PAPERS RELATING TO THE TREATY OF WASHINGTON - Google Books

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SUPPLEMENTARY STATEMENTS OR ARGUMENTS MADE BY THE RE-

SPECTIVE AGENTS OR COUNSEL SUBSEQUENTLY TO FILING THE

ARGUMENTS ACCORDING TO THE PROVISIONS OF THE TREATY.

I.—STATEMENT OF SIR ROUNDELL PALMER, MADE AT THE SEVENTH Con-

FERENCE, ON THE 27TH JUNE, 1872..

Points upon which he desires further argument..

II.-REPLY OF THE COUNSEL OF THE UNITED STATES IN RESPONSE TO THE

FOREGOING STATEMENT OF SIR ROUNDELL PALMER........

Reasons why further argument should not be ordered at this stage of

the proceedings

III.—ARGUMENT OF SIR ROUNDELL PALMER ON THE QUESTION OF "“DUE

DILIGENCE." "THE EFFECT OF COMMISSIONS UPON THE INSURGENT

CRUISERS," AND "THE SUPPLIES OF COAL TO SUCH CRUISERS IN BRITISH

1. On the question of Due Diligence generally considered

On the sources of the obligation..

Rules and principles of International Law

Express or implied engagements of Great Britain

Effect of prohibitory municipal laws

The three Rules of the Treaty of Washington..

General principles for finding what diligence is due

The maxims cited by the United States from Sir R. Phillemore

For what purposes Great Britain refers to her municipal laws..

Doctrine of Tetens

Influence upon the question of diligence of the different forms

of National Governments

Objections to any theory of the diligence due from neutral Gov-

ernments which involves a universal hypothesis of arbitrary

Argument of the United States as to the necessity of a reliance

on prerogative....

Argument as to prerogative powers belonging to the British

True doctrine as to powers of the Crown..

American view of an a priori obligation

The British Crown has power to use the forces of the realm to

stop acts of war within British territority

The assertion that Great Britain relies on punitive and not

preventive law disproved...

Preventive power of British law explained

The doubtful points as to the construction of the British For-

eign-Enlistment Act never affected the diligence of the British

Government..........

Baron Bramwell's view of the international as distinct from

municipal obligation agreed with that of the American Attor-

ney-General in 1841.

On the arguments as to due diligence derived by the United

States from foreign laws...

On the comparison made by the United States between their

own laws and British laws..

Examination of the preventive powers of the American Govern-

ment under their acts of Congress for the preservation of neu-

Testimonies of Mr. Bemis and Mr. Seward on this subject.

Argument from the Foreign-Enlistment Act of 1870.

Illustrations of the doctrine of due diligence from the history

of the United States.

Arguments of the United States from suggested defects in the

administrative machinery of British law, and from the evi-

dence required by the British Government..

Inconsistency of the Rules of the Treaty with the requirement

of diligence to prevent where there were not reasonable

grounds of belief

The British Government took active and spontaneous measures

to acquire all proper information and to prevent breaches of

III. ARGUMENT OF SIR ROUNDELL PALMER-Continued.

They followed up all information received by proper inquiries.

Necessity and propriety of seeking evidence from those who

give information

Mr. Jefferson's letter of September 5, 1793

Onus imposed on British claimants against the United States

under the Treaty of 1794..

Uniform reference of the Executive Authorities of the United

States in similar cases to legal procedure and the necessity for

legal evidence....

Of the suggestion that the belief of the consuls of the United

States in British ports should be treated as sufficient prima-

facie evidence..

The preventive efficacy of the American law tried by the test of

practical results...

The general result proves that many failures may happen, with-

out want of due diligence, from causes for which Governments

cannot be held responsible..

Attempt of the United States to change the onus probandi in this

It is a transgression of the Rules of the Treaty

The law of nations does not justify this attempt.

The alleged duty of pursuit. The Terceira expedition.

2. The effect of the commissions of the Confederate ships of war on their en-

trance into British ports.

The Rule cannot require an act wrongful by international law...

There is no rule obliging a neutral to exclude from his ports ships

of this description..

In any view the latter part of Rule I cannot apply to the Georgia or

the Shenandoah.

The distinction suggested by the United States between ships of war

of recognized nations and ships of a non-recognized State..

All the ships in question were duly commissioned ships of war..

Such supplies are not within the rule as to not using neutral terri-

tory as a base of operations.

What is meant by the words " a base of naval operations

What is not meant by those words...

Consequences of a lax use of the phrase..

Effect of the addition of the words "renewal or augmentation of

military supplies or arms"

Universal understanding and practice.

Intention of the second Rule of the Treaty on this point.

British regulations of January 31, 1862.

4. Principles of construction applicable to the Rules of the Treaty.

Importance of the second and third questions, as to the principles of

construction applicable to the three Rules.

Rules for the interpretation of public conventions and treaties...

Applications of these principles to the interpretation of the three

Rules as to the points in controversy.

Influence on the construction of the retrospective terms of the

The admitted intention of both parties as to the second Rule.

Influence upon the construction of the agreement to propose the

three Rules for general adoption to other maritime nations...

IV. ARGUMENT OF MR. EVARTS IN REPLY TO THE SPECIAL ARGUMENT OF SIR

ROUNDELL PALMER..

Scope of the discussion

IV. ARGUMENT OF MR. EVARTS, &C.-Continued.

The Rules of the Treaty the law of this Case.

Sir R. Palmer's attempt to disparage the Rules examined

How far the Tribunal may resort to the Rules of International Law.

Sir R. Palmer's principles for the construction of Treaties examined..
Effect of a commission.

United States construction of the first Rule.

