PAPERS RELATING TO THE TREATY OF WASHINGTON - Google Books

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TABLE OF CONTENTS.

Page.

ARGUMENT OF THE UNITED STATES DELIVERED TO THE TRIBUNAL OF

ARBITRATION AT GENEVA, JUNE 15, 1872.

I. INTRODUCTION:

Argument presented in accordance with provisions of the Treaty of

The respective Cases and Documents

Counter Cases...

The issues to be determined are now settled

II. THE CONTROVERSY SUBMITTED TO ARBITRATION :

The Arbitrators already acquainted with the general nature of the facts..

In suppressing an armed insurrection the United States exercised bellig-

érent powers, and prevented insurgents from carrying on maritime

war from their own resources

The right to do this unquestioned; other nations no parties to the con-
flict

Abstinence of intervention by another Power is not neutrality

It is a maintenance of previously existing relations

Other Powers have to decide in such case only whether they acquiesce

in the exercise of belligerent powers by the Sovereign..

Non-acquiescence is intervention..

Questions arising beyond territorial limits of the Sovereign should be de-

cided as they arise..

Such course secures impartiality and, when justified by results, an
equality between contending parties which resembles what is known
as neutrality when exercised between rightful belligerents

This principle recognized by United States Supreme Court

Previous instances in point

Belligerent powers belong to the Sovereign of right; to the rebel of suf-

Conferring belligerent rights on insurgents by Great Britain was an in-

The Queen's proclamation

was voluntary and anticipatory

was not called for by the relations between the Governments

had no justification.

and changed the legal relations between Great Britain and the in-
surgents

Its effect upon the act of carrying on war on the high seas

Its effect upon commercial contracts.

It was followed by systematic contributions in aid of the insurgents

The United States suffered great injuries

Which resulted from aid and assistance originating in British jurisdic-

Nature of the injuries inflicted on the United States

They form the subject of this arbitration....

This aid was organized, systematic, and official

No nation but Great Britain instrumental in inflicting them.

Provisions of the Treaty of Washington respecting the arbitration.

Description of the claims

The authority of the Tribunal absolute for their determination

Its award will be final......

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Responsibility resulting from such failure.

III. GENERAL DISCUSSION OF QUESTIONS OF LAW:

Contention of United States regarding failure of Great Britain to main-

tain neutrality..

Scope of the submission..

Meaning of the language "all claims growing out of the acts of the

Great Britain guilty of culpable negligence, even when measuring its du-

ties by the Foreign-Enlistment Act

International duties independent of municipal law

Defects of Foreign-Enlistment Act

They might have been remedied..

These are not questions of neutrality

Great Britain legally responsible to United States.

Sir R. Phillimore's authority cited..

Right to make war...

Legal theory of United States respecting questions at issue.

Right to give cause for war.

What may be cause.

War, what it is..

Sales of arms and contraband of war.

Dispatch of armed vessels....

such violation.....

Alleged constitutional inability of Great Britain examined

Responsibility of Sovereign for violation of neutrality

Constitutional inabilities cannot be pleaded in answer to a charge of

The prerogative power of the Crown

IV. MISCELLANEOUS CONSIDERATIONS:

Many irrelevant matters in the British Case and Counter Case.

Its treatment of the British Foreign-Enlistment Act of 1819

Its comparison between the British and American acts unjust

The Government of the United States has always been anxious to possess

legislative powers sufficient for the performance of its duties as a neu-

Disinclination of Parliament to legislate on the subject.

Legislation of other countries...

Distinction between prevention and punishment.

The history of the United States as a neutral a part of the British plead-

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The course of Great Britain as a belligerent toward neutrals

Orders in Council

IV. MISCELLANEOUS CONSIDERATIONS-Continued.

John Laird as a witness. (Note)

Purchase of arms. (Note)

V.—STATEMENT OF SOME GENERAL FACTS PERTINENT TO THE INQUIRY AND

APPLICABLE TO EACH CRUISER.

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The British response no denial

Rejoinder to the British response.

Relevancy of the facts to the issue.

Résumé of facts stated in the American Case to establish the unfriendly

animus of the British Government and people.

Mr. Montague Bernard

The British Case.

The facts stated in the American Case to be considered as proved

The proofs submitted with the American Case of the systematic and of-

ficial use of British territory by the insurgents with the knowledge of

These facts also to be taken as proved.

VI. THE FLORIDA..

Information by Mr. Adams

Action of Her Majesty's Government

She was then evidently a man-of-war

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What might have been done under the Merchants' Shipping-Act.

