stance and no authority for its support. In its nature, it is a question wholly dependent upon circumstances.

Our proposition is, that all of these cruisers drew their origin out of the violated neutrality of Great Britain, exposing that nation to accountability to the United States for their hostilities. Now, to say that a nation thus situated is required by any principles of comity to extend a notice before exercising control over the offenders brought within its power, seems to us to make justice and right, in the gravest responsibilities, yield to mere ceremonial politeness.

Acts done in vio

To meet, however, this claim on our part, it is insisted, in this special argument, that the equipment and outfit of a cruiser in a neutral port, if it goes out unarmed (though capable of becoming an instrument of offensive or defensive war by the mere addition of an armament) may be an illegal act as an offense against municipal law, but is not a violation of neutrality in the sense of being a hostile act, and does not place the offending cruiser in the position of having violated neutrality. That is but a recurrence to the subtle doctrine that the obligations of Great Britain in respect to the first Rule of the Treaty are not, by the terms of the Treaty, made international obligations, for the observance of which she is responsible under the law of nations, and for the permissive violation of which she is liable, as having allowed, in the sense of the law of nations, a hostile act to be perpetrated on her territory. This distinction between a merely illegal act and a hostile act, which is a violation of neutrality, is made of course, and depends lation of neutrality Wholly, upon the distinction of the evasion of an unarmed ship of war being prohibited only by municipal law and not by the law of nations, while the evasion of an armed ship is prohibited by the law of nations. This is a renewal of the debate between the two nations as to what the rule of the law of nations in this respect was. But this debate was finally closed by the Treaty. And, confessedly, on every principle of reason, the moment you stamp an act as a violation of neutrality, you include it in the list of acts which by the law of nations are deemed hostile acts. There is no act that the law of nations prohibits within the neutral jurisdiction that is not in the nature of a hostile act, that is not in the nature of an act of war, that is not in the nature of an application by the offending belligerent of the neutral territory to the purposes of his war against the other belligerent. The law of nations prohibits it, the law of nations punishes it, the law of nations exacts indemnity for it, only because it is a hostile act.

are hostile acts.

Now, suppose it were debatable before the Tribunal whether the emission of a war-ship without the addition of her armament, was a violation of the law of nations, on the same reason, and only on that reason, it would be debatable whether it were a hostile act. If it were a hostile act, it was a violation of the law of nations; if it were not a violation of the law of nations, it was not so, only because it was not a hostile act. When, therefore, the Rules of the Treaty settle that debate in favor of the construction claimed by the United States in its antecedent history and conduct, and determine that such an act is a violation of the law of nations, they determine that it is a hostile act. There is no escape from the general proposition that the law of nations condemns nothing done in a neutral territory unless it is done in the nature of a hostile act. And when you debate the question whether any given act within neutral jurisdiction is or is not forbidden by the law of nations, you debate the question whether it is a hostile act or not. Now, it is said that this outfit without the addition of an armament is not a hostile act under the law of nations, antecedent to this Treaty.

That is immaterial within the premises of the controversy before this Tribunal.

It is a hostile act against Great Britain, which Great Britain-Sir ALEXANDER COCKBURN. "Do I understand you, Mr. Evarts, to say that such an act is a hostile act against Great Britain ?”

Mr. EVARTS. Yes, a hostile violation of the neutrality of Great Britain, which, if not repelled with due diligence, makes Great Britain responsible for it as a hostile act within its territory against the United States.

This argument of the eminent Counsel concedes that if an armament is added to a vessel within the neutral territory it is a hostile act within that territory, it is a hostile expedition set forth from that territory. It is therefore a violation of the law of nations, and if due diligence is not used to prevent it, it is an act for which Great Britain is responsible. If due diligence to prevent it be or be not used, it is an offense against the neutral nation by the belligerent which has consummated the act.

The neutral whose violated is under no

to the violator.

A neutral nation, against the rights of which such an act has been committed, to wit, the illegally fitting out a war-ship without armament, (condemned by the law of nations as settled neutrality has been by this Treaty,) is under no obligation whatever of courtesy obligation of comity or comity to that cruiser. If, under such circumstances, Great Britain prefers courtesy and comity to the offending cruiser and its sponsors, rather than justice and duty to the United States, she does it upon motives which satisfy her to continue her responsibility for that cruiser rather than terminate it. Great Britain has no authority to exercise comity and courtesy to these cruisers at the expense of the offended belligerent, the United States, whatever her motives may be. Undoubtedly the authorities conducting the rebellion would not have looked with equal favor upon Great Britain if she had terminated the career of these cruisers by seizing them or excluding them from her ports. That is a question between Great Britain and the belligerent that has violated her neutrality. Having the powers, having the right, the question of courtesy in giving notice was to be determined at the cost of Great Britain and not at the expense of the United States. But it ceases to be a question of courtesy when the notice has not been given at all, and when the choice has thus been made that these cruisers shall be permitted to continue their career unchecked.

Authorities to

show that the con

struction in neutral territories of a ship

Now on this question, whether the building of a vessel of this kind without the addition of armament is proscribed by the law of nations, and proscribed as a hostile act and as a violation of neutral territory, (outside of the Rules of the Treaty,) which is so much debated in this special argument, I ask attention to a few citations, most of which have been already referred to in the American Case.

