Table of contents.
I. Argument of the United States delivered to the tribunal of arbitration at Geneva, June 15, 1872.
| Page. | |
| I. Introduction: | |
| Argument presented in accordance with provisions of the Treaty of Washington | 5 |
| The respective Cases and Documents | 5 |
| Counter Cases | 5 |
| The issues to be determined are now settled | 6 |
| II. The Controversy Submitted to Arbitration: | |
| The Arbitrators already acquainted with the general nature of the facts | 7 |
| In suppressing an armed insurrection the United States exercised belligerent powers, and prevented insurgents from carrying on maritime war from their own resources | 7 |
| The right to do this unquestioned; other nations no parties to the conflict | 8 |
| Abstinence of intervention by another Power is not neutrality | 8 |
| It is a maintenance of previously existing relations | 8 |
| Other Powers have to decide in such case only whether they acquiesce in the exercise of belligerent powers by the Sovereign | 8 |
| Non-acquiescence is intervention | 8 |
| Questions arising beyond territorial limits of the Sovereign should be decided as they arise | 8 |
| Such course secures impartiality and, when justified by results, an equality between contending parties which resembles what is known as neutrality when exercised between rightful belligerents | 9 |
| This principle recognized by United States Supreme Court | 9 |
| Previous instances in point | 9 |
| Belligerent powers belong to the Sovereign of right; to the rebel of sufferance | 10 |
| Conferring belligerent rights on insurgents by Great Britain was an intervention | 10 |
| The Queen’s proclamation | 10 |
| was voluntary and anticipatory | 10 |
| was not called for by the relations between the Governments | 10 |
| had no justification | 10 |
| and changed the legal relations between Great Britain and the insurgents | 11 |
| Its effect upon the act of carrying on war on the high seas | 11 |
| Its effect upon commercial contracts | 11 |
| It was followed by systematic contributions in aid of the insurgents | 11 |
| The United States suffered great injuries | 12 |
| Which resulted from aid and assistance originating in British jurisdiction | 12 |
| This aid was organized, systematic, and official | 13 |
| Nature of the injuries inflicted on the United States | 13 |
| No nation but Great Britain instrumental in inflicting them | 13 |
| They form the subject of this arbitration | 14 |
| Provisions of the Treaty of Washington respecting the arbitration | 14 |
| Description of the claims | 14 |
| The Rules of the Treaty | 15 |
| The provisions of Article VII | 15 |
| Effect of an award | 15 |
| The measure of indemnity claimed | 16 |
| The claims preferred are national | 16 |
| The authority of the Tribunal absolute for their determination | 16 |
| Its award will be final | 16 |
| III. General Discussion of Questions of Law: | |
| Contention of United States regarding failure of Great Britain to maintain neutrality | 17 |
| Responsibility resulting from such failure | 18 |
| Scope of the submission | 18 |
| Meaning of the language “all claims growing out of the acts of the cruisers” | 18 |
| Contentions of Great Britain | 19 |
| Proposed course of argument | 19 |
| General considerations of law | 19 |
| Great Britain guilty of culpable negligence, even when measuring its duties by the Foreign-Enlistment Act | 19 |
| International duties independent of municipal law | 19 |
| Defects of Foreign-Enlistment Act | 19 |
| They might have been remedied | 20 |
| These are not questions of neutrality | 20 |
| Great Britain legally responsible to United States | 20 |
| Sir R. Phillimore’s authority cited | 20 |
| Legal theory of United States respecting questions at issue | 22 |
| Right to make war | 22 |
| Right to give cause for war | 22 |
| What may be cause | 22 |
| Neutrality | 22 |
| War, what it is | 22 |
| Sales of arms and contraband of war | 23 |
| Dispatch of armed vessels | 23 |
| Responsibility of Sovereign for violation of neutrality | 23 |
| Constitutional inabilities cannot be pleaded in answer to a charge of such violation | 23 |
| Alleged constitutional inability of Great Britain examined | 24 |
| The prerogative power of the Crown | 27 |
| IV. Miscellaneous Considerations: | |
| Many irrelevant matters in the British Case and Counter Case | 28 |
| Its treatment of the British Foreign-Enlistment Act of 1819 | 28 |
| Its comparison between the British and American acts unjust | 28 |
| The Government of the United States has always been anxious to possess legislative powers sufficient for the performance of its duties as a neutral | 29 |
| Disinclination of Parliament to legislate on the subject | 31 |
| Legislation of other countries | 32 |
| Distinction between prevention and punishment | 32 |
| France | 32 |
| Italy | 34 |
| Switzerland | 34 |
| Brazil | 35 |
