[1] *Part I. Introductory statement.
Part I.—Introductory statement. The government of Her Britannic Majesty now presents to the tribunal of arbitration its counter case, or reply to the case submitted on the part of the United States, so far as a reply appears to be necessary or admissible.
To the second chapter of the American Case, which imputes to the British Government hostile motives, and even insincere neutrality, no reply whatever will be offered in this counter case. The British government distinctly refuses to enter upon the discussion of these charges. First, because it would be inconsistent with the self-respect which every government is bound to feel; secondly, because the matter in dispute is action, and not motive, and therefore the discussion is irrelevant thirdly, because to reply, and to enter upon a retaliatory exposition, must tend to inflame the controversy which, in the whole tone and tenor of its case, the British government has shown its desire to appease; and lastly, with respect to the charges themselves, if they were of any weight or value, the British government would still contend that the proper reply to them was to be found in the proof which it has supplied that its proceedings have throughout, and in all points, been governed by a desire, not only to fulfill all clear international duties toward the Government of the United States, but likewise, when an opportunity was offered, even to go beyond what could have been demanded of it as of right, in order to obviate all possibility of cavil against its conduct.
Neither will this counter case contain any reference whatever to the subject of indirect losses. Her Majesty’s government is engaged in a correspondence with the Government of the United States on this subject, pending which this counter case is presented, without prejudice to the position assumed by Her Majesty in that correspondence, and under the reservations more particularly stated in a note accompanying it, which will be, at the same time, delivered to the arbitrators.
vessels to which the claims of the united states relate.
Vessels to which the claims of the United States relate. Her Britannic Majesty’s government believed itself to be, and was in fact, justly entitled to assume that the claims which it had to meet would be found to relate exclusively to the four vessels known as the Florida, Alabama, Georgia, and Shenandoah, or some or one of them; these being the only ships in respect of which claims had been made by the Government of the United States against Great Britain. It appears that, besides claiming on account of all of these four vessels, the United States now claim on account of nine other vessels, none of which are alleged to have been in any manner armed, fitted out, or equipped for war within British [Page 204] territory. Three of these are stated to have been captured, armed, and employed as tenders by the officer commanding the Florida during the cruise of that vessel, and one by the commander of the Alabama. Of two others, the Sumter and Nashville, it is alleged only that they received hospitalities in British ports, while cruising as ships of war of the Confederate States; of two more, the Tallahassee and Chickamauga, that, having been originally built in England, and employed in carrying cargo to and from ports of the Confederate States, they were converted into cruisers by the confederate government; and of the ninth, the Retribution, that her commander contrived on two occasions to carry a prize captured by him on the high seas into the territorial waters of an island belonging to Her Majesty’s dominions, and there to dispose of or destroy the cargo.
[2] *As to all of these nine vessels, but more especially as to five of them, it might justly, be maintained that they ought not to be reckoned among the vessels which have given rise to the claims generically known as the Alabama claims, and that no complaints in respect of them ought to be considered or received by the arbitrators. Her Britannic Majesty’s government, however, has not thought proper to raise this objection. It contents itself with directing the attention of the tribunal to the fact that neither in the course of the war nor during the long period which has elapsed since its conclusion have any claims whatever been made upon Great Britain by the United States on account of any of these vessels.
There have been further introduced into the list of claims losses for captures by two vessels, named the Boston and Sallie, which are not mentioned in the Case, and expenses said to have been incurred in the pursuit of a third, (the Chesapeake,) as to which the Case is equally silent. Her Majesty’s government presumes that this has been done through inadvertence. No award can be made which shall comprehend or take into account the acts of vessels as to which the United States have not even alleged any failure of duty.
general character of the evidence.
General character of the evidence adduced by the United States. It would be superfluous to remind the tribunal that the conclusions at which it will arrive must of necessity be formed, not upon what the Government of the United States may allege, but upon what it shall be able to prove. Nor can it be necessary to point out that, while it is not the duty of the tribunal to apply to the evidence produced on either side rules drawn from the law or methods of procedure established in any particular state, the credibility and value of that evidence must nevertheless be tried by those general principles of reason and justice which are applicable to all testimony, in whatever forum it may be offered, for whatever purpose, or under whatever circumstances. But it may be convenient that the attention of the arbitrators should at the outset be directed to the character of some portions of the evidence on which the United States rely.
