[72] *Part VI. The Florida and Alabama.

In the Case of Great Britain, the facts relating to the Florida, Alabama, Georgia, and Shenandoah, were stated in considerable detail. The building of each of these vessels, her original departure from this country, and the circumstances under which .she received her equipment, and was armed, manned, and fitted out for war, were presented to the arbitrators as accurately and fully as Her Majesty’s government was enabled to present them by the means of information at its command; while so much of the documentary evidence, whether favorable to Great Britain or not, as appeared material to a just adjudication on the questions at issue, was included in the Case. The facts which were in the possession of the British government at the time when the events respectively took place, whether brought to its knowledge by the minister of the United States or ascertained by independent inquiry, were, in this recital, kept distinct from facts which did not become known till afterward. The general course of conduct pursued by the government, in respect of equipments or apprehended equipments of ships of war within its jurisdiction, was at the same time placed before the tribunal, and attention was invited to those cases in which the means of prevention employed proved effectual, as well as to those in which they failed. Part VI.—The Florida and Alabama.

The method of statement adopted in the Case of the United States is, in some respects, different. Circumstances known at the time, and many others not known till afterward, are there arranged without distinction in chronological order, so as to form a consecutive story, while, at the same time, no clear line is drawn between facts which are substantiated and those which the Government of the United States merely thinks or suspects to be true. Assertions resting only on the belief of an American consular officer in a foreign port, on a report transmitted by him that they were currently believed there, or on information said to have been received by him from anonymous persons, are freely introduced into the narrative as if they were ascertained facts.

Her Majesty’s government does not complain of this mode of statement, which has doubtless been adopted for sufficient reasons. But it manifestly imposes on the arbitrators the duty of distinguishing for themselves between allegations which are proved and allegations which are not proved, and between facts which are and facts which are not justly to be taken into account as supporting or contributing to support a, charge of negligence against Great Britain. They have to be satisfied, not only that acts were done which it was the duty of this government to use diligence to prevent, but that such diligence was not in fact exerted; and of this they have to be satisfied, not by assertion only, but by proof.

[73] It has been observed in the Case of Great Britain that, in countries [Page 298] where (as in Great Britain) the executive is subject to the laws, foreign states have a right to expect that the laws should be such as, in the exercise of ordinary foresight might reasonably be deemed adequate for the repression of acts which the government is under an obligation to repress, and, further, that the laws should be enforced and the legal powers of government exercised, so far as may be necessary for this purpose. But it was added that, where such laws exist, foreign states are not entitled to require that the executive should overstep them in particular cases, in order to prevent harm to foreign states or their citizens, nor that, for this purpose, it should act against the persons or property of individuals, unless upon evidence which would justify it in so acting if the interests to be protected were its own or those of its own citizens. The principle which these propositions convey is of supreme importance to all nations in which the paramount dominion of law is recognized, the protection which it secures to civil and political liberty valued, and the executive not intrusted with large and arbitrary powers. On no other terms, indeed, could such states undertake to subject themselves to any international obligations whatever. No constitutional state could reasonably be assumed to have engaged to break through or set aside its laws, in the interest of foreign nations, whenever an occasion might arise for which the laws were found to have imperfectly *provided beforehand. It has been further shown that the law of Great Britain, as it existed at the time when these occurrences took place, were such as, in the exercise of ordinary foresight, might reasonably be deemed adequate for enabling the government to discharge its obligations as a neutral power. It has appeared, also, that the powers-which the government possessed, to prevent fitting out, arming, and equipping within its jurisdiction of vessels intended for the naval service of the Confederate States, or the departure, with that intent, of vessels specially adapted within its jurisdiction to warlike use, were defined and regulated by law; that the law provided certain modes of prevention, and required, before authorizing the condemnation of a suspected vessel,, that the facts alleged against her should be capable of proof; and that the government had in no such case any power of seizure or detention, except with a view to a subsequent condemnation in due course of law, and on the ground of an infringement of the law sufficient to warrant condemnation. By proof, it was added, in a British court of law, is understood the production of evidence sufficient to create in the mind of the judge or jury (as the case may be) a reasonable and deliberate belief of the truth of a fact to be proved, such as a reasonable person would be satisfied to act upon in any important concerns of his own. And by evidence is understood the testimony, on oath, of a witness or witnesses, produced in open court, and subject to cross-examination, as to facts within his or their personal knowledge. Testimony which is mere hearsay, as to the existence of common reports, however prevalent and however generally credited, or as to any matter not within the knowledge of the witness, is not admitted in an English court.1 These rules, which in England have been deemed expedient for securing the due administration of justice, may not be regarded as necessary in some other countries. But there was clearly nothing in them which could be supposed to be inconsistent with the dictates of natural justice; and, this being so, it was the right of Great Britain to adhere to and apply them in all ‘cases arising within her jurisdiction, as it would be the right of Italy, [Page 299] of Switzerland, of Brazil, or of the United States to apply respectively in corresponding cases their own rules of procedure and evidence.

While, therefore, the obligation to use due diligence in order to prevent certain acts from being committed within the jurisdiction of the sovereign is an obligation wholly independent of municipal law, it is at the same time incontrovertibly true that, in determining the question whether due diligence has been used in a given case, the municipal law of the particular country, the modes provided for enforcing it, the powers vested in the executive, the established rules of administrative and judicial procedure may be, and commonly are, matters which it is proper and material to take into account.

The failures of duty which the United States impute to Great Britain, in respect of the Florida, Alabama, Georgia, and Shenandoah, consist partly in an alleged want of due diligence in preventing the original equipment of those vessels and their original departure from Great Britain, and partly in the hospitalities afterward afforded to them in British ports, where, it is insisted, they ought to have been seized and detained.

the florida.

The history of the Florida divides itself into three parts, the first ending with her departure from Great Britain; the second with her release at Nassau; the third including her subsequent equipment, her arrival at Mobile, and her cruise after leaving Mobile. The Florida.

The first part of this history, as told in the Case of the United States,, is as follows:1 The Florida was built to the order of Bullock, an agent of the confederate government. The contract for building her was made with one manufacturing firm and sub-let to another. It was made in the autumn of 1861, and was completed by February, 1862. She waited for the arrival of Bullock and four other confederate officers, “who were to take commands in the vessels which were contracted for in Liverpool,” and sailed soon afterward, consigned to Heyliger, a confederate agent at Nassau, or to Adderly & Co., merchants, resident there. Her armament was at the same time prepared at Liverpool, sent thence to Hartlepool, and shipped on board a steamer, called the Bahama, for Nassau.

[74] “It was a matter,” the tribunal is told, “of public notoriety that this was going on. All the facts about the Florida, and about the hostile expedition which it was proposed to make against the United States,, were open and notorious at Liverpool.” The inference is, that all the facts which are stated in the Case were, or ought to have been, known to Her Majesty’s government; that the government knew, or ought to have known, of the contract with Bullock; that it knew, or ought to have known, of the arrangements for arming the ship, since these things were generally known in the place where the events occurred. *Where is the proof of these assertions? Where is the proof that even the American consul at Liverpool, whose activity in hunting for secret information appears to have been indefatigable, and to whom every one resorted who had information to disclose, knew of the contract with Bullock, or of the dispatch, cargo, and destination of the Bahama? And if he knew them, why did he not either communicate his knowledge, and the proofs in his possession, to [Page 300] the British government, or himself lay an information on oath against the ship?

It is clear that Mr. Dudley himself was in ignorance of the facts which, in the Case of the United States, are asserted to have been open and notorious to all. His attention had been called to the Florida, then in the builder’s yard, as early as November, 1861. On the 24th January, 1862, he writes that “she is reported for the Italian government;” but the fact of the machinery being supplied by Fawcett & Preston, and other circumstances, make him “suspicious,” and cause him to believe she is intended for the South.1 On the 4th February the circumstances are still “somewhat suspicious.” “There is much secrecy observed about her, and I have been unable to get anything definite, but my impressions are strong that she is intended for the southern confederacy. I have communicated my impressions and all the facts to Mr. Adams, our minister in London.” At that moment the ship was taking in her coal; and “appearances indicate,” he wrote, “that she will leave here the latter part of this week.”2 He makes, however, no representation to the government, nor does Mr. Adams make any. On the 12th he writes to Mr. Seward that everything he sees and hears confirms him in the belief that the vessel is intended for the confederacy; but he mentions no fact, except that Miller (the builder) had said that Fawcett, Preston & Co. gave him the contract. Still no representation is made. On the 17th he has “obtained information, from many different sources,” which “goes to show” that she is intended for the Confederate States. Nevertheless, the solitary fact mentioned is that Fawcett, Preston & Co. are said to be the owners, with the addition that advances are said to have been made to them and to Miller by Fraser, Trenholm & Co.3 Afterward he tells Mr. Seward that he has “no doubt,” and has “positive evidence,” that she is “for the South;” and, on the 5th March, that two persons in the employ of Fawcett, Preston & Co., had said so.4 But, up to the time when she left Liverpool, his correspondence mentions not a single circumstance proving, or tending to prove, for what purpose she was intended, beyond some rumors as to her probable movements, which turned out to be erroneous. With the “notorious fact” that she had been ordered by Bullock he is evidently quite unacquainted.5 As to the Bahama, so far is he from being aware of the “notorious fact” that she was’ about to take out the Florida’s armament, that up to the 6th March he is making fruitless inquiries about that vessel, and can obtain no information about her, or any vessel of that name.6 Several days afterward he learns that she is loading with cannon and other munitions of war at Hartlepool, and “will either run the blockade, or land her cargo at Bermuda or Nassau, and have it ferried over in smaller vessels.”7 He believes her, in short, to the last, to be merely a blockade-runner, laden with articles contraband of war, and has no idea of her having any connection with the Florida.