| Portugal | 35 |
| Spain | 36 |
| Belgium and Holland | 36 |
| Russia and Prussia | 37 |
| Denmark and Sweden | 37 |
| Comparative review | 37 |
| Conclusions | 38 |
| The history of the United States as a neutral a part of the British pleadings | 38 |
| Its relevancy denied | 38 |
| Neutrality toward Great Britain during President Washington’s administration | 40 |
| Expedition of Miranda | 41 |
| Revolt of Spanish-American colonies | 42 |
| War between Portugal and the Banda Oriental | 44 |
| Walker’s expedition | 44 |
| Cuba | 44 |
| Fenians | 45 |
| British enlistments during the Crimean War | 46 |
| The course of Great Britain as a belligerent toward neutrals | 48 |
| Orders in Council | 48 |
| Course toward France during the American Revolution | 49 |
| Course toward the Netherlands | 49 |
| General obligations of neutrals | 49 |
| John Laird as a witness. (Note) | 51 |
| Purchase of arms. (Note) | 51 |
| V.—Statement of Some General Facts Pertinent to the Inquiry and Applicable to Each Cruiser. | |
| Résumé of facts stated in the American Case to establish the unfriendly animus of the British Government and people | 52 |
| The British response no denial | 52 |
| Rejoinder to the British response | 53 |
| Relevancy of the facts to the issue | 53 |
| Lord West bury | 54 |
| Mr. Montague Bernard | 54 |
| Earl Russell | 54 |
| The British Case | 55 |
| The facts stated in the American Case to be considered as proved | 55 |
| The proofs submitted with the American Case of the systematic and official use of British territory by the insurgents with the knowledge of Great Britain | 55 |
| These facts also to be taken as proved | 56 |
| VI.—The Florida | 57 |
| At Liverpool | 57 |
| Information by Mr. Adams | 57 |
| Action of Her Majesty’s Government | 57 |
| She was then evidently a man-of-war | 58 |
| Character of Mr. Adams’s representation | 59 |
| Action of the British Government | 60 |
| What might have been done | 60 |
| What actually was done | 60 |
| Registry of the Florida | 61 |
| Clearance | 62 |
| Résumé | 62 |
| Negligence of British officials | 63 |
| What might have been done under the Merchants’ Shipping-Act | 64 |
| Arrival at Nassau | 66 |
| Conduct of British officials there | 66 |
| Want of due diligence | 66 |
| Judicial proceedings at Nassau | 67 |
| Partial and unfriendly conduct of the Colonial Authorities | 69 |
| Seizure of the Florida | 73 |
| Trial and release; the criticisms on these proceedings in the American Case are sustained | 75 |
| Armament of the Florida | 75 |
| At Cardenas, at Mobile | 76 |
| At Nassau, January 25, 1863; receives coal, supplies, and recruitments | 77 |
| At Barbados, February 24, 1863; receives coal and repairs | 77 |
| At Pernambuco | 77 |
| At Bermuda, July 15, 1863; repairs and coals | 77 |
| At Brest; receives recruits and new machinery from Liverpool | 78 |
| At Martinique | 78 |
| At Bahia | 79 |
| Her tenders | 79 |
| VII.—The Alabama | 80 |
| Her adaptation to war is not disputed | 80 |
| The question to be decided | 80 |
| Mr. Adams gives information respecting the Alabama June 23, 1882 | 81 |
| Referred to Law-Officers of the Crown | 82 |
| Their action upon it | 82 |
| Proceedings of Customs Authorities | 83 |
| Mr. Adams informed that the American Consul may submit evidence to the Collector at Liverpool | 84 |
| The Consul directed to furnish information to the Collector | 85 |
| He does so | 85 |
| Conduct of the Collector | 86 |
| He declines to act | 87 |
| Mr. Adams instructs the Consul to continue to collect proof | 87 |
| The Consul does so, and presents it to the Collector, with a request to seize the vessel | 87 |
| Law-Advisers of the Customs | 88 |
| Proof submitted to the Treasury July 22 | 89 |
| Also to Earl Russell | 89 |
| Additional proof | 89 |
| Opinion of Mr. Collier | 89 |
| Presented with affidavits to Commissioners of Customs July 23 | 89 |
| Action of the Board | 89 |
| Further evidence submitted by Mr. Adams | 90 |
| Her Majesty’s Government agree to keep a watch on the vessel | 91 |
| The Law-Officers think the vessel should be detained | 91 |
| Illness of Sir John Harding | 91 |
| Escape of the Alabama | 92 |
| Inefficiency of the subsequent proceedings | 92 |
| Earl Russell thinks this a scandal | 93 |
| Mr. Cobden’s views | 93 |
| Want of due diligence; in what it consisted | 94 |
| Armament from the Bahama | 96 |
| At Martinique | 96 |
| Destroys the Hatteras | 97 |
| At Jamaica, January 20, 1863; repairs and lands prisoners | 97 |
| At Rata Island | 98 |
| At Bahia | 98 |
| Is excluded from Brazilian ports for violation of sovereignty of Brazil | 99 |
| At Cape Town | 99 |
| At Simon’s Bay | 99 |
| The Tuscaloosa | 100 |
| At Simon’s Bay | 101 |
| At Singapore | 101 |
| At Simon’s Bay; coals and provisions | 101 |
| Is destroyed by the Kearsarge June 19, 1864 | 101 |
