Cushing to the special argument of Sir Roundell Palmer, August 6. (See protocol XVIII.), August 6, 1872

V.—Argument of Mr. Cushing, in reply to the special argument of Sir Roundell Palmer, August 6. (See protocol XVIII.)

Mr. President and Gentlemen of the Tribunal: We are approaching, as I hope at least, the end of these long debates.

The two Governments had presented their Cases and Counter Cases, supported by voluminous documents. They had also presented their respective Arguments, the whole in conformity with the stipulations of the Treaty of Washington, (Articles IV and V.)

Thus the regular arguments prescribed by the Treaty have been closed.

Now, at the request of one of the honorable Arbitrators, the Tribunal has requested from England, as it had the right to do, explanations on certain definite points, namely:

1. The question of due diligence, generally considered.

2. The special question as to the effect of the commissions held by Confederate ships of war entering British ports.

3. The special question as to supplier of coal in British ports to Confederate ships.

The Counsel of Great Britain has taken advantage of this opportunity to discuss the points laid down, and in reference to them to comment on the Argument of the United States.

I do not complain of this, but I state the fact.

We, the Counsel of the United States, accept the situation such as it is made for us; for we had no desire further to occupy the attention of the Tribunal.

My two colleagues have discussed fully the second and third points. Scarcely have they left me a few words to say on the subject of the first point.

In fact, the task which has devolved on me is merely that of summing up the question, and adding some special observations.

I venture to address the Tribunal in French, in order to economize its precious time, and to reach the close of the discussion as soon as possible. For this object I willingly sacrifice all oratorical pretensions; I endeavor to make myself understood; that is all I aspire to.

The Question of due diligence.Due diligence.

We have now to consider the question of due diligence generally treated.

What does this expression mean? Does the Tribunal require the theoretical lecture of a professor on due diligence? I do not think so. Such a discussion would be perfectly idle, for the following reasons:

1. This theoretical question has already been discussed to satiety. Great Britain has discussed it three times in her Case, Counter Case, and Argument, and she has allowed herself twelve whole months to reflect on it, and accumulate arguments and quotations for the instruction of the Tribunal. We, in the name of the United States, have not expended so many words, but we have said all we wished and desired to bring before the honorable Arbitrators.A theoretical discussion not wanted.

2. The two Parties were agreed that the theoretical question no longer deserved their attention.

Her Majesty’s Government, [says the British Counter Case,] (page 22,) has not attempted a task which has baffled, as it believes, the ingenuity of jurists of all times and countries,—that of defining with any approach to precision, apart from the circumstances of any particular case, what shall be deemed due diligence or reasonable care.

And the Counter Case quotes and adopts the following passage, (page 22, note:)

For the rest, [says a distinguished French jurist, treating of this subject in connection with private law,] for the rest, whether the obligation in question is for a thing to be given, or for one to be done, the imputation of default is, in practice, hardly a question of law. The question of fact is always the dominant point, even if it is not the sole one. (Larombière, “Théorie et pratique des obligations,” vol. i, p. 417.)

The Counsel of the United States, accepting the doctrine laid down by England, have replied as follows:

We concur in the final considerations of the British Counter Case on this subject of due diligence, in leaving “the Arbitrators to judge of the facts presented to them by the light of reason and justice, aided by the knowledge of the general powers and duties of administration which they possess, as persons long conversant with public affairs.” British Counter Case, p. 125. (Argument of the United States, p. 158.)

We remain of this opinion; we refuse to retrace our steps and to discuss afresh questions completely exhausted long ago, and which have been even admitted to be inopportune by both parties.

3. I recognize no diligence but the diligence prescribed by the Treaty. The Counsel of Great Britain appears to endeavor to establish rules of due diligence outside of the Treaty. It is too late to enter on this path. After the progress which the Tribunal has already made in its labors, it is no longer worth while to re-embark on the open sea, the vague region of international law outside of the Treaty. We take our stand on the explicit words of the Treaty, which subordinates general international law to the compact of the three Rules, which is retrospective, and which expressly applies due diligence to the special cases and objects contemplated by those Rules.

For this last reason I refuse to follow the Counsel of Great Britain in his discussion of the question of the difference, if any exists, according to international law, between the duty of neutrals with regard to armed vessels and their duty with regard to vessels equipped for war but not yet armed.

The Treaty cuts short this question absolutely. It is sufficient to call attention to the first Rule:

A neutral Government is bound—

First. To use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a Power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been specially adapted, in whole or in part, within such jurisdiction, to warlike use.

Note the three first conditions clearly laid down by the Rule,—“the fitting out,” (which has been omitted, without sufficient reason, in the English translation,) “arming,” “or equipping.”

Note also the two following conditions, which are equally clear, “any vessel intended to cruise or carry on war,” or “any vessel having been specially adapted in whole or in part to warlike use.”

