Part X. Conclusion.

recapitulation of the argument for great britain.

Part X.—Conclusion.
Recapitulation of the argument for Great Britain.
Her Majesty’s government has deemed it convenient, both in the Case which it has previously presented, and in this Counter Case, to place before the arbitrators, as clearly as possible, the nature and general limits of the questions which they are about to decide.

The comparatively novel character of these questions, the importance of them, the number and variety of the facts which may be supposed to bear on them, appeared to make this course not only convenient, but necessary; and the necessity has been enhanced by a circumstance peculiar to this controversy. The war which commenced in April, 1861, and ended in May, 1865, was a civil war; and it was hard, even for a government which had again and again proclaimed itself neutral in similar contests occurring elsewhere, to reconcile itself to the assumption, in its own case, of the same attitude by other nations. Every occasion on which that neutrality had to be practically asserted was painful, and perhaps naturally painful, to the United States. But neutrality, in a war wholly or partly maritime, is not, and cannot be, as regards maritime powers, a merely negative condition. States, the most remote from the principal theater of hostilities, may yet, through their shipping, or their colonial possessions, be brought into contact with those hostilities in various parts of the world, and questions will thus arise which cannot be avoided or put aside by mere inaction. In the case of Great Britain, the points of contact, and therefore the occasions of complaint, were greatly multiplied by the diffusion of her maritime interests, the magnitude of her commercial marine, the number of her colonies, the activity of her manufacturing industries, and the almost unbounded liberty which her laws allow to trade. The feelings of annoyance which the impartial neutrality of Great Britain excited, in many ways, and under many circumstances, in the Government and people of the United States, were, it was hoped by Her Britannic Majesty’s government, almost, if not quite, forgotten; these were matters, at all events, which neither this government, nor probably any other, would have thought it right to refer to any arbitrators, however carefully selected. But the claims which are submitted to the tribunal are of a different character. The United States believes them just; Great Britain believes them erroneous. Both nations agree in regarding them as proper to be referred to an independent and impartial decision. Hence, the importance of separating these claims from the various matters of complaint or causes of dissatisfaction with which they were long associated in the diplomatic correspondence of the American Government and in the minds of the American people; and of keeping plainly [Page 370] and steadily in view the questions with which the tribunal has actually to deal, and the facts and arguments which are properly and directly relevant to those questions.

Adhering hrmly to this distinction, Her Majesty’s government has, at the same time, not declined to meet and argue, within the limits prescribed by its own self-respect, and by its view of the proper scope of the reference to arbitration, the wider issues which the United States have thought proper to raise.

Endeavors were made on the part of the United States to show that, in various matters which are not referred to the arbitrators, the British government had permitted violations of its neutrality in favor of the Confederate States, while it had been rigorous in refusing to the United States the enjoyment of corresponding advantages. The arbitrators were asked to draw from hence a conclusion, which it was desired they should apply to the questions actually submitted to them for adjudication.

[125] These complaints related substantially to the traffic in arms and munitions of war, and other articles of commerce, carried on with southern ports, from ports within the British dominions, and particularly from and through that of Nassau. The United States insisted also on the fact that the confederate government had agents in England for the purchase of what it required, and employed, as financial agents, a mercantile house in this country, to whom they remitted specie and cotton, and through whom their payments were made. *But, on the part of Great Britain, it has been clearly proved that all these complaints are groundless. It has been shown that the United States, equally with the Confederate States, resorted to England for necessary supplies of arms and munitions of war, and that they also had their agents here for making purchases, as well as for their financial transactions and for the disbursement of money. It has been shown that the traffic carried on with the two communities (which, for the time, they were) differed solely in incidental circumstances, which were the natural result of the overwhelming superiority at sea possessed by the United States, and which imposed no peculiar duties on the government of Great Britain; that in all these matters no favor or accommodation was accorded to one which was denied to the other; and that the real substance of the complaints of the United States is, that Great Britain declined to assist by active interference the more powerful belligerent, and to thwart the endeavors of the weaker to obtain the necessary supplies, and that she from first to last persevered in holding an even hand between the two. It short, it is not that she departed from impartial neutrality in favor of the confederacy, but that she refused to depart from it in the interest of the United States. If, therefore, from this part of the conduct of Her Majesty’s government, a presumption is to be applied to any other part, the legitimate presumption is, not that the government would be discovered to deviate from the line of an impartial neutrality, but that it would scrupulously and steadily adhere to that line.

Is, then, this presumption found to fail, when we approach the questions which are really before the arbitrators, and which relate exclusively to the particular vessels enumerated in the Case of the United States? Her Majesty’s government maintains that it is not. In the Case which it has presented, and in this Counter Case, the British government has fully stated to the arbitrators the measures adopted to prevent the equipment in its ports of belligerent ships of war, and the departure from its ports of vessels specially adapted for warlike use and [Page 371] intended for the naval service of either belligerent; explaining at the same time the peculiar difficulties which, in a country like Great Britain, must always attend the enforcement of such a prohibition, the powers with which the government was armed by law, and the restraints which the law imposed on it—restraints judged expedient in England for the due security of property and civil liberty and for the proper administration of justice. All the cases of alleged or suspected equipment or warlike adaptation which occurred during the war have been stated in order to the arbitrators; and they have thus been enabled to take a connected view of the manner in which these cases were dealt with by the government, and the general course which it followed in regard to them.

In connection with this part of the subject the question naturally arises, what measure of care or diligence can reasonably be expected in matters of this kind from a neutral government—or, to speak more exactly, ought to be held due from such a government as a matter of international obligation. The United States have attempted to furnish a definition of this, which to the British government appears not only to fail as a definition, but to exact more than neutral powers could safely or rightly concede, and much more than has ever been practiced by the United States themselves. In illustration of this, and for no purpose of recrimination or reproach, it has been found necessary to refer to the past and recent history of the United States, not only as being the power which now produces this very strict definition of due diligence, but as the country which has been the principal seat and source of enterprises, such as those for which it now seeks to make Great Britain responsible. It has been necessary to exhibit the striking contrast between the course of the American Government in dealing with enterprises against friendly states within its territory renewed again and again, and always with impunity, during a long series of years, and the iron rigor of the rules it now seeks to enforce against Great Britain, the perfection of administrative organization it seeks to exact from her. The views of Her Majesty’s government as to what constitutes a reasonable measure of diligence or care have, in its Case and Counter Case, been stated in general terms. But this government has refrained from the attempt, in which the United States, as it conceives, have failed) and it has left the arbitrators to judge of the facts presented to them by the light of reason and justice, aided by that knowledge of the general powers and duties of administrative government which they possess as persons long conversant with public affairs.

[126] Proceeding to the several cruisers to which the claims of the United States relate, Her Majesty’s government has been compelled to observe, in the first place, that an award against Great Britain as to any one or more of them could not be supported by broad general allegations, but must be founded on some specific failure or failures of duty alleged and proved in respect of that ship or those ships; in the second place, that, in deciding whether a failure of duty was or was not committed, the arbitrators have to consider, not what has since been discovered, or what the members of the tribunal now know respecting *these ships, but the information which the British government actually possessed, or, by the exercise of reasonable care, ought to have possessed, at the time. They have to place themselves in the situation in which this government then was, in order to judge fairly whether it failed in the performance of its duties. As to each vessel, the original outfit of which is made matter of complaint, they have to be satisfied, first, that she was, in fact, armed, fitted out, or equipped for war within [Page 372] the British territory, or specially adapted within it to Avarlike use secondly, that the Queen’s government had reasonable grounds to believe that she was intended to cruise or carry on war against the United States; thirdly, that, having such reasonable ground of belief, the government did not use due diligence to prevent her equipment, or else to prevent her departure. It is not enough to prove one of these things, or two; it is necessary to prove all three of them. It has been further pointed out that, when we speak of a government having reasonable grounds of belief, (the matter in question being the prevention of an apprehended act by the enforcement of a law,) we mean that it has more than a suspicion founded on general rumor or mere probabilities; that it has reasons, which can be exposed in due time to the test of judicial inquiry, for such a belief as is sufficient to justify it in setting the machinery of the law in motion.

In the case of the Alabama it has never been denied by Great Britain that she was a vessel specially adapted by her construction for warlike use, nor that she was thus constructed in a British port. Nor is it denied that, at the time of her departure from England, the government had obtained reasonable ground to believe that she was intended for the naval service of the Confederate States. But it has been shown that this necessary information was not put into the possession of the government or its officers by the minister or consul of the United States until a very short time before the departure of the ship, either through a want of due diligence on their part, or (which is more probable) because they had not, up to that time, been able to procure it themselves. It has been shown, also, that no time was lost by the government in consulting its legal advisers as to the sufficiency and credibility of this evidence, which was a question of reasonable doubt; and that the order for detention which, in the event, came too late, was deferred only till their opinion should be obtained. It has been shown further that the information possessed *by the government related solely to the vessel herself, which was known to be unarmed, though adapted by her construction for war. Of the intended dispatch of arms for her nothing was known to the government; nothing was known—certainly nothing was communicated—by the officials of the United States. Her Majesty’s government submits to the arbitrators that, on the facts stated and proved, no failure of duty has been established against Great Britain in respect of which compensation ought to be awarded to the United States.