| Reasons why Great Britain is responsible for acts of | 102 |
| VIII.—The Georgia | 104 |
| At Glasgow | 104 |
| Notoriety of the construction and purposes of the Georgia | 104 |
| Registry, clearance, and departure | 107 |
| The Alar | 108 |
| Armament of the Georgia | 108 |
| Mr. Adams gives information to Earl Russell | 108 |
| Insufficient action of Her Majesty’s Government | 109 |
| At Bahia | 109 |
| At Trinadi | 109 |
| At Simon’s Bay | 109 |
| At Cherbourg | 110 |
| At Liverpool | 110 |
| Sale | 110 |
| IX.—The Shenandoah | 111 |
| General review of facts establishing want of due diligence | 111 |
| Purchase of the Sea King | 115 |
| Her departure | 115 |
| Departure of the Laurel with her crew and armament | 115 |
| Armament of the Shenandoah | 116 |
| Arrives at Melbourne | 117 |
| Permission to coal and make repairs granted | 118 |
| Protest of the Consul | 118 |
| Unfriendly conduct of the Colony | 118 |
| Recruitment of men at Melbourne | 119 |
| The Colonial Authorities informed of the contemplated recruitments, and do not prevent them | 120 |
| Their inefficient proceedings | 122 |
| Further proof of recruiting furnished to the authorities | 124 |
| They parley with the commander of the Shenandoah in place of acting | 125 |
| Further information of contemplated recruitments | 126 |
| Refusal of the Colonial Authorities to act | 127 |
| Large recruitments of men; departure from Melbourne | 128 |
| Excessive repairs at Melbourne | 130 |
| Coaling there excessive | 130 |
| Contrast between the course of Brazilian and of British Authorities | 133 |
| At Liverpool | 134 |
| X.—The Sumter, the Nashville, the Retribution, the Tallahassee, and the Chickmauga | 135 |
| The Sumter | 135 |
| At Curaçoa, at Trinidad, at Martinique, at Cadiz | 135– 136 |
| At Gibraltar | 136 |
| At Liverpool | 138 |
| The Nashville at Bermuda | 138 |
| at Southampton | 139 |
| The Retribution | 140 |
| The Tallahassee | 143 |
| The Chickamauga | 145 |
| XI.—Consideration of the Duty of Great Britain, as Established and Recognized by the Treaty, in Regard to the Offending Vessels, and Its Failure to Fulfill them as to Each of Said Vessels | |
| Propositions of law | 146 |
| Measure of international duty | 146 |
| Rules of the Treaty imperative | 146 |
| Application of the first Rule | 146 |
| Application of the second and third Rules | 146 |
| These Rules constitute the law of this controversy | 147 |
| Nothing admissible which diminishes their force | 147 |
| The obligation of Great Britain to observe these Rules was an international one | 147 |
| This obligation not affected by internal distribution of powers of British Government | 147 |
| Nor by the institutions or habits of the British people | 147 |
| Great Britain should have used seasonable, appropriate, and adequate means to preserve its neutrality | 148 |
| Which should have been available as soon as required | 148 |
| British sympathy with insurgents an element to be considered in preparing means | 148 |
| Other elements to be considered | 148 |
| The Means of fulfilling International Duty possessed by Great Britain | 149 |
| Her Majesty’s Government possessed full power for carrying out its selected course of action | 149 |
| The prerogative of the Crown | 149 |
| Its exercise during the Rebellion | 149 |
| Preventive power inseparable from the idea of executive power | 151 |
| Peculiar advantages of Her Majesty’s Government for the exercise of executive power | 152 |
| The duty of Great Britain in its treatment of the offending vessels after their first illegal outfit and escape from British ports | 152 |
| The privilege of exterritoriality accorded to a vessel of war is political and discretionary | 152 |
| It should not be acceded to a belligerent not recognized as a political Power | 153 |
| The only remedy against such belligerent in a case like the present is the remedy against the vessels themselves | 153 |
| Great Britain ought, therefore, to have seized the vessels | 153 |
| Due diligence, as required by the three Rules of the Treaty and the principles of international law not inconsistent therewith | 154 |
| After proof of hostile acts on neutral territory the burden of proof is on the neutral to show due diligence to prevent them | 154 |
| Diligence not a technical word | 154 |
| “Due” implies seasonableness, appropriateness, and adequateness | 155 |
| Objections to British definition of the term | 155 |
| Judicial definitions by British and American Courts | 156 |
| The United States do not desire a severe construction | 157 |
| They do not propose to become guarantors of their people | 157 |
| The Arbitrators the judges of what constitutes due diligence | 157 |
| XII.—The Failure of Great Britain to Fulfill Its Duties, as Established and Recognized by the Treaty, Considered Upon the Facts | 159 |
| Considerations of general application | 159 |
