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 responsi bility 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 bellige rents. 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 Govern ment, 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 somrething 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, proposi tion 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 gov ern 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 examination of that argument will disclose.

nal may resort to the rules of internation 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 region 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 in quiry 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 cou observations as to the light or the controlling reason under which these Rules of the Treaty should be construed.

struction of Treaties examined.

These suggestions may be briefly dismissed.

London Times, February, 1872.

It certainly would be a very great reproach to these nations, which had deliberately fixed upon three propositions as expressive of the law of nations, in their judgment, for the purposes of this trial, that a resort to general instructions, for the purpose of interpretation, was necessary. Eleven canons of interpretation drawn from Vattel are presented in order, and then several of them, as the case suits, are applied as valuable in elucidating this or that point of the Rules. But the learned Counsel has omitted to bring to your notice the first and most general rule of Vattel, which, being once understood, would, as we think, dispense with any consideration of these subordinate canons which Vattel has introduced to be used only in case his first general rule does not ap ply. This first proposition is, that "it is not allowable to interpret what has no need of interpretation."

Now these Rules of the Treaty are the deliberate and careful expression of the will of the two nations in establishing the LAW for the government of this Tribunal, which the Treaty calls into existence. These Rules need no interpretation in any general sense. Undoubtedly there may be phrases which may receive some illustration or elucidation from the history and from the principles of the law of nations; and to that we have no objection. Instances of very proper application to that resort occur in the argument of which I am now replying. But there can be no possible need to resort to any general rules, such as those most favored and insisted upon by the learned Counsel, viz, the sixth proposi tion of Vattel, that you never should accept an interpretation that leads to an absurdity-or the tenth, that you never should accept an interpretation that leads to a crime. Nor do we need to recur to Vattel for what is certainly a most sensible proposition, that the reason of the Treaty-that is to say, the motive which led to the making of it and the object in contemplation at the time-is the most certain clue to lead us to the discovery of its true meaning.

But the inference drawn from that proposition, in its application to this case, by the learned Counsel, seems very wide from what to us appears natural and sensible. The aid which he seeks under the guidance of this rule is from the abstract proposition of publicists on cognate subjects or the illustrative instances given by legal commentators.

Our view of the matter is that, as this Treaty is applied to the past, as it is applied to an actual situation between the two nations, and as it is applied to settle the doubts and disputes which existed between them as to obligation and to the performance of obligations, these considerations furnish the resort, if any is needed, whereby this Tribunal should seek to determine what the true meaning of the High Contracting Parties is.

Now, as bearing upon all these three topics, of due diligence, of treat ment of offending cruisers in their subsequent visits to British ports, and of their supply, as from a base of operations, with the means of continuing the war, these Rules are to be treated in reference to the controversy as it had arisen and as it was in progress between the two nations when the Treaty was formed. What was that? Here was a nation prosecuting a war against a portion of its population and territory in revolt. Against the sovereign thus prosecuting his war there was raised a maritime warfare. The belligerent itself, thus prosecuting this maritime warfare against its sovereign, confessedly had no ports and no waters that could serve as the base of its naval operations. It had no ship-yards, it had no founderies, it had no means or resources by which it could maintain or keep on foot that war. A project and a purpose of war was all that could have origin from within its territory, and

the pecuniary resources by which it could derive its supply from neutral nations was all that it could furnish toward this maritime war.

Now, that war having in fact been kept on foot and having resulted in great injuries to the sovereign belligerent, gave occasion to a controversy between that sovereign and the neutral nation of Great Britain as to whether these actual supplies, these actual bases of maritime war from and in neutral jurisdiction, were conformable to the law of nations or in violation of its principles. Of course, the mere fact that this war had thus been kept on foot did not, of itself, carry the neutral respon sibility. But it did bring into controversy the opposing positions of the two nations. Great Britain contended during the course of the transactions, and after their close, and now here contends, that, how ever much to be regretted, these transactions did not place any respon sibility upon the neutral, because they had been effected only by such communication of the resources of the people of Great Britain as under international law was innocent and protected; that commercial communication and the resort for asylum or hospitality in the ports was the entire measure, comprehension, and character of all that had occurred within the neutral jurisdiction of Great Britain. The United States contended to the contrary. What, then, was the solution of the matter which settles amicably this great dispute? Why, first, that the prin ciples of the law of nations should be settled by convention, as they have been, and that they should furnish the guide and the control of your decision; second, that all the facts of the transactions as they occurred should be submitted to your final and satisfactory determina tion; and, third, that the application of these principles of law settled by convention between the parties to these facts as ascertained by yourselves should be made by yourselves, and should, in the end, close the controversy and be accepted as satisfactory to both parties.

In this view, we must insist that there is no occasion to go into any very considerable discussion as to the meaning of these Rules, unless in the very subordinate sense of the explanation of a phrase, such as "base of operations," or "military supplies," or "recruitment of men." or some similar matter.

Urated States con

I now ask your attention to the part of the discussion which relates Effect of a commis. to the effect of a "commission," which, though made the subject of the second topic named by the tribunal, and taken in that order by the learned Counsel, I propose first to consider. It is said that the claims of the United States in this behalf, as made in their Argument, rest upon an exaggerated construction struction of the first of the second clause of the first Rule. On this point, I have first to say that the construction which we put upon that clause is not exaggerated; and, in the second place, that these claims in regard to the duty of Great Britain in respect to commissioned cruisers that have had their origin in an illegal outfit in violation of the law of nations, as settled in the first Rule, do not rest exclusively upon the second clause of the first Rule. They, undoubtedly, in one co struction of that clause, find an adequate support in its proposition: but, if that construction should fail, nevertheless, the duty of Great Britain, in dealing with these offending cruisers in their subsequent resort to its ports and waters, would rest upon principles quite inde pendent of this construction of the second clause.

The second clause of that Rule is this: "And also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted in whole or in part within such jurisdiction to warlike use."