doah and to the Florida and Alabama, had, in so doing, committed a breach of neutrality.

I am arguing now under the second Rule. I have not felt that I was transcending the proper limits of this debate, because, in answer to the special argument of the eminent Counsel, I have argued in this way. My own view as to the extension of the argument of the learned Counsel in his discussion of what is called "due diligence," as a doctrine of the law of nations, would not have inclined me to expect so large a field of discussion as he covered. But, as I have admitted in my introductory remarks, the question of due diligence connects itself with the measure of duty and the manner in which it was performed, and I felt no difficulty in thinking that the line could not be very distinctly drawn.

I have undertaken to argue this question under a state of facts, which shows that a whole naval project is supplied, from the first outfit of the cruiser to the final end of the cruise, by means of this sort of connection with neutral ports and waters as a base of naval operations; and I have insisted that such naval operations are not excluded from the proscription of the second Rule, by what is claimed in the argument of the learned Counsel as the doctrine of contraband of war and the doctrine of asylum.

At the Conference of the Tribunal, held on the 6th day of August, Mr. Ecarts continued as follows:

Statement of the

this point.

I was upon the point of the doctrine of the British Government, and its action under that doctrine, as bearing upon the outfit of the contributory provisions of armament, munitions, and British argument on men, set forth in such vessels as the Bahama, the Alar, and Laurel. The correspondence is full of evidence that I was correct in my statement of the doctrine of the British Government, and of its ac tion from beginning to end being controlled by that doctrine; and all the remonstrances of the United States were met by the answer that the law of nations, the Foreign-Enlistment Act, the duty of neutrality, had nothing whatever to do with that subject, as it was simply dealing in contraband of war. The importance of this view, of course, and its immense influence in producing the present controversy between the two nations, are obvious. The whole mischief was wrought by the co-operating force of the two legal propositions: (1.) That the unarmed cruiser was not itself a weapon of war, an instrument of war, and, therefore, was not to be intercepted as committing a violation of the law of nations; and, (2.) That the contributory provision by means of her supply-ships, of her armament, munitions, and men, to make her a complete instrument of naval hostilities, was also not a violation of the law of nations, but simply a commercial dealing in contraband. It was only under those combined doctrines that the cruiser ever came to be in the position of an instrument of offensive and defensive war, and to be able to assume the "commission" prepared for her, and which was thenceforth to protect her from interference on the doctrine of comity to sovereignty.

So, too, it will be found, when we come to consider the observations of the eminent Counsel on the subject of due diligence, to which I shall have occasion soon to reply, that the question whether these were hostile acts, under the law of nations, was the turning point in the doctrine of the Government of Great Britain, and of its action, as to whether it would intercept these enterprises by the exercise of executive power, as

a neutral government would intercept anything in the nature of a hostile act under the law of nations. The doctrine was that these were not hostile acts separately, and that no hostile act arose unless these separate contributions were combined in the ports of Great Britain; that there was no footing otherwise for the obligation of the law of nations to establish itself upon; that there was no remissness of duty on the part of the neutral in respect of them; and finally that these operations were not violations of the Foreign-Enlistment Act. All this is shown by the whole correspondence, and by the decisions of the municipal courts of England, in regard to the only question passed upon at all, that of unarmed vessels, so far as they ever passed even upon that question.

It has seemed to be intimated by observations which the learned Counsel has done me the honor to make during my present consideration of this topic, that my argument has transcended the proper limit of reply to the special argument which the eminent Counsel himself has made on the same topic. A reference to the text of that argument will, I think, set this question at rest.

In the fifteenth section of the first chapter of his argument, he does us the honor to quote certain observations in our principal Argument to which he proposes to reply. He quotes, at page 17 of his argument, as follows:

(2.) The next great failure of Great Britain "to use due diligence to prevent" the violation of its neutrality, in the matters within the jurisdiction of the Tribunal, is shown in its entire omission to exert the direct executive authority, lodged in the Royal Prerogative, to intercept the preparations and outfits of the offending vessels, and the contributory provisions, of armament, munitions and men, which were emitted from various ports of the United Kingdom. We do not find in the British Case or Counter Case, any serious contention, but that such powers as pertain to the Preroga tive, in the maintenance of international relations, and are exercised as such by other great powers, would have prevented the escape of every one of the offending vessels emitted from British ports, and precluded the subsidiary aids of warlike equipment and supplies which set them forth, and kept them on foot, for the maritime hostilities which they maintained.1

The comment of the learned Counsel upon this passage is found on the same page (17) of his argument, as follows:

With respect to the second passage, it is to be observed, that it not only imputes as a want of due diligence, the abstinence from the use of arbitrary power to supply a supposed deficiency of legal powers, but it assumes that the United States had a right, by international law, to request Great Britain to prevent the exportation from her territory of what it describes as "contributory provisions," arms, munitions, and "subsidiary aids of warlike equipment and supplies," though such elements of armament were uncombined, and were not destined to be combined, within British jurisdiction, but were exported from that territory under the conditions of ordinary exports of articles contraband of war. For such a pretension no warrant can be found, either in international law, or in any municipal law of Great Britain, or in any one of the Three Rules contained in the sixth Article of the Treaty of Washington.

