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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

415

Onus imposed on British claimants against the United States

under the Treaty of 1794...

415

Uniform reference of the Executive Authorities of the United

States in similar cases to legal procedure and the necessity for

legal evidence.....

415

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.

424

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..

426

The true construction of the first Rule of the Treaty

426

The privileges of public ships of war in neutral ports..

427

The case of the Exchange.

425

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....

430

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....

433

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

tory as a base of operations....

433

What is meant by the words a base of naval operations

434

What is not meant by those words.

433

Consequences of a lax use of the phrase..

435

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

military supplies or arms”.

433

Doctrine of Chancellor Kent..

435

President Washington's rules and other authorities.

436

Acts of Congress of 1794 and 1818..

436

British Foreign-Enlistment Act of 1819.

436

Universal understanding and practice..

437

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

437

British regulations of January 31, 1862.

437

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.

442

Page.

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

Due diligence..

443

The Rules of the Treaty the law of this Case.

443

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

443

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..

448

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.

451

Recognition of belligerency not a recognition of sovereignty

452

Application of the principles..

452

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..

455

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

472

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

Due diligence..

487

A theoretical discussion not wanted.

487

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

496

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.

513

What it is..

513
Page.

VI.-REPLY OF Mr. WAITE, &c.-Continued.

It should not be in neutral territory.

513

The insurgents had no such base within their own territory.

514

Great Britain knew this..

514

The advantages of these facts to the United States..

514

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

tory..

515

Toleration of use equivalent to perinission

515

Toleration implies knowledge...

515

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

tended to use its ports.....

515

Their effective vessels of war came from Great Britain.

515

When obtained they were useless without a base of operations.

516

They might have been excluded from Britislı ports...

516

This would have prevented the injuries which followed.

516

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

territory ....

517

Great Britain refused to prevent it.

517

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..

633

I.

ARGUMENT

OF

THE UNITED STATES,

DELIVERED TO

THE TRIBUNAL OF ARBITRATION

AT

GENEVA,

JUNE 15, 1872:

1c

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