The Tribunal will recall that this morning I read from the report of the War Trade Board, in which it said that the Bureau of Transportation had the last word in determining whether or not a vessel should be allowed to sail. That was on page 282 of the Swedish Appendix. Here we have Mr. Richards, the head of that Bureau of Transportation, instructing every collector that not one of them should let any neutral ship escape.

So that I cannot see how the Agent for the United States can suggest that the appropriate person to whom this request should have been directed was the collector.

Then, too, the reading of these letters will show that the burden of the communication from the Minister, what the Minister was insisting upon, was that under the treaty the two vessels had a right to go, and that it was a breach of the treaty to detain the vessels. Surely, it would have been most inappropriate for the Minister of Sweden to have discussed treaty obligations with a collector of the port located on Chesapeake Bay, for example. The collector of the port, presumably, is not aware of or fitted to discuss treaty obligations or treaty relationships. Yet that is the subject that the Minister is raising with the Secretary of State.

So, I submit that the objections of the Agent for the United States on that ground are not well founded. The Government of Sweden conducted itself in this communication precisely as it ought to have done, in accordance with the strictest rules of diplomatic intercourse.

Let us assume that request had been made of the collector, and assume that some collector defied the President, disobeyed him, and said: "I am going to permit this vessel to sail, notwithstanding that the President has forbidden it."

That would not have sufficed to let the vessel go. The vessel would not have gotten away, even if the collector had said it might go, because, as I explained yesterday, title VI of this act of June 15, 1917, which is shown on page 117 of U.S. volume I-title VI provides that it is the duty of collectors, not only of collectors but customs offi

cials, United States marshals, deputy marshals, and all other persons whom the President may designate-that it shall be the duty of all of them to see that the President's orders as Commander in Chief are obeyed, and the last section of that title VI says that the entire Army and Navy may be used by the President for that purpose.

Therefore, the consent from the collector would have meant nothing. It would have meant no more than the consent of any chance person on the street. The collector had no power. The President alone had power to permit a ship to go. No collector, no customs official, no one but the President, could permit a ship to go.

Therefore, I submit that the request was made to the only appropriate person.

I have now attempted to review all the facts which Sweden relies on for its case. There are other facts in the record that will be discussed by my colleagues, but I have endeavored to go through all the facts that Sweden regards as important, and I submit that those facts show: (1) A firm purpose on the part of the United States to secure control of the Swedish ships; (2) To secure that purpose an economic blockade from the middle of July into the following winter was instituted, by which an absolute embargo was placed upon all exports to Sweden and on the departure of any vessel for Sweden; (3) The employment by the President of the power to forbid the export of merchandise by applying it to bunkers, so as to prevent the departure of these two Swedish ships;

(4) A formal demand by the Swedish Government, addressed to the Secretary of State, requesting that this inhibition be removed and that the two vessels be allowed to proceed on their journey; (5) A refusal of this demand by the United States.

I think that covers my branch of the case. Now Mr. Unden, of Sweden, will take up the next branch of our

case.

The ARBITRATOR: I think we may as well have a short interruption here.

(At this point a brief recess was taken after which the proceedings were resumed as follows:)

ARGUMENT OF MR. OSTEN UNDEN, ON BEHALF OF THE KINGDOM OF SWEDEN

Mr. UNDEN: Mr. President, my colleague, Mr. Burling, has stated the facts upon which the Government of Sweden rests its case. The law in accordance with which the Arbitrator is to decide the questions submitted to him is chiefly found in the Swedish-American treaties of 1783 and 1827. I am now going to state, briefly, the Swedish Government's conception of the pertinent provisions of these treaties.

The United States Agent has in his Answer put forward certain general reflections concerning the content of the two treaties of 1783 and 1827 between the United States and Sweden. He says that under the American Constitution "the Congress has power to legislate in regard to the navigation of vessels in the navigable waters of the United States as well as authority to legislate in regard to the movement of merchandise out of and into the United States.'

That is to be found in volume II, page 4.

It is further emphasized that "no treaty can be interpreted to prohibit the employment of measures which are deemed necessary to secure public safety if it can possibly be given effect without entailing such consequences" (vol. no. II, p. 55).

The Swedish Government by no means contest these general principles. But if the American Government have wished to express the opinion that the detention of the two vessels was justified by self-evident principles of international law concerning the sovereignty of states, it seems to me that such a conception does not require any detailed answer from the Swedish side. It is sufficient to refer

to the American judgment which was recently delivered concerning the Dutch vessel Zeelandia. This vessel arrived, as the Swedish motorship Pacific did, in an American port carrying a cargo from South America. It was denied the right to continue its voyage because of the general prohibition on exportation. The American Court of Claims, in this case sitting as an International Tribunal, has unanimously deemed this refusal to be in clear opposition with principles of international law. Thus, the principles of international law, applied in the case of Zeelandia, were held to impose no less an obligation upon the United States, than the terms of the treaties between the United States and Sweden, according to the Swedish interpretation imposed upon the contracting parties.

I agree with the American Answer with regard to the necessity of interpreting the two treaties by reading the various stipulations in their entirety. From this point of view it must be observed that it is particularly characteristic that they treat questions concerning neutral trade in war time in an exhaustive and detailed manner. Most articles of the treaty of 1783 concern the rights of the party which remains neutral when the other party is at war. The treaty is an expression of the liberal principles which dictated the policy of the American Republic from its foundation. The stipulations bear testimony of solicitude for the undisturbed continuation of neutral trade and navigation in time of war.

The treaty contained several provisions that offered to the neutral party advantages which could not, perhaps, with certainty, be claimed on the basis only of general international law as recognized at the time of the Great War.

With regard to the spirit which has put its mark on the whole treaty, I deem it inadmissible to find in the various articles reservations of a restricting character which are not textually indicated. I shall try to show that the American Answer in interpreting the stipulations of the treaty therein tries to find such inadmissible restrictions.

Turning to the treaty of 1783 we find that article VII, together with articles VIII, IX, and X, lay down the basic juridical principle upon which the whole treaty, in so far as it relates to neutral rights in time of war, is based. These articles are not concerned with details of administration but are devoted wholly to the delimitation of the principle.

The principle is that subjects of the one of the contracting parties which is neutral, while the other is belligerent, shall be permitted to navigate with their vessels without any interference whatever, and without regard to the ownership of the cargo or its origin or destination. The ships and everything on them are to be free from interference. The sole exception is that a specifically enumerated list of articles is designated as contraband when consigned to a port of an enemy. This complete freedom from belligerent interference is the basic conception of the treaty.

In analyzing the various articles of the treaty, the United States Agent says concerning article VII, which lays down the main principles regarding the freedom of neutral trade and navigation in war time, that this article "had no application to vessels of either country which entered voluntarily ports of the other but was applicable to vessels navigating between ports."

That passage is to be found in volume no. II, at page 9 of the American Answer.

This statement is based on the argument that "questions in regard to contraband as that term is used in war parlance arise only in relation to the transportation of goods of contraband character" (American Answer, vol. no. II, p. 10).

And the American Answer continues:

In the absence of terms specifically applicable to ports or the territory of the country, general provisions in regard to contraband reach only vessels and merchandise on the high seas destined for the use of the enemy, and do not apply in port.