| The vessels concerning whose acts the contention is | 159 |
| Failure of Great Britain to fulfill its obligations | 159 |
| Negligence in obtaining information | 159 |
| No general means of immediate action provided | 160 |
| No general instructions to maintain vigilance | 160 |
| No officers charged with instituting and maintaining proceedings | 160 |
| No steps taken to break up the hostile system | 160 |
| The idea of an international duty toward the United States rejected | 161 |
| The obligations of Great Britain were independent of steps taken by officers of the United States in Great Britain | 161 |
| The Government of the United States always earnest to maintain its duties as a neutral | 161 |
| Absence of such earnestness on the part of Great Britain a license for the acts of hostility complained of | 162 |
| Failure to ascertain extent of statutory and prerogative powers | 163 |
| Failure to exercise the Royal prerogative | 165 |
| The Foreign-Enlistment Act was an insufficient means for performing international duties, and its efficacy was diminished by judicial construction and official requirements | 166 |
| Contract between this act and the American Statute as construed and administered | 167 |
| British reliance upon the Foreign-Enlistment Act a failure of due diligence | 172 |
| The neglect to amend the Foreign-Enlistment Act a failure of due diligence | 173 |
| Contrast between the course of Great Britain and the course of the United States in these respects | 173 |
| Failure in due diligence after the escape of the cruisers | 175 |
| In not detaining offending cruisers when again in British ports | 175 |
| This obligation not determined by commissioning a cruiser | 176 |
| In not excluding escaped cruisers from British ports | 176 |
| The representations to insurgent agents respecting these cruisers were so long delayed and so feeble as to amount to want of due diligence | 178 |
| The British course in these respects was voluntary | 181 |
| The exclusion of prizes from British ports was no benefit to the United States | 181 |
| The responsibility of Great Britain for these failures in due diligence continued until the end of the career of the cruisers | 182 |
| No evidence of the exercise of due diligence submitted by Great Britain | 182 |
| What vessels are under the jurisdiction of the Tribunal | 185 |
| XIII. Nature and Amount of Damages Claimed by the United States. | |
| 1. Prefatory considerations | 186 |
| General conclusions | 186 |
| Great Britain responsible for the acts of the cruisers | 186 |
| Measure of liability considered | 187 |
| Claims of losses set forth in the American Case | 187 |
| These claims all comprehended in the terms of the Treaty | 187 |
| 2. Question of jurisdiction | 188 |
| Great Britain contends that the claims styled “Indirect” are not within the scope of the Arbitration | 188 |
| The term “indirect” not found in the Treaty | 188 |
| Rejoinder of the United States to the British assumption | 188 |
| “Indirect,” as used in this controversy, is equivalent to “national” | 188 |
| The word “indirect,” used in the negotiations which resulted in the Treaty | 189 |
| Used in the same sense in this discussion | 189 |
| What claims are within the jurisdiction of the Tribunal | 189 |
| Résumé of negotiations respecting Alabama Claims | 189 |
| Mr. Adams, November, 1862, asks “redress for private and national injuries” | 189 |
| Liability denied by Great Britain | 189 |
| United States refuse to relinquish their claims | 190 |
| Many claims lodged during the war, but discussion deferred | 190 |
| Reasons for calling all, the claims Alabama Claims | 190 |
| In April, 1865, the United States renew discussion | 190 |
| Responsibility of Great Britain re-asserted | 191 |
| Denial of liability | 191 |
| May, 1865, the United States classify claims as “direct” and “indirect,” and demand reparation for all | 191 |
| Great Britain denies liability for indirect and refuses arbitration for direct claims | 191 |
| Lord Russell the author of the term “Alabama Claims” | 192 |
| This term well known in October, 1866 | 192 |
| Lord Russell proposes to let bygones be bygones | 192 |
| The United States decline to waive any of their claims | 192 |
| The Stanley-Johnson Convention | 193 |
| The Johnson-Clarendon Convention | 193 |
| Lord Granville thinks it admits unlimited argument as to the extent of the Alabama Claims | 193 |
| This Convention not acceptable to the United States | 194 |
| Mr. Johnson informs Lord Clarendon that the United States have claims of, their own on Great Britain | 194 |
| Sir Edward Thornton advises Lord Clarendon that the Convention is rejected because it is thought that it does not include the indirect claims | 194 |
| Mr. Motley informs Lord Clarendon that the United States do not abandon the national claims | 195 |