Here, then, we have Mr. Dudley’s confidential correspondence with his official superior. We find him quite in the dark as to the main [Page 301] facts which are relied on in the case of the United States, and declared to have been perfectly open and notorious at Liverpool, but laboriously picking up scraps of secret information, till he arrives at a confident opinion, respecting the grounds of which he is silent. But it may here be observed, by the way, that Mr. Dudley, though he appears to have been an intelligent and painstaking officer, was often confident of facts as to which he was entirely mistaken.

We now perceive what is the value of the assertion, so frequently occurring in the case, that facts alleged therein were open and notorious, and, therefore, must or should have been known to Her Majesty’s government. In truth, these open and notorious facts do not appear to have been discovered till long afterward, even by the industrious researches of the Government and subordinate officers of the United States.

[75] *Let us now recall what was known to the British government. This has been fully and accurately stated in the Case of Great Britain.1

The first representation made to Earl Russell was received on the 19th February, three months after the time when Mr. Dudley’s attention was first directed to the ship. We have seen that it conveyed no information whatever on which a government could act. Fawcett, Preston & Co., who gave the contract to the actual builder, were a firm carrying on an extensive trade. It was said that on a previous occasion they had been concerned in a shipment of arms for the Confederate States, and it was further stated that money had been advanced to them, and to the builder, by Fraser, Trenholm & Co. It is evident that these circumstances, even if they had been verified, could produce no more than a bare suspicion.

Mr. Adams, it is true, said that, should further evidence be held necessary, he would “make an effort to procure it in a more formal manner.” All that Mr. Dudley knew was known to Mr. Adams. Does he, then, when the results of the inquiries directed by the government were communicated to him on the 26th February, more than three weeks before the sailing of the ship, hasten to furnish the government with the proofs which the latter had been unable to obtain for itself? No; he remains silent until the 25th March, after the ship has sailed. Either he had information on which the government could act and did not impart it, or he had none. It is not very material which branch of the alternative is true; but, from the fact that no information possessed by him at that time has ever been produced, as well as from the whole tenor of Mr. Dudley’s correspondence, we may assume that the truth lies in the second.

It is to be borne in mind that this was the first case (with one exception) in which a representation of this kind was made to the British government. It cannot, therefore, be pretended that Mr. Adams was discouraged or deterred from furnishing information by any previous neglect or refusal to act on the part of the Government. The only case which had occurred before was that of the Bermuda, in which Mr. Adams, though he “believed” and was “morally certain” that the vessel was to be used for war, proved to be mistaken.2

What the government did on receiving Mr. Adams’s representation is stated in the British Case. Inquiry was instantly directed, but no information whatever could be obtained tending to connect the vessel in [Page 302] any way with the Confederate States. She was declared by the builder to be ordered for a firm at Palermo, a member of which was registered, on his own declaration, as her sole owner, and had frequently visited her when building. She had on board no arms or military supplies. The statement, at page 242 of the Case of the United States, that she had guns on board, is erroneous.1 Her first destination, as stated in her clearance, was Palermo, and her crew were nominally (and, as they evidently believed, really) hired for a mercantile voyage. On the one hand were the positive statements of the builder, the registered owner, and the collector of customs; on the other, the suspicion of Mr. Dudley that the vessel was still intended by her owner to pass, sooner or later, into the hands of the confederate government. But a suspicion is one thing, reasonable grounds of belief another; and the British government, while it would have been bound to act on a reasonable belief that there was a present fixed intention to employ her as a confederate ship of war, was neither bound by international duty nor empowered by its municipal law to act on a bare suspicion that she might pass into that employment.

The circumstances that occurred between the arrival of the Florida at Nassau, on the 28th April, 1862, and her departure thence on or about the 7th August following, have been inaccurately and imperfectly stated in the Case of the United States, and, as Her Majesty’s government believes, accurately in that of Great Britain.

[76] It is not correct that the United States consul, soon after the arrival of the vessel at Nassau, “called the attention of the governor to her well-known character,” and that the governor declined to interfere.2 The United States consul, after mentioning the arrival of the ship, represented that it was believed and reported by many residents in the place “that she is being prepared and fitted out as a confederate privateer;” and he requested that some inquiry might be made to ascertain how far she was “preserving the strict neutrality” enjoined by the Queen’s proclamation.3 He was immediately answered that inquiries should be made. They were made accordingly, and the consul was informed (as the fact was) that no attempt had been or was being made to arm the ship. The governor did *not “accept the statement of the insurgent agents,” of whom he knew nothing, and with whom he had nothing to do, but that of the mercantile firm to whom she was consigned, and who were the only persons known to have any connection with her, and the proper persons to refer to. She was not “permitted to remain at Cochrane’s Anchorage” without effectual precautions being taken to prevent a violation of the law.4 It is not correct that “a second request to inquire into her character was made on the 4th of June and refused.” The consul, on the 4th June, inquired whether steps had been taken to ascertain her character, and was answered in the affirmative. The governor “had directed steps to be taken to ascertain whether there was anything in the equipment or character of the Oreto which could legally disentitle her to the hospitalities of the port.”5 She was not arrested on the 7th June, nor was she released on the arrival of Semmes in the island; nor does it appear that the Bahama was arrested, or that the latter vessel was ever made [Page 303] the subject of any complaint. Lastly, it is said that the consul, finding his representations to the governor useless, “applied to Captain Hickley, of the Greyhound, and laid before him the evidence which had already been laid before the civil authorities. He answered by sending .a file of marines on board the Oreto, and taking her into custody.”1 This statement is wholly and completely unfounded, and is shown to be so even by the documents referred to. Captain Hickley seized the vessel on the 16th, upon the complaint of the sailors, who had been defranded by a deviation from the voyage for which they had been hired 5 and on the 17th he renewed the seizure, with the sanction and authority of the governor, who immediately gave direction that proceedings should be instituted against her in the vice-admiralty court of the colony.2 On neither occasion does it appear that Captain Hickley had any communication with Mr. Whiting. The consul did, however, subsequently address to that officer a letter, which would alone have been sufficient to justify any government in withdrawing his exequatur, an impropriety for which he received a merited reproof.3

It cannot be denied, on the part of the United States, that the Florida was seized while at Nassau, on charge of a violation of the foreign-enlistment act; that proceedings were, by the governor’s directions, instituted in the proper courts, with a view to her condemnation; or that, after a regular trial, she was ultimately released by a judicial sentence. But, in order to destroy or diminish the effect of these proceedings, attempts have been made, in the Case of the United States, to attack the character and integrity of the colonial authorities, and impute to the principal law-officer of the colony deliberate dishonesty in the discharge of his official duties. On the pretext that in other matters he had acted professionally as advocate for the mercantile house who were consignees of the vessel, he is accused of having, as counsel for the Crown, so conducted the case intrusted to him as to secure its defeat, from motives of private interest or partiality;4 of having neglected to call witnesses who could prove the facts, and managed his cross-examination of witnesses for the defense so as to suppress important evidence; and, lastly, of having intentionally hurried on the trial before evidence , could be obtained from England. “Her Majesty’s government,” the arbitrators are told, “evidently considered that it would be relevant and proper to show the condition of the vessel when she left Liverpool; and should it appear, as it did appear, in Captain Hickley’s testimony, that at the time of her leaving she was fitted out as a man-of-war, with intent to cruise against the United States, then it would be entirely within the scope of the powers of the court in Nassau to condemn her for a violation of the foreign-enlistment act of 1819. Had the trial not been hurried on, such probably would have been the instructions from London.”5

Her Majesty’s government thinks it right to say that there is not the slightest foundation for these imputations. There is no reason whatever to suppose that the trial did not come on in regular course, or that the case was not properly conducted on the part of the Crown. That the counsel for the Crown should have refrained from calling witnesses whose interests were strongly on the side of the defense needs no explanation to any one acquainted with the rules of English judicial procedure, [Page 304] since, according to those rules, the party who calls a witness is in general precluded, should the evidence which he gives be unfavorable, from impeaching the witness’s credibility; nor can he compel him to answer any questions which would expose the witness to a penalty, or to prosecution for any offense against the law. The evidence of Captain Hickley neither did, nor possibly could, prove anything as to the extent to which the vessel had been fitted out when she left Liverpool.