In the case of the Florida it has been shown that the British government had not, at or before the time of her departure from England, any reasonable ground to believe that she was intended to cruise or carry on war against the United States, and that no information on which a reasonable belief could be founded had, up to that time, been produced by Mr. Dudley or Mr. Adams. It has been further shown that she was seized at the Bahamas by the authority of the colonial government; and, after a fair, open, and regular trial in a court of competent jurisdiction, was released by judicial decree. And it has been likewise shown that the cruise in which all her prizes were made was commenced from the confederate port of Mobile, in which port she was manned and fitted out for that cruise. Her Majesty’s government submits therefore that, in respect of this ship, no failure of duty has been established against Great Britain on account of which compensation ought to be awarded to the United States.

In the cases of the Georgia and Shenandoah, it has been shown that neither vessel was armed, fitted out, or equipped for war, or specially [Page 373] adapted, either wholly or in part, for warlike use within British territory; and, further, that Her Majesty’s government had not, at the time when they respectively left England, any reasonable ground to believe that they, or either of them, were or was intended to cruise or carry on war agaiust the United States. Efforts have, it is true, been made to show that the Shenandoah was enabled to ship a considerable addition to her crew at Melbourne, by the connivance or culpable negligence of the colonial authorities; but this charge, which has nothing to do with the original outfit of the ship, and is one which from its nature would require to be supported by the clearest evidence, is not so substantiated, and is, on the contrary, disproved by the facts. No failure of duty has been established against Her Majesty’s government in respect of either of these vessels.

[127] In the case of the Tallahassee amd Chickamauga, it has been seen that no failure of duty has been even alleged, much less proved, against Great Britain. These vessels were built, indeed, in England, but they were built and used as ships of commerce; it was by *an after-thought that they were armed for war; and their employment as ships of war lasted but a few weeks in the one case, and but a few days in the other. They were armed in, and dispatched from, a confederate port, and to the same confederate port they returned.

The Sumter and Nashville were not even built in the Queen’s dominions, and in respect of their original outfit, nothing is or can be alleged against Her Majesty’s government. Setting aside some other minor complaints, which will not bear a moment’s examination, it is suggested only tht they received in British ports such hospitalities as were extended to confederate vessels in general in the ports of neutral nations.

In the case of the Retribution, the facts alleged show nothing more than that her commander contrived on one occasion, by fraudulently personating the master of a prize captured by him, and concealing the fact that she was a prize, to dispose of the cargo in a small island of the Bahama archipelago, remote from the seat of government; and that, on another occasion, by means of a fraudulent conspiracy with a party of “wreckers,” he managed to carry a prize into the same place and to extort, through the wreckers, from her master and owners a ransom, under pretense of salvage. These facts, if proved, establish no failure of duty against Great Britain.

Her Majesty’s government deems itself entitled to observe that the later cases in this list throw a strong light upon the earlier ones. They show very clearly what are the views of international obligation and international justice on which the claims of the United States are founded. If Great Britain is liable for the captures of the Tallahassee and Chickamauga, what necessity is there for endeavoring to show.that, in those of the Florida and Alabama, the British government had reasonable ground to believe, or even to suspect, the existence of an unlawful intention? If she is liable in those of the Sumter and Nashville, it is superfluous to prove even equipment or construction in British territory. If she is liable for the Retribution, what need, it may be asked, of any definite charge, of any proof or evidence at all?

It must not be forgotten that, besides the various cruisers in respect of which claims are now made by the United States Government against Great Britain, there were at least ten others which were fitted out and sent to sea from confederate ports in the course of the war, (the Calhoun, Jefferson Davis, Savannah, Echo, Saint Nicholas, Winslow, York, McRae, Judah, and Petrel;) and that by at least eight of these depredations were committed upon the merchant shipping of the United [Page 374] States.1 There were also the Boston and the Sallie, which are included (without any apparent reason) in the summary of claims contained in volume vii of the Appendix to the Case of the United States, but of which, in the case itself, no mention is made.

It will not have escaped the notice of the arbitrators that the cases of the Florida and Alabama occurred at a very early period of the war. That of the Florida occurred in the first year of it; that of the Alabama very soon afterward, and before the true character of the Florida, or the purpose for which she was destined, was or could be known in England. In dealing with a charge of negligence brought by one nation against another, this is a material fact. A government which finds itself compelled, by the outbreak of civil war in another country, to assume the character of a neutral, must learn, by practical experience, the necessity for various measures of precaution which were never called for before. The United States, therefore, find it necessary to allege more than this, and to charge the British government with a want of promptitude and activity continued after circumstances had proved this need of unusual precautions. And, in connection with this charge, and as a proof of it, they have dwelt on the fact that no alteration was made, during the war, in the laws of Great Britain, although the Government of the United States is alleged to have asked that these laws might be made more effective.

Her Majesty’s government has to observe upon this point that the United States have failed, or forborne, to point out wherein the law of Great Britain required alteration, and this for a very plain reason.

[128] The law of Great Britain on this subject was stricter and more comprehensive in oine of its prohibitions, and more severe in some of its penalties, than the corresponding law of the United States; and, except in those points in which the British law was of superior efficiency, both were substantially the same. The first suggestion of any alteration of the law proceeded, not from Mr. Adams, (who, in the case of the Alabama, had stated, on the 9th October, 1862, that he based his representations “upon evidence which applied directly *to infringements of the municipal law itself, and not to anything beyond it,”)2 but from Earl Russell, who, on the 19th December, 1862, wrote thus to Mr. Adams:

I have the honor to inform you that Her Majesty’s government, after consultation with the law-officers of the Crown, are of opinion that certain amendments might he introduced into the foreign-enlistment act, which, if sanctioned by Parliament, would have the effect of giving greater power to the executive to prevent the construction, in British ports, of ships destined for the use of belligerents. But Her Majesty’s government consider that, before submitting any proposals of that sort to Parliament, it would be desirable that they should previously communicate with the. Government of the United States, and ascertain whether that Government is willing to make similar alterations in its own foreign-enlistment act, and that the amendments, like the original statute, should, as it were, proceed pari passu in both countries. I shall accordingly be ready to confer at any time with you, and to listen to any suggestions which you may have to make, by which the British foreign-enlistment act and the corresponding statute of the United States may be made more efficient for their purpose.3

This communication was courteously received by the Government of the United States, which professed themselves to be willing to consider any propositions which the British government might desire to make; but they offered no suggestion on their own part. On the contrary, Mr. Adams distinctly stated to Earl Russell, on the 14th February, 1863, [Page 375] that they did not see how their own law on this subject could be improved;” (or, as Mr. Adams reported the same conversation to his own Government, that “the law of the United States was considered as of very sufficient vigor.”)1 Earl Russell then rejoined, that the administration of which he was a member had, on more mature consideration, come to a similar conclusion; and “that no further proceedings need be taken at present on the subject.”

On a later date (27th March, 1863,) Lord Russell told Lord Lyons that the subject had again been mentioned:

With respect to the law itself, Mr. Adams said, either it was sufficient for the purpose of neutrality, and then let the British government enforce it, or it was insufficient, and then let the British government apply to Parliament to amend it. I said that the cabinet were of opinion that the law was sufficient; but that legal evidence could not always be procured.2

On another occasion Lord Russell gave Mr. Adams an answer substantially the same as Mr. J. Q. Adams, as Secretary of State, had returned to a similar suggestion made by the minister of Portugal: “The Alabama has avoided seizure through the inadequacy of the evidence, not through a defect in the law.”

The correspondence between the two governments prior to the termination of the war does not justify the statement made at page 113 of the Case of the United States, that “the United States repeatedly, and in vain, invited Her Majesty’s government to amend the British foreign-enlistment act.” The only foundation for that statement appears to be that Mr. Adams, in a letter to Earl Russell of the 20th May, 1865, spoke of “the inefficiency of the law “on which the British government relied; and of “their absolute refusal, when solicited, to procure additional powers to attain the object.”3 Nor was it until the 18th September, 1865, (when the war was over,) that Mr. Adams suggested to Earl Russell that there were certain of the “main provisions “of the law of the United States on this subject, viz, “those very same sections whicb were originally enacted in 1817, as a temporary law, on the complaint of the Portuguese minister, and made permanent in that of 1818,” whicb were not found in the law of Great Britain; adding, “It is in these very sections that our experience has shown us to reside the best preventive force in the whole law.”4 To this suggestion a very conclusive reply was made by Earl Russell on the 3d November, 1865, (the accuracy of which has since been admitted even by American writers most strenuous in their advocacy of the claims against Great Britain,) viz, that the sections of the American acts of 1817 and 1818 referred to by Mr. Adams, which are commonly known as the “bonding clauses,” “proved utterly inefficacious to prevent the fitting out of privateers at Baltimore,” and were also so strictly limited to “armed” vessels, or vessels carrying a cargo “consisting principally of arms and munitions of war,” as to be wholly inapplicable (even if they had been in force in Great Britain) to the Alabama, Florida, Georgia, Shenandoah, and vessels of that class.5

[129] Under these circumstances no alteration was attempted to be made in the law of Great Britain on this subject during the war, when it might have been attended with serious difficulties, and might have been objected to as inconsistent with neutrality. Her *Majesty’s government believed that the existing law would be [Page 376] found sufficient in all cases in which evidence of its infringement might he forthcoming, to stop those enterprises, of which the United States had a right to complain; and the result was not such as to disappoint its expectations.