| And that the Johnson-Clarendon Convention did not afford sufficient redress for the national injuries | 195 |
| The indirect claims as considered by Lord Clarendon | 195 |
| President’s message to Congress December, 1869 | 196 |
| Same in 1870 | 196 |
| In January, 1871, the words “Alabama Claims” were understood to include all claims of United States against Great Britain, both national and individual | 196 |
| Negotiations opened at Washington | 196 |
| Reasons which induced those negotiations | 196 |
| Preliminary proposals and correspondence | 197 |
| The proposed commission to treat of the “Alabama Claims” | 197 |
| United States Commissioners appointed and confirmed on the correspondence, and their powders limited by it | 197 |
| “The Alabama Claims,” the American Commissioners state their understanding of the meaning of those words | 198 |
| They propose a mode of ascertaining the amount of the damages | 199 |
| And that payment thereof should be made | 199 |
| This would have been an amicable settlement | 199 |
| But no waiver of any class of claims | 199 |
| The proposal declined | 199 |
| Without exception to the definition of the term “Alabama Claims” | 199 |
| A reference proposed by Great Britain | 200 |
| Unwillingly accepted by the United States | 200 |
| The Treaty of Washington | 200 |
| Meaning of the words “amicable settlement” | 200 |
| Cliams for reference under the Treaty | 200 |
| The same which were described in preliminary correspondence | 200 |
| No waiver of indirect claims | 200 |
| Powers of the Tribunal | 201 |
| Power to assess damages not limited | 201 |
| Views of Mr. Bernard | 201 |
| Twelfth article of the Treaty | 201 |
| Sir Stafford Northcote | 202 |
| Lord Ripon | 202 |
| Mr. Bernard | 202 |
| Evidence from Protocol II | 202 |
| Debate in Parliament—Lord Granville | 202 |
| Lord Cairns says the indirect claims included in the Treaty | 203 |
| His construction not questioned | 203 |
| Lord Ripon’s views | 203 |
| Sir Stafford Northcote | 204 |
| Conclusions | 205 |
| The American Case stated the claims in the language of the Joint High Commissioners | 205 |
| Long delay in objecting to it by Great Britain | 206 |
| Supposed concessions to United States in the Treats | 206 |
| The Rules | 206 |
| Expression of regret | 206 |
| Fenians | 206 |
| Conclusions | 207 |
| Lord Granville’s speech | 208 |
| Explanation of the misunderstanding | 209 |
| Résumé | 209 |
| Arbitration takes the place of war | 210 |
| The Tribunal the judge of its own powers | 210 |
| Pradier Fodéré | 210 |
| Calvo | 210 |
| Mr. Montague Bernard | 211 |
| 3. Measure of damages | 212 |
| Rules for measuring damages | 212 |
| Severity to be shown to the wrong-doer in claims founded on torts | 212 |
| The animus of the wrong-doer an element of damages | 212 |
| The relation between the injury and its cause | 213 |
| Whether the natural result of the wrong-doer’s act | 213 |
| Damages should be an indemnity | 215 |
| Whether so or not a question of fact | 215 |
| Application of principles | 215 |
| As to personal injuries | 215 |
| As to property of the United States destroyed | 215 |
| As to property destroyed and injuries inflicted upon citizens of the United States | 215 |
| As to expenses in pursuit of the cruisers | 216 |
| Alleged condonement by the United States | 218 |
| The arbitration substitutes damages in the place of reparation by war | 218 |
| Reply to Arguments in the British Counter Case | 218 |
| Indemnity should follow injury | 220 |
| Award of a sum in gross | 220 |
| It should include interest | 220 |
| Case of the Canada | 220 |
| Award under the Treaty of Ghent | 220 |
| Award under the Jay Treaty | 220 |
| Contingent reference to assessors | 220 |
| Claims of private persons | 221 |
| The indirect claims | 221 |
| Enhanced rates of insurance | 221 |
| Transfer of United States commerce to British flag | 221 |
| Prolongation of the war | 221 |
| Whether too remote for consideration to be determined by the Tribunal | 222 |
| Views of Mr. Pradier Fodéré | 222 |
| General considerations | 222 |
| The United States do not desire extreme damages | 223 |
| The jurisdiction of the question belongs to the Tribunal | 223 |
| Without an adjudication upon it there will not be a full settlement of all differences | 224 |
| Conclusion | 224 |
| Note A.—Observations on Certain Special Criticisms in the British Counter Case on the Case of the United States | 226 |
| 1. The British-Foreign Enlistment Acts | 226 |
| 2. American neutrality in 1793–’94 | 227 |
| 3. The United States and Portugal | 228 |
| 4. Nassau in December, 1861, and January, 1862 | 229 |
| Note B.—Extracts from Various Debates in the Parliament of Great Britain Referred to in the Foregoing Argument | 231 |
| 1. The Foreign-Enlistment Act of July 3, 1819 | 231 |
| 2. Lord Althorp’s motion for the repeal of the Foreign-Enlistment Act | 234 |