Looking to these conditions, so precise and definite, to which the diligence of the Treaty is to be applied, and considering the manifest uselessness of any discussion outside of these three Rules, it may well be suspected that the object of the Counsel of Great Britain, in thus digressing from the Treaty, was to make a fitting preface to the observations which follow, designed to weaken, if possible, the force of the words of Sir Robert Phillimore and Sir Roundell Palmer quoted in the Argument of the United States.

Sir Robert Phillimore.

We have quoted from Sir Robert Phillimore’s Commentaries on International Law the following passages:Views of Sir Robert Phillimore.

There remains one question of the gravest importance, namely, the responsibility of a State for the acts of her citizens, involving the duty of a neutral to prevent armaments and ships of war issuing from her shores for the service of a belligerent, though such armaments were furnished and ships were equipped, built, and sent without the knowledge and contrary to the orders of her Government.

* * * * * * *

It is a maxim of general law, that so far as foreign States are concerned, the will of the subject must be considered as bound up in that of his Sovereign.

It is also a maxim that each State has a right to expect from another the observance of international observations, without regard to what may be the municipal means which it possesses for enforcing this observance.

The act of an individual citizen, or of a small number of citizens, is not to be imputed without clear proof to the Government of which they are subjects.

A Government may by knowledge and sufferance, as well as by direct permission, become responsible for the acts of subjects whom it does not prevent from the commission of an injury to a foreign State.

A Government is presumed to be able to restrain the subject within its territory from contravening the obligations of neutrality to which the State is bound.

* * * * * * *

A State is prima facie responsible for whatever is done within its jurisdiction; for it must be presumed to be capable of preventing or punishing offenses committed within its boundaries. A body politic is therefore responsible for the acts of individuals, which are acts of actual or meditated hostility toward a nation with which the Government of these subjects professes to maintain relations of friendship or neutrality.

The Counsel of Great Britain now affirms that all these expressions of Sir Robert Phillimore must be considered as limited to the case of an armed vessel, or of a military, and not a naval expedition.

I deny the possibility of such a distinction. It has no foundation in the words of the author. I appeal in that respect to the appreciation of the honorable Arbitrators.

But, supposing that this distinction were well founded, it would not justify the conclusions of the Counsel of Great Britain, because the principles laid down by Sir Robert Phillimore are of general application, and comprise all possible cases. Take any duty whatever of due diligence to be fulfilled on the part of a neutral Government toward a belligerent Government, and then, in that case, Sir Robert Phillimore tells us in what manner and according to what principles the neutral Government should act. It must fulfill its international obligations “without regard to what may be the municipal means which it possesses for enforcing them.” Moreover, “a Government may by knowledge and sufferance, as well as by direct permission, become responsible for the acts of subjects whom it does not prevent from the commission of an injury to a foreign State.”

Such is the thesis, on the subject of due diligence generally considered, which the Counsel of the United States have constantly maintained, and which Great Britain has constantly contested in her Case, Counter Case, and Argument.”

Now, the duty which is incumbent on Great Britain is defined by the three Rules, and we have the right to consider the general maxims of Sir Robert Phillimore in the light of these Rules. This is what we have done in our Argument.

The Laird rams.

But we hasten to see what the Counsel of Great Britain has to say concerning the quotation we have made from a speech of Sir Roundell Palmer on the subject of the “Laird Rams.”

I beg to call the attention of the Tribunal to the words of the speech itself:

I do not hesitate, [says Sir Roundell Palmer,] to say boldly, and in the face of the country, that the Government, on their own responsibility, detained them. They were prosecuting inquiries which, though imperfect, left on the mind of the Government strong reasons for believing that the result might prove to be that these ships were intended for an illegal purpose, and that if they left the country the law would be violated, and a great injury done to a friendly Power. The Government did not seize the ships; they did not by any act take possession of or interfere with them; but, on their own responsibility, they gave notice to the parties interested that the law should not be evaded until the pending inquiry should be brought to a conclusion, when the Government would know whether the inquiry would result in affording conclusive grounds for seizing the ships or not.Views of Sir Roundell Palmer in the case of the rams.

If any other great crime or mischief were in progress, could it he doubted that the Government would be justified in taking steps to prevent the evasion from justice of the person whose conduct was under investigation until the completion of the inquiry? In a criminal case, we know that it is an ordinary course to go before a magistrate, and some information is taken, of a most imperfect character, to justify the accused’s committal to prison for trial, the prisoner being remanded from time to time. That course cannot be adopted in cases of seizures of vessels of this description. The law gives no means for that, and therefore it is that the Government, on their own responsibility, must act, and have acted, in determining that what had taken place with regard to the Alabama should not take place with respect to these ships; that they should not slip out of the Mersey, and join the navy of the belligerent Power, contrary to our law, if that were the intention, until the inquiry in progress should be so far brought to a conclusion as to enable the Government to judge whether the ships were really intended for innocent purposes or not.

