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

the exculpation Of Great Britain.
ARGUMENT OF GENERAL CUSHING.
MR.. PRESIDENT AND GENTLEMEN OF THE rRI-
BUNAL-We are approaching hope, the end OF
these long debates. The two governments have
presented their cases and counter cases. supported
by vOlumnous documents, They have also
presented their respective arguments. the
whole conforming to the stipuations Of the
Treaty Of Washington ARTICLES 4 and 81. Thus
have the regular debates prescribed by the treaty
been closed. But now, by request Of one of the
honorable arbitrators, the tribunal has required OF
England explanations upon certain fixed points,
WIZ
l. The question OF due diligence treated in a
2. The special question as to what has been the
effect OF the commissions held by the different
Confederate war vessels which have entered into
British ports.
g. The special question as to the supply Of coal
awarded to Confederate vessels I'm British ports
The counsel OF Great Britain has employed this
opportunity to discuss the points proposed and to
comment upon the arguments OF the United States.
do not complain OF this, but state the TACT. We,
the counsel Of the United States accept the situa
ton, such as 1t Is, for we have no desire
to occupy any longer the attention of the tribunal.
second and the third points. They have scarcely
left me anything to say with regard to the first
point. Indeed there only devoves upon me the task
OF resuming the question and adding few special
observations. Iventure to address the tribunal in
French In order to economic its valuable time and
to arrive as soon possible at the conclusion of
the debates. With this view l Willingly sacrifice all
pretensions to oratory. l try to make myself I'M
derstood; that is all aspire to.
THE QUESTION OF DUE DILIGENCE.
1t now behooves me to speak OF the question Of
"due diligence" in general way. What is the
meaning Of this sentence? Does the tribunal ask
professors lesson as to what constitutes "duc
diligenccf' ! think not Such a discussion would
be perfectly useless for the following reasons
/. The theory OF this question has already been
discussed in fulsOme manner. Great Britain has
defence, and she has taken fully eleven months to
reject upon 1t and to accumulate arguments and
quotations for the instruction of the tribunal We,
In the name OF the United States have not lavshed
SO many words, but We have said all we desire to
bring to the knowledge OF the honorable arbi-
traitors.
2. The two parties have agreed that the theory
OF the question does no longer merit their atten-
ton. We therefore shall not retrace our steps and
discuss anew questions which have already been
completely exhausted and even recognized as mop
perfume by the two parties.
than that Of the treaty The e counsel ' Of Great
Britain attempts to establish rules OF "due dill
gence outside OF the treaty. II is too late to enter
into this, After the progress which the tribunal
has already made in its work il is no longer worth
while to re-embark upon these breakers. We sRal
maintain a.
THE EXPLICIT WORDS OF THE TREATY,
which subordinate the common law to the stipula
ton OF the three rules-a stipulation which ex-
pressly applies 'due diligence" to the special cases
treated in these rules. For this last reason refuse
ha of Rrit tuto
the discussion Of the question as to the
difference, If there exists any. according to common
law, between the duty Of neutrals with regard to
vessels armed ng the war and their duty re-
garding vessels equipped for the war and not yet
armed. The treaty decides this question in a de-
Unite manner. IL sufiices to draw attention to the
first rule contained In the treaty
neutral government is bound
t. SRs s o n
rom heinz armed or - sSpP when that
s s g as is at That
Sf e % % Er IN sss S Of %
wholly, or partly-fitted out for warlike purposes.
THE THREE FIRST CLAUSES.
Let us note the three frst clauses:-
ITO prevent vessel from being enabled to go to
sea-" ths Is without any reason omitted from the
English translation, from being armed" and
IRON being equipped"
clauses OF the rule "A vessel intended for cruising
or for committing acts of war;" or "a vessel spc.
cially lifted out be II wholly or partly, for warllke
uses"
In booking at these clauses, so clearly and def
nitely laid down, to which the "due diligence of
the Treaty ought to be applied, ana in considering
the manifest uselessness of further discussion out
side OF the three rules, 1t might well be sus.
pected that the counsel OF Great Britain had the
intention to make convenient preface to the re-
marks which follow and TO weaken If possible the
force Of the words expressed by Sir Robert Phii-
more and Sir ROundell Palmer quoted in the argIi-
ment OF the United States,
SIR ROBERT PHILLInORE.
We have quoted from Sir Robert Phillimores'
commentaries OF international Right the follow
ing passages-
There remains question Of the greatest Importance
sie e G DUTY 10 nf
to or ia G and Sosse from LEAVING Its
anens may have been furnished and the vessel built and
Il /, maxim OF common law that in all that concerns
foreign governments the will of the subject shall be in
maxim that every State has the right to expect
tsSm the ether the :, ahlmsnt Of insrnationai
pal means II Possesses IN order to enforce them The act
Proof 70 q Ss , no,
which they arc the subiecst. 4 government can by
e a Of e is saec wo
State S a% BE- S
is subjects within ihe limits of It's territory from ioat
state is primo Jacie responsible for all that done
Ti pa the oces FOR %%i wps d to be able
potcai BODY y consequently responsible for such acts
Wnlcn OF hostility premcdItate1
against nation with which the government of those in.
dvidnals declares that entertans friendly or neutral
relations
MILITARY OR NAVAL EXPEDITION
Now the counsel Of Great Britain asserts that
all those expressions of Sir Robert Philimore are
only meant to apply to the case OF vessel armed
IN war, or TO that OF military and not naval ex-
petition.
deny the possibility of this distinction. It has
no foundation in the words OF the author. APP
peal on this to the opinion OF the honorable arbi-
traitors. But even supposing that this distinction
be well founded, 1t would not justify the
conclusions OF the counsel of Great Britain,
because the principles laid down by Sir Rob-
ert Pmllim0re have general application and in
clude all possible cases. Let us take any kind OF
duty OF "due diligence to be used on the part of "a
neutral government towards a belligerent govern
ment, and even in such case Sir Robert PhIlli-
more informs us in what manner and in con-
formlty with what principles the neutral
government must act. II must fulfil its interna-
tional obllRstions without regard to what may be
the municipal means it possesses to enforce themn
Moreover "a government may by knowledge and
t0eration as well as by direct permission, become
responsible its subjects whom A. does not nrp-