The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1872-08-24
The American Case Presented
in Three Points.
Caleb Cushing's Address to
the Court.
Has England Observed With Due Diligence Her
Treaty Obligations to the
United States?

Although the obligation Of secrecy Is not re-
moved with regard to the proceedings OF the Court
Of Arbitration there points that have
come TO my knowledge, the sketch OF which will
enable you to get glimpse OF the progress Of the
great case
Immediately after the completion OF the merely
formal proceedings presentation OF papers, &C.,
discussion began which has been drawn out to
great length, ana in which Sir Rounded Palmer, Mr..
Evarts, Mr.. Waite and Mr.. Cushing have taken part
and which has touched the very pth OF the whole
difference between the nations. This discussion
was invited 10y the Court upon the general prnci-
pies OF the case expressed in three points,
THREE POINTS IN THE CASE.
Fust-rhc consideration OF what is 'duc dill
gence' in Its most general legal aspect
Sec0nd--The consideration OF the exact value of
the commissions held by Confederate cruisers from
Richmond, and how far they cntaed international
tered British ports.
Third-Iow far did the coaling OF cruisers in
British ports entail on England responsibility for
their acts E?
These questions, it win be perceived, are, in a
certain sense, dccsions they responses of the
learned" almost rs much as they are queries; for
they seem TO Indicate that In the minds OF the
judges the case has got far that IL is to be de-
tcrInined on the ground of these principles, and
that the Court has sited these three points ont OF
the mass hesorc IL, ana Will Judge according to the
progress, ami satisfactory to us-for these points
regard the strongest aspect OF the American
case Certainly the evidence is overwhelming that
there was not common diligence; it is equally
great that the ships were coaed for service, and
not for mere continuance OF their passage; and
the point at issue in the second query has crush
ing answer in the principles accepted by England
in the treaty.
MR.. CUsHING's SPEECH.
Speeches OF counsel were mainly devoted to a
careful consideration OF the second and third
ponts-cspecially to the supply Of coal.
Mr.. Cushing concluded the argument on behalf OF
the United States. HIS address occupied two hours
and was delivered In French. The following is an
outline:-'I venture to address the tribunal In
French for the purpose OF economizng precious
time and 10 hasten the close OF the debate. With
this view willingly waive all prctensions to ora
tory and simply try to make myself under
stood. The question OF due diligence has been
exhausted. England had twelve months for
the accumulation OF her arguments and
citations TO instruct the tribunal. We have not
used many words, but expressed what we desired
to communicate to the honorable arbitratOrs.
Both parties agreed that The teOretcai part OF the
question required no further attention. Referring
to the counter case, page "a, argument 523, ad-
here to refusal to discuss over again all ques-
tune. We recognize no other diligence than that
explained by the treaty. England now cndeavors
TO raise points outside that treaty; but IL is too
late TO do this, considering the progress made
In the work before the tribunal. We are
solely guided by the three rules stipulated in the
British counsel and cannot admit his specious dis
tincti0ns." Mr.. Gushing then repeated the quota
assertion OF theBriish counsel regarding distinc
ton between armed war vessels and military expe
ditions not naval maintaining that PhmOrc's
vartV sr1nc fbA Tnltnn ftnn rh~
ties Of Great Britain were, Mr.. Gushing maintained,
clearly established by the three rules provided in
the treaty.
REFERRING TO SIR ROUNDED PAIMER's SPEECH.
The United States counsel next alluded to Sir
Rounded Palmer's speech dealing with the case OF
the Laird rams. The sentiments expressed in that
speech were, he said, an honor to the author,
hibiting clear conscience and iurisprudent con
scious OF his high duties. That speech stood in high
contrast with the weakness exhibited In Lord Rus
sells correspondence Every word Of Sir Rounded
Palmers speech on that occasion was worthy
OF the highest consideration; for it should
be remembered that the British government
was guided by the opinion OF It's counsel on
that occasion IL took action In a way that showed
it was actnated by sense OF It's duty towards the
United States Let them contrast It's conduct rea.
tive to Laird's rams with its conduct In the OF
the Alabama and Florida. In these cases England
refused to take action, throwing the entire respon
sibility on the United states. While awbreakers
were cheating with regard to both the ownership
and the destination OF these cruisers there
was no inquiry nor i'm Initiative on the
was an absolute refusal to act unless Mr. Adams
sought a remedy in court of law. Notwtnstand-
ing this, England adopted responsibility regarding
these rams, doing precisely that which Consul Dud-
ley had demanded on previous occasion with re-
gard to the Alabama and Florida, and which she
had refused TO do with reference to those ships.
Sir Rounded Palmer now affirmed that there was
no seizure OF these rams, but merely detention
were merely detained IL was by process Of
law, government seeing its legality This fur
authorities were triniDg with Consul Dudley and
that Lord Russell was not dealing candidy with
MI. Adams In demanding proof rom that Minister
which he could not furnish.
POWERS POSSESSED BY THE BRITISH CROWN.
Mr.. Cushing next proceeded to deal with the
powers really possessed by the British Crown, quot
ing vattel, Phillimorc and X. II. Dana regarding
the law OF the United States and international Obli-
cations. If there existed any want or weakness of
power in British municipal law, Parliament could
have supplied it, Thus the British government pos
scsscd the authority vested In other constitutional
nicipa law consistent witA international duties.
III honor England" said Mr.. Gushing. .'rhe spirit
and even the forms OF American institutions are
borrowed from the mother country. We are what
we are because In race. character. Language, re-
ligion, genius ana education we are essentially
British l have studied England at home and In
her colonies, and, above all, In her magnificent In
dian Empire. she Is grand and powerful as
state because Of the subsection OF her government
to daily and searching Parliamentary criticism.
This Parliament. that can decide the fate OF kings,
make new dynastcs abolish hereditary privileges.
change the religion OF the state, cOnfiscate the
property OF the Church and even arr0gate TO itself
the right OF determining the affairs OF other
States-this Parliament IL Is which, according to
the argument OF the British COUNSEL could not COM
pei the observance OF the international obligations to
America! If IL were not possible for Parliament
exercising these supreme imperial powers to
strengthen the peace OF the world and not i'm
peril Engand's relations with other countries,
merely gratifying the ntrigues and mercenary in
terests OF individuals, then the pOwerlessness OF
Parliament might have remeded the defect in the
English law. America had on several occasions
modified her laws to please England, and the fall
IRE of England TO do likewise established a want of
due diligence on the part OF the government.
A
Mr.. Cushing next discussed deliberately the case
OF the Russian ship cited by Sir Rounded Palmer,
contrOvertlng the argument Of the British counsel.
He also went into heightened consideration OF
the municipal laws OF other nations regarding neu-
traty, dwelling fully upon the municipal laws OF
America and their administration, on which
point Mr. Eyarts and he were entitled 10