Considered United States Counter Case, p. 6. British Case, p. 24; British Counter Case, pp. 15 to 20; British Argument, pp. 29 to 33. Considered United States Case, pp. 126, 351, 352, 459 and 460. British Counter Case, p. 15; British Argument, pp. 33 and 34. Considered United States Case, p. 459. British Counter Case, pp. 60-62; British Argument, p. 25-28. recognition of the belligerency of the Confederates by Her Britannic Majesty and the effect of Her Britannic Majesty's Proclamation of Neutrality and the bearing of these matters upon the present controversy, notwithstanding the admission, at page 209, that such recognition of the belligerency of the Confederates is excluded by the terms of the Treaty of Washington from being admissible as a specific ground of claim before the Tribunal. (f.) The doctrines that the pub. lic ships of war of a non-sovereign belligerent are liable to neutral jurisdiction or control in cases in which the public ships of a sovereign belligerent would not be so liable, and that it was part of the duty of Her Britannic Majesty's Government toward the United States, either by virtue of the first rule in the sixth article of the Treaty of Washington, or otherwise, to detain certain of the Confederate vessels, being public ships of war of a "non-sovereign belligerency," 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.) (g.) The application attempted to be made in several parts of the United States Argument of 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 "repairs which may make their steampower effective" in neutral ports, is a breach of that Rule or of any other neutral obligation. (h.) The doctrine that the character of acts or omissions on the part of a neutral power, which would otherwise be consistent with the due performance of neutral ob ligations, is altered by the circumstance that a belligerent has agents Considered United States Case, pp. 109, 212, 467–481; United States Counter Case, Part IX. British Case, p. 167; British Counter Case, pp. 130-142; Notes in vol. 7 of British Appendix; British Argument, pp. 35-37; Annexes C and D to British Argument. Considered United States Case, pp. 109, 110; United States Counter Case, p. 16. British Case, p. 24; British Counter-Case, p. 7; British Argument, pp. 9-11. See also Annex B to British Counter Case. Considered United States Case, p.112; United States Counter Case, p. 16. British Case, p. 25; British Counter Case, p. 7; British Argument, pp. 9, 11. See also Annex B to British Counter Case. Considered United States Counter Case, pp. 6, 20. British Case, p. 57; British Argument, p. 9. See also Annex C, British Counter Case. We cite Sir R. Phillimore and Lord Russell, Sir Roundell Palmer, and Sir Alexander Cockburn, and Mr. Canning, as Great Britain may and do cite Wheaton, Story, Jefferson, or Washington. Why not?-we say a second time. We find good matter, excellent matter, in these documents. Considered United States Case, pp. 462-466; United States Counter Case, p. 11. British Counter Case, pp. 119-123; British Argu. ment, p. 34. Considered United States Case, and agencies within the neutral territory, and has direct dealings there with neutral citizens. (i.) The argument of the United States as to the liability of Great Britain to make pecuniary compensation to the United States if she is found in any respect to have failed in the performance of her neutral obligations, and as to the measure of damages, and the principle applicable thereto. II. AS TO FACTS GENERALLY. (j.) The argument of the United States that the British Foreign-Enlistment Act of 1819 contained no provisions of a preventive effi cacy, but was merely of a punitive character. (k.) The argumentative comparison between the British ForeignEnlistment Act and the Foreign-Enlistment Act and Executive powers of the United States and those of other countries, intended to show the inferior efficacy of the British statute. (1.) The suggestion of the exist ence of prerogative powers in the Crown of Great Britain, and of powers under the British customs and navigation laws, which ought to have been, but were not, used for the maintenance of Her Britannic Majesty's neutrality. (m.) The alleged admissions of various British writers and statesmen in printed books, parliamentary speeches, and otherwise, of principles or facts, assumed to be in accordance with the present Argument of the United States. Britain has made her own municipal legislation the measure of her international obligations, and has pleaded any supposed inefficiency of her laws as an excuse for the non-performance of such obligations, which she has never done. (p.) The inference that because Great Britain has thought it right to legislate, since the war, so as to enlarge the legal control of her Government over certain classes of transactions by her citizens, calculated to lead to difficulty with foreign Powers, she has thereby or otherwise admitted the insufficiency of her laws, during the civil war, for the performance of her neutral obligations. (q.) The manner in which it has been thought fit, in the Argument of the United States, to treat the refusal of Great Britain in her Counter Case to enter into any detailed justification of her Government against the imputation of insincere neutrality, and unfriendly motives toward the United States, as a virtual admission of such insincere neutrality and such unfriendly motives. (r.) The