Effect of the words "reasonable ground to believe"

The rules of law respecting the effect of a commission.

Extent of the right of exterritoriality granted to ships of war
Recognition of belligerency not a recognition of sovereignty
Application of the principles.

Acts done in violation of neutrality are hostile acts.

The neutral whose neutrality has been violated is under no obligation

of comity to the violator..

Authorities to show that the construction in neutral territories of a ship

intended to carry on war against a belligerent is forbidden by the law

The applicability of the rule to the Georgia and the Shenandoah.
The question of coaling is a branch of the greater question of the use
of British ports as bases of hostile operations.

The doctrine of asylum considered..

Analogy between the duties of a neutral on land and his duties at sea..

Limitation of the right of commercial dealings in contraband of war..

Use of a neutral port as a base of hostile operations; what it is

In the case of the Nashville.

In the case of the Shenandoah...

The arming and equipping the cruisers forbidden by the law of nations..
They should therefore have been disarmed when they came again within
British ports...

The question of the use of the neutral port as a base of hostile opera-
tions being established, there remains the inquiry whether the neutral
did or did not exercise due diligence to prevent it..

Such proceedings are not mere dealings in contraband of war.

Statement of the British argument on this point......

Review of Sir R. Palmer's criticisms upon the Argument of the United

The prerogative of the Crown..

Preventive and punitive powers of each Government.

The failure of Great Britain to originate investigations or proceedings..

The due diligence required by the Rules is a diligence to prevent a hostile

V.—ARGUMENT OF MR. CUSHING IN REPLY TO THE SPECIAL ARGUMENT OF SIR

Views of Sir Roundell Palmer in the case of Lairds' rams

Definition of due diligence.

Powers of the Crown..

Obligations imposed by international law as distinguished from muni-

VI.-REPLY OF MR. WAITE TO THE ARGUMENT OF SIR ROUNDELL PALMER

UPON THE SPECIAL QUESTION AS TO SUPPLIES OF COAL IN BRITISH

PORTS TO CONFEDERATE SHIPS

VI.-REPLY OF MR. WAITE, &C.-Continued.

It should not be in neutral territory.

The insurgents had no such base within their own territory

Great Britain knew this..

The advantages of these facts to the United States..

Efforts of the insurgents to obtain bases of operations in neutral terri-

Toleration of use equivalent to permission

Toleration implies knowledge..

Great Britain had reasonable ground to believe that the insurgents in-

tended to use its ports.

Their effective vessels of war came from Great Britain.

When obtained they were useless without a base of operations

They might have been excluded from British ports.

This would have prevented the injuries which followed.

The United States requested Great Britain to prevent this abuse of its

Great Britain refused to prevent it...

Great Britain encouraged the use of its ports by the insurgents for re-

pairs and for obtaining provisions and coal

All this constituted a violation of neutrality which entailed responsi-

VII. ARGUMENT OF SIR ROUNDELL PALMER ON THE QUESTION OF THE RE-

CRUITMENT OF MEN FOR THE SHENANDOAH AT MELBOURNE.

VIII. OBSERVATIONS ADDRESSED TO THE TRIBUNAL BY MR. CUSHING, IN THE

NAME OF THE COUNSEL OF THE UNITED STATES, ON THE 21ST AUGUST, 1872,

AND MEMORANDUM AS TO THE ENLISTMENTS FOR THE SHENANDOAH AT MEL-

IX.-ARGUMENT OF SIR ROUNDELL PALMER ON THE SPECIAL QUESTION AS TO

THE LEGAL EFFECT OF THE ENTRANCE OF THE FLORIDA INTO THE PORT OF

MOBILE, OR THE RESPONSIBILITY, IF ANY, OF GREAT BRITAIN FOR THAT SHIP..

X.-REPLY OF THE COUNSEL OF THE UNITED STATES TO THE ARGUMENT OF HER

BRITANNIC MAJESTY'S COUNSEL ON THE SPECIAL QUESTION OF THE LEGAL EF-

FECT, IF ANY, OF THE ENTRY OF THE FLORIDA INTO THE PORT OF MOBILE, AFTER

LEAVING THE BAHAMAS, AND BEFORE MAKING ANY CAPTURES.

XI. ARGUMENT OF SIR ROUNDELL PALMER ON THE CLAIM OF THE UNITED

STATES FOR INTEREST BY WAY OF DAMAGES.

XII.-REPLY ON THE PART OF THE UNITED STATES TO THE ARGUMENT OF HER

BRITANNIC MAJESTY'S COUNSEL ON THE ALLOWANCE OF INTEREST IN THE COM-

PUTATION OF INDEMNITY UNDER THE TREATY OF WASHINGTON..

XIII.-COMPARATIVE TABLES PRESENTED BY THE AGENT OF THE UNITED STATES

ON THE 19TH OF AUGUST, 1872, IN COMPLIANCE WITH THE REQUEST OF THE

XIV. TABLES PRESENTED BY THE AGENT OF HER BRITANNIC MAJESTY ON THE

19TH OF AUGUST, 1872, IN COMPLIANCE WITH THE REQUEST OF THE TRIBUNAL-

XV.-REPLY OF THE AGENT OF THE UNITED STATES TO THE NEW MATTER INTRO-

DUCED BY THE AGENT OF HER BRITANNIC MAJESTY ON THE CALL OF THE

TRIBUNAL FOR ELUCIDATION IN RESPECT TO THE TABLES PRESENTED BY THE

TWO GOVERNMENTS..

563

XVI-A NOTE ON SOME OBSERVATIONS PRESENTED BY MR. BANCROFT DAVIS ON

THE 29TH AUGUST..

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