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Page.
III.-ARGUMENT OF Sir ROUNDÉLL PALMER-Continued.
They followed up all information received by proper inquiries. 413
Necessity and propriety of seeking evidence from those who
give information
415
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....
419
The preventive efficacy of the American law tried by the test of
practical results...
420
The general result proves that many failures may happen, with-
out want of due diligence, from causes for which Governments
cannot be held responsible....
422
Attempt of the United States to change the onus probandi in this
controversy.
423
It is a transgression of the Rules of the Treaty
424
The law of nations does not justify this attempt.
The decision in the case of the Elizabeth against it.
421
Special questions remaining to be considered.
425
The alleged duty of pursuit. The Terceira expedition ...
426
2. The effect of the commissions of the Confederate ships of war on their en-
trance into British ports..
The true construction of the first Rule of the Treaty
The privileges of public ships of war in neutral ports..
427
The case of the Exchange.
Other authorities....
428
The Rule cannot require an act wrongful by international law....
429
There is no rule obliging a neutral to exclude from his ports ships
of this description..
430
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...
431
All the ships in question were duly commissioned ships of war.... 432
3. On supplies of coal to Confederate ressels in British ports ..
433
Both parties in the war equally received such supplies....
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
434
What is not meant by those words.
Consequences of a lax use of the phrase..
435
Effect of the addition of the words “renewal or augmentation of
military supplies or arms”.
Doctrine of Chancellor Kent..
President Washington's rules and other authorities.
436
Acts of Congress of 1794 and 1818..
British Foreign-Enlistment Act of 1819.
Universal understanding and practice..
437
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....
438
Rules for the interpretation of public conventions and treaties. 438
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
agreement
440
The admitted intention of both parties as to the second Rule..... 441
Influence upon the construction of the agreement to propose the
three Rules for general adoption to other maritime nations.... 441
IV.-ARGUMENT OF MR. EVARTS IN REPLY TO THE SPECIAL ARGUMENT OF SIR
ROUNDELL PALMER....
442
Scope of the discussion.
66
439
IV-ARGUMENT OF MR. EVARTS, &C.-Continued.
Due diligence..
443
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. 446
Sir R. Palmer's principles for the construction of Treaties examined. 446
Effect of a commission..
448
United States construction of the first Rule..
Effect of the words “reasonable ground to believe"
450
The rules of law respecting the effect of a commission..
451
Extent of the right of exterritoriality granted to ships of war.
Recognition of belligerency not a recognition of sovereignty
452
Application of the principles..
Acts done in violation of neutrality are hostile acts.
454
The neutral whose neutrality has been violated is under no obligation
of comity to the violator..
455
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
of nations..
The applicability of the rule to the Georgia and the Shenandoah. 458
The question of coaling is a branch of the greater question of the use
of British ports as bases of hostile operations..
458
The doctrine of asylum considered..
459
Analogy between the duties of a neutral on land and his duties at sea.. 459
Limitation of the right of commercial dealings in contraband of war.. 460
L'se of a neutral port as a base of hostile operations; what it is.. 460
In the case of the Nashville ....
461
In the case of the Shenandoah..
462
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...
464
Such proceedings are not mere dealings in contraband of war.
465
Statement of the British argument on this point...
469
The arming and equipping the cruisers forbidden by the law of nations.. 471
They should therefore have been disarmed when they came again within
British ports...
472
The construction of the Rules of the Treaty
Review of Sir R. Palmer's criticisms upon the Argument of the United
States.....
473
The prerogative of the Crown...
474
Preventive and punitive powers of each Government.
477
The failure of Great Britain to originate investigations or proceedings.. 479
The due diligence required by the Rules is a diligence to prevent a hostile
act...
480
Comparison between the statutes of the two nations.
481
The burden of proof.
482
The Terceira affair.
483
Conclusion.....
484
V.-ARGUMENT OF MR. CUSHING IN REPLY TO THE SPECIAL ARGUMENT OF SIR
ROUNDELL PALMER
486
487
A theoretical discussion not wanted.
Views of Sir Robert Phillimore.
489
Views of Sir Roundell Palmer in the case of Lairds' rams.
491
Definition of due diligence.
494
Powers of the Crown..
495
Obligations imposed by international law as distinguished from muni-
cipal law....
496
Constitutional form of the British Government
Case of the Russian ships.....
499
Comparative laws of other countries.
501
The laws of the United States examined...
504
Jurisdiction of the Tribunal....
508
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...
513
A base of operations essential to naval warfare.
What it is..
513 Page.
VI.-REPLY OF Mr. WAITE, &c.-Continued.
It should not be in neutral territory.
The insurgents had no such base within their own territory.
514
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-
tory..
515
Toleration of use equivalent to perinission
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.
516
They might have been excluded from Britislı ports...
This would have prevented the injuries which followed.
The United States requested Great Britain to prevent this abuse of its
territory ....
517
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
518
All this constituted a violation of neutrality which entailed responsi-
bility
519
VII.-ARGUMENT OF SIR ROUNDELL PALMER ON THE QUESTION OF THE RE-
CRUITMENT OF MEN FOR THE SHENANDOAH AT MELBOURNE.
520
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 SHENANDOAII AT MEL-
532
IX.-ARGUMENT OF Sir ROUNDELL PALMER ON THE SPECIAL QUESTION AS TO
THE LEGAL EFFECT OF THE ENTRANCE OF THE FLORIDA INTO TIE PORT OF
MOBILE, OR THE RESPONSIBILITY, IF ANY, OF GREAT BRITAIN FOR THAT SHIP.. 541
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 BAIIAMAS, AND BEFORE MAKING ANY CAPTURES.
546
XI.- ARGUMENT OF SIR ROUNDELL PALMER ON THE CLAIM OF THE UNITED
STATES FOR INTEREST BY WAY OF DAMAGES.
530
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 TILE TREATY OF WASHINGTON..
563
XIII.-COMPARATIVE TABLES PRESENTED BY THE AGENT OF THE UNITED STATES
ON THE 19TH OF AUGUST, 1872, IN COMPLIANCE WITH THE REQUEST OF THE
TRIBUNAL..
579
XIV.-TABLES PRESENTED BY THE AGENT OF HER BRITANNIC MAJESTY ON THE
19TH OF AUGUST, 1872, IN COMPLIANCE WITH THE REQUEST OF THE TRIBUNAL. 610
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....
633
XVI-A NOTE ON SOME OBSERVATIONS PRESENTED BY MR. BAXTROFT DAVIS ON
THE 29TH AUGUST..
BOURNE
I.
ARGUMENT
OF
THE UNITED STATES,
DELIVERED TO
THE TRIBUNAL OF ARBITRATION
AT
GENEVA,
JUNE 15, 1872:
1c