Hautefeuille, as cited upon page 170, says:

intended to carry on

war against a belligerent is forbidden by

the two nations.

Le fait de construire un bâtiment de guerre pour le comte d'un belligérant ou de l'armer dans les états neutres est une violation du territoire. Il

peut egalement réclamer le désarmement du bâtiment illégalement armé sur son territoire et même le détenir, s'il entre dans quelque lieu soumis à sa souveraineté jusqu'à ce qu'il ait été désarmé.

Ortolan, as quoted on page 182 of the same Case, passes upon this situation, which we are now discussing, as follows:

Nous nous rattacherons pour résoudre en droit des gens les difficultés que presente cette nouvelle situation, à un principe universellement établi, qui se formule en ce peu de mots "inviolabilité du territoire neutre." Cet inviolabilité est un droit pour l'état neutre, dont le territoire ne doit pas être atteint par les faits de guerre, mais elle

impose aussi à ce même état neutre une étroite obligation, celle de ne pas permettre, celle d'empêcher, activement au besoin, l'emploi de ce territoire par une des parties ou au profit de l'une des parties belligérantes dans un but hostile à l'autre partie.

And this very question, the distinction between an armed vessel and an unarmed vessel, was met by Lord Westbury, in observations made by him, and which are quoted in the American Case at page 185. He said:

There was one rule of conduct which undoubtedly civilized nations had agreed to observe, and it was that the territory of a neutral should not be the base of military operations by one of two belligerents against the other. In speaking of the base of operations, he must, to a certain degree, differ from the noble earl, (Earl Russell.) It was not a question whether armed ships had actually left our shores; but it was a question whether ships with a view to war had been built in our ports by one of two belligerents. They need not have been armed; but if they had been laid down and built with a view to warlike operations by one of two belligerents, and this was knowingly permitted to be done by a neutral power, it was unquestionably a breach of neutraltiy.

Chancellor Kent, in a passage cited by the learned Counsel with approval, speaking of the action of the United States as shown in the rules of President Washington's administration, (which rules are also subsequently quoted with approval in this Argument,) says, (vol. i, page 122 :)

The Government of the United States was warranted by the law and practice of nations, in the declaration made in 1793 of the rules of neutrality, which were partieularly recognized as necessary to be observed by the belligerent powers in their intercourse with this country. These rules were that the original arming or equipping of vessels in our ports by any of the powers at war, for military service, was unlawful; and no such ressel was entitled to an asylum in our ports.

No vessel thus equipped was entitled to an asylum in the ports of the nation whose neutrality had been violated. The Tribunal will not fail to observe that these principles were applied by President Washington to cruisers even of an independent nation, recognized as a sovereign. It was the cruisers of France that were under consideration. But the propositions of this special argument, and the course actually pursued by Great Britain in according its homage to their flag, placed these insurgent cruisers on a much higher and more inviolable position than it is possible to concede to cruisers of a recognized sovereign. In truth, such treatment accorded to such cruisers all the irresponsibility of pirates, and all the sanctity of public ships of a recognized sovereignty. It accorded the irresponsibility of pirates, because they were exempted from all control, and there was no Government behind them to be made responsible for them, to be resorted to for their correction or restraint, and to meet the resentments of the offended neutrals in the shape of non-intercourse, of reprisals, or of war.

The action of Great Britain, under this doctrine of comity and notice, as applied to the cruisers of this belligerency, really exempted them, from the beginning to the end of their careers on the ocean, from all responsibility whatever. How long could such conduct toward Great Britain, in violation of her neutrality, as was practiced by this belliger ent, how long could such violations of the neutrality of Great Britain have been exercised by belligerent France without remonstrance, and if that remonstrance were unheeded, without reprisals, followed finally by war? Why was not such recourse taken in respect to these cruisers, to the power behind them? There was no power behind them.

I ask, also, in this connection, attention to 1 Phillimore, pp. 399 to 104, and, especially, to a passage extracted from the case of the Santissima Trinidad, commenting upon the case of the Exchange, which last case is cited at considerable length in the argument of the eminent Counsel.

Now the Exchange settles nothing, except that when the political authority of a Government has recognized belligerency, the courts will not exercise jurisdiction over the vessels although sovereignty has not been conceded as well.

The only case in the history of our country in which the political authority was called upon to deal with a cruiser that had derived its origin in violation of our neutrality was the case of a public ship of France, the Cassius, originally Les Jumeaux. The legal report of this case is copied in full in the Appendix of the British Case. It never came to any other determination than that France, the recognized Government of France, was the sponsor for the Cassius, and it was on the respect shown to a sovereign as well as a public belligerent that the disposition of the case, exempting the vessel from judicial process, was made. Sir ROUNDELL PALMER. "The vessel was restored."

Mr. EVARTS. But it was only after her character as a war-vessel had ceased.

Sir ROUNDELL PALMER. "It was the Government of the United States, by its executive power, that directed the ship to be restored." Mr. EVARTS. A detailed history of this case, legal and political, will be found in vol. vii of the American Appendix, pp. 18 to 23, in Mr. Dana's valuable note.