After the close of the war, Lord Clarendon, in a dispatch to Sir F. Bruce, December 26, 1865, made a new overture to Mr. Adams for the adoption, concurrently by both nations, of measures calculated to bring about such improvements in the code of international law, as experience might have shown to be necessary. “Mr. Adams,” he reports, “in reply said, that the law of England, in its international application, stood greatly in need of amendment, but he gave me no encouragement to expect that his Government would co-operate with that of Her Majesty in the course of proceeding which I had suggested.”1

Afterward, in 1867, a royal commission was appointed by the British government to consider whether it was expedient to make any and what amendments in the neutrality laws of Great Britain; and the result of their labors was an act of Parliament, passed in 1870, by which the British government has been armed with much more stringent powers of control than it before possessed, over all trading or other operations of its citizens engaged in ship-building, which might have a tendency to compromise its neutrality or to disturb its friendly relations with belligerent powers. No similar powers are vested in the Government of the United States by the act of Congress of 1818. Yet, as to this British statute, the United States have suggested (at page 118 of their Case) that its provisions “were intended, at least as against the British government, as a re-enactment of the law of nations, as understood by the United States to be applicable to the cases of the Alabama and other ships of war constructed in England for the use of the insurgents.”

It might have been expected, if this were the view taken by the United States of the recent British legislation of 1870, that something would have been done, or at least attempted, by the legislature of the United States, to bring their own neutrality laws to an equal degree of efficiency. So far from this, it will be found that their law of 1817–’18 was designedly, and not through any mere inadvertence, restricted within its present limits; and that the only proposal for a change in that law which has yet been made to Congress, since the termination of the civil war, was in a precisely opposite direction.

A comparison of the provisions of the existing neutrality law of the United States with the British law which was in force during the whole of the late contest, (derived entirely from an American source, beyond suspicion of partiality,) will be found, with some other particulars, bearing on this immediate subject, in annex (B) to the present Counter Case.

But it must be observed further, that a state is under no obligation to make changes in its laws at the instance of another state. All that it has to do is to take care that its international obligations are fulfilled. Were not the international obligations of Great Britain fulfilled from 1862 to 1865? The arbitrators have had ample proof that they were so. Ship after ship was seized and detained—at what cost in some cases, and under what circumstances of difficulty, they have already seen. No armed vessel at any time sailed from a British port for the service of the confederates. From July, 1862, to the end of the war, not a single vessel equipped or specially adapted by construction [Page 377] or otherwise for war was able to leave any British port for the confederate service; and not a single vessel, of which the government had any information, sailed, even without warlike equipment or adaptation, with the intention that she should be employed in that service. In the documents produced by the United States there are repeated statements to the effect that many formidable vessels had been contracted for by the agents of the Confederate States in England. What became of these contracts? They appear to have been abandoned, and the confederate government had recourse to France, whence, though foiled in some other instances, they obtained the iron-clad Stonewall.1

[130] This charge therefore vanishes, and the decision of the British government not to *propose any alteration of its laws to Parliament while a war was in progress, but to reserve the whole question for later and more deliberate consideration, can certainly afford no cause of complaint to the United States.

There is, however, another class of charges, quite distinct from those reviewed above, by accumulating which it is apparently sought, in the Case of the United States, to make good the deficiencies of the latter. These relate to the hospitalities afforded in ports of the British empire to confederate cruisers, and to the undue favor or partiality which is alleged to have been shown to them by the local authorities. The arbitrators know what is the general character of these complaints. That a vessel of war may have contrived to ship a few more tons of coal or a few more casks of beef or biscuit, or to stay in port a day or two longer than strict necessity required; that precautions which ought to be needless in dealing with naval officers (who are men of honor) may sometimes have been omitted or not suspiciously enforced, that any civility, of the most trivial and ordinary kind, was extended to the commander of a confederate vessel—these are the grievances on which the United States ask a tribunal of arbitration to pass judgment, and on which they rely as assisting their claim for compensation against Great Britain.

It is evident that, if all these complaints could be proved, they would not support a demand for compensation; nor are they really within the scope of the reference to arbitration.

The restrictions which were imposed by the Queen’s regulations on belligerent vessels, entering ports within her dominions, were not required by international law. They were made, and they might have been revoked, in the exercise of those discretionary powers which are vested in all sovereign governments. All that Great Britain owed the United States on this score was, that they should be enforced, fairly and impartially, on both belligerents alike. In the section of this Counter Case which has been devoted to that subject all these complaints have been reviewed and answered, in a manner which Her Majesty’s government would fain hope will prove convincing, not only to [Page 378] the arbitrators, but to the United States. It would, indeed, be no matter of surprise, and would afford no great occasion for censure, if it should be found that, among the widely scattered colonial possessions of the British Empire, some errors of judgment had been committed, and that difficulties new to the local authorities, and often very embarrassing, had not always been satisfactorily met. But it must surely be plain to every one who reads this recital that the governors of the various British colonies executed the regulations to the best of their judgment and ability, and with thorough impartiality as between the two belligerents. It is difficult, indeed, to avoid the conclusion that these complaints spring from imperfect information. When, for example, it is asserted that the cruisers of the United States were virtually excluded from the chief port of the Bahama Islands, in favor of confederate cruisers, and we discover that these islands were thirty-four times visited by the former, while Nassau was but twice visited by the latter; or, when the quantity of coal obtained by confederate ships is made a matter of complaint, and we find that a single United States vessel, within six weeks, contrived to procure from three British ports more than two-thirds of the amount ascertained to have been purchased within Her Majesty’s dominions by all the confederate ships together during the whole course of the war, can we doubt that the Government of the United States is laboring under serious misapprehensions?

The British colonies were, it is true, often resorted to by belligerent vessels of war; but their most frequent visitors were cruisers of the United States; and, if infractions of Her Majesty’s regulations were sometimes committed, these cruisers were the most frequent offenders.

compensation claimed by the united states.—general principles.

The British government then, on this summary review of the facts and arguments adduced by the United States, submits to the arbitrators that no failure of duty has been established against Great Britain in respect of any of the vessels enumerated in the case. But, since the arbitrators are to judge, and, as it is necessary for every party to an arbitration to contemplate the possibility that on some points the award may not be in his favor, something ought here to be said on the claims for compensation urged by the United States, and on the proper mode of dealing with such claims.

Compensation claimed by the United States.
General principle.
Her Majesty’s government readily admits the general principle that, where an injury has been done by one nation to another, a claim for some appropriate redress arises, and that it is on all accounts desirable that this right should be satisfied by amicable reparation, instead of being enforced by war. All civil society reposes on this principle, or on a principle analogous to this; the society of nations, as well as that which unites the individual members of each particular commonwealth. But the general principle carries us but a little way. Before it can be applied in practice various considerations interpose themselves, which are as necessary to guard against injustice in one direction, as the principle itself is to prevent or remedy it in another. It is not necessary to enumerate all these considerations. Here it is enough to say that the reparation claimed should never exceed the amount of the loss which can be clearly shown to have been actually caused by the alleged injury; and that it should bear some [Page 379] reasonable proportion, not only to the loss consequent on the act or omission, but to the gravity of the act or omission itself. A slight default may have in some way contributed to a very great injury; but it is by no means true that, in such a case, the greatness of the loss is to be regarded as furnishing the just measure of reparation, without regard to the venial character of the default. It is needless to show this by examples. Many illustrations of it will suggest themselves to the minds of the arbitrators.

There may be cases, doubtless, in which considerations of this kind do not demand to be taken into account. But it is manifest that they apply very forcibly to defaults such as are charged, and claims such as are made, by the United States against Great Britain. The substance of the charge in this class of cases is, that a belligerent has been enabled to make use of some spot within the neutral territory for purposes of war, through a relaxation of the care which the neutral government ought to have exerted to prevent it. It is not true that the default of the neutral is the cause of the losses sustained. It is certainly not the causa causans; it need not even be the causa sine qua non. The most that can be alleged is that, if greater diligence had been used, those losses might perhaps have been prevented, and, at all events, would not have happened by the same means and in the same way. The losses complained of are losses inflicted by the ordinary and legitimate operations of war, which are alleged to have been facilitated by the neglect of the neutral. But the active and direct agent in the infliction of loss is the belligerent, and he inflicts it in ways which, as between him and his enemy, are lawful; the only share in it which can be ascribed to the neutral is indirect and passive, and consists in an unin tentional omission. Further, if we attempt to pursue this share of liability, springing from neglect alone, through the operations, naval or military, to which the neglect is alleged to have contributed—through successive battles, through a cruise or a campaign—we see that it escapes from any precise estimate, and soon loses itself among the multitude of causes, positive or negative, direct or indirect, distinct or obscure, which combine to give success to one belligerent or the other, and to which the proverbial uncertainty of war is due. This is clearly seen when the principle is applied to the case of a ship which has been armed or adapted for war, or has had her warlike force augmented, in neutral territory. We speak, for the sake of brevity, of the “acts” of a ship, of prizes made or losses inflicted by her, as if the power and responsibility of doing hurt adhered to the vessel herself. But the acts of a ship are the acts of the persons who have possession and control of her; the ship herself—which is only a vehicle of wood or iron, serving, if armed, the purpose of a floating fortress—is but the instrument, or rather one of the instruments, with which those acts are done.