| 3. The affair at Terceira | 234 |
| 4. The Foreign-Enlistment Act of August 9, 1870 | 236 |
| 5. The Treaty of Washington | 239 |
| Note C.—Memorandum of Correspondence and Documents Rerating to the Amendment of the English Foreign-Enlistment Act, 1861–’71 | 242 |
| Note D.—Consideration of the Claims Arising in the Destruction of Vessels and Property by the Several Cruisers | 248 |
| Detailed statements have been presented | 248 |
| With the evidence furnished by the claimants to support them | 248 |
| The United States desire an award of a sum in gross on the evidence presented | 248 |
| British criticisms on this evidence | 248 |
| The answer to such criticisms | 249 |
| Injustice of the British estimates of the value of the vessels destroyed | 249 |
| Prices obtained under forced sales no criterion | 250 |
| Whaling and fishing vessels | 250 |
| Letter of Mr. Crapo | 250 |
| Property destroyed | 251 |
| How proved | 251 |
| Oil or fish destroyed on whalers or fishing-vessels | 251 |
| Personal effects | 252 |
| Claims of insurance companies | 252 |
| No double claims supported by the United States | 252 |
| Charter-parties or freights | 253 |
| Loss of profits | 253 |
| A part of the damages in actions in tort | 253 |
| Breaking up voyages of whaling-vessels | 253 |
| Claims of the officers and crews | 254 |
II. Argument or summary showing the points and referring to the evidence relied upon by the government of Her Britannic Majesty in answer to the claims of the United States: Presented to the tribunal of arbitration constituted under Article I of the treaty concluded at Washington on the 8th May, 1871, between Her Britannic Majesty and the United States of America.
| Scope of the Arbitration | 259 |
| Course of proceeding to be followed by the Tribunal | 259 |
| Vessels to which the claims of the United States relate | 260 |
| Nature of the Argument on the part of Great Britain | 263 |
| The Sumter, Nashville, Tallahassee, Chickamauga, and Retribution | 263 |
| The Clarence, Tacony, Archer, and Tuscaloosa | 264 |
| The Alabama, Florida, Georgia, and Shenandoah | 264 |
| Substance of charges | 264 |
| General principles of International Law in force when the facts occurred | 265 |
| The three Rules of the Treaty of Washington | 267 |
| Meaning of the words “reasonable ground to believe” | 268 |
| “Due diligence” | 268 |
| British law and powers of the Executive in Great Britain | 269 |
| Facts which must be proved before an award can be made against Great Britain | 273 |
| The Florida | 274 |
| The Alabama | 276 |
| The Georgia | 281 |
| The Shenandoah | 282 |
| Conclusion as to the Florida, Alabama, Georgia, and Shenandoah | 283 |
| General course pursued by the British Government in regard to the representations made by Mr. Adams | 283 |
| Charge that the armament of certain vessels was procured from Great Britain | 283 |
| Charge that the crews of certain vessels were partly composed of British subjects | 288 |
| Charge as to Confederate Agencies in Great Britain for war purposes | 290 |
| Complaint that Confederate cruisers visiting British ports were not seized and detained | 295 |
| Complaint as to hospitalities accorded to Confederate cruisers in British ports | 303 |
| Review of the grounds on which the claims of the United States rest | 303 |
| Character of the claims of the United States | 304 |
| Observations on the principle and measure of compensation | 304 |
| Conclusion | 307 |
| Annex A. Communications between the British and American Governments during the Civil War, with Reference to the State of the Neutrality Laws of Great Britain | 309 |
| Annex B. French Translation of the Three Rules in Article VI of the Treaty of Washington | 313 |
| Annex C. Report of the Committee Appointed by the Board of Trade | 315 |
| Class A | 321 |
| Class B | 323 |
| Class C | 326 |
| Class D | 330 |
| Class E, F. | 332 |
| Correction and combination of allowances | 335 |
| Summary | 338 |
| I. As to the vessels and outfits | 339 |
| II. As to freights and earnings | 339 |
| III. As to the cargoes | 339 |
| IV. As to claims for damages and personal effects | 340 |
| V. Result | 340 |
| Notes | 341 |
| Table No. 1. Showing progressive increase in the amount of claims for losses incurred through the respective cruisers as stated at different periods | 340 |
| Table No. 2. Showing the result of the corrections and re-appropriations of the claims and the corresponding allowances in summaries Nos. 1, 2, and 3, of First Report, in accordance with remarks in present Report | 343 |
| Table No. 3. Showing, under respective divisions of classes, interest, and cruisers, the claims advanced under the Revised Statement, together with the allowances to meet them | 346 |
| Table No. 4. Showing the vessels captured by the Alabama, the valuation the captors placed on each vessel, the allowance deemed adequate for each, &c | 348 |