[77] It is perfectly true (and was, indeed, explicitly stated in the British Case) *that the exclusion of evidence relating to acts done while the ship was at Liverpool was, in the opinion of Her Majesty’s government, an erroneous ruling on the part of the judge. But the question was at least open to reasonable doubt, and it can hardly be necessary to inform the arbitrators that it is not in the power of Her Majesty’s government to “instruct” a judge, whether in the United Kingdom or in a colony or dependency of the Crown, how to decide a particular case or question. No judge in Her Majesty’s dominions would submit to be so instructed; no community, however small, would tolerate it 5 no minister, however powerful, could ever think of attempting it.

In the following extract from a report transmitted by the administrator and attorney-general of the colony these charges are completely disposed of:

The charges are ranged under the following heads, page 343: That the attorney-general hurried on the trial before evidence could be obtained from Liverpool; that he conducted the cross-examination so as to suppress evidence unfavorable to the Oreto, and that certain named witnessed who could have shown that the Oreto was, built for the insurgents, and was to be converted into a man-of-war, were not called as they ought to have been; and there is a general charge prevading the foregoing, and otherwise specially stated, of misconduct on the part of the attorney-general.

Taking these seriatim, they are as follows:

First, that the trial was carried on before evidence could be obtained from Liverpool. The answer to this is, that the vessel was proceeded against only for acts of equipment alleged to have taken place within the limits of the Bahama Islands. It was considered, whether rightly or wrongly, that the point was settled by the decision in the case of the Fabius, (2d C. Rob., page 245,) which was an appeal from the identical court, the vice-admiralty court of the Bahamas, and in which it had been decided that vice-admiralty courts had no jurisdiction to take cognizance of offenses committed out of the limits of their local jurisdiction, and that prosecutions under the foreign-enlistment act were not within the sixth section of 2 Will. 4, c. 51, which gave an extended jurisdiction to that court in certain specified cases, a position which may be considered as affirmed by the legislative action which has been taken on the point by the British legislature in the vice-admiralty court acts, 26 Vict., cap. 24, section 13.

This being the conclusion arrived at, it was not considered necessary, in fact it was never suggested, that evidence could be obtained from England; but it was considered that the evidence of the mate and crew of the Oreto, combined with that of Captain Hickley and the other naval officers, was sufficient to show the animus with which the vessel was dispatched from Liverpool and her adaptation for warlike purposes; and this is admitted in the case, as, at page 343, the following paragraphs are found: “The judge, in deciding the case, disregarded the positive proof of the character, intent, and ownership of the vessel.” And again: “The overwhelming testimony of Captain Hickley and his crew was summarily disposed of.” And again: “While thus ruling out, either as false or irrelevant, evidence against the vessel which events proved to be true and relevant, he gave a willing ear of credence to the misstatements of the persons connected with the Oreto;” allegations that completely relieve the prosecuting officer of the charges brought against him at page 344, and throw the onus of failure on the judge, thus producing in the short space of two pages contradictory accusations against two officers of the government, the one of which, if well founded, would afford complete refutation to the other.

Secondly, that the attorney-general conducted the cross-examination so as to suppress evidence unfavorable to the Oreto when it could be done.

This is a charge which can only be met with a positive and indignant denial. Whether the cross-examination was conducted skillfully or not is, of course, another question, which must be judged of from the examinations forwarded.

Thirdly, the neglect to summon witne ses who could have given material evidence, [Page 305] and especially the omission to examine Maffit, Heyliger, and Adderley. Now, if the allegations in the United States Case are well founded, each of these persons was particeps criminis in the equipment of the Oreto, and was liable to he proceeded against criminally for a misdemeanor, and, on conviction, to be punished by fine and imprisonment, and, therefore, they could not have been compelled to give evidence leading to the condemnation of the vessel for acts of equipment within the colony, which would necessarily have tended to criminate themselves, and, consequently, it never entered into the minds of the attorney-general or of Captain Hickley, who was in daily consultation with that officer, to attempt to examine those parties, nor any other persons in the supposed service of the Confederate States. The existence of such persons as Evans and Chapman, who are named at page 345 of the Case, was entirely unknown to the attorney-general, and also, it is believed, to Commander Hickley, who never named them to that officer. One important witness, and one only, was lost to the prosecution, namely Jones, the boatswain of the Oreto, who had originally given the information to Commander Hickley which mainly led to the arrest of the vessel. He disappeared before he could be examined, and was supposed to have been induced by persons in the interests of the vessel to go away.

Duguid, the master of the Oreto, was, as will he seen on reference to his examination, questioned on the point, but he particularly denied all knowledge of the movements of the man.

With the exception of Jones, every one was examined who could have been compelled to give evidence, and Jones was only not examined because he secretly removed himself from the jurisdiction of the court.

[78] Another very great misstatement with respect to the trial of the Oreto is made at page 345. It is there stated that the cross-examination of Captain Hickley was conducted by a gentlemen who was represented to be the solicitor-general of the colony, but who in that case appeared against the Crown. From the foot-note (2) this statement would appear to have been made on the authority of Consul Kirkpatrick, and, if so, it proves that little reliance is to be placed on that person’s statements. Mr. B. L. Burnside, a barrister of Lincoln’s Inn, was the counsel referred to, and at the time (1862) *he held no office whatever under the Crown; and the United States Government have, through the errors of their informants, confounded the case of the Mary or Alexandra, tried in 1865, with that of the Oreto in 1862. In May, 1864, Mr. Burnside, however, was appointed solicitor-general, and at the time of the seizure of the Mary he held that office, when, being employed in that case as counsel for the claimant, he cross-examined Captain Preston, of the British navy, a witness produced for the prosecution; but, on the fact becoming known to the governor that the solicitor-general was so employed, he was called on either to give up his brief or resign his office, and he chose to do the latter.

In concluding the remarks on this part of the Case of the United States, it is confidently submitted that the arrest and trial of the Oreto at Nassau was a bona-fide proceeding.1

The vice-admiralty court of Nassau was a court of competent jurisdiction; the authorities of the colony were bound to pay obedience to its decree; and, as soon as it was pronounced, the persons claiming the possession of the vessel were entitled to have her immediately released. She was released accordingly, and sailed from Nassau unarmed, having cleared as a merchant steamer, and with a crew hired in the port, and hardly sufficient to navigate her, on or about the 7th August, 1862. The hiring of seamen at Nassau could not have been treated as an offense against law, since there was nothing to show that they were intended for the service of the Confederate States. Nor does it appear that they were, in fact, enlisted for that service.2

[Page 306]

It is affirmed in the Case of the United States that the Florida, after quitting Nassau, was armed for war, by means of a vessel which accompanied her from that port, at one of the Bahama Islands, and, therefore, within British waters; and, in proof of this, several depositions are produced, purporting to have been made by common seamen and others who were hired to assist in the work. From these it would appear that, before the Florida sailed, a schooner, called the Prince Alfred, carrying as cargo some guns and ammunition, together with other supplies, put to sea from Nassau, as though with the design of running the blockade; that she was overtaken by the Florida about three hours after the latter had left the harbor, and that both vessels proceeded to a place called Green Cay, where the cargo of the Prince Alfred was transferred to the Florida, an operation which lasted several days. The latter (which up to that time had been known as the Oreto) then hoisted the confederate flag, and assumed the name under which she has since been known. The Prince Alfred did not for some time return to Nassau, her captain being apprehensive that she might be seized for a violation of the law in assisting to arm and fit out the Florida in British waters.

[79] Her Majesty’s government has not the means of either verifying or disproving the truth of this statement. Assuming it to be true, there can be no doubt that a violation of the sovereignty and neutral rights of Great Britain was committed by the commander of the Florida. But the fact that such a violation occurred does not argue negligence on the part of Her Majesty’s government. It took place, indeed, in British waters, since the whole group or chain of islands known by the name of the Bahamas are held to be under the dominion of Great Britain. But of these islands, which number several hundred, and are scattered over a wide surface, all but a very few are desolate and uninhabited, and many are mere rocks or islets. Green Cay (which, if we may trust the testimony of the deponents, was the spot selected for this transaction) is a small, uninhabited island, lying sixty miles or more south of Nassau, on the edge of what is called the Great Bahama Bank, and visited, as Her Majsty’s government believes, only by fishermen. *Neutral powers have never been held responsible for violations of their territory committed in remote and unfrequented places, where no effective control could be exercised; and it is certain that, over such a dominion as the Bahamas, no government could reasonably be expected to exert such a control as to prevent the possibility that acts of this kind might be furtively done in some part of its shores or waters.

