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ARGUMENT.

1.--INTRODUCTION.

Argument present.

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By the fifth article of the treaty of Washington, it is provided that, " it shall be the duty of the agent of each party, within two months after the expiration of the time limited for the de- ed in accordance with livery of the counter case on both sides, to deliver in dupli. of Washington. cate to each of the said arbitrators and to the agent of the other party a written or printed argument, showing the points and referring to the evidence upon which his government relies."

The undersigned have had the honor to receive the instructions of the Government of the United States to prepare, and place in the hands of the agent of that Government, the argument on its part, contemplated by this article of the treaty, in order to its submission to the tribunal of arbitration, as in said article is provided.

In execution of this duty, thus intrusted to them by their Government, they respectfully present the following argument on behalf of the United States, conformed to the requirements, in this respect, of the provisions of the treaty under which it is submitted.

Before entering upon the argument in the due order of its presentation and development, we may be permitted, with some advantage to the correct understanding of the precise service which we hope to be able to render to the arbitrators, in the discharge of the arduous and responsible duty which they have undertaken, to point out the character and extent of the discussions on the part of the two contending nations, which have already been laid before the tribunal.

In the Case of the Government of the United States and in that of Her Britannic Majesty's government, delivered to the tribunal on the fifteenth day of December last, are carefully set forth, in considerable fullness of detail, the principal matters of historical fact, of legal proposition, and of supporting evidence and authorities, which make up the body of the controversy submitted to the judgment of the tribunal by the high contracting parties to the treaty of Washington. In the seven volumes of proofs which accompany the Case of the United States, and in the four volumes which hold a like relation to the Case of Great Britain, are collected, with much else that is pertinent and important, the documents of the diplomatic treatment of the specific controversy, from the commencement of the American rebellion to the conclusion of the treaty, exhibiting, in the most authentic form, the real nature of the differences between the two nations, as they showed themselves in the immediate presence of the events which gave rise to them.

In the Counter Cases of the two governments, delivered to the tribunal on the fifteenth of April last, the deliberate criticisms of the adverse parties upon the respective original cases have already advised the arbitrators wherein there is a substantial concurrence between them in their estimates of the facts and the law of the matter in

The cases ments.

respective and docu

Counter cases. The issues to be determined are now settled.

judgment, and wherein opposite or qualifying opinions are insisted upon, or are reserved for fuller treatment in the argument provided for in the fifth article of the treaty. The volumes of proofs which have been presented with the Counter Cases seem designed either to supply what was. thought wanting in the original exhibition of proofs, or to meet the contentions raised by the respective adverse original Cases of the two governments. It may be assumed, then, that these volumes of proofs, and the Cases

and Counter Cases of the two governments, not only present all the materials necessary or useful for the complete intel

ligence and just determination of this great controversy by the tribunal, but have, in a great measure, reduced the disputation between the parties and the responsible deliberations of the arbitrators within some definite and established limits.

To ascertain these limits and verify them to the approval of the tribunal, and to confine the subsequent discussion rigidly within them, we venture to thinḥ should be a leading purpose of this argument. If that purpose shall be successfully adhered to, and if we shall be able to array in a candid temper and with circumspect and comprehensive pertinency, the considerations that should control the adjudication of this tribunal upon the issues thus raised for its solution, we may hope to render, in aid of the deliberations of the arbitrators, in some degree, the service which it was the object of the fifth article of the treaty to provide.

If, however, we should have the misfortune to fail in our estimate of the true points of the controversy, or in our efforts to meet them, as they shall present themselves to the greater learning and intelligence of the tribunal, such error or misconception will not be remediless. The arbitrators may at any time before their deliberations are closed, they desire further elucidation with regard to any point, require a written or printed statement or argument, or oral argument by counsel upon it.” With any such requirement it will be, at all times and in any form, both our duty and our pleasure to comply, and we shall hold ourselves in readiness to attend upon the wishes of the arbitrators in this regard.

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II.-THE CONTROVERSY SUBMITTED TO ARBITRATION.