I respectfully submit, therefore, that in the observations I have had the honor to make upon this subject, I can hardly be said to have exceeded the due limits of an argument in reply. I fail to find, in what the eminent Counsel here advances in behalf of his Government, any answer to my assertion that, during the whole course of the war, (a pe riod when he, as Solicitor-General or as Attorney-General of England, was one of the law-advisers of the Government,) the action of Great Britain was governed by the doctrine which I have stated. This was

An error has occurred in the French translation of this passage of the American Argument. In the fifteenth and sixteenth lines of page 343, the words "l'armement de navires hostiles et les fournitures de vivres," should read, "l'equipment de navires hoëtiles, et les fournitures subsidiaires."

publicly announced and it was so understood by the rebel agents, by the interests involved in these maritime hostilities, by the United States Minister, by the officials of the British Government, by everybody who had to act, or ask for action, in the premises.

The first instance arising was of the vessel that carried out the armament and munitions for the Alabama, and the answer was as I read from the report of the Commissioners of Customs to the Board of Trade. This official paper stated that the Commissioners found nothing in that affair that touched the obligations of Great Britain. This was communicated to Mr. Adams, and that, thenceforth, was the doctrine and action of the Government of Great Britain.

The view of an eminent publicist on this point, as a question of international law, may be seen from an extract found at page 177 of the Case of the United States. M. Rolin-Jacquemyns says:

Il nous semble que l'adoption d'une pareille proposition équivaudrait à l'inclination d'un moyen facile d'éluder la règle qui déclare incompatible avec la neutralité d'an pays l'organisation, sur son territoire d'expéditions militaires au service d'un des belligérants. Il suffira, s'il s'agit d'une entreprise maritime, de faire partir en deux ou trois fois les élements qui la constituent; d'abord le vaisseau, puis les hommes, puis les armes, et si tous ces éléments ne se rejoignent que hors des eaux de la puissance neutre qui les a laissés partir, la neutralité sera intacte. Nous pensons que cette interprétation de la loi internationale n'est ni raisonable, ni équitable.

It will be, then, for the Tribunal to decide what the law of nations is on this subject. If the Tribunal shall assent to the principles which I have insisted upon, and shall find them to be embraced within the provisions of the three Rules of this Treaty, and that the facts in the case require the application of these principles, it stands admitted that Great Britain has not used and has refused to use any means whatever for the interruption of these contributory provisions of armament and munitions to the offending cruisers.

It is not for me to dispute the ruling of the eminent lawyers of Great Britain upon their Foreign-Enlistment Act; but, for the life of me, I cannot see why the Alar, and the Alabama, and the Laurel, when they sailed from the ports of England with no cargo whatever except the armament and munitions of war of one of these cruisers, and with no errand and no employment except that of the Rebel Government, through its agents, to transport these armaments and munitions to the cruisers which awaited them, were not "transports" in the service of one of the belligerents within the meaning of the Foreign-Enlistment Act of Great Britain. That, however, is a question of municipal law. It is with international law that we are dealing now and here. The whole argument, to escape the consequences which international law visits upon the neutral for its infractions, has been that whatever was blameworthy was so only as an infraction of the municipal law of Great Britain. And when you come to transactions of the kind I am now discussing, as they were not deemed violations of the Foreign-Enlistment Act nor of international law, and as the powers of the Government by force to intercept, though the exercise of prerogative or otherwise did not come into play, the argument is that there were no consequences whatever to result from these transactions. They were merely considered as commercial transactions in contraband of war.

ers was forbidden

But the moment it is held that these things were forbidden by the law of nations, then of course it is no answer to say, you The arming and cannot indict anybody for them under the law of Great equipping the cruis Britain. Nor does the law of nations, having laid down a by the law of nations. duty, and established its violation as a crime, furnish no means of redressing the injury or of correcting or punishing the evil. What course

does it sanction when neutral territory is violated by taking prizes within it? When the prize comes within the jurisdiction of the neutral, he is authorized to take it from the offending belligerent by force and release it. What course does it sanction when a cruiser has been armed within neutral territory? When the vessel comes within the jurisdiction of the neutral he is authorized to disarm it.

They should there.

armed when they came again within

Now, our proposition is that these cruisers, thus deriving their force for war by these outfits of tenders with their armament fore have been dis- and munitions and men, when brought within the British jurisdiction, should have been disarmed because they had British ports. been armed, in the sense of the law of nations, by using as a base of their maritime hostilities, or their maritime fitting for hostilities, the ports and waters of this neutral state.