The Prince Alfred sailed from Nassau as any vessel intended to run the blockade might have done, while the Florida was still lying in the harbor; and there appears to have been no circumstance within the [Page 307] knowledge of the authorities of the colony to direct special attention to the nature of her cargo, to disclose her errand, or furnish a reason for detaining her. No complaint on the subject was made before she sailed by the consul of the United States, though it is now alleged that the purpose for which she went was “notorious” in Nassau. Subsequently, on the 8th September, 1862, when the Prince Alfred was again at the port, the consul informed the governor that he had good authority for stating that this vessel had placed the Florida’s armament on board her at Green Cay, and that the Prince Alfred’s captain was again shipping men to be sent to the Florida. The governor replied that if sufficient evidence could be placed in the hands of the attorney-general to substantiate this allegation, he would direct a prosecution to be instituted against the captain of the Prince Alfred or others who might have been guilty of violating the foreign-enlistment act. Upon this communication the consul seems to have taken no steps whatever; and, although it has since appeared that he had previously procured a notarial declaration from some of the men employed on the Prince Alfred, the evidence thus obtained was never communicated or disclosed to the colonial authorities or to Her Majesty’s government, until February, 1865. Captain Maffit had at that time arrived at Nassau in command of the merchant-vessel Owl, which had run the blockade, and the then United States consul made an application to the governor for proceedings against him on the ground that he had enlisted men in the colony for the Florida in 1862. This application was not received until after Captain Maffit had left Nassau, but the governor directed the attorney-general to communicate with the consul, and the declaration of 4th September, 1862, above referred to, (which contained no evidence of enlistment,) was then produced for the first time.1

The arbitrators are already aware that the Florida went from the Bahamas to Cuba, where she endeavored to ship a crew, and from thence (before making any prize or inflicting any loss on the United States) was carried by her commander into the confederate port of Mobile, escaping capture through the remissness or incapacity of the officer commanding the blockading squadron; that at Mobile she remained more than four months; that she was there fitted out and put in a condition for cruising; and that from thence she commenced her cruise. The crew which manned her during that cruise were enlisted at Mobile, and the greater number of them appear to have been transferred to her from a receiving-ship in that port. The history of this cruise has been briefly told in the British Case. It has been seen that she was admitted, during the course of it, into ports of the British colonies, of Brazil, and France; that at Brest she was suffered to remain during nearly six months repairing and refitting; and that she was ultimately seized and carried away from a Brazilian port by a gross violation of the neutrality and sovereign rights of Brazil.2

On the fact that she was permitted to enter ports within Her Majesty’s colonial possessions, the United States have endeavored to support further complaints and further claims against Great Britain, for which there is no foundation whatever. It was not the duty of the British government to seize or capture the Florida when cruising under a commission from the government of the Confederate States; and the charges of partiality made in respect of this vessel are as groundless as those advanced in the cases of the Sumter and Nashville. It will, however, [Page 308] be for the convenience of the arbitrators that they should be furnished with a summary account of the hospitalities accorded in British ports during the course of the war to the armed vessels of both belligerents. This will be done in a subsequent section.

With respect to the case of the Florida, Her Majesty’s government submit with confidence to the arbitrators, not only that negligence cannot justly be imputed to Great Britain, but that (even if this were otherwise) Great Britain could not be held liable for losses sustained by the United States in consequence of the operations of that vessel after she had entered the port of Mobile, had there completed her equipments and enlisted for the first time a sufficient crew, and had afterward sailed from that port to cruise against the shipping of the United States.

[80] *the alabama.

The Alabama. The facts relative to the building, departure, and subsequent arming of the Alabama have been set forth in the British Case with a fullness of detail which renders any additional statements unnecessary; and Her Majesty’s government will here refer to them so far only as may be required for the purpose of correcting erroneous assertions or mistaken inferences in the Case of the United States.

In respect to this ship, Her Majesty’s Government does not dispute that, at the time when she sailed from England in July, 1862, she was, as regards the general character of her construction, specially adapted for warlike use, nor that the adaptation had been effected within British jurisdiction. The question for the arbitrators is, whether the British government had, according to the fair and just sense of those words, reasonable grounds to believe that she was intended to carry on war against the United States, and, having it, failed to use such diligence as any international obligation required to prevent her departure from Great Britain, or to prevent her equipment within its jurisdiction.

In respect of this ship also, as in respect of the Florida, it is insisted by the United States that the material facts proving her true character and the employment for which she was intended were notorious, and therefore either were or ought to have been known to Her Majesty’s government, and that no proof ought to have been required from Mr. Adams. It is insisted, further, that not only proof was required, but “strict technical proof,” such as would support a criminal prosecution under the foreign-enlistment act. The arbitrators are also told that, in this case and throughout the war, the British government and its officers “would originate nothing themselves for the maintenance and performance of their international duties,” and “would listen to no representations from the officials of the United States which did not furnish technical evidence” sufficient for the purpose mentioned above.

These assertions are made use of to explain the fact that, although “before the vessel was launched she became an object of suspicion with the consul of the United States at that port, and she was the subject of constant correspondence on his part with his government and with Mr. Adams,” no representation was made respecting her either to the British government or to its officers at Liverpool until the 23d June, 1862. Neither the fact which has to be explained, nor the explanation offered for it, appears to be supported by the evidence.

Among the circumstances alleged as proofs of an intention that the vessel should be employed in the confederate service are the contract between Bullock and the ship-builder, supposed to have been signed in [Page 309] October, 1861, and the asserted facts that Bullock “went almost daily” on board of her, and “seemed to be recognized in authority,” and that her officers were in England awaiting her completion, and were paid their salaries monthly at the office of Eraser, Trenholm & Co., in Liverpool.

For evidence that the Alabama was the subject of constant correspondence between the United States consul at Liverpool and his Government and its minister in London, the arbitrators are referred to the Appendix to the Case of the United States, vol. iii, passim.1 They will discover that, before the date of Mr. Adams’s first representation to Earl Russell, (23d June, 1862,) she is only thrice mentioned by Mr. Dudley in dispatches to Mr. Seward—namely, on the 4th of April, 16th May, and 18th June, 1862. On the 27th June he says that he has mentioned her “in two or three notes to the Department.”2 They will not (Her Majesty’s government believes) find any letters addressed to Mr. Adams prior to that on which he founded his representation to Earl Russell, though there probably was such a letter, since she is there said to have been mentioned in “a previous dispatch.”3 The constant correspondence, therefore, which is mentioned in the case did not commence until after the vessel had made her first trial-trip, and was nearly ready to go to sea, and a very few weeks before she sailed, though Mr. Dudley’s attention had been directed to her in November, 1861. The fact that Bullock “goes almost constantly on board the gun-boat, and seems to be recognized as in authority,” first appears in a letter dated 9th July, 1862, addressed to the collector of customs at Liverpool; and the collector is, in the same letter, told that Bullock “is in Liverpool,” and what is supposed to be his business there.4 The facts that the contract for the ship was made with Bullock, and that confederate officers who were intended to serve on board of her were in Liverpool and receiving pay before she sailed, first appear in a deposition of one Yonge, sworn and communicated to Earl Russell, in April, 1863.5

[81] It has not been shown by the United States that, prior to the time when Mr. Adams *laid a representation before Earl Russell, any circumstances proving or tending to prove that the ship was intended for the Confederate States were notorious or generally known at Liverpool, or were or ought to have been known to the British government or any of its officers. Indeed, beyond a report that one of the workmen in Laird’s yard had said so, no fact of this kind is found in any of Mr. Dudley’s previous letters. Such a statement by a mere workman would not be evidence in any British court, nor is it consistent with probability that ordinary workmen in the yard would have any means of knowing or proving the real destination of the ship.