The Government were determined that the inquiries which they were making should be brought to a legitimate conclusion, that it might be seen whether those inquiries resulted in evidence, or not, of the vessels being intended for the Confederates, and that, in the mean time, they would not permit the ends of justice to be baffled by the sudden removal of the ships from the river.

It is impossible that the case of the Government can now be brought before the House; but the Government have acted under a serious sense of their duty to themselves, to Her Majesty, to our allies in the United States, and to every other nation with whom Her Majesty is in friendship and alliance, and with whom questions of this kind may be liable hereafter to arise.

Under a sense of that duty, they have felt that this is not a question to be treated lightly, or as one of no great importance. If an invasion of the statute law of the land was really about to take place, it was the duty of the Government to use all possible means to ascertain the truth, and to prevent the escape of vessels of this kind, to be used against a friendly Power.

The sentiments expressed in this speech do honor to the man and the statesman. Here, at last, we recognize the language of an enlightened conscience, and of a lawyer equal to his high duties, instead of the excuses and weaknesses with which Lord Russell’s correspondence is filled. Every word of this memorable speech is worthy of consideration.

Here, it was the Government which acted on its own responsibility, and which detained the suspected vessels. It was the Government which gave notice to the parties interested that the law should not be evaded, and that the vessels should not leave the Mersey until the pending inquiry should result in proving whether or not these vessels were intended for the confederates. It was the Government which must act in determining that what had taken place with regard to the Alabama (and I add in parenthesis, with regard to the Florida) should not be repeated with respect to these ships. And the Government acted under a serious sense of its duty to itself, to Her Majesty, to the United States, and to every other nation with which Her Majesty has the same relations of amity and alliance as with the United States.

It must be remembered that, in conformity with the advice of Sir Roundell Palmer, the Government had already instituted regular judicial proceedings against the Alexandra and the Pampero.

And it was the Government which acted, prompted by the sense of its duty toward the United States. What a contrast to that which the Government did not do in regard to the Alabama and Florida!

The Government had thrown on Mr. Adams and on Mr. Dudley all the cares with regard to the Alabama and Florida; refusing to act on its own responsibility, it had disdainfully invited the United States to act on their responsibility. It remained with its arms folded, whilst rogues devoid of honesty or shame were unworthily deceiving it on the subject of the ownership and destination of these vessels. There was no provisional investigation, no initiative, on the part of the Government, but an absolute refusal to act otherwise than by legal proceedings, and those to be originated by the United States.

Now, what did the Government do, acting of its own accord and on its own responsibility, in the case of the “rams?” Did it institute judicial proceedings? Did it seize the vessels? Did it arrest them? Was action taken on evidence sufficient to justify the seizure, and suck as had been required from Mr. Adams and Mr. Dudley with regard to the Florida and the Alabama? No, none of these precautions were taken. But the Government ordered an inquiry similar to that which Mr. Adams had begged it to make in the case of the Florida, and detained the “rams” pending the result of the inquiry, “in order to use all possible means to ascertain the truth, and to prevent the escape of vessels intended to be used against a friendly Power.”

This is the due diligence of the Treaty: “To use all possible means to ascertain the truth and prevent the escape of the vessels.”Definition of due diligence.

In order, then, to prove in the most convincing manner that the British Government did not employ due diligence in the case of the Florida and in that of the Alabama, it is sufficient to notice what the Government obstinately refused or certainly neglected to do with respect to those vessels, and what it did actively and on its own initiative with regard to the “rams.” The comparison necessarily leads to a conclusion adverse to Great Britain. And Sir Hugh Cairns was perfectly right in saying on that occasion—“Either the Government must contend that what they did in the affair of the ‘rams’ was unconstitutional, or they ought to have done the same with regard to the Alabama,” (and I add with regard to the Florida,) “and they are liable.”

It remains to be seen exactly what the Government did with regard to the “rams.” Sir Roundell Palmer categorically affirms that these vessels had not been seized, but that they had been detained. He repeats this declaration.

In another speech, it is true, he says, speaking of the Alexandra, that the Government thought it its duty to seize the ship or vessel, according to the form of proceeding under the Customs Acts, (Argument, p. 15.)

But such was not the course followed with regard to the rams, for they were not seized at all, they were simply detained. But how, detained? The context clearly implies that they were detained by means of a notification on the part of the Government to the builders and to the pretended owners, no doubt accompanied by corresponding orders addressed to the officers of the Customs.