The same thing is seen more clearly still when we come to apply the principle to cases where the equipment or adaptation is manifest but partial. A danger here arises of being misled by a false analogy. Any equipment, however partial, in a neutral port, such as the shipping of a gun, the cutting of a port-hole, the addition of a magazine or shell-room to the internal fittings of a ship, might justify the neutral power in restoring all prizes made by her during the cruise to which the partial equipment was applied, and afterward brought within the neutral territory. The ground on which the restitution is decreed here is, that there has been a violation of the neutrality of the territory; and it matters not whether that violation were great or small. But if, in such a case, it be possible to show that the partial equipment had been made through [Page 380] neglect on the part of the authorities of the port, and if reparation for the neglect be demanded, how are we to assess the liability of the neutral? To assign the whole damage which the ship may do during her cruise to the neglect of the neutral, would be extravagantly unjust; to allot with precision any specific proportion of it to the same cause, would almost certainly be impracticable.

[132] Further, when the neutral country from which a ship of war, or an equipment, or an augmentation of force has been obtained, is only one of several countries to which the belligerent has access for similar purposes, it is impossible to assume that the consequence of the prevention of a particular adventure of this kind would have been to deprive that belligerent of the means of accomplishing his purpose; its only effect might have been to change the immediate direction of his endeavors. Thus, in the case of the rams at Birkenhead, the responsibility arising out of the contract between the builders and Bullock was sought to be got rid of, by a transfer of the benefit of that contract to a *Frenchman named Bravay, who pretended that his object was to dispose of them to other powers, and not to the Confederate States$ and when the confederate agents found it impracticable to obtain those vessels from a British port, they succeeded in procuring and carrying to sea another similar ram, the Stonewall, from a port in France.

When any vessels, whether procured from Great Britain or otherwise obtained, had become confederate ships of war, the duty of repelling their hostile proceedings by all proper and efficient means (like the rest of the operations necessary for the conduct of the war) devolved exclusively upon the United States, and not upon the British government. Over the measure taken by the United States for that purpose Great Britain could exercise no influence or control 5 nor can she be held responsible, in any degree, for their delay, their neglect, or their insufficiency. Any want of skill or success, even in the operations by land, would have the effect of prolonging the period during which cruisers of this nature could be continued. All losses, which might have been prevented by the use of more skillful or more energetic means, ought justly to be ascribed to a want of due diligence on the part of the Government of the United States, and not to any error, at an earlier stage, of the British government. Causa proxima, non remota spectator.

In short, there are difficulties of no inconsiderable force in holding that defaults of this class draw with them any definite liability to make pecuniary reparation. It is difficult—very often it is practically impossible—to ascertain, with any approach to accuracy, what measure of loss ought with justice to be ascribed to the default complained of, or even, perhaps, whether it was a substantial cause of any loss at all.

For this reason, probably, as well as from the reluctance usually felt to bring accusations of negligence against a friendly government, claims such as the United States now urge against Great Britain have rarely been made; and have never, so far as Her Majesty’s government is aware, been conceded or recognized. Where prizes made by vessels armed for war, or which have augmented their warlike force, within neutral territory, have afterward been brought within the jurisdiction of the neutral, it is the acknowledged right, and it may be the duty, of the neutral power to cause them to be restored on application. Beyond this point no recognized neutral authority or established precedent has hitherto extended the liability of the neutral.

If the conduct of the United States under similar (or, rather, under much stronger) circumstances, were made the measure of their right to [Page 381] indemnification in the present inquiry; if the rule of compensation were sought in the precedent (to which they have themselves, in their own Case, appealed) of the treaty of 1794, between the United States and Great Britain, and in the decisions of the commissions under the seventh article of that treaty, no pecuniary compensation whatever could be found due from Great Britain for any captures made at sea, and not brought into British ports; although the vessels which made those captures may have been illegally fitted out in, and dispatched from, British ports, through some want of due diligence on the part of British authorities.

If the relative positions of the government of the Confederate States and its officers, to whose acts the losses in question are directly attributable, and of the British government (whose neutrality they violated) toward the United States, who now make these claims, are justly estimated, the more difficult it will be to see how (upon the supposition of a want of due diligence on the part of Great Britain in guarding her own neutrality) any pecuniary compensation whatever can be claimed from Great Britain. The whole responsibility of the acts which caused these losses belonged, primarily, to the Confederate States; they were all done by them, beyond the jurisdiction and control of Great Britain; wrong was done by them to Great Britain, in the very infraction of her laws, which constitutes the foundation of the present claims. But from them no pecuniary reparation whatever for these losses has been, or is now, exacted by the conquerors; what has been condoned to the principals is sought to be exacted from those who were, at the most, passively accessory to those losses, through a wrong done to them and against their will. The very States which did the wrong are part of the United States, who now seek to throw the pecuniary liability for that wrong solely and exclusively upon Great Britain, herself (as far, at least, as they are concerned) the injured party. They have been re-admitted to their former full participation in the rights and privileges of the Federal Constitution; they send their members to the Senate and the House of Representatives; they take part in the election of the President; they would share in any benefit which the public revenue of the United States might derive from whatever might be awarded by the arbitrators to be paid by Great Britain. On what principle of international equity can a federal commonwealth, so composed, seek to throw upon a neutral, assumed at the most to have been guilty of some degree of negligence, liabilities which belonged in the first degree to its own citizens, with whom it has now re-entered into relations of political unity, and from which it has wholly absolved those citizens?

[133] *The British government, however, while deeming it right to present these considerations to the notice of the arbitrators, will not omit to deal with the ulterior questions which must arise, in the event of the arbitrators being of opinion that claims of this nature are not absolutely inadmissible, should the United States succeed in establishing auy failure of duty sufficient to support them in the judgment of the tribunal. Nor does it affirm that, in that case, no award of compensation ought to be made, unless the amount of loss properly assignable to the default can be estimated with exact precision. But it firmly maintains that the duty intrusted to the tribunal would not be satisfied by finding, as to any particular ship, that Great Britain had failed to discharge some international duty, and then proceeding at once to charge her with all the losses directly occasioned to the United States by the operations of that ship. This, indeed, would be so manifest an injustice that it is needless to argue against it. Should the [Page 382] arbitrators be satisfied that, as to any ship, and in any particular, there has been a clearly ascertained default on the part of Great Britain, it would then become their duty to examine wherein the default consisted, and whether it was a just ground for pecuniary reparation; and, if so, to determine the general limits of the liability incurred, having regard both to the nature and gravity of the default itself, and the proportion of loss justly and reasonably assignable to it. The liability thus determined, or the aggregate of such liabilities, as the case may be, constitutes, it is evident, the only just measure of the compensation, if any, to be awarded to the United States. The basis of the award must be the fact, established to the satisfaction of the arbitrators, that certain losses have been sustained on the one side, which are justly attributable to certain specific failures of duty on the other, in respect of a certain ship or ships; and the basis of the award must also be the basis for computing the sum to be awarded. The power of awarding a gros sum does not, it need hardly be observed, authorize the arbitrators to depart, in substance, from this basis, although it may relieve them from the necessity of a minute inquiry into the particulars of alleged losses, and from intricate and perhaps inconclusive calculations.

The arbitrators will have observed the manner in which these claims are dealt with in the Case of the United States. Specific failures of duty on the part of Great Britain are alleged in respect of each of the vessels enumerated. Great Britain is then charged indiscriminately with all the losses occasioned by the acts of all the vessels, and, in addition, with expenses said to have been incurred by the Government of the United States in vainly endeavoring to capture them. Thus, the Florida and Alabama were obtained as unarmed vessels from England; one was armed in Portuguese waters, the other was manned and made capable of cruising in a confederate port. Great Britain is called upon to pay for all the losses which can be attributed to the Florida and Alabama—nay, more, for all losses occasioned by other vessels which were captured and armed at sea by the commanders of those cruisers. The Tallahassee was built as a trading-vessel in England, and was afterward converted into a ship of war in the Confederate States. This country is to pay for all the captures of the Tallahassee. The Sumter received ordinary hospitalities in a British port; and Great Britain is to be charged with captures made by the Sumter. Interest on the amount of these losses and expenses is also asked for, to be computed at seven per cent, per annum from the 1st July, 1863—a date long antecedent to the dates at which a large proportion of the alleged losses and expenses are stated to have been incurred.

In calculating the losses themselves, which is a separate branch of the question, the American Government appears to have presented, without discrimination, all claims which any persons, alleging themselves to have been interested in captured ships or cargoes, have thought proper to make. Claims are also presented for public property of the United States, captured or destroyed by some of the confederate cruisers, and, further, for expenditure stated to have been incurred in the “pursuit” of these cruisers.

[134] The claims presented under these three heads have been referred for examination to departments of Her Majesty’s government conversant with the classes of matters to which the claims relate; and the results of this examination are embodied in two reports, to which Her Majesty’s government requests the attention of the arbitrators.1 The object of [Page 383] the examination has been to discover how far, on the data furnished by the United States themselves, the estimate of losses alleged to have been sustained, and of expenditure alleged to have been incurred, could be regarded as reasonable estimates, prima facie, of losses actually sustained, and of an expenditure which could, on any hypothesis, be held chargeable upon Great Britain. Whether, on the facts proved before the arbitrators, Great Britain ought to be charged with any, and what part of the losses sustained, is of course a *distinct question; and it is again a distinct question whether, upon any sound principle, she ought to be charged with any, and what part, of the alleged expenditure.

claims for private losses.