That the vessel was designed for a ship of war was doubtless not difficult to discover, but there was nothing in this to attract special observation. The building of vessels of war for the British government and for foreign governments or their agents had for many years formed a large part of the regular business of the great ship-building firm in whose yard she was constructed. It has been publicly stated by Messrs. Laird, and Her Majesty’s government are now in a condition to prove it to be the fact, that shortly before the contract with Bullock was said to have been made, they were asked to send in plans and estimates for [Page 310] gun-boats and a floating battery to the Navy Department of the United States by a person who represented himself, and was believed by them, to be authorized by the head of that Department; and being (as they were) commercial men, having only commercial objects in view, they were perfectly ready to have supplied these articles to the United States, if it had been proposed to them to do so on terms which they considered sufficiently profitable.1

The assertion that a particular fact is “notorious” is one the truth of which there is no possibility of testing. It commonly means no more than that the fact is generally or by many persons believed to be true, which does not prove the truth of it (since a general belief may be, and often is, mistaken) and does not always make it even probable that proof can be obtained. If a general belief prevailed in Liverpool, while the vessel afterward known as the Alabama was in the builder’s yard, that she was intended for the Confederate States, (and there is no proof whatever that any such general belief did, in fact, exist,) this would not have been a reasonable ground for calling on the government to seize or interfere with a ship which, for aught that was known to the contrary, was the property of private individuals, guilty of no violation of the law.

The phrase “technical evidence” is calculated to mislead. If it means such evidence as might be expected to satisfy an impartial tribunal that a violation of the law had been committed, it is true that the government held itself entitled, before seizing the Alabama or any other vessel, to have such evidence in its possession, or, to have reasonable grounds for believing that it would be forthcoming before the trial of the case should begin. Open investigation before a court is the means appointed by law for sifting all accusations and distinguishing ascertainable facts from mere rumor; it is an ordeal that a British government which, in the exercise of the powers intrusted to it, seizes or interferes with the person or property of any one within its jurisdiction, must always be prepared to encounter, and it is clear that the sufficiency of evidence in an English forum can only be tried by principles recognized in England, as in an Italian, Swiss, Brazilian, or American forum, it must of necessity be determined by principles recognized in those countries respectively. But the assertions that the British government, throughout the war, “would originate nothing themselves for the maintenance and performance of their international duties, and that they would listen to no representations from the officials of the United States which did not furnish technical evidence for a criminal prosecution,” are not only unfounded; they are opposed to facts stated in the Case and evidence of Great Britain and even in the Case and evidence of the United States. The arbitrators have already seen, from the statements laid before them, that every reasonable suspicion, whether communicated through the minister of the United States or derived from other sources, was immediately made the subject of inquiry; that this was in some instances done where no representation had been received from Mr. Adams; and that on every representation of his, though unaccompanied by evidence, it was done as a matter of course.

It is true, nevertheless, that in cases of this nature neutral governments ordinarily expect to receive information from the ministers or consuls of belligerent powers resident within their territories. These officials have the keenest incitements to vigilance in their national interest and official duty, and are more likely to be the first recipients of intelligence than the government or its officers.

[Page 311]

[82] This has been the general practice of neutral governments, and the arbitrators have *already seen that it has been followed by the United States. The Government of the United States has expected information to be thus furnished to it, and has expected also the information to be supported by proofs; and where the proof offered was not satisfactory, foreign ministers and consuls have been told that they were at liberty to institute proceedings themselves.1

Let us now briefly recall the facts, of which the arbitrators are already in possession, and which show what the conduct of the British Government and its officers in relation to the Alabama really was.

[83] On the 24th June, 1862, Earl Russell received the first representation made to him respecting the vessel afterward called the Alabama, then known only by her number in the building-yard, (290.) In the case of the United States, the arbitrators are told that Mr. Adams had at this [Page 312] time good reason “to think that it would be necessary to obtain strictly technical proof of a violation of the municipal law of England before he could hope to obtain the detention” of the ship, and that” he thought he had such proof.” Mr. Adams did not, however, in his letter furnish or offer any proof at all, and the inclosed letter from Mr. Dudley contained nothing showing or tending to show the purpose for which the *vessel was intended, beyond some hearsay statements, reported to come from persons who could not be compelled to give evidence, and an expression of his own opinion that “there was not the least room for doubt about it.”

On the 25th June Her Majesty’s government ordered inquiry to be made on the spot. At the same time the two letters were laid before the law-officers of the Crown. The latter reported—

That if the representation made to Her Majesty’s government by Mr. Adams is in accordance with the facts, the building and equipment of the steamer in question is a [Page 313] manifest violation of the foreign-enlistment act, and steps ought to be taken to put that act in force and to prevent the vessel from going to sea.

The report of the United States consul at Liverpool, inclosed by Mr. Adams, besides suggesting other grounds of reasonable suspicion, contains a direct assertion that the foreman of Messrs. Laird, the builders, has stated that this vessel is intended as a privateer for the service of the government of the Southern States; and, if the character of the vessel and of her equipment he such as the same report describes them to he, it seems evident that she must be intended for some warlike purpose.

[84] Under these circumstances, we think that proper steps ought to be taken, under the direction of Her Majesty’s government, by the authorities of the customs at Liverpool, to ascertain the truth, and *that, if sufficient evidence can be obtained to justify proceedings under the foreign-enlistment act, such proceedings should be taken as early as possible. In the mean time Mr. Adams ought, we think, to he informed that Her Majesty’s government are proceeding to investigate the case; but that the course which they may eventually take must necessarily depend upon the nature and sufficiency of any evidence of a breach of the law which they may he enabled to obtain; and that it will be desirable that any evidence in the possession of the United States consul at Liverpool should he at once communicated to the officers of Her Majesty’s customs at that port.1

On the 4th July the results of the inquiry instituted at Liverpool by the customs department were communicated to Mr. Adams, with a suggestion [Page 314] that he should instruct “the United States consul at Liverpool to submit to the collector of customs at that port such evidence as he may possess tending to show that his suspicions as to the destination of the vessel in question are well founded.”1

If Mr. Adams, or the consul from whom he derived his information, was at this time possessed of evidence as to the intended employment and real character of the ship, the time had now arrived when it ought to have been produced without delay.

Five days afterward, on the 9th July, the consul wrote a letter, received on the 10th, which purported to convey “all the information and circumstances which had come to his knowledge “to the collector of customs.2 The contents of this letter, when examined, will be found to consist partly of one or two alleged facts, (not proved,) tending to connect Bullock with the vessel; partly of statements or admissions said to have been made by various persons to third parties, and to have been by them reported to the consul. The persons to whom these statements or admissions were ascribed were two officers of the Sumter, who had passed through Liverpool two months before; a foreman then or previously employed in the ship-builders’ yard, and not designated by name; and “a youth named Robinson,” who was understood to be at “a school in London.” Mr. Dudley had not himself seen any of these persons; he had only heard from others (whose names he said he could not disclose) that they had made the statements or admissions attributed to them. His information, therefore, consisted in reality of reports, received from anonymous persons, of statements alleged to have been made by others who could not be found, or who, if found, could not have been compelled to give evidence, since the evidence would have tended to criminate themselves. Of Bullock nothing was at this time known to Her Majesty’s government, and the consul, although he asserted that Bullock was a confederate officer sent over to England for a particular purpose, furnished no evidence of this, nor offered to furnish any.

Mr. Dudley was therefore informed by the collector that the officers of the revenue would not be justified in acting on the statements contained in his letter, unless they could be substantiated by evidence.

On the 21st July, eleven days after the collector’s reply, and a month after the time when (as is alleged) Mr. Adams thought he had in his possession “strictly technical proof” of a violation of the law, some evidence was produced for the first time, and laid before the collector by the consul. This evidence consisted of six depositions, of which only one, purporting to be sworn by a man named Passmore, was material to the question, and legally admissible.3 It has already been observed that, to rely on evidence of this kind, proceeding from a single witness, without corroboration, and without inquiry into his character and general credibility, would, according to judicial experience in England, (and, it may be added, in the United States likewise, and probably in other countries,) have been very unsafe in a case of this nature.4

The consul was, however, informed that it was competent for him, if he should think fit, to institute at his own risk a prosecution against the persons supposed to be concerned in the alleged violation of the law.5

[Page 315]

[85] *In the Case of the United States the arbitrators are told that the depositions submitted on the 21st were “conclusively passed upon” by Her Majesty’s government.1 This is a misapprehension, if it is meant that they were accepted by the government as conclusive. What the government accepted as sufficient was not the incomplete and scanty evidence of the 21st, but the same evidence, strengthened and completed by the additional depositions of the 23d and 25th.