The Counsel of Great Britain loudly and positively affirms that the means adopted on the responsibility of the Government, that is to say, by the spontaneous action of the Ministers intrusted with the executive power of the Crown, were perfectly legal and constitutional. We, the Counsel of the United States, are happy to be, on this point, of the same opinion as the Counsel of Great Britain.

But in that case due diligence was not exercised with regard to the Florida and the Alabama. The consequence is inevitable.

In the extract from Sir Roundell Palmer’s speech on the subject of the Alexandra, I find an expression which strikes me. He says: “You cannot stop the ship by going before a magistrate; it must be done upon the responsibility of the Governments.”

How? It must be done upon the responsibility of the Government. Then the officers of the Customs were laughing at Mr. Dudley, or else they willfully deceived him, when they recommended him to begin legal proceedings on his own (Dudley’s) responsibility. Then, moreover, when Lord Russell asked Mr. Adams for evidence, the latter was entirely right in replying that he had neither the power, nor the means, of instituting legal proceedings in England. Then, too, the Government totally failed in its duty of due diligence with regard to the Florida and Alabama.

Of the powers of the Crown in England.

The Counsel of Great Britain endeavors to reply to the arguments of the United States with regard to the powers of the Crown, by raising loud cries of arbitrary power, and violation of the laws and constitution of England.Powers of the Crown.

Let us understand one another. Either England possesses the means of preventing, within her territorial jurisdiction, the belligerent enterprises of unauthorized individuals; or else she does not possess them. There is no escape from this dilemma.

If she possesses those means and does not exercise them, she is wanting in the due diligence of the Treaty.

If she does not possess them, in consequence of the impediments she has allowed her jurists to impose on her, and if she has gone so far as to abdicate all real national sovereignty, she is still wanting in the due diligence of the Treaty.

As is well said by Vattel: “If a sovereign who could retain his subjects in the rules of justice and peace suffers them to ill-treat a nation, either in its body or members, he does no less harm to the whole nation than if he ill-treated it himself.”

As Phillimore says: “Each State has a right to expect from another the observance of international obligations, without regard to what may be the municipal means which it possesses for enforcing its observance.”Obligations imposed by international law as distinguished from municipal law.

As says Dana, on the subject of the law of the United States:

Our obligation arises from the law of nations, and not from our own statutes, and is measured by the law of nations. Our statutes are only means for enabling us to perform our international duty, and not the affirmative limits of that duty. We are as much responsible for insufficient machinery, when there is knowledge and opportunity for remedying it, as for any other form of neglect. Indeed, a nation may be said to be more responsible for a neglect or refusal, which is an imperial, continuous act, and general in its operation, than for neglect in a special case, which may be a fault of subordinates.

Such is the recognized law of nations. The Counsel of Great Britain admits it. Then what is the use of a dissertation on arbitrary power?

The Counsel appears to assert that what is done by any Government beyond the provisions of a written law is arbitrary.

I understand this notion when speaking of a really constitutional Government, like Italy, Brazil, Switzerland, or the United States. In those countries the executive functionaries, King, Emperor, President, no matter what the title, and the legislative functionaries, have each their duties and their powers traced beforehand by a written national compact. There, when the Government, that is to say, the totality of the national powers, acts, it acts in conformity with the compact, with the Constitution, and by means of the functionaries specially designated according to the Constitution. But where is one to find the Constitution of England? No one is ignorant that what in England is called “the Constitution” is but the combination of the legislative acts, of the recognized customs, usages, and traditions, and of the public opinion of the Kingdom. For the executive administration there is the Crown, represented by its responsible Ministers, who, in these latter times, have arrogated to themselves the title of “Government;” there is the Parliament, which makes laws and controls the Ministers, and, through them, the Crown; there are the Courts, which interpret the written laws, and which also interpret the customs, usages, and traditions having the force of law; and for public opinion, why, there are the newspapers of London.Constitutional form of the British Government.

Now, the Ministers, as holding powers from the Crown and Parliament, declare war, acknowledge foreign belligerence, conclude Treaties, recognize new States, in a word supervise and direct the foreign relations of the kingdom.

Is that arbitrary power? I deny it. It is the law which has been established by tradition, just as the existence of Parliament, the right of primogeniture, the privileges of the peerage, have been established.

But the act of a declaration of war by the Crown, or the conclusion of any Treaty, profoundly affects private interests. Among the least of its effects would be that of imposing obstacles to the departure of merchantvessels from the ports of the kingdom. Nevertheless, in this controversy, we are asked to believe that it would be arbitrary to detain provisionally a merchant-vessel for the object of a simple inquiry caused by suspicions as to the legality of its equipment and destination.

Look at the power of Parliament,—there you have arbitrary power. A Parliament held to be omnipotent, which can banish and even try a King, introduce a new dynasty, abolish hereditary succession and all its legislative and judicial privileges, change the religion of the State, confiscate the goods of the Church, take from the Crown the administration of the international relations of the country,—is not this the reign of despotism?

