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JUNE 10, 1872.

SIR: We have the honor to hand you herewith the argument prepared by us as counsel of the United States, in order that, in pursuance of Article V of the treaty of Washington, it may be presented in their behalf to the tribunal of arbitration constituted by that treaty.

We have the honor, sir, to be your obedient servants,

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C. CUSHING.
WM. M. EVARTS.
M. R. WAITE.

ARGUMENT.

1. INTRODUCTION.

provisions of treaty

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 Argument presentmonths 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.

Counter cases,

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 respective 9% 1 docu

CASPE ments.

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 gov

ernments.

The issues to be

settled.

It may be assumed, then, that these volumes of proofs, and the Cases and Counter Cases of the two governments, not only present determined are now all the materials necessary or useful for the complete intelligence 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 think 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, "if 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.

The arbitrators alacquainted with the general na

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 y, 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 natious, upon the actual events which gave it birth, and as it has been shaped for the investigation and determination 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 those presented by the United States.

insurrection the United States

powers, and prevent

exercised belligerent ed insurgents from war from their own

carrying on maritime

resources.

I. When the great social and political interests developed by the institution of slavery, as it existed in the United States, car- In suppressing "an ried the popular agitations beyond the bounds of obe-red dience to the laws and loyalty to the Government of the United States, as set forth in Part II of the Case of Great Britain and Part II of the Case of the United States, it was 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 es

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