On the 23d July two further depositions were furnished by the board of customs.2 An additional deposition was received on the 25th July.3 On Tuesday, the 29th July, the law officers reported their opinion that the evidence was sufficient, and that the vessel ought to be seized.4 This opinion was unfortunately given too late, the vessel having put to sea on the same morning, under the circumstances stated in the British Case.5

We see, then, that although, according to the statements made in the Case of the United States, this vessel had been an object of suspicion and scrutiny to the consul ever since November, 1861, although he had for months believed that she was intended for the confederate government; although she had been, as is alleged, the subject of constant correspondence with his official superior and with Mr. Adams; although she had, within his knowledge, been gradually advancing to completion, had made her trial-trip, and was beginning to get ready for sea; and although Mr. Adams knew that evidence such as could be produced in a court of law, not only of her adaptation for war, but of her being intended to be employed in hostilities against the United States, was required to justify a seizure; notwithstanding all this, no evidence whatever proving or tending to prove such an intention was produced to the British government or its subordinate officials till the 21st of July, eight days before the vessel sailed, and at a time when it was reported that she might leave at any hour; and what was then furnished required to be strengthened by additional evidence, part of which was delivered on the sixth and the remainder on the fourth day before her departure. It is clear beyond controversy that this long and hazardous delay on the part of the officials of the United States in this country must have been due to one of two causes—either to a want of due diligence in procuring the evidence necessary to verify the suspicions which they entertained, or to their inability to procure it. The second of these explanations, which is confirmed by Mr. Dudley’s complaints of the difficulty experienced in inducing any witness to come forward, is probably the correct one. But, in either case, what becomes of the charge of gross and culpable negligence against the British government? If Mr. Dudley, whose business it was to find out the truth of a suspected enterprise so dangerous to his country, could get no evidence of it until too late, why is it imputed as gross negligence to the officers of the government that they, without his means of information, were not [Page 316] more successful? If he could, why is the penalty of his negligence to be paid by the British nation?

Up to this point, then, it is clear that there is no reasonable ground for the charges brought by the United States against Great Britain. If those charges are to be supported in any way, they must find their only support in what was done, or omitted to be done, afterward. That the question whether the evidence was credible and sufficient to sustain a seizure, was one on which the British government had a right, before acting, to consult its official legal advisers, cannot be denied. It was clearly and eminently such a question. Nor does it admit of denial that the evidence was actually referred, as soon as it was received from time to time, by the government to its advisers, for their opinion; nor that, if any reasonable doubt existed, the government and its advisers were justified in taking reasonable time for consideration.

The charge of gross negligence, then, resolves itself, when tested by examination, into this and no more: that the evidence not having been delivered till within a few days of the sailing of the ship, and then in successive installments sent almost from day to day, a little more time than may now perhaps be thought to have been absolutely necessary was consumed in obtaining the advice and forming the conclusion on which the government ultimately acted.

[86] A circumstance has been already mentioned, of which Mr. Adams was informed at the time, as having occasioned some little delay.1 Nor ought it to be forgotten that the sole *facts which were alleged, and as to which evidence was offered, and for preventing which Her Majesty’s government was solicited to interfere, were the fitting out for sea in the neutral port of a vessel specially adapted by her construction for war, and built as a commercial transaction to the order of an agent of a belligerent, and her apprehended departure, unarmed, for an unknown destination, which might be a port of the Confederate States. Of arrangements for arming her nothing was known to the officials of the United States, and nothing was brought to the knowledge of Her Majesty’s government; and they are now informed by her builders, Messrs. Laird, (who would, if necessary, give evidence to that effect before the arbitrators,) that they also were entirely ignorant of those arrangements, and that they believed the vessel to be intended to run the blockade. In the opinion of the government and its advisers, the adaptation of this vessel for war, with a view to her employment in the service of the Confederate States, would, if proved, have been a breach of the foreign-enlistment act; but this was not established by authority; it was a point on which high legal opinions were known to differ; and it was the more necessary that the evidence should be clear.

When the matter is reduced to this point, we see that it is one upon which an adverse judgment cannot reasonably be founded by a court of international arbitration. Whether the evidence furnished was sufficient; at what time it became sufficient, (taking into account the principles of English law, by which the government and its advisers were bound;) and whether the conclusion at which the government arrived was or was not deferred a little too long by a reasonable doubt or an accidental delay, are questions as to which such a court might, perhaps, find it not easy to form a clear and decisive opinion. The British government conceives, however, that it is not upon grounds such as these that a grave charge of neglect of international duty ought, when raised, to be decided. The standard of international obligation which [Page 317] a decision adverse to Great Britain on such grounds would assume, has never heretofore been applied to or acknowledged by any government; and it needs no argument to show that the establishment of it would be a matter of serious consequence, not to maritime States alone, but to the general peace and tranquillity of nations.

The same observations apply with still greater force to the complaints made by the United States of some petty mistake which possibly may have been made, or some small defect of promptitude in decision or action which may possibly have been exhibited by subordinate officers at Liverpool after the departure of the vessel. At no time after she sailed was there more than a bare possibility that by the utmost promptitude, aided by good fortune, she might have been seized while in British waters. It appears incredible that the United States should mean seriously to contend that, because a subordinate revenue officer hesitates when in doubt to assume a responsibility, or writes to his superior by post instead of communicating by telegraph, a grave international injury has been perpetrated and liabilities incurred such as they now seek to establish. It is evident that, on such complaints, were they fit to be entertained, no just conclusion could be formed without a minute knowledge of the attendant circumstances, such as is now impossible to the arbitrators, and unattainable even by Her Majesty’s government. How little support is to be found in the history of the United States themselves for the application of so rigorous a standard has been sufficiently shown in an earlier portion of this Counter Case. Indeed, we need not go beyond the facts immediately before us. Is the Government of the United States willing to be charged with gross negligence on the ground that the captain of the Tuscarora was lying idle at Southampton or sailing in St. George’s Channel when he ought to have been off the Mersey?

[87] Her Majesty’s government forbear, therefore, to detain the arbitrators by an examination of the minor inaccuracies which occur in this part of the Case, and will refer to only one or two of them. It is said that the collector knew on the 30th of an “admitted recruitment” of men, and that the commissioners of customs knew of it on the following day and “took no notice” of it.1 There was, however, no admitted recruitment, in the sense of an unlawful enlistment of men, in the port of Liverpool. There was nothing to show that the men were not hired for the mere purpose of navigating an unarmed vessel; and it has since proved that they really were so. No enlistment took place until after the vessel reached the Azores, when some agreed to take service and some refused.2 If, therefore, they had been taken before a magistrate at Liverpool, they must have been released. It is said that the revenue officers at Liverpool permitted the ship to remain unmolested in British waters during nearly two days, when they were or should have been cognizant of *it. Whither she had gone was, in fact, quite unknown until the master of a tug-boat reported that she had been cruising off Point Lynas, about fifty miles from Liverpool. It is said that at the time when this report was received, the collector had received orders to stop the vessel. If this was so, he had not the means of immediately seizing a ship fifty miles away, off the coast of Wales. It is said that her departure from the Mersey was “hastened by the illicit receipt of intelligence of the decision of the government to stop her.” It is difficult to understand how this could have been the case, since the decision of the government to stop her was not formed till [Page 318] after the report of the law-officers, which was only received on the 29th-and if it had been so, the British government could never be held responsible for the treachery of some unknown subordinate, who may have become informed of their decision, or may have anticipated that it would be made.

Her Majesty’s government maintains that claims in respect of the Alabama must be supported, if at all, solely and entirely by a clearly ascertained failure of duty, for which the government itself can justly be held responsible, and that the failure of duty must be such as can with propriety be made the subject of a serious international complaint.

To found a complaint or claim, wholly or in part, on the asserted fact that a government would not act against persons or property within its dominions without “strict technical evidence,” either means nothing or means that the rules which civilized states have found necessary in the domestic administration of justice, for the protection of private rights and of persons wrongfully accused, are to be set aside in cases of international controversy. International law would then become a pretext not only for interfering with the internal arrangements of different countries in matter of legal procedure, but for drawing back society to the use of those less safe means for the enforcement of rights which, in the course of its progress, it has found reason to exchange for other and more equitable means.

To found a charge of neglect on the lapse of so short an interval as occurred in the case of the Alabama between the production of evidence and the decision that it was sufficient to act upon, is to lay down an impracticable standard of human conduct. It is a demand that the conduct of a government with its various departments, with modes of action which are of necessity methodical, and more or less complex, shall proceed with a mechanical precision which is not applicable to the practical business of life. Where nice considerations of right, as between parties having opposite interests, have to be weighed, the application of such a principle is palpably unreasonable; yet on what other principle can it be maintained that the time taken between Friday, the 25th, and Tuesday, the 29th July, for the joint action of the foreign office and the law-officers was so plainly excessive that it may justly be made a ground for formal condemnation? Does it not rather carry with it presumptive evidence of good faith?

As to the subsequent arming of this vessel in the waters of the Azores, Her Majesty’s goverment is content to refer the arbitrators to the statements contained in the British Case. They are told, indeed, in the Case of the United States, that she was “armed within British jurisdiction,” which is explained as meaning that the armament intended for her was sent from the same port as the ship herself. It is added that “the British authorities had such ample notice that they must be assumed to have known all the facts.” If by this it be meant that the government or its officers had any notice of the dispatch of the Alabama’s armament, the fact is otherwise; if the meaning be that,, because they knew of the building of the ship, they must be assumed to have known the arrangements for arming her, (of which they, as well as the minister and consul of the United States, were, in fact, totally ignorant,) this, to say the least, would be a presumption of a very strange and unusual kind.