Claims private losses. A reference to the first of these reports (that from the committee appointed by the board of trade) will convince the arbitrators that no reliance can be placed on the estimate presented of alleged private losses, and that were the tribunal to hold Great Britain liable in respect of any one or more of the enumerated cruisers, and to decide on awarding a gross sum for compensation, these estimates could not safely be accepted as furnishing even a prima facie basis for the computation of such a gross sum.

These claims include—

Claims for the value of ships, freighted with cargo, destroyed by confederate cruisers; for the consequent loss of freight, and for the value of the cargo.
Claims for vessels in ballast.
Claims by owners of whaling and fishing vessels destroyed; for the value of the vessels themselves; for the oil and fish which were on board of them, and also for the gross earnings which it is supposed they might have realized if their voyages had not been interrupted by capture; in other words, for prospective and speculative earnings.
Claims by American insurance companies in respect of insurances on ships, cargoes, freights, and profits, which are alleged to have been lost or destroyed by the capture of the vessels.
Claims for masters’ wages, for personal effects taken or destroyed, and personal damages.

On the claims presented under the first head the following observations, among others, are made in the report:

It will at once be admitted, by those who are at all familiar with the practice of the’ courts in maritime cases, that it is impossible to place much reliance on the opinion or evidence of ship-owners or merchants as to the value of property which they are seeking to recover. Ship-owners are in the habit of founding their estimate, not on what would be the market-price of the vessel at the time of her loss, but on the original cost-price, and often take into account the amounts which they have expended at different times with out making any proper deduction for the wear and tear and damage which has been sustained. Merchants are inclined to estimate the value of their goods by the profits which they had hoped to realize, without making any allowance for the risk of the market-price falling or other contingencies on which those profits so often depend.

A striking illustration of the truth of these remarks may be found in the case of the British vessel which was sunk in the river Seine in the course of the military operations conducted by the German armies in the recent war with France. The owners presented a claim for £20,270; but when this claim, which was intrusted for investigation by the German government to Her Majesty’s government, was sifted and examined by the board of trade, it was found, in accordance with the very able report of the learned registrar of the court of admiralty, that the owners were not entitled to any larger amount than £6,899.

There is, to say the least, no reason to suppose that the statements made by the claimants in the present case as to the values of the vessels, their freights, earnings, and cargoes, are more trustworthy than such statements are generally found to be when [Page 384] properly tested and examined. We find, for instance, as we have already stated, shipowners putting forward claims for full freights and earnings, without making any de ductions whatsoever, so that they are, in effect, demanding profits at a rate exceeding 200–per cent., and sometimes exceeding 2,000 per cent., per annum. We find in that class of claims which we noticed in the first place, and which are the most important as regards amount, the owners of whaling-vessels demanding the whole value of their ships and outfits, although they have received more than $700,000 from insurance companies, who at the same time, and in addition, put forward a claim for the same amount. We find the charterer claiming for the loss of the charter-party, or his profit thereon, while the ship-owner demands the freight in full; and finally, we find merchants claiming profits on their goods at the rate of 30 and 40, and even 50, per cent, per annum, without making any allowance for freight and for charges payable at the port of destination. Under these circumstances we think it right to express, most emphatically, our dissent from the assertion made in page 471 in the sixth part of the American Case, “that the statement shows all the facts necessary to enable the tribunal to reach a conclusion as to the amount of injury committed by the cruisers.” On the contrary, that this assertion was not in any degree warranted will appear from the two following radical defects in the statement: to the first place, as regards the ships, neither their age nor their class is given, and in some cases not even their tonnage; as regards the cargoes, in no instance do the claims specify the quantity either in measurement or weight, and in the cases of ships loaded with general cargo the quality or description of the goods is not even mentioned or indicated. In the second place, the statement is framed, to say the least, in so imperfect a ma.nner that, in the majority of cases, it is impossible to ascertain even what is the value given by the claimants themselves to their own property.1

[135] *Under the second head very large sums are claimed as gross freights for vessels which had no cargo on board, which might never have been loaded with cargo, and which could not have earned these freights without very heavy expenditure and considerable wear and tear, consumption of stores, and depreciation of ship and outfit) freights also, which would not have been received, if at all, until after the lapse, in each case, of a very long period subsequent to the date of the capture.

On claims under the third head it is observed:

The whaling and fishing voyages for which these vessels, vessels generally of small tonnage, are equipped, provisioned, and outfitted, extend over long periods, rarely of less than three or four years, so that the outfit and stores with which they are originally provided are of proportionately great value; in fact, in the great majority of cases, of much greater value than the vessels themselves. In the course of these voyages the vessels put into port from time to time, and disbursements are made by the masters, who draw for this purpose upon their owners, and the master and crew, in lieu of wages, generally receive a share of the vessel’s earnings. At the end of the voyages the vessels are necessarily very considerably deteriorated by wear and tear, their stores are almost entirely consumed, and the greater part of their apparel and outfit rendered completely unserviceable and worthless. This being the general character of these whaling and fishing adventures, it is difficult to conceive a case in which damages can be of a more speculative or contingent character than those which are claimed for the loss of the gross earnings which the owners might be expected to have realized at the termination of these long voyages, which were prematurely put an end to by the capture of the vessels. In the first place, the realization of the earnings and the estimate of their amount in this most hazardous and speculative of trades must necessarily be in the highest degree uncertain and problematical. In the second place, even if it were practicable to estimate the probable amount of these prospective earnings, a claim for that amount would be entirely illusory, unless enormous deductions were made, which again are difficult to estimate in any one particular case with any reasonable degree of certainty, such as deductions for the very considerable wear and tear of the vessels, the very great consumption of stores, and the destruction of by far the greater part of the outfit, which must necessarily have taken place before the full earnings could have been realized. It is therefore manifest that in the damages for which compensation is demanded in the claims now under consideration there exist all those elements of uncertainty, remoteness, and difficulity which would undoubtedly lead the courts, both in America and in England, to reject the claim altogether, in accordance with the principles laid down in the judgments which have been already cited or referred to.2

[Page 385]

The mode,moreover, in which this claim for prospective earnings had been preferred leaves one without the slightest data for estimating in any one individual case the compensation which could, 0with any propriety, be claimed for these contingent profits. The total claim in respect of the whaling and fishing vessels amounts to about $8,500,000, about half of which is demanded for the loss of prospective earnings, without any deduction whatever. The claim is, therefore, from the very nature of the case, for reasons already stated, perfectly illusory, and we are scarcely surprised to find that this enormous claim for prospective earnings, which is really double the value ascribed by the claimants themselves to the ships and outfits, can be proved, as will be shown hereafter, to be equivalent to claiming, over and above the whole capital invested in those speculative adventures, a profit on such capital at a rate exceeding 300 per cent, per annum.1

On the fourth head it is observed:

The American insurance companies, who have paid the owners as for a total loss, are, in our opinion, entitled to be subrogated to the rights of the latter, according to the well-known principle that an underwriter who has paid as for a total loss acquires the rights of the assured in respect of the subject-matter of insurance. This principle was explained and acted on in the well-known English cases of Randall vs. Cochran, 1 Ves. Sen., 98, and the Quebec Fire Insurance Company vs. Saint Louis, 7 Moore, P. C, 286, and is well recognized by the courts of America. On the other hand, it is equally clear that the underwriters cannot be entitled to anything more than the assured themselves; for the claim of the former is founded on nothing else than their title to be subrogated to the rights which the latter possessed, and which, therefore, cannot possibly be more extensive than the claim which the latter would be entitled to maintain. From these considerations two consequences follow: In the first place, where the claimant is the insurance company and not the owner, compensation cannot be due for any sum exceeding the amount of the actual loss sustained by the owner, however much that sum may fall short of the amount paid by the company by reason of the property having been over-insured. In the second place, wherever the owner puts forward a claim for his loss at the same time that the insurance company also claims the money paid by them in respect of the same loss, such a double claim must at once be absolutely rejected, since to allow it would be in effect to sanction the payment of the loss twice over.2

This double claim is, however, made in a great number of cases.

Thus, as to the whaling and fishing vessels, it is remarked:

[136] *The sums claimed by insurance companies in respect of the vessels we are now dealing with, as well as in respect of their secured and prospective earnings, amount to the sum of $902,832. On examining the list of claims it will be seen that there are five cases, namely, those of the Alert, page 3 of the printed list; the Covington, page 184: the Catherine, page 181; the General William, page 192; and the Gipsey, page 192, in which the owners give credit for moneys they have received from their underwriters; but we believe it will also be found that these are the only cases in which that course has been adopted. In all the other cases the owners claim from Great Britain the total value of the ships and outfits, as well as their secured and prospective earnings, without deducting any sums received by them from the insurance companies; while at the same time the insurance companies also put forward their claims to those very same sums.