Arrival at Nassau

Conduct of British officials there

Want of due diligence....

Judicial proceedings at Nassau.

Partial and unfriendly conduct of the Colonial Authorities.

Seizure of the Florida...

Trial and release; the criticisms on these proceedings in the American

Case are sustained...

Armament of the Florida

At Cardenas, at Mobile.

At Nassau, January 25, 1863; receives coal, supplies, and recruitments..

At Barbados, February 24, 1863; receives coal and repairs..

At Brest; receives recruits and new machinery from Liverpool

Her adaptation to war is not disputed

The question to be decided.....

Mr. Adams gives information respecting the Alabama June 23, 1862.......

Referred to Law-Officers of the Crown..

Their action upon it....

Proceedings of Customs Authorities.

Mr. Adams informed that the American Consul may submit evidence to

the Collector at Liverpool

The Consul directed to furnish information to the Collector..

Conduct of the Collector.

He declines to act..

Mr. Adams instructs the Consul to continue to collect proof..

The Consul does so, and presents it to the Collector, with a request to

seize the vessel..

Law-Advisers of the Customs.

Also to Earl Russell....

Additional proof

VII. THE ALABAMA-Continued.

Proof submitted to the Treasury July 22

Opinion of Mr. Collier...

Presented with affidavits to Commissioners of Customs July 23

Action of the Board..

Further evidence submitted by Mr. Adams..

Her Majesty's Government agree to keep a watch on the vessel

The Law-Officers think the vessel should be detained..

Illness of Sir John Harding

Escape of the Alabama..

Inefficiency of the subsequent proceedings

Earl Russell thinks this a scandal.

Mr. Cobden's views...

Want of due diligence; in what it consisted.

Armament from the Bahama..

Destroys the Hatteras.

At Jamaica, January 20, 1863; repairs and lands prisoners.

At Rata Island..

Is excluded from Brazilian ports for violation of sovereignty of Brazil..

At Simon's Bay.

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Notoriety of the construction and purposes of the Georgia

Registry, clearance, and departure....

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General review of facts establishing want of due diligence.

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The Colonial Authorities informed of the contemplated recruitments, and

do not prevent them..

Their inefficient proceedings.

Further proof of recruiting furnished to the authorities..

They parley with the commander of the Shenandoah in place of acting.

Contrast between the course of Brazilian and of British Authorities

At Liverpool....

X.—THE SUMTER, THE NASHVILLE, THE RETRIBUTION, THE TALLAHASSEE,

AND THE CHICKAMAUGA..

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XI.-CONSIDERATION OF THE DUTY OF GREAT BRITAIN, AS ESTABLISHED

AND RECOGNIZED BY THE TREATY, IN REGARD TO THE OFFENDING

VESSELS, AND ITS FAILURE TO FULFILL THEM AS TO EACH OF SAID

Propositions of law.

Measure of international duty..

Rules of the Treaty imperative..

Application of the first Rule

Application of the second and third Rules.

These Rules constitute the law of this controversy

Nothing admissible which diminishes their force..

The obligation of Great Britain to observe these Rules was an

international one..

This obligation not affected by internal distribution of powers

of British Government.

Nor by the institutions or habits of the British people.

Great Britain should have used seasonable, appropriate, and ad-

equate means to preserve its neutrality.

Which should have been available as soon as required

British sympathy with insurgents an element to be considered

in preparing means....

The Means of fulfilling International Duty possessed by Great Britain..

Her Majesty's Government possessed full power for carrying out

Peculiar advantages of Her Majesty's Government for the exer-

cise of executive power.

Omnipotence of Parliament..

The duty of Great Britain in its treatment of the offending vessels AFTER

their first illegal outfit and escape from British ports......

The privilege of exterritoriality accorded to a vessel of war is

political and discretionary.

It should not be acceded to a belligerent not recognized as a

political Power..

The only remedy against such belligerent in a case like the pres-

ent is the remedy against the vessels themselves..

Great Britain ought, therefore, to have seized the vessels..

Due diligence, as required by the three Rules of the Treaty and the prin-

ciples of international law not inconsistent therewith...

After proof of hostile acts on neutral territory the burden of

proof is on the neutral to show due diligence to prevent them.

Diligence not a technical word....

"Due" implies seasonableness, appropriateness, and adequate-

Objections to British definition of the term..

Judicial definitions by British and American Courts..

The United States do not desire a severe construction..

They do not propose to become guarantors of their people..

The Arbitrators the judges of what constitutes due diligence...

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