The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1872-08-26

ton of the duty the government has recognized
the duty the Executive has undertaken 1t, ana all
the subordinates have had their attention called to
IT, in the sense and to the end OF prevention. All
subordinates have, as well, always been stimulated
10 the duty OF keeping the Executive nom time 10
| time fully and promptly supplied with information
to secure the efficient execution OF the law and 1t
Is not improper perhaps, for me to observe that
! my learned associate,
Mr.. CUSHING, AND MYSELF,
having been called upon to execute this statute In
the Office of Attorney General OF the United States.
we bear testimony its vigor and its efficiency
In the every day action OF the government. 1t is
submitted to and not questioned, and produces its
| erect. Whether the government OF the United
States, possessing that power under and by author
ity OF the statute has always been successful or not
whether it Is accountable to this that nation for
faulty execution OF its duties OF neutrality, are
and they are only remotely collateral to any discus
| si0ns properly before the arbitrators.
Sir ALEXANDER CockBvRNIif You are arguing
the Secretary of State has power nnder
be seized, and then it is provided that the
| owner OF such vessel may make claim, &C., which
to ask You as wS a nnder YOUR act of ISIS
which gives power to the President to seize, under
similar circumstances, would be the course OF pro-
| ceedngs In such case How would the owner be
able to know whether his vessel was one liable to
seizure and confscation How would he get his
| Cedure
Mr.. EvARrs-I take it for granted that the deten-
|
| to be made, would not be an indefinite detention.
By the terms OF the act however, that exercise Of
! by judicial appeal OF any kind.
| Sir ALEXANDRA COCKBURN-Ds you mean to say
that the ship shall remain In the hands OF the gov
| ernmentY
| Mr. EyARrs-if the party chooses to leave it
| without satisfactory explanation. The President
interposes in the discharge OF a public duty, to
prevent the commission Of an act in violation Of
neutrality, which he believes to be Illegal. On
representation to him by the aggricved party. he
|
docs not so release then the vessel remains subject
to the continued exercise Of executive control
| Sir ALEXANDER COCKBrRN-Would not the Presi-
dent In the ordinary practice OF things direct that
the matter should be submitted to Judicial deter
minatiOn?
MI. EvARrs-Thls executive interception carries
no confscation 1t merely detains the vessel, and
the owner can apply for its release, giving an ex-
PLANTATION OF the matter. But the executive may
say, ~ am not satisfied with your explanations if
you have nothing else to say will keep your YES
SELL; or he may send II to the courts to enforce its
cOnfiscatiOn.
| Sir ALEXANDER COCKBURN-Which does he prac-
tically dor
Mr.. EvARTs-He practically, when not satisfied to
release it, usually sends it 10 the court, because the
situation admits Of that disposition Of it. Under
| the act of the United States, there Is the same
actual interceptop by the Executive which your act
Sir ALEXANDER CoCKpURN-Under our act the Ex-
ecutive has no discretion; it must send 1t to the
| courts.
| MIR. EvARTs-Under our act, we trust the Execu-
tive Tor proper exercise Of the official authority
| In the American case some instances of the exer-
else OF this power on very considerable scale Will
The documents explaining these transactions are
collected at length in the Appendix to the Ameri-
Sections IS to Al Of the special argument call
oand our said 0S that 70 mp as cry
Of proof and require Great Britain to discharge
itself from liability by Affirmative proof, IN all cases
| where we charge that the act done Is within the
| m
forced by reference to case arising in the public
action OF the United States under the treaty of
| THE PROPOSITIONS OF THE AMERICAN ARGUMENT.
rho win lo,s spend end, but few words here
easily understood upon that point. They
come to this: that, whenever the United
to this stage, that the acts which are complained
Of the action and the result which have arisen from
it are violations OF the requirements Of the law of
nations as laid down in the three rules, and this
ton has taken place within the jurisdiction Of Great
Britain $50 that the principal fact Of accountability
within the nation is estabshed) then, the Ordi-
nary principle that the affirmative Is to be taken up
by that party which needs its exercise the proof OF
"lue diligence" is to be supplied by Great Britain.
How is foreigner, outside oi the government, un.
informed or It's conduct, having access to its de-
supply the proof Of the want Of due diIisences We
repose them upon the ordinary principles OF loren;
,,c violation alton Of the law q nations for
these three rules, the point OF determination
whether due diligence has been exercised by the
happened in spite of the exercise of due diligence
the burden OF the proof OF 'due diligence is upon
the party charged with its exercise.
CASE OF THE ELIZABETH,
which is quoted in section Il; It is a
iSng qStatio oaoca and w READ therefore,
found on page so Of the French translation
q the special argument The question was as 70
been assumed by the United States:-
@ premise Ms we VIII ell
esong se ws Sy
basis Of our prolsemthat IS that ,e claimed
a the .ss ss
ss
principle OF reason justice or equity 1t belongs him
person in whose favor Or UNDER the
which the promise was intended to operate
THE UNITED STATES PROVES ITS CASE.
| A careful perusal OF this passage is sufficient to
show that the facts here insisted upon necessary
to be proved by the claimant are precisely equiva
lent to the facts which the United States are called
upon 70 prove in this case. These facts, as have
before stated bring the circumstances of the claim
to the point where 1t appears that the responsibility
for the injury rests upon Great Britain, unless due
diligence was used by the government prevent the
That Kingdom which has produced the injuries COM
planned Of In the absence of this due diligence
bty rests %nGstmrbed NV the EXPERIMENTATION wns
| the presence Of due diligence Will furnish The
party needing the benefit of this proof upon every
principle OF sound reason, must furnish it. This Is
all we have insisted upon In the matter OF the bur-
den OF proof
| In conclusion Of the first chapter of this special
argument, the eminent counsel at section a. takes
up the "Terceira affair." and insists that if Great
| Britain, in q particular situation for the exer-
else OF duties OF neutrality, took extraordinary
measures 1t does not prove that the government
were under obligations to take the same measures
In every similar or comparable situation.
We referred to the Terceira affair for the pur-
! pose OF showing that the Crown by its prerogatve
| possessed authority for the interrogation OF
! enterprises originating within the Kingdom
| for the violation Of neutrality. The question,
| whether the executive will use it, is at
| its discretion. The power we prove, and IN
| the discussions in both houses OF Parliament
! IL was not denied in any quarter that the power
existed to the extent that call for its exercise
| within British Jurisdiction The uuestion In con-