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The counsel of the United States, in propounding to this august tribunal the cause in controversy between that nation and Great Britain, which its deliberations are to explore and its ready award to determine, have no occasion to feel that the cele- ture of the facts. brated publicists who represent the friendly nations which take part in this great arbitration are less instructed, already, in the general character and history of the public transactions which are to form the ground-work of the argument, than the eminent public servants of the contending parties, who are joined with them in the composition of the tribunal.

. If the publicity and prominence of these events, so recent in the memory, did not themselves preclude any such suggestion, the ample record supplied by the documents presented to the tribunal by the two governments has put the arbitration in full possession of all facts, and their evidence, which, in the judgment of any one, can be thought relevant to the discussion of the principal and collateral issues, to which the judgment of the tribunal will need to be applied. In pursuing, therefore, our immediate purpose of attracting the attention of the tribunal to the elements of the controversy arising between the two nations, upon the actual events which gave it birth, and as it has been shaped for the investigation and deiermination of the tribunal by the contending parties in the treaty by which its jurisdiction is created, we shall have occasion to consider no matters which are either obscure or disputable, and none which may not be drawn with the same confidence from the documents laid before the tribunal by Great Britain, as from tbose presented by the United States.

I. When the great social and political interests developed by the institution of slavery, as it existed in the United States, carried he popular agitations beyond the bounds of obe- armed dience to the laws and loyalty to the Government of the exercised belligerent United States, as set forth in Part II of the Case of Great ed insurgents from Britain and Part II of the Case of the United States, it was war creens their own not long before a great population occupying a large territory was drawn into an armed insurrection, and, as a next step, pushed into a military rebellion against the authority of the Government. The strength and menace of the attempted revolt soon grew to such proportions that the Government had recourse, in dealing with these rebellious hostilities urged against it, to its undoubted right of superadding to its peaceful authority of sovereignty the exercise of belligerent powers. It met the military array of the rebellion with the loyal forces of the nation, and used all the means for its suppression which the wealth, the courage, and the patriotism of the people placed at its disposal. Itself a great maritime power, both in naval strength and commercial prosperity, the resources of the rebellion included neither. The Government, by prompt, adequate, and successful exhibition of its naval strength, shut up the whole sea-board of the territory in rebellion by a blockade, and was proceeding to cut it off from all opportunity of

In suppressing 'an

insurrection the United States

resources.

The right to do this

the conflict.

Abstinenge of in. tervention by allother power is not * neutrality."

of presjorrly exist. ng relations.

tablishing foreign commerce, or maintaining maritime hostilities, from its own resources. II. The principles of the law of nations recognize this necessity which

the vigor and magnitude of rebel hostilities may impose nuncions no parties to upon the government of a nation, and attribute to a resort

to its belligerent powers, in such case, no consequences affecting the attitude toward each other of the parties to these hostilities. Other nations are, manifestly, no parties to the conflict, and cannot become such parties, unless by choice, which is intervention, or by the enlargement of the theater of hostilities, or their actual course, forcing upon their notice such questions as specifically arise for solution. The effect of intervention is unequivocal. If attempted in aid of the

belligerent sovereign, but without his request, it is officious, and may be unwelcome. If in aid of the rebels, against the

sovereign, it is an espousal of their cause, and an act of war against the belligerent sovereign. In such a case, no situation of neutrality arises.

But, if a nation abstains from intervention in the conflict between a It is a maintenance sovereign nation and its rebels, it is inaccurate to treat this

abstinence as neutrality. It is simply an unbroken maintenance of the international relations which subsisted between the two powers before the domestic peace of one of them suffered disturbance. It would shock the moral sense of civilization to speak of the United States as standing neutral between Great Britain and the Sepoy rebel. lion in India, or of Great Britain as standing neutral between the commune of Paris and the government of France. But, when the actual hostilities in which a government is engaged,

in the suppression of a rebellion, encroach upon the estab. do decide to such case lished relations between it and friendly powers, the latter acquiesce in the ex have presented to them the question whether they will, each powers by the port for itself, acquiesce in the exercise of belligerent powers, as

sought to be made effective against the rebels, at the cost of inteference with the peaceful rights of commerce and intercourse which subsisted before the nation was brought into this stress by its domestic rebellion. But this question, under the rules governing the subject in the modern