[88] As to this point, it is enough to repeat here what was said in the Case of Great Britain. The Alabama sailed from England wholly unarmed, and with a crew hired to work the ship, and not enlisted for the confederate service. She received her armament at a distance of more [Page 319] than 1,000 miles from England, and was armed for war, not within the Queen’s dominions, but either in Portuguese waters or on the high seas. The guns and ammunition, which were put on board of her off Terceira, had been procured and exported from England in an ordinary merchant-steamer, which loaded them as cargo, and sailed with a regular clearance for Nassau. The clearance and departure of this steamer presented, so far as Her Majesty’s government is aware, no circumstance distinguishing her from ordinary blockade-runners. No information was ever given or representation made to the government as to this ship or her cargo before she left British waters; nor does it appear that the errand on which she was employed was known to or suspected by the officials of the United States. But, even had a suspicion existed that her cargo was exported with the intention that it should be used, either in the Confederate States or elsewhere, in arming a vessel which had been unlawfully fitted in England for warlike employment, this would not *have made it the duty of the officers of customs to detain her or have empowered them to do so. Such a transaction is not a breach of English law, nor is it one which the British government was under any obligation to prevent. Whether the cargo was sent from the same port as the ship or from a different port, and by the same or different persons, is manifestly immaterial for this purpose. The distinction is plainly not such as to create in the one case a duty which would not arise in the other.

The Alabama was commissioned by the government of the Confederate States and officered by American citizens. Of the crew a considerable number were British subjects, who were induced by persuasion and promises of reward to take service in her when she was oft” Terceira. Others were American citizens, and the proportion which these bore to the rest increased during her cruise.

Her Majesty’s government refrains, in the case of this vessel, as in that of the Florida, from pursuing in this place the complaints made respecting the subsequent admission of her into some of the colonial ports of Great Britain. It is said, indeed, in the Case of the United States, that Earl Russell promised Mr. Adams to send orders to Jamaica (which she visited in January, 1862) to detain her for a violation of British sovereignty, and that this promise was not kept; and that “Great Britain did not, as Earl Russell had promised, send out orders for her detention,” is one of the grounds on which the United States ask an award against this country. Earl Russell gave no such promise. In a conversation with Mr. Adams, immediately after she left Liverpool, and at a time when her immediate destination was unknown, he is stated to have told the latter that he “should send directions to have her stopped, if she went, as was probable, to Nassau.” Orders to this effect were, in fact, sent. But the contingency contemplated as probable did not occur; the ship, as has been seen, did not go to Nassau, but to Terceira; and when she first appeared in British waters she was a commissioned ship of war, and had been received as such in a French port, as she afterward was (notwithstanding the remonstrances of the United States) in ports of Brazil. It was not the duty of the British government or of any other neutral power to cause her to be seized and detained when she entered its ports in that character. She was received there under precisely the same conditions as vessels of war of the United States, and the imputation of partiality which is cast, in the Case of the United States, on the governor of the Cape Colony, is entirely devoid of foundation. Nor is it necessary to enter into the complaints laid before Her Majesty’s government by Mr. Adams respecting [Page 320] acts done by the commander of the Alabama on the high seas. Mr. Adams does not seem to have remembered that a sentence of condemnation is not necessary where there is no neutral interest in ship or cargo; nor that the practice of using false colors to approach an enemy is regarded in all navies as allowable, provided the true flag be hoisted before a shot is fired. Her Majesty’s government is not, however, concerned to defend the conduct of the captain of the Alabama, when out of its jurisdiction, in these or any other particulars. Whatever it may have been, Great Britain is not responsible for it; and if it furnished any reason against the admission of his ship into British ports, it would have been equally valid against her reception in the ports of France and Brazil.

It will have been observed from the foregoing statement, as well as from the fuller narrative which Her Majesty’s government has previously presented to the arbitrators, that the cases of the Florida and Alabama differ from one another in various more or less important particulars. But Her Majesty’s government again submit that neither in respect of the Alabama nor in respect of the Florida is Great Britain chargeable with any failure of international duty for which reparation is due from her to the United States.

  1. British Case, p. 51.
  2. Case of the United States, pp. 332 et seq.
  3. Appendix to Case of the United States, vol. vi, p. 214.
  4. Ibid., p. 215.
  5. Ibid., p. 216.
  6. Ibid., pp. 220, 221.
  7. Mr. Seward had, however, informed Mr. Adams, in August, 1861, that Bullock was said to be in Europe, and to have contracted for ten war steamers, (vol. vi, p. 33.) According to the Case of the United States, Bullock was in the Confederate States from the autumn of 1861 until immediately before the Florida sailed, (p. 334.)
  8. Case of the United States, vol. vi, p. 222.
  9. Ibid., p. 223.
  10. Pages 53 et seq.
  11. Appendix to British Case, vol. ii, p. 133.
  12. This error is probably due to an oversight arising from a misconception as to the meaning of certain blanks in a common printed form of clearance. (See Case of Great Britain, pp. 56, 57.)
  13. Case of the United States, p. 341.
  14. Appendix to British Case, vol. i, p. 14.
  15. British Case, pp. 61, 62; Appendix to ditto, vol. i, pp. 16, 18.
  16. Appendix to British Case, p. 20.
  17. Case of the United States, p. 342.
  18. Appendix to British Case, vol. i, pp. 23,27.
  19. Ibid., p. 28.
  20. Case of the United States, p. 344.
  21. Ibid., p. 347.
  22. Appendix to British Case, vol. v, p. 19.
  23. It is stated in the Case of the United States, as if it had some importance, that the Florida lay outside with a hawser attached to one of Her Majesty’s ships of war. The simple explanation of this trivial fact is as follows: The Peterel, a Queen’s ship, was then lying in the harbor, and two United States ships of war were also there. The commander of the Peterel, at the governor’s request, crossed the bar to offer these vessels the customary hospitalities of the port, which they declined, proceeding soon afterward to sea. The Peterel remained anchored outside the bar, in consequence of the lateness of the hour or the state of the tide. A boat soon afterward came to her from the Florida, (then known as the Oreto, and under British colors,) with a request, of which the following account is given by the officer who was then in command of the Peterel:

    “A man, who stated he was the master in command of the Oreto, said he was very short-handed, and wanted to anchor for about two hours to adjust his machinery, but if he anchored outside he had not sufficient crew to weigh his anchor, and begged I would assist him by lending him men. I declined lending him any men; but told him he might hold on astern of the Petrel, and I would give him a line for that purpose.

    “About 6.30 or 7 p.m., having seen the Oreto fast, holding on by one of our hawsers, I went down to dinner; and when I came on deck again she was gone.

    “I had told the master that she must go out of our way before the tide started.

    “This small act of courtesy I considered a duty that I should have extended to any ship, British or foreign, and, until the receipt of your communication, never gave it a second thought; in fact, I must have thought it too trivial to mention in my letter of proceedings which at that time were full of matter of the greatest interest.

    “In conclusion I may remark that the only reason I had for refusing to send men on board was in consequence of the prevalence of yellow fever in the merchant shipping at Nassau, and I had prohibited all communication, so far as practicable, with them.”

  24. Appendix to British Case, vol. i, pp. 82–90.
  25. Case of Great Britain, pp. 67–78.
  26. Case of the United States, p. 366.
  27. Appendix to ditto, vol. iii, pp. 1–3; vol. vi, p. 377.
  28. Ibid., vol. iii, p. 5; vol. vi, p. 376.
  29. Ibid., vol. iii, p. 18; vol. vi, p. 384.
  30. Ibid., vol. iii, p. 145; vol. vi, p. 435.
  31. Appendix to British Case, vol. v, pp. 204–219.
  32. The answer of Mr. Fisk to the Spanish envoy, in December, 1870, has been already referred to above, (p. 46.)

    “The undersigned takes the liberty to call the attention of Mr. Lopez Roberts to the fact that a district attorney of the United States is an officer whose duties are regulated by law, and who, in the absence of executive warrant, has no right to detain the vessels of American citizens without legal process, founded not upon surmises, or upon the antecedent character of a vessel, or upon the belief or conviction of a consul, but upon proof submitted according to the forms required by law.”

    There are several examples of this in the correspondence of the Government of the United States with Spain and Portugal. (Appendix, vol. iii, p. 95.)

    The following letters, exchanged between the Spanish consul at New York and the United States district attorney in 1817, afford a convenient instance. (Ibid. p. 119.)

    Mr. Stonghton to Mr. Fisk.

    “Consulate of Spain,
    “New York, September 16, 1817.