It may be somewhat interesting to note the mode in which this double claim arises. The enumeration of the different items constituting a claim in respect of any one captured vessel is preceded by the statement of the total sum claimed; then in most instances the different items are set out, consisting simply of the alleged values of the property or earnings lost, and these are followed by the claims made on behalf of insurance companies for the amounts paid by them to the owners in respect of the same property and earnings. With the exception of the five memorable cases just mentioned, the total claim is always formed by adding the first class of items to the second class, without making any deduction. In many cases this is done without any comment or notice whatsoever; in others, and especially in those relating to the Shenandoah, the owners frankly state that “they claim the full value of their property, irrespective of the partial insurance received;” or boldly “protest against any diminution of their claim by reason of insurance.” It follows, therefore, for reasons which have been already explained, that the sum of $774, 183 obtained by deducting from the total amount of insurances the sum of $128,649, being the amount of the insurances in the five exceptional cases, represents losses which are, in effect, claimed twice over; [Page 386] and this simple consideration enables us, without hesitation or difficulty, to strike off uno ictu this sum of $774, 183, or all but 10 per cent, of the total claim.1

As to claims for masters’ wages, the report observes:

A claim for loss of wages by the master has, we believe, never been allowed in the English or American courts in cases of collision or capture, or other similar cases. In the second place, if such a claim were not inadmissible, it would be necessary to take into account the fact that the master probably obtained other employment, and thereby earned other wages after the capture of his vessel, as well as the fact that when he contracted with his owners the risk of the vessel being captured was probably taken into account in fixing the wages. Finally, it must be observed that the claim of the master for loss of wages when advanced at the same time, as it invariably is in the present case, with a claim by the ship-owner for full freight, is not less unjust than the claim by the owner for the amount of his loss when followed immediately by the claim of the insurance company for the very same amount; for it is out of the gross freight that the wages would have been paid, and without such payment the gross freight could not have been earned.2

It must be added that the claims for personal effects appear in many instances to be plainly exorbitant, and that claims are also made for personal losses of a remote and indirect kind, such as would never be allowed in the courts of any country. Thus heavy damages are claimed by one man for the loss of a valuable situation, and by another for the loss of an appointment as consul, which he alleges himself to have sustained by detention on board the captured vessel.

The general result of this examination as to the private losses is to reduce the estimated amount of the claims on account of the Alabamafroni $6,537,611 to $3,288,851; of the Florida, from $3,693,302 to $2,635,568; of the Shenandoah, from $6,366,894 to $1,377,316; and the total amount claimed from $17,763,910 to $8,039,685; and this is believed to be a liberal, as it is certainly a careful, estimate.3 Whether any part of this latter sum—and, if any, how much—might with justice be charged against Great Britain, is, as the arbitrators have been reminded, an entirely distinct question, depending on the decision of the .arbitrators as to the existence and the extent of any liability on the part of Great Britain in respect of the several vessels to whose acts respectively the different constituent parts of this aggregate loss are to be ascribed.

Her Majesty’s government supposes that the Government of the United States has deemed it proper to accept and present to the arbitrators the amounts at which the several private claimants have stated their own losses as sufficient for the immediate purpose of the present proceeding. But the arbitrators must be well aware that claims of this nature, put forward by private persons, cannot safely be accepted, even as furnishing materials for prima facie estimate, without strict scrutiny, and it is clear that this remark applies very forcibly to the claims now under consideration.

[137] *claims for national losses by the destruction op public property of the united states.

Claims ior national 1ossees by the destruction of public property of the United States. The claims for public property of the United States destroyed by confederate cruisers relate to the war-steamer Hatteras,: sunk in action by the Alabama; to the barks Greenland and Whistling Wind, said to have been laden with coal, and destroyed respectively by the Florida and a confederate vessel called the Coquette; and to the steam revenue-cutter Caleb [Page 387] Cashing, cut out and destroyed by the Archer, which is alleged to have been acting as a tender to the Florida.

The Hatteras was detached from Commodore Bell’s squadron, then blockading Galveston, to chase the Alabama, which had appeared in the offing. The destruction of this ship appears to have been clearly due to the failure of the squadron to support her; and Her Majesty’s government conceives that the claim on account of her is, on this ground, inadmissible, supposing that it could be supported on other grounds.

The case of the Caleb Cushing betrays such remissness on the part of those intrusted with the charge and defense of the great fortified harbor of Portland (where this revenue-cutter lay) in allowing her to be cut out under the very guns of the fort by the boats of an armed vessel which had been a small fishing-schooner, that, even should the tribunal hold that Great Britain has incurred any liability to the United States for captures made by tenders of the Florida, this claim ought not to be entertained.

As to the Whistling Wind, it must be observed that the Coquette, by which she is said to have been captured, is not mentioned in the Case of the United States as a tender to the Florida, and there is no evidence, so far as Her Majesty’s government is aware, that she was such.

claims for expenditure alleged to have been incurred in the pursuit of confederate cruisers.

Claims for expenditure alleged to have been incurred in the pursuit of confederate cruisers. In the second of the two reports above referred to, (that from the committee appointed by the board of admiralty,) the arbitrators will find an examination of the claims presented on this account. It is obviously impossible, without any materials whatever for verification or comparison, to ascertain whether the several items for coal, outfit, expenses of navigation, and the like, do or do not correctly represent the actual expenditure under these various heads. Her Majesty’s government deems it necessary to point out that these accounts contain many obvious errors,1 many discrepancies, which there are no means of reconciling, and a great number of charges which, in the absence of explanation, cannot but be deemed excessive.2

[138] It must be further observed, however, that these claims for expenditure include not only vessels stated to have been employed in seeking for the several cruisers specified in the United States Case, including the Sumter and the Tallahassee, (which were fitted out in confederate ports,) but also others dispatched after the Eappahannock, (which is not among the specified vessels, and on account of which the case makes no claim,) and the Chesapeake, (which is not even mentioned in the Case,) and others again, which were employed in the general duties [Page 388] incidental to a state of war, such as convoy, the protection of fisheries, intercepting blockade-runners and ships laden with contraband of war, and cruising in search of enemy’s privateers generally. Sailing orders, in which this general description is employed, cannot be treated as having reference to any of the specified vessels; and in several instances the dates conclusively prove that there could have been no snch reference. Again, the claim for expenditure in respect of a United States cruiser dispatched in pursuit of a particular confederate ship is sometimes prolonged considerably beyond the date when the capture or destruction of that ship must have become known to the commander of the cruiser, and during a time, therefore, when he must have been employed on other service. There are cases again (such as that of theDe Soto1) in which it is clear that a cruiser alleged to have been in quest of a confederate ship must *have much more than paid her expenses by the prizes made by her while nominally employed on that errand.

The result of a careful and, as Her Majesty’s government believe, a fair and just examination of these claims, upon the data presented by the United States themselves, is that, even were it possible to hold Great Britain liable for all expenditure incurred in the “pursuit” of all the confederate vessels specified in the United States case, the amount could not exceed $1,854,715.99; were the expenditure limited to the Florida, Alabama, Georgia, and Shenandoah, it could not exceed $1,509,300.74; were it limited to the Alabama, it could not exceed $1,427,685.03; and these figures would require considerable abatement. The amount claimed by the United States on this score is $7,080,478.70.2

It is needless to remind the arbitrators that claims of this nature are subject to the same observation as has been made with respect to the claims for private losses. It would be plainly unreasonable to contend that, if any failure of duty could be established against Great Britain in respect of a given vessel, all that may have been expended by the United States in trying to capture her must be assumed to be chargeable against this country. But the British government takes exception to this class of claims altogether. It cannot be admitted that they are properly to be taken into account by the arbitrators, or that Great Britain can fairly be charged at once with the losses which a belligerent cruiser has inflicted during her whole career, and with what the United States may think fit to allege that they spent in vainly endeavoring to capture that cruiser. Such demands are unheard of, and were never before suggested, even in those cases in which the attempt has been made to obtain compensation for actual losses. By what test, it niay reasonably be asked, would it be possible to try the propriety of such an alleged expenditure? How are the arbitrators to judge whether the ships said to have been employed were properly selected for the purpose, sent to the proper places, and furnished with proper instructions, and whether those instructions were executed with activity and judgment? On these things, however, among others, the propriety of the expenditure depends. In truth, there is but one test possible; it is that of success within a reasonable time. Tried by this test, the claim must fail, even if it were open to no other objections.

Her Majesty’s government is naturally reluctant to criticise the management of the United States Navy, and desires to say as little as possible on this point. But a few briet remarks on it are made necessary by the claims of the United States, and it is difficult to resist the conviction [Page 389] that, if well-appointed vessels of competent speed and strength had been dispatched in the directions which knowledge and experience would indicate, and if favorable opportunities had not been lost or thrown away, the list of captures by confederate cruisers would have been comparatively small.

Let us take, as the earliest example, the escape of the Sumter from the Mississippi. This is described by the Secretary of the Navy in his report to Congress, dated the 1st December, 1861, p. 8:

Such of these (the confederate) cruisers as eluded the blockade and capture were soon wrecked, beached, or sunk, with the exception of one, the steamer Sumter, which, by some fatality, was permitted to pass the Brooklyn, then blockading one of the passes of the Mississippi, and, after a brief and feeble chase by the latter, was allowed to proceed on her piratical voyage. An investigation of this whole occurrence was ordered by the Department.