It will there be seen that the occasion for our Government to determine its political or executive action never arose until after the determination of the judicial proceedings and until after the vessel had been thrown up by the French Minister, who abandoned her to the United States Government, nor until after she was a worthless hulk.

Sir ROUNDELL PALMER. "Am I not right in saying that the President of the Executive Government of the United States gave notice to the French Minister that the ship was at his disposal?"

Mr. EVARTS. After it had been abandoned, after it had ceased to be a cruiser capable of hostilities, and after the opportunity for its further hostilities had ceased.

Lord TENTERDEN. "But the war still continued."

Mr. EVARTS. But, I mean, after the hostilities of that vessel came to an end.

And permit me to say that this condition of things between the United States and France, during the administration of the first President Adams, came substantially to a war between the two countries.1

1 A passage from Mr. Dana's note, already referred to, puts this matter in a very clear light.

As the Cassius was taken into judicial custody, within twenty-four hours of her arrival, and remained in that custody until after she had been disarmed and dismantled by the French Minister, and formally abandoned by him to the United States Government with a reclamation for damages, the political department of the United States Government never had practically before it the question, what it would do with an armed foreign vessel of war within its control, which had, on a previous voyage, before it became a vessel of war, and while it was a private vessel of French citizens, added warlike equipments to itself within our ports, in violation of our statutes for the preservation of our neutrality. When it came out of judicial custody, it was a stripped, deteriorated, and abandoned hulk, and was sold as such by public auction. The only political action of our Government consisted in this: It refused to interfere to take the vessel from the custody of the judiciary, but instructed its attorney to see that the fact of its being a bona fide vessel of war be proved and brought to the attention of the court, with a motion for its discharge from arrest on the ground of its exemption as a public ship, if it turned out to be so. What course the Executive would have taken as to the vessel, if it had passed out of judicial custody before it was abandoned and dismantled, does not, of course, appear. And that is the only question of interest to international law.-VII American Appendix, p. 23; Choix de Pieces, etc., t. ii, p. 726.

gia and the Shenandoab.

Now, it is said that the application of this second clause of the first The applicability of Rule of the Treaty, and this demand that detention or exthe rule to the Geor-clusion shall be exercised in respect to cruisers on their subsequent visits to ports, do not apply either to the Georgia or Shenandoah, because neither the Georgia nor the Shenandoah received their original outfit by violation of the territory of Great Britain, not even in the view of what would be such a violation taken by the United States. I understand that to be the position. I will not discuss the facts of the Georgia and Shenandoah any more than of any other vessel in this regard. If the Shenandoah and Georgia, in the conclusions that you shall arrive at upon the facts concerning their outfit, shall be pronounced in their original evasion not to involve culpability on the part of Great Britain, and not to involve violation of Great Britain's territory on the part of either of these cruisers

Sir ALEXANDER COCKBURN. "Suppose, Mr. Evarts, that the departure was of such a nature as not to involve Great Britain in any culpability, for want of due diligence, still there certainly is a violation of territory." Mr. EVARTS. That is the point I was coming to, and of that I entertain no doubt.

You must find upon the facts that there was no evasion from the ports of Great Britain by either of those vessels under circumstances amounting to a violation of the neutrality of Great Britain (on the part of the vessels and on the part of those who set them forth) before you bring them into the situation where the resentment for a violation of neutrality, which I have insisted upon, was not required to be exhibited. I am not, however, here to discuss the questions of fact.

I will take up what is made the subject of the third chapter of the special argument, which has reference to coaling and "the base of naval operations" and "military supplies," as prohibited by the second Rule of the Treaty.

The question of

The question of "coaling" is one question considered simply under the law of hospitality or asylum to belligerent vessels in coaling is a branch of neutral ports, and quite another considered, under given of the use of British facts and circumstances, as an element in the prescribed use of neutral ports as "a base of naval operations."

the greater question

ports as bases of operations.

At the outset of the discussion of this subject it is said that the British Government dealt fairly and impartially in this matter of coaling with the vessels of the two belligerents, and that the real complaint ou the part of the United States is of the neutrality which Great Britain had chosen to assume for such impartial dealing between the two belligerents. If that were our complaint it is, certainly, out of place in this controversy, for we are dealing with the conduct of Great Britain in the situation produced by the Queen's Proclamation, and there is here no room for discussion of any grievance on the part of the United States from the public act of Great Britain in issuing that Proclamation. But nothing in the conduct of the argument on our part justifies this suggestion of the eminent Counsel.

On the subject of "coaling," it is said that it is not, of itself, a supply of contraband of war or of military aid. Not of itself. The grounds and occasions on which we complain of coaling, and the question of fact, whether it has been fairly dealt out as between the belligerents, connect themselves with the larger subject, (which is so fully discussed under this head by the eminent Counsel,) a topic of discussion of which coaling is merely a branch, that is to say, the use of neutral ports and waters for coaling, victualing, repairs, supplies of sails, recruitment of men for navigation, et cet. These may or may not be obnoxious to censure under