| Annex D. Further, Note on the Claim presented by the Government of the United States for Expenditure alleged to have been incurred in the Pursuit and Capture of Confederate Cruisers. Efforts made to capture Confederate Cruisers | 350 |
| Alabama | 359 |
| Florida | 354 |
| Georgia | 355 |
| Shenandoah | 359 |
| Inadequacy and want of concert of United States naval force abroad, &c | 359 |
| Errors in the synopsis of orders | 360 |
| Admiral Wilkes’s flying squadron | 362 |
| Miscellaneous cases | 363 |
| Vanderbilt | 363 |
| San Jacinto | 364 |
| Augusta | 364 |
| Dacetah | 364 |
| Niagara | 364 |
| Money claims—further abatements suggested | 365 |
| Conclusions | 370 |
III. Supplementary statements or arguments made by the respective agents or counsel subsequently to filing the arguments according to the provisions of the treaty.
| I.—Statement of Sir Roundell Palmer, made at the Seventh Conference, on the 27th June, 1872 | 375 |
| Points upon which he desires further argument | 375 |
| II.—Reply of the Counsel of the United States in Response to the foregoing Statement of Sir Roundell Palmer | 376 |
| Reasons why further argument should not he ordered at this stage of the proceedings | 376 |
| III.—Argument of Sir Roundell Palmer on the Question of “Due Diligence.” “The Effect of Commissions upon the Insurgent Cruisers,” and “The Supplies of Coal to such Cruisers in British Ports” | 385 |
| 1. On the question of Due Diligence generally considered | 385 |
| On the sources of the obligation | 385 |
| Rules and principles of International Law | 385 |
| Express or implied engagements of Great Britain | 387 |
| Effect of prohibitory municipal laws | 388 |
| The three Rules of the Treaty of Washington | 389 |
| General principles for finding what diligence is due | 390 |
| The maxims cited by the United States from Sir R. Phillemore | 390 |
| For what purposes Great Britain refers to her municipal laws | 393 |
| Doctrine of Tetens | 393 |
| Influence upon the question of diligence of the different forms of National Governments | 394 |
| Objections to any theory of the diligence due from neutral Governments which involves a universal hypothesis of arbitrary power | 394 |
| Argument of the United States as to the necessity of a reliance on prerogative | 395 |
| Argument as to prerogative powers belonging to the British Crown | 395 |
| True doctrine as to powers of the Crown | 397 |
| American view of an a prion obligation | 398 |
| The British Crown has power to use the forces of the realm to stop acts of war within British territority | 399 |
| The assertion that Great Britain relies on punitive and not preventive law disproved | 400 |
| Preventive power of British law explained | 400 |
| The doubtful points as to the construction of the British Foreign-Enlistment Act never affected the diligence of the British Government | 401 |
| Baron Bramwell’s view of the international as distinct from municipal obligation agreed with that of the American Attorney-General in 1841 | 402 |
| On the arguments as to due diligence derived by the United States from foreign laws | 402 |
| On the comparison made by the United States between their own laws and British laws | 405 |
| Examination of the preventive powers of the American Government under their acts of Congress for the preservation of neutrality | 405 |
| Testimonies of Air. Bemis and Mr. Seward on this subject | 409 |
| Argument from the Foreign-Enlistment Act of 1870 | 409 |
| Illustrations of the doctrine of due diligence from the history of the United States | 410 |
| Arguments of the United States from suggested defects in the administrative machinery of British law, and from the evidence required by the British Government | 410 |
| Inconsistency of the Rules of the Treaty with the requirement of diligence to prevent where there were not reasonable grounds of belief | 412 |
| The British Government took active and spontaneous measures to acquire all proper information and to prevent breaches of the law | 412 |
| They followed up all information received by proper inquiries | 413 |
| Necessity and propriety of seeking evidence from those who give information | 415 |
| Mr. Jefferson’s letter of September 5, 1793 | 415 |
| Onus imposed on British claimants against the United States under the Treaty of 1794 | 415 |
| Uniform reference of the Executive Authorities of the United States in similar cases to legal procedure and the necessity for legal evidence | 415 |
| Of the suggestion that the belief of the consuls of the United States in British ports should be treated as sufficient prima-facie evidence | 419 |
| The preventive efficacy of the American law tried by the test of practical results | 420 |
| The general result proves that many failures may happen, without want of due diligence, from causes for which Governments cannot be held responsible | 422 |