law of nations, can have but one answer. The nation which

has superadded belligerent rights to those of sovereignty, is entitled so to do, and resistance by other nations to the fair consequences of such rights upon their interests, is a violation of the law of nations, and an unjust intervention in the domestic conflict. In regard to the hostilities prosecuted against the sovereign by the

rebel, if they should pass beyond the bounds of intestine territorial war and obtrude themselves upon the notice of other sovereign should be deeid- eign powers, the actual occurrences which raise the question

of their treatment by such powers may be trusted, also, to solve it. If the rebels should exhibit their strength by a blockade of any of the ports of the nation, or should keep the seas with cruisers, and assert the right of search, of capture, and of prize condemnation, against the ships or cargoes of another nation, the power thus affected will determine for itself how it will treat this new disturber of its peaceful rights and interests. It has no antecedent obligations of friendship, of treaty, or of recognition, even, which compel it to acquiesce, under the law of nations, in the legitimacy of this violence. It may pierce by force the rebel blockade which impedes its commerce, resist and resent the search and capture which threaten its maritime property, and reject

Other powers have

only whether

of belligerent

sov. ereign.

Non-acquiescence 13 intervention.

Questions arising beyond

of the sover

they arise.

Such Course cures impartiality and when justified by

between contending

re.

.

ligerents.

This principle rec

States
Court.

the asserted prize jurisdiction as working no change of title. And it may do all this, without, in the least, taking part in the hostilities of the government against the rebels or espousing its cause, but simply in maintenance of its own rights and interests.

Undoubtedly, it is competent for other nations upon whose notice the hostilities of rebellion, revolution, or revolt may obtrude themselves, to yield such assent and submission to their exercise, to the disturbance of their own rights and to the disparagement of their own interests, as, under sentiments of justice, fair play, or humanity, they may find an adequate motive for.

This course tends to, and naturally results in, a tacit toleration of this violence as in the nature of belligerent power, because it is practiced in that sense and under that justification by those who exert it. Placed, then, between the contending parties in the attitude of obligatory submission to the bel- parties which ligerent right of the sovereign, and of voluntary tolerance known as neutrality of the belligerent practices of the rebels, other nations fall tween rightful belgradually into an equality and impartiality in dealing with the rightful belligerent power and the de facto belligerent force, which assimilates itself to the status which, between two rightful belligerent powers, is called, in the law of nations, neutrality.

This principle of public law, which we here insist upon, that is to say, the right of a sovereign engaged in the suppression of rebellion, to superadd belligerent powers to its resources of senized by the United peaceful authority in dealing with the hostilities urged against it, and to expect from other nations an acceptance of the situation, as toward the sovereign so engaged, with the same consequences to themselves as if the same belligerent powers were put forth in solemn war, had been definitely held by the Supreme Court of the United States in a celebrated judgment pronounced by Chief Justice Marshall in the case of Rose v. Himely, in the year 1808. The case arose upon the exercise of belligerent powers by France in attempting to reduce the revolt of the island of San Domingo, and is reported in 4 Cranch, (Sup. Ct. Rep., p. 241.) It was only necessary, therefore, for the inferior courts of the United States, and for the Supreme Court on final appeal, in establishing this principle of public law in its operation upon other nations, when the United States were exercising belligerent powers in suppression of their domestic rebellion, to follow the reason and authority which had been accepted, as a rule of the law of nations, in this early case. We refer to the judgment in the prize causes,” reported in 2 Black's Sup. Ct. Rep., p. 635.

III. The only notable instances, before the rebellion in the United States, perhaps the only instances, in which friendly nations have been placed by this obligatory recognition of belliger- in point. ent rights in the sovereign, and voluntary tolerance of belligerent powers in rebels, in an attitude assimilated to neutrality, have been where the conflict was of subject states seeking to recover their freedom, or between revolted colonies and the mother country, where independence in position, in boundaries, in interests, in population, and in destiny, already existing, in fact the only tie which remained to be severed was that of political sovereignty, and the severance of that tie was the only motive, object, operation, and expected result of the revolt. In such cases, the tendency on the part of other nations to adopt a practical neutrality is greatly prompted and facilitated by the political nature of the conflict, and the further consideration that the intervening seas, the common possession of all nations, are, necessarily,

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