The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1872-08-26
NEW YORK HERALD, MOND.A


cation attendant upon reservation on the part Of
Her Majesty, that the previous declaration shallnot
be esteemed as an assent
ON THE PART OF THE BRITISH GOVERNMENT,
that those were in fact the principles OF the law Of
nations at the time the transactions occurred.
The sixth article OF the treaty thus determines
the authority and obligation Of these rules. read
from the very commencement Of the article:-
"In deciding the matters submitted to the arbi-
traitors they shall be governed by the following
three rules, which are agreed upon by the high
contracting parties rules to De taken as applca-
BILE to the case and by such principles Of interna
tional law not inconsistent therewith;" and then
the rules are stated.
Now, there had been a debate between the dplo-
matte representatives OF the two governments
whether the duties expressed in those rules were
wholly of international obligation antecedent to this
agreement OF the parties The United states had
nom the beginning insisted that they were; Great
Britain had insisted that, in regard to the outfit
ana equipment OF an unarmed ship from its ports,
there was only an obligation of municipal law and
not OF international law: that its duty concerning
such outfit was wholly limited to the execution Of
it's Foreign Enlistment act; that the discharge of
that duty and Its responsibility for any default
therein could not be claimed by the United States
as matter OF international law, nor upon any udg-
ment otherwise than Of the general duty OF neu-
trail to execute its laws, whatever they might be,
with impartiality between the belligerents.
To close that debate and In advance of the SUBJ
mission Of any question to this tribunal the law on
that subject was settled by the treaty and settled
in terms which, SO tar as the obligation OF the law
goes, seem to US to admit OF no debate, and to be
exposed to not the least uncertainty or doubt But
IN order that it might not be an imputation upon
the government Of Great Britain, that while 1t
presently agreed that the duties Of neutral were
as these rules express them, and that these rules
were applicable TO this case, that neutral nation
was bound to conform to them, and that they
should govern this tribunal IN its decision--in
order that from all tins there might not arise an
imputation that the conduct of Great Britain, at
the time Of the transactions (ifit should be found
In the judgment Of this tribunal to have been at
variance with these rules, would be subject to the
charge Of variance with an acknowledgment OF
the rules then presently admitted as. binding,
reservation was made. What was that reservation
Her Britannia Majesty has her High Com
@es 70 To- hs er
rules as statement Of principles OF international law
Ira but as. Her Ma s s govern
friendly ss't two o
making satisfactory provisions for the future, that
e the
upon the prepes n these 10 act
Thus while this saving clause in respect TO the
past conduct Of Great Britain was allowed on the
declaration Of Her Majesty, yet that declaration
was admitted into the treaty only upon the express
pr0viso that Il should have no import OF any kind
in dsparaging the obligation OF the rules their sig
nincance, their binding force, or the principles
upon which this tribunal should Judge concerning
them.
Shall it be said that when the whole ONCE Of this
clause, thus referred TO- is of that nature and ex-
tent only, and when 1t ends in the determination
that that reservation shall have
NO EFFECT UPON YOUR DECISION;
shall it, say, be claimed that this reservation shall
have an effect upon the arguments How shall 1t
be pretended, before a tribunal like this, that what
is to be assumed in the decision is not to be assumed
in the argument
WHAT DOES THE TREATY MEAN9
But what does this mean Does it mean that
these three rules in their future application to the
conduct Of the United Suates-nay in their future
application to the conduct of Great Britain, mean
something different from what they mean in their
application to the pasts What becomes, then. of
the purchasing consideration of these rules for the
future.to wit, that, waving debate, they shall be
We must, therefore insist that, upon the plain
declarations OF this treaty, there is nothing what
ever in this proposition Of the first i've
there were anything in it, it would 60
to the rupture, almost, OF the treaty; for
s IN sSo s me me sas
sderati0n OF that force In the future the force
upon the past Now, it is said that this declaration
OF the binding authority Of these rules is to read In
the sense of this very complicated, somewhat unn
telllgble proposition OF the learned counsel Com
pare his words with the declaration Of the binding
authority Of these rules as rules Of international
yourselves whether the two forms of expression
are equivalent and interchangeable.
WHAT TIE UNITED STATES AGREED TO.
Can any one imagine that the United states would
have agreed that the construction, in its application
to the past, was to be Of this modified, uncertain,
optional character, while in the future the rules
were to be authoritative, binding rules of the law
of nations When the United States had given an
assent, by convention, to the law that to govern
this tribunal was it intended that that law should
be construed as to the past differently from what 1t
was to be construed in reference to the tutures
| apprehend that this learned tribunal will at
once dismiss this consideration, with all Its impor-
tant influence upon the whole subsequent argument
OF the eminent counsel which an attentive eXami-
nation OF that argument will disclose.
With this proposition falls the farther proposition,
already met In our former argument, that it is
material to go into the region OF debate to what
the law OF nations upon these subjects now under
review was or is So far as IL falls within the range
covered by these rules OF the treaty. their provisions
have concluded the controversy. TO what purpose
then, pursue an inquiry and course OF argument
which, whatever way in the balance OF your conclu-
sOns It may be determined cannot affect your judg-
ment or your award If these rules are found to
be conformed to the law of nations In the principles
which 1t held antecedent to their adoption the rules
cannot have for that any greater force than
by their own simple, uncon1rmed authority. II they
differ from, II they exceed, II they transgress the re-
quiremcnts Of the law OF nations, as II stood an
tecedent to the treaty, by much the greater
force does the convention oil the parties require
that for this trial and for this Judgment these rules
are to be the law of this tribunal. This argument
is limited at In the counter OF the British Gov
ernmcnt; 1t has been the subject Of some public
discussion in the press Of Great Britain. But the
most authoritative expression of opinion upon this
point from the press OF that country has not failed
OF the rules Of this treaty down TO g. the vanishing
point.r
At the close OF the special argument we find
general presentation Of
CANYONS For THE CONSTRUCTION OF TREATIES
and some general observations as to the
light or the controlling reason under which these
rules of the treaty should be construed. These
suggestions may be briefly dismissed.
1t certainly would be q very great reprOach to
these nations which had dellhnrafclY fixed unnn