Why, what would be thought of a cruiser of the United States lying off the port of Liverpool, or the port of Ushant in France, and awaiting there the arrival of a tender coming from Liverpool, or from Southampton, by pre-arrangement, with an augmentation of her battery and the supply of her fighting-crew? Would it, because the vessel had not entered the port of Southampton or the port of Liverpool, be less a violation of the law of nations which prohibited the augmentation of the force of a fighting-vessel of any belligerent from the contributions of the ports of the neutral?

The construction

Treaty.

The fourth chapter of this special argument is occupied, as I have already suggested, with the consideration of the true interof the rules of the pretation of the rules of the Treaty, under general canons of criticism, and under the light which should be thrown upon their interpretation by the doctrines and practices of nations. I respectfully submit, however, that the only really useful instruction that should be sought, or can be applied, in aid of your interpretation of these rules, if their interpretation needs any aid, is to be drawn from the situation of the parties and the elements of the controversy between them, for the settlement and composition of which these rules were framed; and this Tribunal was created to investigate the facts and to apply the rules to them in its award.

The whole ground of this controversy is expressed in the firmest and most distinct manner by the statesmen on both sides who had charge of the negotiations between the two countries, and who could not misnnderstand what were the situation and the field of debate for application to which the high contracting parties framed these rules. And what were they? Why, primarily, it was this very question of the various forms of contributory aid from the neutral ports and waters of Great Britain by which the Confederate navy had been made, by which it was armed, by which it was supplied, by which it was kept on foot, by which, without any base within the belligerent territory, it maintained a maritime war.

Anterior to the negotiation which produced the Treaty, there is this public declaration made by Mr. Gladstone, and cited on page 215 of the Case of the United States, "There is no doubt that Jefferson Davis and other leaders of the South have made an army; they are making, it appears, a navy."

There is the speech of Lord Russell on the 26th of April, 1864, also cited on the same page:

It has been usual for a power carrying on war upon the seas to possess ports of t own in which vessels are built, equipped, and fitted, and from which they issue, to which they bring their prizes, and in which those prizes, when brought before a court, are either condemned or restored. But it so happens that in this conflict the Coufed

erate States have no ports except those of the Mersey and of the Clyde, from which they fit out ships to cruise against the Federals; and having no ports to which to bring their prizes, they are obliged to burn them on the high seas.

There is, furthermore, the declaration of Mr. Fish, made as Secretary of State, in his celebrated dispatch of the 25th of September, 1869, in which he distinctly proposes to the British Government, in regard to the claim of the United States in this controversy, that the rebel counsels have made Great Britain "the arsenal, the navy-yard, and the treasury of the insurgent Confederates."

That was the controversy between the two countries, for the solution of which the Rules of this Treaty and the deliberations of this Tribunal were to be called into action; and they are intended to cover, and do cover, all the forms in which this use of Great Britain for the means and the opportunities of Reeping on foot these maritime hostilities was practiced. The first rule covers all questions of the outfit of the cruisers themselves; the second rule covers all the means by which the neutral ports and waters of Great Britain were used as bases for the rebel maritime operations of these cruisers, and for the provision, the renewal, or the augmentation of their force of armament, munitions, and men. Both nations so agreed. The eminent Counsel for the British Government, in the special argument to which I am now replying, also agrees that the second rule, under which the present discussion arises, is conformed to the pre-existing law of nations.

We find, however, in this chapter of the special argument, another introduction of the retroactive effect, as it is called, of these Rules as a reason why their interpretation should be different from what might otherwise be insisted upon. This is but a re-appearance of what I have already exposed as a vice in the argument, viz, that these Rules, in respect to the very subject for which they were framed, do not mean the same thing as they are to mean hereafter, when new situations arise for their application. Special methods of criticism, artificial limits of application are resorted to to disparage or distort them as binding and authoritive rules in regard to the past conduct of Great Britain. Why, you might as well tear the Treaty in pieces as to introduce and insist upon any proposition, whether of interpretation or of application, which results in the demand that the very controversy for which they were framed is not really to be governed by the Rules of the Treaty.

The concluding observations of this chapter, that the invitation to other powers to adopt these Rules as binding upon them, contained in the Treaty, should discourage a forced and exaggerated construction of them, I assent to; not so much upon the motive suggested as upon the principle that a forced and exaggerated construction should not be resorted to, upon either side, upon any motive whatever.

Review of Sir R. upon the Argument

I now come to the more general chapter in the argument of the learned Counsel, the first chapter, which presents under forty-three sections a very extensive and very comprehensive, and cer- Trent tainly a very able, criticism upon the main Argument of the of the United States. United States upon "due diligence," and upon the duties in regard to which due diligence was required, and in regard to the means for the performance of those duties, and the application of this due diligence possessed by Great Britain. Certainly these form a very material portion of the Argument of the United States; and that Argument, as I have said, has been subjected to a very extensive criticism. Referring the Tribunal to our Argument itself as furnishing, at least, what we suppose to be a clear and intelligible view of our propositions of the grounds upon which they rest, of the reasoning which supports them,