés dans les ports britanniques.

Le conseil de la Grande-Bretagne a usé de cette occasion pour discuter les points posés, et, à propos de cela, pour commenter le plaidoyer des États-Unis.

Je ne me plains pas de ceci, mais je constate le fait.

Nous, conseils des Etats-Unis, acceptons la situation telle qu'elle nous est faite; car nous n'avions nul désir d'occuper davantage l'attention du tribunal.

1 This argument was written and presented in the French text as shown in the note.

My two colleagues have discussed fully the second and third points. Scarcely have they left me a few words to say on the subject of the first point.

In fact, the task which has devolved on me is merely that of summing up the question, and adding some special observations.

I venture to address the Tribunal in French, in order to economize its precious time, and to reach the close of the discussion as soon as possible. For this object I willingly sacrifice all oratorical pretensions; I endeavor to make myself understood; that is all I aspire to.

THE QUESTION OF DUE DILIGENCE.

Due diligence.

We have now to consider the question of due diligence generally treated.

What does this expression mean? Does the Tribunal require the theoretical lecture of a professor on due diligence? I do not think so. Such a discussion would be perfectly idle, for the following reasons:

1. This theoretical question has already been discussed to satiety. Great Britain has discussed it three times in her Case, A theoretical disCounter Case, and Argument, and she has allowed herself cussion not wanted. twelve whole months to reflect on it, and accumulate arguments and quotations for the instruction of the Tribunal. We, in the name of the United States, have not expended so many words, but we have said all we wished and desired to bring before the honorable Arbitrators.

2. The two Parties were agreed that the theoretical question no longer deserved their attention.

Her Majesty's Government, [says the British Counter Case,] (page 22,) has not attempted a task which has baffled, as it believes, the ingenuity of jurists of all times and countries,-that of defining with any approach to precision, apart from the circumstances of any particular case, what shall be deemed due diligence or reasonable

care.

And the Counter Case quotes and adopts the following passage, (page 22, note:)

Mes deux collègues viennent de discuter amplement le second et le troisième points. C'est à peine s'ils m'ont laissé quelque chose à dire à l'égard du premier point.

En effet, ce n'est que la charge de résumer la question et d'ajouter quelques observations spéciales qui m'est dévolue.

J'ose m'adresser au tribunal en français, afin d'économiser son temps précieux et d'arriver au plus tôt à la clôture des débats. Dans ce but je sacrifie volontiers toute prétention oratoire; j'essaie de me faire comprende; c'est tout ce que j'ambitionne.

LA QUESTION DES DUES DILIGENCES.

Maintenant il s'agit de la question des dues diligences traitée d'une manière générale. Que veut dire cette phrase? Est-ce que le tribunal demande une leçon théorique de professeur sur les dues diligences? Je ne le crois pas. Une telle discussion serait parfaitement oiseuse pour les raisons suivantes :

1. On a déjà discuté a satiété cette question théorique. La Grande-Bretagne l'a discutée trois fois, dans ses mémoires et son plaidoyer, et elle s'est donnée douze mois entiers pour y réfléchir et accumuler des arguments et des citations pour l'instruction du tribunal. Nous, au nom des États-Unis, nous n'avons pas dépensé tant de paroles, mais nous avons dit tout ce qu'il était dans notre désir et notre volonté de faire savoir aux honorables arbitres.

2. Les deux parties étaient d'accord que la question théorique ne méritait plus leur attention.

"Le gouvernement de sa Majesté," dit le contre-mémoire britannique, p. 24, ❝ne s'est pas imposé une tâche qui a déjoué, à ce qu'il croit, l'habileté des jurisconsultes de tous les temps et de tous les pays; il n'a pas cherché à définer avec une précision approximative, en dehors des circonstances spéciales à un cas particulier, la mesure de ce qu'on devra reconnaître comme la due diligence ou le soin raisonnable." Et le contre-mémoire adopte en citant ce qui suit, (page 24, note:)