But, up to the present time, Parliament has not taken from the Crown, that is say from the Ministers, the direction of foreign affairs. It may arrogate to itself a part of that direction, as has been done in other constutional countries; but as to assuming it entirely, that would be difficult in the present state of Europe.

I honor England. The substance, and even the forms of the institutions of the United States are borrowed from the mother-country. We are what we are, first of all, because we are of British race, language, religion, genius, education, and character. I have studied England at home, in her Colonies, in her establishments beyond the seas, and, above all, in her magnificent Indian Empire. She is rich, great, and powerful as a State, not, in my opinion, because of the subjection of her Ministers to the scrupulous and daily criticism of the House of Commons, but in spite of it, as I remember to have heard said by the late Lord Palmerston. It is not the strong, but rather the weak side of her Government, as one sees, moreover, in the present controversy. It is not worth while, therefore, to deny to the Crown executive powers necessary for the peace of the kingdom; nor, in the present case, to raise cries of arbitrary power, in the face of the admitted omnipotence, that is to say, of the absolute despotic power of Parliament, whose real force tends every day to concentrate itself more and more in the House of Commons alone.

Such a Constitution, so undefined, continues to work, thanks above all to the practical good sense of the English people, to their wholesome respect for traditions, to their special talent for government, to their praiseworthy national pride, and to the elasticity of their political forms, which allows of every one being received and placed in the governing class, who, no matter where within the limits of the empire, is distinguished by eminent qualities.

Thus liberty and order are reconciled. But liberty and order equally require that the public peace should not be disturbed by the intrigues and mercenary interests of individuals for wane of a little repressive power placed in the hands of the Crown.

Parliament in its omnipotence might easily have remedied the defects of the municipal law if it had chosen. It has since done so. But it did not do it in proper time, and this it is which constitutes a failure in the due diligence of the Treaty.

America, on the contrary, has several times done this at the right moment, in the interests of her friendly relations with Great Britain.

The Russian ships.

The British Counsel quotes and approves the opinion of the English Judges given in Fortescue’s Reports. They were of opinion “that the Crown had no power by law to prohibit the building of ships of war, or ships of great force, for foreigners in any of His Majesty’s dominions.” (P. 18.)Case of the Russian ships.

Two Judges had given this opinion in 1713; other Judges (it is not said how many) gave the same opinion in 1721. The vessels were built for Russia, and contrary to the remonstrances of Sweden.

In 1713 there was open war between Russia and Sweden. It was four years after the battle of Pultowa. Charles XII had taken refuge in Turkey, and the Sultan was in vain endeavoring to persuade him that he ought to return to his own States.

The Elector of Hanover, who had become King of England, had just taken part in the spoliation of Charles XII. Russia had conquered Finland.

In 1714 the Russians burned and destroyed the Swedish fleet off the Island of Aland. If it is true that the Czar had had vessels of war built in England, there is no doubt that these vessels contributed to the victory of Aland.

Conclusion: that in 1713 the interests of the Elector of Hanover induced him to favor, or at least not to oppose, the policy of the Czar; and the opinion of the two Judges at that period were unofficial opinions of no value.

As to the opinion of 1723, the wind then blew the other way: England was in favor of Sweden; the peace of Neustadt had just been concluded; and the construction of vessels of war for the service of the Czar was no longer contrary to European international law.

To return to the question of the power of the Crown. Were they armed or unarmed vessels which were being built for the Czar? History is not explicit on this point. In the former case, there would have been, in 1713, open violation of international law. There is, then, reason to believe that these vessels were not armed.

The Report speaks of “His Majesty’s dominions.” What dominions? England? I doubt it.

Now suppose that from 1713 till the Act of 1819, there was in England no law, no power of coercion, capable of preventing the building, equipping, arming, and sending forth of vessels of war intended to fight against a State, the friend and ally of England.

Then, during that great eighteenth century, and during no one can tell how many centuries previous, England had been entirely powerless to defend her own sovereignty, and to protect her friends against the crimes of foreigners making her territory the base of their belligerent operations.

I do not believe, I will never believe, that such was the national impotence of England, and I do not understand how any one can attempt to push the exaggeration of private liberty so far as to annihilate all national sovereignty, and to make England the involuntary accomplice of all the maritime wars of Europe.

Consequently, I leave out of the question the opinions reported by Fortescue. It is not my business to fathom this mystery, but assuredly a mystery there is; and I beg the Arbitrators to be so good as to consult the numerous contrary opinions collected in Note (B) annexed to the Argument for the United States.

Laws of foreign countries.

The British Case had affirmed that the United States and Great Britain were the only two countries having municipal laws fitted to secure the observance of neutrality. In reply to this assertion we nave quoted and commented on the laws of various foreign countries, and the observations of jurists of those countries; and these quotations prove that such laws exist everywhere throughout Europe and America.Comparative laws of other countries.