Much of the evidence adduced on behalf of the United States has been also laid before the arbitrators by Great Britain, either as supporting the case of Her Britannic Majesty’s government, or as formings part of the official correspondence and other materials of which it was proper that the arbitrators should be in possession before proceeding to adjudicate on the matters referred to them. Much, therefore, of the evidence on each side is common to both, though the two parties differ in the use which they respectively make of it.
[Page 205]Among the other documentary evidence cited or referred to in the Case of the United States are reports and dispatches from consuls or consular officers of the United States, who were during the war, or have since been, resident in ports within Her Majesty’s dominions. Of these persons it may be assumed that they were gentlemen worthy of credit when relating anything within the range of their personal knowledge. As to statements made by them on the authority of others the credit to be attached to these must depend in every case on the knowledge and veracity of the informant, not on those of the reporter of the information. Statements made on the ground of alleged notoriety or public rumor are evidence only—and that of a very vague and unsatisfactory kind, since little reliance can be placed on assertions which, from their very nature, there can be no means of testing—that a number, greater or less, of persons who are themselves unknown, and whose credibility and means of information are likewise unknown, believe, or have reported, a supposed fact to be true. It should be added that these officers were, as was natural, zealous—sometimes to indiscretion—in the cause of their Government; that they shared to the full, with their countrymen at home, in the excited and irritable feelings which are generated by civil war, and were, like their Government, firmly impressed with the erroneous idea that all armed vessels of the Confederate States ought, in foreign ports, to be regarded and treated as piratical. The admission of a confederate ship on the same terms as a United States ship was by itself, in their view, an offense against the United States; and this error led them into many misconceptions and colored throughout the reports which they addressed to their Government.
[3] The Government of the United States has appended to its Case, and has frequently referred to and invoked as evidence against Great Britain, a mass of confederate papers, the greater part of which consists of correspondence said to have passed between persons who were hired and employed during the war for various purposes by the confederate government and officials of that government, while the rest is of a private and still less authentic character. Most of these papers are said to have been “captured *at the taking of Richmond, and at other times;” and they, or such portions of them as the Government of the United States has thought fit to make public, are now made known to Her Britannic Majesty’s Government for the first time. Of the authenticity of them and of the manner in which they came into the possession of the Government of the United States, Her Britannic Majesty’s government has no knowledge whatever beyond that which it derives from the above-mentioned statement, which it willingly accepts as true. Of the persons by whom and the circumstances under which the letters were written, and of the character and credibility of the writers, it knows nothing whatever. They are persons with whom this government had nothing to do and whose very existence was unknown to it; and it does not admit as evidence against Great Britain any statements which they may have made to those who employed them or to one another.
Some notice must here be taken of the use which has been made, in the Case of the United States, of opinions recently expressed by one or two living writers respecting the matters referred to the tribunal. One of these (Dr. Blüntschli) is a jurist of celebrity, who, in the short paper written by him on the subject, has with great propriety guarded himself against being supposed to pronounce any decisive opinion, frankly admitting the inadequacy of his information, which, indeed, he appears to have derived entirely from a speech delivered in the Senate of the [Page 206] United States. On this point, however, Her Britannic Majesty’s government has but one remark to make. Whatever qualifications these writers might be found to possess for forming a judgment on the question, if they had been acquainted with the facts—a matter on which Her Majesty’s government has no opinion to express—they are not the persons selected as arbitrators in this case. The eminent persons who have been so selected will form their conclusions under the definite sense of responsibility proper to a high and regularly constituted judicial tribunal, after hearing both sides, and upon a full and complete knowledge, such as no man can possibly have possessed before, of all the facts of the case; and Her Britannic Majesty’s government is well assured that they will feel it to be, as it is, their first duty to form those conclusions for themselves, upon the facts and arguments brought before them, absolutely uninfluenced by any opinions which any writer, be he who he may, has permitted himself to express, whether on one side or on the other.
It is well known to the arbitrators that when, on former occasions recorded in history, jurists have undertaken to determine the merits of international questions actually in controversy, the judgments so pronounced have been held questionable, as open to the suspicion of partisanship, and have in fact been often influenced by a bias, the precise causes of which it might be difficult to ascertain. This alone is sufficient reason why weight should not be assigned to opinions put forward post litem motam.