With regard to the Alabama, it has been seen that the Tuscarora, being in the United Kingdom at the time the former surreptitiously left Liverpool, failed to follow and intercept her. This appeared to the United States minister in London to show a want of that promptitude and judgment which ought to have been evinced under the circumstances, and he evidently believed it probable that the Tuscarora would have succeeded in intercepting her, had the needful activity and dispatch been used.

Again, she was blockaded in the harbor of Port Royal, Martinique, on the 19th November, 1862, and although private signals from a ship in the harbor were made to the United States steamer San Jacinto, then off the entrance, the Alabama, on the same evening, escaped the vigilance of the San Jacinto.

[139] Again, she was off Galveston on the 11th January, 1863, and was seen by the ships of Commodore BelFs squadron; and the flashes of the guns, while the engagement between her and the United States ship of war Hatteras was taking place, were plainly visible, and the sound of the guns heard. At 7.30 p.m. the Brooklyn, the commodore’s flag-ship, went in pursuit, steering S. ¼ E. in the direction of the flashes. The Sciota was *sent out S. S. E. and the Cayuga S. S. W., but these vessels failed even to see the Alabama. The commodore, in his official dispatch of the 12th January, 1863, (p. 319 of the United States Secretary of the Navy’s report to Congress,) states that “three or four vessels like the Oneida thrown into the Yucatan Channel immediately would probably intercept him. The gun-boats are not a match for him in force or speed.” Had, therefore, the Brooklyn and her consorts followed up the pursuit until the following morning, it is probable the Alabama would have been in sight, and, if so, she might have been captured. Captain Semmes, in his account of his voyage, makes the following observation: “By their account of the course steered, they could not have failed to have seen us.”

Again, the Secretary of the Navy, in his report to Congress, dated 7th December, 1863, p. 23, pronounces the following censure on the improper employment of the Vanderbilt:

In derogation of these special and explicit orders, Acting Rear-Admiral Wilkes, on falling in with the Vanderbilt, transferred his flag to that vessel, and, attaching her to his squadron, detained her in his possession so long as to defeat the object and purpose of the Department. He did not release her until the 13th June, when Commander Baldwin proceeded to carry out his instructions, but he was too late. He arrived at Fernando Noronha on the 4th of July, at Pernambuco on the 6th, at Rio de Janeiro on the 14th; thence he proceeded, on the 2d August, to St. Helena, instead of going direct to the Cape of Good Hope. The unfortunate detention of the Vanderbilt wholly defeated the plans of the Department for the capture of the Alabama, Florida, and Georgia. They, as the Department anticipated, arrived in those latitudes and visited those ports [Page 390] in May, but the Yanderbilt,instead of being thereto receive them, as the Department intended, was improperly detained in the West Indies until after that period.

The Florida, after having been seized and tried at the admiralty court of Nassau and subsequently released, proceeded to the Gulf of Mexico, and in the middle of the day of the 4th September, 1862, boldly passed through the blockading squadron off Mobile, and ran safely into the harbor.1

For this act of remissness on the part of the commanding officer of the United States blockading squadron he was dismissed from the United States Navy. She remained specially blockaded until January, 1863, when she again succeeded in running through the blockading squadron. She passed close to several of the ships, but was not stopped; and one of the fastest, which was specially charged with the duty of watching and following her, is stated never even to have slipped anchor in chase. Under such circumstances, when on two separate occasions she might have been captured, (either on the 4th September, 1862, or 15th January, 1863,) but escaped unscathed by the ships of war specially blockading her from ingress as well as egress, Her Majesty’s government is unable to understand on what principle any claim can be sustained for losses occasioned by this ship, which up to this date (the 15th January, 1863) had not captured a single vessel of the United States, still less for the expenses incurred in failing to capture her.

In the course of her subsequent proceedings the Florida arrived at Brest on the 23d of August, 1863; remained there refitting and repairing until February, 1864, during which period she was taken into a government dock, and made considerable changes in her crew. On the 17th of September the United States ship of war Kearsarge arrived in Brest Roads, and remained at anchor with her fires banked until the 30th October. She again returned on the 27th November, on the 11th and 27th December, and the 3d January, 1864, no doubt with the express object of watching the Florida, which was at anchor in the roadstead, nearly, if not quite ready for sea; and the confederate cruiser eventually sailed from Brest in charge of a pilot on the evening of the 9th February. The Kearsarge, however, had disappeared from the coast, and had not been seen since the evening of the 3d of January; but she again returned on the 18th February, when, as it was to be expected, the Florida had disappeared from the anchorage.

[140] Her Majesty’s government have been unable to discover that any ships of war of the United States were ever specially sent in pursuit of the Georgia or Shenandoah; although in the remarks of the Secretary of the United States Navy in his report to Congress, above quoted, the Georgia is named with the Alabama and Florida. Those three vessels were, it appears, known to the United States Naval Department to be somewhere on the equator or on the coast of Brazil; and there, had a flying squadron been at once sent in pursuit, one or more of them, if not all, would probably have been captured. It is to be remarked that, during the whole time the Alabama was at sea, she was only met on two occasions by ships of the United States Navy, until she voluntarily engaged and was sunk by the Kearsarge, off Cherbourg, on the 19th June, 1864. On the first *occasion she escaped from Port Royal, Martinique, when virtually blockaded by the San Jacinto in November, 1862; on the second, she engaged and sunk the Hatteras, off Galveston, on the 11th January, 1863. Nor does it appear that either [Page 391] the Georgia or Shenandoah, daring their respective cruises, ever fell in with a ship of war of the United States.

Her Majesty’s government cannot but observe that, among the United States ships for which claims are made, as having been employed in the pursuit of confederate cruisers, there are several which would have been worse than useless for such a purpose. If the Onward, of 874 tons, or Ino, of 895 tons, converted merchant-vessels without steam-power, which are represented as having been sent in search of the Alabama, had fallen in with that ship, they must inevitably have been destroyed. The same observation applies to other sailing-vessels of the same class, such as the Gemsbok, National Guard, and Sheppard Knapp, and still more strongly to the George Mangham, a mortar (sailing) schooner of 274 tons.1

With the large naval force at the disposal of the Government of the United States, Her Majesty’s government cannot forbear to observe that it appears extraordinary that more energy was not displayed in pursuing and following up the few small confederate cruisers to which the * claims against Great Britain relate. The losses now complained of would have been reduced to a minimum had effective measures been used to protect the commerce of the United States by the establishment of one or more flying squadrons, with orders to follow them anywhere and everywhere, and not confined, as Admiral Wilkes’s flying squadron was, to a very restricted station.

It is clear, indeed, from the report of the Secretary of the Navy, quoted above, that he was himself conscious that the utmost efforts of the United States were not put forth to pursue and capture these confederate vessels. This duty was deliberately held to be subordinate to that of maintaining the blockade:

In addition to the few vessels stationed abroad to guard our national interests, others have from time to time been dispatched in pursuit of the rovers, all of which were built in and have gone abroad from foreign ports to prey upon our commerce. The details of all the measures which have been adopted by the Department in this view it is not necessary here to disclose; but with most of our naval vessels engaged in enforcing the blockade, and without a clew to guide our independent cruisers on the trackless ocean, they have thus far been unable to encounter these semi-piratical vessels, which always seek to evade a naval antagonist. Were the probabilities greater than they are, however, of encountering them, and were our public naval vessels permitted to enter the ports of the maritime powers for fuel and other supplies when in pursuit, it would not promote the interests of commerce nor the welfare of the country rfco relax the blockade for that object.

The foregoing observations have, it will be observed, a material bearing not only on the claims for national expenditure, but on all the claims for compensation which are advanced by the United States. It would be unjust to hold that a neutral nation is liable for losses inflicted in war, which reasonable energy and activity were not used to prevent, on the plea that the vessels which were instrumental in the infliction of the loss were procured from the neutral country, even though it may be alleged that there was some want of reasonable care on the part of the neutral government. The utmost period over which a liability once established on the ground of default could be extended on any rational principle, would be that which must elapse before the aggrieved belligerent would have, by the use of due diligence and proper means on his own part, the opportunity of counteracting the mischief.

claim of the united states for interest.

claim of the united states for interest.
On the claim for interest which is advanced by the United States, Her [Page 392] claim of the united Majesty’s government must observe tbat it is, in principle, states for interest, untenable. The claims referred to the arbitrators are, it must not be forgotten, claims of the United States, not of private persons, against Great Britain, although a large proportion of them may represent losses, alleged to have been sustained by private persons. Interest, on general principles recognized in the jurisprudence of all countries, and founded on reason, can be claimed only (in the absence of a specific agreement) where a debtor is in morâ; that is, where default has been made in payment of a liquidated debt at the time when it ought by law to have been paid, there being no mora accipiendi, or delay interposed on the part of *the creditor. It is evident that these conditions do not apply to a case in which a mass of doubtful claims, of unascertained amount, have been made by one nation against another, have from time to time been the subject of negotiation, and are at length referred to arbitrators. It is through no fault of Her Majesty’s government that these claims were not submitted to arbitration in 1867, or again in 1869; and it is not for the United States, which five years ago refused to agree to a reference, and three years ago refused to ratify a treaty actually concluded for this purpose by their representative in England, to insist on a delay, of which they were themselves the cause, as a ground for increasing their demands upon Great Britain.

recapitulation of preceding remarks on the measure of compensation.

