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III.-ARGUMENT OF SIR ROUNDELL PALMER-Continued.

They followed up all information received by proper inquiries. 413

Necessity and propriety of seeking evidence froin 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 efiicacy of the American law tried by the test of

practical results...

420

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

ont 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.

421

The law of nations does not justify this attempt.

421

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 ....

420

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.

423

Other authorities....

423

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 Stato..

431

All the ships in question were duly commissioned ships of war. 432

3. On supplies of coal to Confederate vessels 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”

431

What is not meant by those words....

435

Consequences of a lax use of the phrase.

435

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

military supplies or arms".

435

Doctrine of Chancellor Kent..

433

President Washington's rules and other authorities.

436

Acts of Congress of 1794 and 1218.

4:36

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. 433
Applications of these principles to the interpretation of the three
Rules as to the points in controversy..

430

Influence on the construction of the retrospective terms of the

agreement ..

440

The admitted intention of both parties as to the second Rule.. 441

Intluence 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...

4.12

Scope of the discussion.

442

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11.-ARGUMENT OF MR. EVERTS, &C.-Continned.

Due diligence..

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 recoguition of sovereiguty

Application of the principles...

Acts done in violation of neutrality are hostile acts..

The nentral 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

of nations..

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..

L'se of a neutral port as a base of hostile operations; what it is....

In the case of the Naslıville...

In the case of the Shenandoah.

The question of the use of the neutral port as a base of hostile opera-

tious being established, there remains the inquiry whether the neutral

did or did not exercise due diligence to prevent it...

Sueli proceedings are not mere dealings in contraband of war..

Statement of thie British argument on this point...

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 construction of the Rules of the Treaty

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

States....

The prerogative of the Crown..

Preventive and puitive powers of each Government.

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

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

act...

Comparison between the statutes of the two nations.

The burden of proof.

The Terceira aflair.

Conclusion..

1.- ARGUMENT OF MR. CUSHING IN REPLY TO THE SPECIAL ARGUMENT OF SIR

ROUNDELL PALMER

Due diligence...

A theoretical discussion not wanted.

Views of Sir Robert Phillimore.

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-

cipal law.

Constitutional form of the British Government

Case of the Russian ships....

Comparative laws of other countries.

The laws of the United States examined.

Jurisdiction of the Tribunal..

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 SUPs.

A base of operations essential to baval warfare

What it is...

486

487

489

491

494

495

496

496

499

501

504

508

513

513

513

VI.-REPLY OF Mi. 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 permission

515

Toleration implies kuowledge..

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 withont a base of operations.

516

They might bave been excluded from British 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

513

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 TIIE SIENANDOJILAT MELBOURNE..

520

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

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

AND MEMORANDUM AS TO THE ENLISTJENTS FOR THE SITEXANDOAII AT MEL-

BOURNE

532

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.. 511

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 TIE PORT OF MOBILE, AFTER

LEAVING TIIE BAILAMAS, 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 HIER

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 19TII OF ALGUST, 1872, IN COMPLLANCE WITII TIE REQUEST OF THIE

TRIBUNAL..

579

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

19TII 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 IIER BRITANNIC MAJESTY ON THE CALL OF TILE

TRIBUNAL FOR ELUCIDATION IN RESPECT TO THE TABLES PRESENTED BY THE

TWO GOVERNMENTS.

633

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

THIE 29TII AUGUST..

638

I.

ARGUMENT

OF

THE UNITED STATES. ,

DELIVERED TO

THE TRIBUNAL OF ARBITRATION

AT

GENEVA,

JUNE 15, 187 2:

10

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