    “Sir: Some days ago there arrived in the port of New York an armed brig, proceeding from Norfolk, which I have been very credibly informed is a vessel pretending to have a commission from Venezuela, but whose object in coming into this port was to procure an additional supply of men wherewith to commit hostilities against the subjects and possessions of the King of Spain. A few days ago I presented to the collector of the port of New York an affidavit of a man named John Reilley, stating that he had been requested to enlist on board of a vessel, which was represented to him to be the privateer schooner Lively, bound to Amelia Island to join General McGregor, to invade the territories of his Catholic Majesty.

    “I am now informed that the brig above mentioned is the vessel alluded to, Reilley having either been mistaken in the name or designedly deceived by the agents of the privateer. I now inclose the affidavit of John Finegan, by which you will perceive that the officers of the above brig (whose name is the American Libre, commanded “by Captain Barnard) are enlisting, and have enlisted, men in this port to proceed against the Spanish possessions. I have caused application to he made to the collector, who doubts the extent of his authority in interfering with this vessel. Now, as there must be provisions in the laws and treaties of the United States vesting an authority in some of its officers to prevent the equipment of vessels and the enlistment of men in the United States, to proceed against a foreign nation at peace with the United States, I make this application to you, most urgently requesting you to take whatever measures may be necessary immediately, in order to prevent the departure of the above vessel, at least until she shall give bonds that she will not commit hostilities against Spanish subjects. The vessel, it is said, will sail to-morrow morning.

    “Indeed, if an inquiry were instituted, I am induced to believe the above brig will he found to be a pirate.

    “I have, &c.,


    thomas stoughton.”

    Affidavit of John Finegan.

    “September 16, 1817.

    “State of New York, ss:

    “John Finegan, at present in the city of New York, being duly sworn, saith that he was requested by a man, who is represented to be the commissary of the vessel next mentioned, to go out in the Patriot, brig, now lying at the quarantine ground; that the destination of the said vessel is to fight against the Spaniards; that the deponent was told that on his arrival in Spanish possessions he was to join the land service of the patriots; that deponent knows of five persons who have been engaged in like manner, who are about to proceed on board the said brig; that deponent was told that as soon as he gets on board he will receive his advance; that officers are at present employed in the city of New York in looking out for men, and endeavoring to enlist them to proceed in the said vessel.


    “JOHN his + mark. FINEGAN.

    “Sworn this 16th day of September, 1817, before me.

    samuel b. romaine.”

    Mr. Stoughton to Mr. Fisk.

    “Consulate of Spain,
    “New York, September 17, 1817.

    “Sir: I inclose the deposition of John Reilley, relating to the privateer brig, about which I yesterday had the honor to address you. You will perceive by the affidavit that officers belonging to that brig are openly employed in this city in recruiting and enlisting men to join with General McGregor, and invade the possessions of the King of Spain.

    “I need not remind you that, by the existing laws of the United States, these enlistments are unlawful, and that not only the vessel on board of which they are to embark is liable to seizure and forfeiture, but that the captain and the officers thereof, who are engaged in this business, are liable to a heavy fine and imprisonment. As these are flagrant violations of the laws of the United States, and calculated to produce serious injury to the possessions of His Majesty, and to the property of his subjects, 1 flatter myself that you will take, without delay, such steps as may be necessary to put a stop to these proceedings.

    “I have, &c.,


    thomas stoughton.”

    Deposition of John Reilley.

    “September 9, 1817.

    State of New York, ss, City of New York, ss:

    “John Reilley, at present in the city of New York, mariner, being duly sworn, saith, that some days ago deponent was requested to embark on board of a vessel which was said to be lying at the Narrows, in the Bay of New York, for the purpose of going to join General McGregor, and to fight against the Spaniards; that after he arrived at Amelia Island he might either join the land service or the naval service; that deponent would be paid as soon as he got on board; that several persons were engaged in looking out for recruits to proceed upon the same service, and many men were spoken to for the purpose. Deponent was then informed that the vessel was the privateer schooner Lively, but has since learned that it was a mistake, and that the vessel in question is the patriot brig Americano Libre, Captain Barnard, which is lying at the quarantine ground, and is armed with several large guns and many men; that several persons who are officers, captains, lieutenants, and so forth, are at present employed in recruiting men to join that service, and proceed in the said brig to Amelia; that many hands have already been bespoken, and are now waiting for money which has been promised to them; that the offers made to them are to give them $8 a month and clothing, together with $10 or $12 in advance. Deponent supposes that the officers above mentioned were in treaty with about twenty persons, who were to go on board as soon as their advance was paid to them, and which the said officers told them would be during the course of the day; among the officers there is one who is called a general. That the above men were told, in deponent’s presence, by the officers who were enlisting them, that they were principally wanted to join the land service against the royalists, And further “the deponent saith not.


    john reilley.

    “Sworn this 10th day of September, before me.

    francis r. tillon,
    “Notary Public.”

    Mr. Fisk to Mr. Stoughton.

    “New York, September 17, 1817.

    “Sir: I have duly received your notes of yesterday evening and of this day, and have referred to the statutes providing for the punishment of the offenses stated. It is not a case, from the evidence mentioned, that would justify the collector in detaining the vessel; the aggression is to be punished in the ordinary mode of prosecuting those who are guilty of misdemeanors. Oath is to be made of the facts by the complainant, who enters into a recognizance to appear and prosecute the offenders before any process can issue. This oath being made, and recognizance taken, the judge of the circuit court will issue a warrant to apprehend the accused, and bring them before him, to be further dealt with according to law. When apprehended, it is the province of the attorney of the United States to conduct the prosecution to judgment. I have no authority to administer an oath, or to issue a warrant, nor have I the power to issue any process to arrest and detain the vessel in question, unless by the direction of an executive officer of the United States. By the reference you have furnished, the parties complained of are to be prosecuted either under the 4th section of the act of Congress passed on the 3d of March, 1817, or under the 2d section of the act passed 5th June, 1794. By adverting to these statutes, it will be seen that the vessel is not liable to seizure for the act of any person enlisting himself to go on hoard, or for hiring or retaining another person to enlist; the punishment is personal to the offenders; and those who disclose the fact, on oath, within thirty days after enlisting, are protected from prosecution. The offenders are to be arrested and prosecuted in the manner I have stated. I beg you to be assured, sir, that it is not from a disposition either to shrink from the performance of my duty, or to decline interfering to defeat any illegal enterprise against the subjects or possessions of a power with whom the United States are at peace, that I have stated to you the embarrassments I must encounter in attempting a compliance with your request upon any information with which I am furnished. If it is in your power to procure the names of the parties, and the evidence upon which a prosecution for a misdemeanor can be founded, I will readily co-operate with the proper authorities in having every offender arrested and brought to justice. It is impracticable for me, or any other officer of the United States, to take any legal measures against aggressors, upon the indefinite statement of certain persons being concerned in an illegal transaction. Since the receipt of your notes, I have had an interview with the collector, and we are unable to discover any other legal course of proceeding in this case than that adopted in the ordinary cases of misdemeanors.

    “I have, &c.,


    jonathan fisk.”

    The Spanish consul rejoined by a warm remonstrance. The expedition appears to have been permitted to sail unmolested.

  33. British Case, p. 83; Appendix, vol. î, p. 181.
  34. British Case, page 84; Appendix, vol. i, p. 184.
  35. Appendix to Case of the United States, vol. iii, p. 17; vol. vi, p. 383.
  36. Ibid., vol. iii, p. 21; vol. vi, p. 391.
  37. British Case, p. 91.
  38. Appendix to Case of the United States, vol. iii, p. 21; vol. vi, p. 396. Reference has already been made above (p. 82) to the answers given in a like sense by Mr. Fish, to the Spanish minister in December, 1870, and by Mr. Fisk to the Spanish consul in 1817.
  39. Page 371.
  40. Appendix to British Case, vol. i, p. 194.
  41. Ibid., p. 198.
  42. Ibid., p. 200.
  43. Some stress is laid, in the Case of the United States, (pp. 368, 374,) on a statement in a report by the commissioner of customs to the treasury, that the revenue officers at Liverpool should “watch” the ship. This is construed into a promise to Mr. Adams himself that she should be watched to prevent her departure; and he is said to have relied upon it, and to have been indignant when the authorities “failed to redeem their voluntary promise.” Mr. Adams, however, knew well that, although the ship might he “watched” by the officers to ascertain whether she took arms on board, (the context shows that this was meant,) nothing but an actual seizure could legally prevent her from sailing.
  44. The illness of the Queen’s advocate; British Case, p. 118.
  45. Case of the United States, p. 377.
  46. See the affidavit of Redden, Appendix to Case of the United States, vol. vi, p. 422.