erroneous representation in the same argument, of the purpose for which numerous historical instances of the extension and persistent violation of the neutral or friendly obligations of the United States toward other powers, by citizens of the United States acting contrary to their laws, have been referred to in the Counter Case of Her Britannic Majesty's Government, and the attempt to escape from the direct bearing of those instances upon the question, whether the views of the preventive power which a belligerent has a right to exact from a neutral State, and of the measure of the due diligence with which it is incumbent upon a neutral State to use its preventive powers, insisted upon by the United States in the present controversy against Great Britain, are historically well founded, or politically possible or consistent with the practice and experience of the United States themselves, who have appealed in their own Case and Counter Case, and in the Appendix to their Coun ter Case, to most of the very same transactions (which Great Britain is now alleged to have improperly brought forward) as actually furnishing evidence of the efficacy of their laws, and of the diligence and good faith with which those laws have been executed. IX. In conclusion, we respectfully submit to the Arbitrators that the sense of the treaty is plain, and that it imperatively forbids any such action, direct or indirect, as is proposed in the Memorandum. In preparing their arguments the Counsel on both sides considered the question, and without mutual conference they both came to the same conclusion, and expressed it in substantially the same spirit, with difference of language only. In the expression of courteous deference to the Arbitrators, we beg the Tribunal on this point to look at page 1 of the British, and page 6 of the American Argument. We have not discussed here the argumentative points of the Memo randum, as we might well have done, considering all such discussion inappropriate at this time. Finally, we need say little on the question of convenience; but we cannot forbear to say that as to the Arbitrators, as we may well suppose, but certainly for ourselves, for whom alone we have a right to speak, prolonged debate involves cares, and inconveniences of separation from home and from our personal and professional affairs, which do not apply to the Counsel of the British Government. In this view and in other relations, we respectfully suggest that the Arbitrators, if they need elucidation of any point, should propose specifically such point and require Counsel to argue viva voce, face to face, in the presence of the Tribunal. C. CUSHING. WM. M. EVARTS. III.-ARGUMENT OF SIR ROUNDELL PALMER ON THE QUESTIONS OF "DUE DILIGENCE," THE "EFFECT OF COMMISSIONS UPON THE INSURGENT CRUISERS," AND THE SUPPLIES OF COAL TO SUCH CRUISERS IN BRITISH PORTS." [Filed July 29.-See Protocol xv.] CHAPTER I.-ON THE QUESTION OF "DUE DILIGENCE" GENERALLY CONSIDERED. 1. On the sources When the inquiry is, whether default has been made in the fulfill, ment of a particular obligation, either by a state or by an individual, it is first necessary to have an accurate view of of the obligation. the ground, nature, and extent of the obligation itself. The examination of this question will be simplified by consideringin the first instance, such a case as that of the Alabama, at the time of her departure from Great Britain, namely, a vessel built and made ready for sea, with special adaptation for warlike use, by British shipbuilders in the course of their trade, within British territory, to the order of an agent of the Confederate States, but not armed, nor capable of offense or defense at the time of her departure. Any obligation which Great Britain may have been under toward the United States, in respect of such a vessel, could only be founded, at the time when the transaction took place, (1) upon some known rule or principle of international law; or (2) upon some express or implied. engagement on the part of Great Britain. The three rules contained in the VIth Article of the treaty of Washington become elements in this inquiry solely by virtue of the declaration made in that article, 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 agree that, in deciding the questions between the two countries arising out of those claims, the arbitrators should assume that Her Majesty's government had undertaken to act upon the principles set forth in those rules. In order rightly to understand the effect of the agreement embodied in this declaration, it is important to see how the question between the two governments would have stood without it. I.-As to the rules and principles of international law. 2. Source I. Rules ternational law. These must be obtained from the authorities which show what had previously been received and understood among nations as to the obligations of neutral states toward belligerents; and principles of inremembering always, that what is called international law (in the absence of particular compacts between states) is imposed only by the moral power of the general opinion and practice of civilized nations; that, (in the words of Lord Stowell, quoted with approval by the great American jurist, Wheaton, "Histoire des Progrès du Droit des Gens," vol. i, p. 134,) "une grande partie du droit des gens est basée sur l'usage et les pratiques des nations. Nul doute qu'il a été introduit |