The British Counsel disputes this proposition on the ground of the brevity of most of these foreign laws, and of the imperfect judgment of a Netherlands statesman, without closely examining the text of these laws, or the commentaries of native jurists which establish their true nature.

In this the British Counsel misapprehends the characteristic quality of all the laws of these countries, I mean their brevity, when compared with the laws of Great Britain, and of her imitators, the United States.

In all the laws called “neutrality laws” of whatever country, there are two principal objects: first, to defend the national territory against any encroachment on the part of foreigners; and, secondly, to prevent individuals, whether natives or foreigners, from committing on their own authority acts of hostility to foreigners on the national territory, which might expose the State to a declaration of war, or to reprisals on the part of another State.

Such are the provisions of many codes; as, for example, those of France, Italy, the Netherlands, Portugal, Spain, and Belgium.

It is obvious that these provisions of the penal codes of the different countries of Europe comprise the same subject, and have the same objects as the English and American law; omitting, however, the details of procedure. But in France, in Italy, and elsewhere, the rules of procedure are to be found in the codes of procedure, and it becomes useless and inexpedient to repeat these rules with regard to each article of the penal code.

The Netherlands Minister, in the dispatch referred to, points out the neutrality law of his country after having inconsiderately said that no such law existed. It is only on a quibble of words that the British Counsel bases the extravagant inferences to which this dispatch has given rise. But the Netherlands law is copied from the French Penal Code. It is impossible to mistake its tenor and signification.

Moreover, this law is commented on at length by French writers of undisputed authority, Dalloz, Chauveau and Héliè, Bourguignon, Carnot, and others, who all express themselves entirely in the sense of our Argument. All this will be found in the documents annexed to our Counter Case. And we have added an opinion by the late M. Berryer, which shows that these articles of the French code apply to certain proceedings of the Confederates in France with regard to the equipment of vessels of war, proceedings entirely identical with those which took place in England, (Counter Case of the United States, French translation, p. 490.)

In support of this conclusion we have cited decisions of the French Courts.

It is the same with Italy: we have quoted Italian commentators in support of our proposition, and these commentators, in explaining their own law, adopt the conclusions of the French commentators.

The same ideas are found in the Spanish and Portuguese commentators on the subject of the similar provisions of their codes. We cite Silva Ferrao, for Portugal, and Pacheco and Gomez de la Serna, for Spain, (ubi supra, pp. 553, 576.) These commentators reason as well as we, it seems to me, on the subject of military expeditions and privateers. I do not understand this contemptuous tone on the subject of foreign laws. It cannot be believed that all juridical knowledge, all morality of thought in legislative matters, are the exclusive and absolute property of England and the United States.

The British Counsel passes very lightly over the laws of Switzerland and Brazil.

On a study of the laws of Brazil it is found that the definitions of crimes of this category are more comprehensive and more complete than those of the laws of England, (ubi supra, p. 594.)

Among the documents annexed to the British Case are two letters which furnish matter for reflection.

Sir A. Paget, British Minister in Portugal, acknowledging the receipt of a dispatch from the Portuguese Minister of State, adds:

There is one point, however, upon which Her Majesty’s Government are most desirous of information, to which your Excellency’s note and the inclosures it contains do not refer, namely, what laws or regulations, or any other means, are at the disposal of the Portuguese Government for preventing within its territory any acts which would he violations of the Portuguese neutrality laws, as contained in the declarations of neutrality which your Excellency has transmitted to me?

And M. Cazal Ribeiro replies as follows:

In reply, it is my duty to state to your Excellency that the laws and regulations in the matter are those which were inclosed in my note of the 25th of that month, or were mentioned in those documents, and the means of execution, in the case of any violation of neutrality, are criminal proceedings, the use of force, complaints addressed to foreign Governments, or any other means, in order to meet some particular occurrence.

I can well believe it. Where there is a will the means are not wanting.

The British Counsel is mistaken when he maintains that the United States do not understand these laws, so clearly commented on by the writers referred to, and applied by courts of law and jurists with at least as much learning as the corresponding laws of England.

As for Switzerland, we have collected in our evidence valuable documents showing the zeal and good-will with which that Republic maintains its neutrality in the midst of the great wars of Europe.

I beg also to refer to the explanations of the law of Switzerland by the Federal Council, on the occasion of the Concini affair, to show that the Counsel of Great Britain is utterly mistaken in his appreciation of these laws, as well as of those of Italy and Brazil. (“Droit public suisse,” vol. i, p. 459.)