To recapitulate what has been said on this branch of the subject:

Recapitulation of preceding remarks on the measure of compensation. The losses which may be taken into account by the arbitrators are at the utmost those only which have directly arisen from the capture or destruction, by one or more of the cruisers enumerated in the Case, of ships or property owned by the United States or by citizens of the United States, and the extent of the liability of Great Britain for any such losses cannot exceed that proportion of them which may be deemed justly attributable to some specific failure or failures of duty on the part of her government in respect of such cruiser or cruisers.

It is the duty of the arbitrators, in deciding whether claims for compensation in respect of any particular default are tenable, and on the extent, if any, of liability incurred by such default, to take into account not only the loss incurred, but the greater or less gravity of the default itself, and all the causes which may have contributed to the loss, and particularly to consider whether the alleged loss was wholly or in part due to a want of reasonable activity and care on the part of the United States themselves.

The claims for money alleged to have been expended in endeavoring to capture or destroy any confederate cruiser are not admissible together with the claims for losses inflicted by such cruiser.

The claims for interest are not admissible.

Should the tribunal award a sum in gross, this sum ought to be measured by the extent of liability which the tribunal may find to have been incurred by Great Britain on account of any failure or failures of duty proved against her.

The estimates of losses, public and private, presented by the United States are so loose and unsatisfactory, and so plainly excessive in amount, that they cannot be accepted even as furnishing a prima facie basis of calculation. The estimates of expenditure (were the claims on [Page 393] that head to be considered admissible) would likewise be found too unsatisfactory to serve a like purpose.

Her Majesty’s government is sensible that, should the arbitrators find it necessary to approach this question, they will probably find it one of no inconsiderable difficulty. The foregoing considerations are intended to circumscribe it, at least, within just and reasonable limits, and, subject to these considerations, the British government leaves it to the impartial judgment of the tribunal.

[142] In concluding this Counter Case Her Britannic Majesty’s government thinks it right to advert, in a few words, to considerations which invest this controversy with an importance not, perhaps, so great as is ascribed to it in the Case of the United States, but sufficient to make it a matter of profound general interest. The discussion turns on the duties and responsibilities of neutrals; and the field of discussion embraces questions of principle, questions of fact, and questions of peculiar moment respecting the application of principles to facts. The United States have asked the sanction of the arbitrators to conceptions of neutral duty, and still more of neutral liabilities, which, to the British government, appear to be fraught with grave consequences, and to demand serious attention. These views, theoretically stated in an earlier part of the American Case, are embodied in a practical shape by the charges advanced against Great Britain; and they assume a still more formidable aspect when they are invoked to support large claims for pecuniary reparation. For the first time in history, as the British government believes, it has been seriously insisted that every act or omission, however doubtful or insignificant, on the part of a neutral government or its officers, which could be construed by a belligerent into a deviation from the line traced out for neutrals by international law and practice, may be made the foundation for pecuniary demands upon the neutral power, such as are now urged against Great Britain. If this be so, it becomes a matter of the highest moment that the rules binding on neutrals should be simple and few. But what, according to the Case of the United States, must be the ordinary situation of a neutral in a maritime war? It must be a situation of perpetual and unremitting anxiety, surrounded by dangers, harassed by a crowd of new obligations unknown in peace, which nothing short of sleepless vigilance will satisfy, while any lapse in the performance of them, on the part even of a subordinate officer, is to be visited with heavy national penalties. The transactions of private commerce must be made the object of minute inquisition and incessant supervision; private persons, suspected of being agents of either belligerent, must be tracked, when within the neutral country, by spies and informers; trade with the belligerent nations must be fettered by restraints arid prohibitions; the hospitalities ordinarily extended to belligerent ships in ports of the neutral must be guarded with precautions, for the strict enforcement of which no honesty or zeal on the part of the local authorities can afford an adequate guarantee. Laws and regulations enacted by the neutral nation with a view to its own protection, far from being a means of security, become an additional source of danger, when they are liable to be construed as acts by which the neutral establishes as against himself, by admission or otherwise, a new class of international obligations. Is this picture overdrawn? It can hardly be thought so, when we pass in review the various articles of the long indictment preferred by the [Page 394] United States against Great Britain, and the statements and arguments which have been used in support of them.

It is evident that, if these principles were to be generally adopted, the only prudent course for neutral powers would be to enact no regulations, repeal all laws which could be interpreted as admissions against themselves, exclude all belligerent vessels of war from their ports, prohibit all traffic with belligerent nations. But even this would not be enough, since it is difficult, perhaps impossible, for maritime states, by any legislative or administrative precautions, to isolate themselves and their subjects completely from all contact with a maritime war. States, especially the less powerful, would be tempted to abandon a position so precarious, and menaced by such heavy penalties; to choose, in preference, the certain evils of war itself; and to seek protection in an alliance with one belligerent or the other.

The British government is convinced that the arbitrators will not give any sanction to views of neutral obligation, to which not even the authority of this tribunal could secure the general assent of neutral powers. Nay, the British government is persuaded that these extreme views, though, for the sake of argument, they have been insisted on in the Caseo f the United States, are not thoroughly realized, and would never, in practice, be accepted as binding by the United States themselves.

The conceptions of neutral duty which have been stated to the arbitrators on the part of Great Britain are those on which she has constantly acted, and is prepared to act in future, and which she believes to be upheld by reason, by authority, and by the general consent of nations. It is the right of a state which remains at peace while others are at war, that its relations with foreign countries and the duties it owes to them as a member of the society of nations, should, as far as is possible, continue to subsist unaltered by discords from which it stands aloof, and wherein it has no share. Impartiality in act; the exercise of reasonable care to prevent itself from being made, even against its will, a virtual participant in the war, while claiming the advantages and immunities of peace; this is all that the neutral is bound to give, or the belligerent entitled to require. Great Britain has laid before the arbitrators, with a fullness and minuteness of detail rendered necessary by the long train of accusations she has had to meet, the acts of her government and of its officers, and every ascertained fact and circumstance which can be material to a decision; and she leaves with confidence to their judgment, and to that of the world, the question whether her obligations as a neutral were not fairly discharged toward the United States during the civil war.

Finally, Her Britannic Majesty’s government desires to express its earnest hope, in which it is assured that the Government of the United States will cordially share, that the frank and open statement of facts as they actually occurred, may effectually remove every misunderstanding between nations allied by innumerable ties to one another.

  1. See the general list of claims filed in the Department of State of the United States, Appendix to Case of the United States, vol. iv, p. 446, et seq.
  2. Appendix to Case of United States, vol. iii, p. 51.
  3. Ibid., p. 92.
  4. Appendix to Cass of United States, vol. i, p. 668.
  5. Ibid., p. 670.
  6. Ibid., vol. iii, p. 533.
  7. Ibid., p. 572.
  8. Ibid., p. 587.
  9. Appendix to the Case of the United States, vol. iii, p. 627.
  10. The arbitrators are referred to Sinclair’s letter, (24th September, 1863,) quoted in the Case of Great Britain, p. 45:

    “When I made a contract with you in November last for the building of a steam-ship, I was under the impression, having taken legal advice, that there was nothing in the law of England that would prevent a British subject from building such a vessel for any foreign subject as a commercial transaction. Although the recent decision in the court of exchequer in the case of the Alexandra would seem to sustain the opinion, yet the evident determination of your government to yield to the pressure of the United States minister, and prevent the sailing of any vessel that may be suspected of being the property of a citizen of the Confederate States, is made so manifest that I have concluded it will be better for me to endeavor to close the contract referred to, and go where I can have more liberal action.”

  11. These reports will be found in vol. vii of the Appendix to the Case of Great Britain.
  12. Appendix to British Case, vol. vii, p. 11.
  13. The English case of the Columbus, 2 W. Eobinson, 158; the American cases of the Lively, 1 Gallison, 315; the Amiable Nancy, 3 Wheaton, 346; the Amistad de Rues, 5 Wheaton, 345.
  14. Appendix to British Case, vol. vii, p. 7.
  15. Ibid., p. 5.
  16. Appendix to British Case, vol. vii, p. 16.
  17. Ibid., p. 13.
  18. Ibid., p. 36.
  19. For example, the whole amount of the Sheppard Knapp’s outfit is charged, although in the official account of her loss in. the report of the Secretary of the United States Navy to Congress of the 7th December, 1863, p. 556, it is stated that “her battery (11 guns) and appointments, ordnance, yeoman’s and master’s stores, instruments and charts, provisions and clothing, spars, sails, running and standing rigging, anchors and chains, everything portable and of value to the Government, has been saved. The only loss is the hull and the use of the ship.”—(Appendix to British Case, vol. vii, p. 90.)
  20. For example, the charges under the head of medicine and surgery amount to $28,664.24. The medical director-general of Her Majesty’s navy states that £2,500 would probably cover the charge for medicines and medical stores for 7,600 men for 303 days in Her Majesty’s navy. And this appears to have been the total of the complements of the United States cruisers.—(Ibid., p. 93.)
  21. Appendix to British Case, vol. vii, p. 74.
  22. Ibid., vol. vii, pp. 63, 111.
  23. Appendix to the Case of the United States, vol. vi, p. 332.
  24. Appendix to British Case, vol. vii, p. 58.