Now, I appeal to the honorable Arbitrators: let them judge and decide which is right with regard to these laws,—Great Britain relying upon an equivocal expression in a diplomatic dispatch, or the United States, who rely upon the text of these laws and on the commentaries of the best jurists of France, Italy, Spain, Portugal, and Brazil.

I refer particularly to the honorable Arbitrators on the question whether the institutions of England are in reality more constitutional than those of Italy, Brazil, and Switzerland. According to the opinion of the British Counsel, these countries possess no neutrality laws. But they observe the duties of neutrality, and they observe them without infringing their Constitution. Which then is mistaken with regard to them? England or America?

THE LAWS OF THE UNITED STATES.

The Counsel of Great Britain devotes much space to the discussion of the laws of the United States. I shall, I think, require less time to reply to his Argument.The laws of the United States examined.

The Counsel endeavors to prove that the law of the united States, in so far as it relates to this question, is limited to the case of an armed vessel.

With this object he quotes expressions from the third section of the law, which enacts certain penalties against “any person who shall, within the limits of the United States, fit out and arm, or attempt to fit out and arm, or shall knowingly be concerned in the furnishing, fitting out, or arming of any vessel,” with intent that such ship or vessel should be employed in the service of a belligerent foreign Power.

Arguing from these expressions in the law he believes that to constitute an offense the vessel must have been armed, or an attempt must have been made to arm her.

But as a question of jurisprudence this interpretation of the law is entirely erroneous. It is established in the United States that it is not the nature of the preparations which constitutes the offense, but the intention which dictates the acts. The doctrine is thus stated by Dana:

As to the preparing of vessels within our jurisdiction for subsequent hostile operations, the test we have applied has not been the extent and character of the preparations, but the intent with which the particular acts are done. If any person does any act, or attempts to do any act, toward such preparation, with the intent that the vessel shall be employed in hostile operations, he is guilty, without reference to the completion of the preparations or the extent to which they may have gone, and although his attempt may have resulted in no definite progress toward the completion of the preparations, the procuring of materials to be used knowingly and with intent, &c., is an offense. Accordingly it is not necessary to show that the vessel was armed, or was in any way, or at any time, before or after the act charged, in a condition to commit acts of hostility.

No cases have arisen as to the combination of materials which, separated, cannot do acts of hostility, but, united, constitute a hostile instrumentality; for the intent covers all cases and furnishes the test. It must be immaterial where the combination is to take place, whether here or elsewhere, if the acts done in our territory—whether acts of building, fitting, arming, or of procuring materials for these acts—be done as part of a plan by which a vessel is to be sent out with intent that she shall be employed to cruise. (Argument of the United States, pp. 363, 364.)

These extracts from Dana are authoritative on the question. The true interpretation of the law has been laid down in a decision of the Supreme Court of the United States. The Court determined “that it is not necessary that the vessel should be armed or in a condition to commit hostilities on leaving the United States.” (United States vs. Quincy, Peters’s Reports, vol. vi, p. 445; vide Opinions, vol. iii, pp. 738, 741.)

Such is the law as understood and practiced in America. Two of the Counsel of the United States, Mr. Evarts and myself, have administered the Department of Justice, and we have so personal a knowledge of this law that we also can speak authoritatively on the subject. I affirm that the interpretation of this law propounded by the British Counsel is absolutely contrary to the interpretation recognized in the United States.

I beg to call attention to the expressions of the temporary Act of 1838, reported by myself to the Congress of the United States. That Act allows the seizure “of any vessel or vehicle,” armed or unarmed, when there are any circumstances which give probable cause to believe that such “vessel or vehicle” is intended for military operations against a foreign State. (United States Statutes, vol. v, p. 213.)

This Act had been drawn up according to the received interpretation of the permanent Act.

It follows that the whole structure of criticism which is built up by the Counsel on the subject of the preventive powers of the President of the United States falls to the ground. He supposes that that power is limited to the case of an armed vessel, because he supposes that the penal clauses have only that extent. He is mistaken on both points. The preventive powers of the President apply to all cases within the Act, to “all the prohibitions and penalties of the Act.” [Now the Act does not require that the vessel should be armed; it is sufficient that its owner should have an intention of employing it in acts of hostility against a Power friendly to the United States.

The case of Gelston vs. Hoyt, cited by the British Counsel, relates only to the manner of exercising the preventive powers of the law, and in no way affects the powers themselves.

In the documents annexed to the Counter Case of the United States will be found numerous examples of the exercise of this preventive power by the President. The fact of being armed or not is only a circumstance which bears with more or less weight on the real question,—that of the intentions of the owner of the vessel.

The British Counsel enumerates the cases in which adventurers have at different dates evaded the American law.

We have protested in our Argument, and we continue to protest, against the applicability of such arguments. England is before the Tribunal, charged with having been wanting in the due diligence required by the Conventional Rules of the Treaty of Washington. Whether America has failed or not in her neutral duties according to the law of nations, is not the question submitted to the Tribunal. America will answer for her acts at the proper time and place to those whom they may have injured.

The Counsel has quoted extracts from the correspondence of officers of the United States having reference to legal questions, which arise from time to time in the application of the law. These questions are, doubtless, Similar to questions which arise in England. Unfortunately, the American law, though anterior to the English one, originates in a school of legislation common to both countries, which gives much work both to the lawyers and to the Courts.

We have discussed these questions in our Argument. But we cannot discuss in detail all these facts laboriously amassed by the British Counsel without longer preparation, which we do not wish to ask of the Tribunal.

The capital question is that of the powers of the President. The matter is elucidated by Dana. He says:

As to penalties and remedies, parties guilty are liable to fine and imprisonment; and the vessel, her apparel and furniture, and all materials procured for the purpose of equipping, are forfeit. In cases of suspicion revenue officers may detain vessels, and parties may be required to give security against the hostile employment; and the President is allowed to use the Army and Navy or militia, as well as civil force, to seize vessels, or to compel offending vessels, not subject to seizure, to depart from our ports. What vessels shall be required to depart is left to the judgment of the Executive. (Argument of the United States, p. 168.)

A single example is sufficient to give an idea of the admitted extent of the powers of the President.

Spain was having built, in the ship-yards at New York, thirty gunboats, intended to operate against the insurgents of the island of Cuba. They were vessels unfitted for long voyages. They were not armed, and had on board neither cannon, nor gun-carriages, nor any other engine of warfare. War existed de jure, if not de facto, between Spain and Peru. The Minister of Peru, in the United States, lodged a complaint on the subject of these gun-boats. He did not pretend that they were intended to operate against Peru, since they could not round Cape Horn. But he asserted that if used to guard the coasts of Cuba, they would free from that service other vessels, which might thus attack Peru.

The President admitted this argument, and ordered the detention of the whole thirty vessels, until Spain and Peru had settled their differences through the mediation of the United States.

Jurisdiction of the tribunal.

A question of diligence presents itself with regard to an erroneous decree of a Court of Admiralty of Nassau.

I lay down as principle that the Government which institutes legal proceedings, and submits, without appeal, to an erroneous decree, has not the right of pleading this decree as an excuse for subsequent wrongs belonging to the same class of facts. It is, in my opinion, a double failure in the due diligence prescribed by the Rules of the Treaty. I abstain from discussing this question.

But I affirm that the erroneous decree is in no way binding. This, indeed, is evident. Furthermore, and above all, I affirm that the decree is in no way binding on an international Tribunal.

The principle is laid down and sufficiently discussed in Rutherforth’s Institutes, an English work of merit and authority.

Wheaton and other writers adopt also the views of Rutherforth.

The question was raised by the English and American Commissioners nominated to carry out the stipulations of Jay’s Treaty. The following circumstance is reported in the memoirs of Mr. Trumbull, one of the Secretaries of that Commission. It appears that, being in doubt, the Commissioners consulted the Earl of Loughborough, then Lord Chancellor. The latter decided that the Commissioners, in their capacity of an international tribunal, possessed complete jurisdiction to revise the decrees of any municipal tribunal, and to decree compensation to the Government injured in its interests or in those of its subjects. The Commissioners acted accordingly.

I conceive that such is the jurisdiction recognized in the case of private claims by numerous international Commissions which have since set in England and America.

Conclusion.

I have now treated some of the questions argued by the Counsel of Great Britain, solely to relieve my conscience. I do not think they are of a nature to exercise preponderating influence on the conclusions of the Arbitrators. The Rules of the Treaty are decisive in all the questions raised by the United States. If those Rules are the true expression of the law of nations, as I am convinced they are, well and good; if they exceed the law of nations, they necessarily constitute the conventional law of the Tribunal.

The interpretation of the municipal law of England is of little moment. Of still less moment is the interpretation of the law of the United States. The laws of other European States are of no importance whatever. The conduct of the United States toward Spain or Mexico, or even toward Great Britain, is not here in question. There is but one single question, and it is this: Has England failed or not in the due diligence required by the Treaty of Washington?

The United States are here maintaining principles which are, in their opinion, of great importance to all maritime nations, and especially to Great Britain, still more so than to the United States. In consequence, we await, with respect and submission, but also without uneasiness, the judgment of this august Tribunal.

Note.

In case the Arbitrators should think it worth while to study the subject attentively, we refer them to the following documents, which clearly prove the spontaneous activity of the Executive at all times to prevent equipments and expeditions in contravention of the law of nations, attempted in the ports of the United States:

I.—Counter Case of the United States and Appendix. (French translation.)

II.—Correspondence relative to the Affairs of Cuba in the English Supplement to the Counter Case of the United States.