| Attempt of the United States to change the onus probandi in this controversy | 423 |
| It is a transgression of the Rules of the Treaty | 424 |
| The law of nations does not justify this attempt. | 424 |
| The decision in the case of the Elizabeth against it | 424 |
| Special questions remaining to be considered | 425 |
| The alleged duty of pursuit. The Terceira expedition | 426 |
| 2. The effect of the commissions of the Confederate ships of war on their entrance into British ports | 426 |
| The true construction of the first Rule of the Treaty | 426 |
| The privileges of public ships of war in neutral ports | 427 |
| The case of the Exchange | 428 |
| Other authorities | 428 |
| The Rule cannot require an act wrongful by international law | 429 |
| There is no rule obliging a neutral to exclude from his ports ships of this description | 430 |
| In any view the latter part of Rule I cannot apply to the Georgia or the Shenandoah | 430 |
| The distinction suggested by the United States between ships of war of recognized nations and ships of a non-recognized State | 431 |
| All the ships in question were duly commissioned ships of war | 432 |
| 3. On supplies of coal to Confederate vessels in British ports | 433 |
| Both parties in the war equally received such supplies | 433 |
| Such supplies are not within the rule as to not using neutral territory as a base of operations | 433 |
| What is meant by the words “a base of naval operations” | 434 |
| What is not meant by those words | 435 |
| Consequences of a lax use of the phrase | 435 |
| Effect of the addition of the words “renewal or augmentation of military supplies or arms” | 435 |
| Doctrine of Chancellor Kent | 435 |
| President Washington’s rules and other authorities | 436 |
| Acts of Congress of 1794 and 1818 | 436 |
| British Foreign-Enlistment Act of 1819 | 436 |
| Universal understanding and practice | 437 |
| Intention of the second Rule of the Treaty on this point | 437 |
| British regulations of January 31, 1862 | 437 |
| 4. Principles of construction applicable to the Rules of the Treaty. | |
| Importance of the second and third questions, as to the principles of construction applicable to the three Rules | 438 |
| Rules for the interpretation of public conventions and treaties | 438 |
| Applications of these principles to the interpretation of the three Rules as to the points in controversy | 439 |
| Influence on the construction of the retrospective terms of the agreement | 440 |
| The admitted intention of both parties as to the second Rule | 441 |
| Influence upon the construction of the agreement to propose the three Rules for general adoption to other maritime nations | 441 |
| IV.—Argument of Mr. Evarts in Reply to the Special Argument of Sir Roundell Palmer | 442 |
| Scope of the discussion | 442 |
| Due diligence | 443 |
| The Rules of the Treaty the law of this Case | 443 |
| Sir R. Palmer’s attempt to disparage the Rules examined | 443 |
| How far the Tribunal may resort to the Rules of International Law | 446 |
| Sir R. Palmer’s principles for the construction of Treaties examined | 446 |
| Effect of a commission | 448 |
| United States construction of the first Rule | 448 |
| Effect of the words “reasonable ground to believe” | 450 |
| The rules of law respecting the effect of a commission | 451 |
| Extent of the right of exterritoriality granted to ships of war | 451 |
| Recognition of belligerency not a recognition of sovereignty | 452 |
| Application of the principles | 452 |
| Acts done in violation of neutrality are hostile acts | 454 |
| The neutral whose neutrality has been violated is under no obligation of comity to the violator | 455 |
| Authorities to show that the construction in neutral territories of a ship intended to carry on war against a belligerent is forbidden by the law of nations | 455 |
| The applicability of the rule to the Georgia and the Shenandoah | 458 |
| The question of coaling is a branch of the greater question of the use of British ports as bases of hostile operations | 458 |
| The doctrine of asylum considered | 459 |
| Analogy between the duties of a neutral on laud and his duties at sea | 459 |
| Limitation of the right of commercial dealings in contraband of war | 460 |
| Use of a neutral port as a base of hostile operations; what it is | 460 |
| In the case of the Nashville | 461 |
| In the case of the Shenandoah | 462 |
| The question of the use of the neutral port as a base of hostile operations being established, there remains the inquiry whether the neutral did or did not exercise due diligence to prevent it | 464 |
| Such proceedings are not mere dealings in contraband of war | 465 |
| Statement of the British argument on this point | 469 |
| The arming and equipping the cruisers forbidden by the law of nations | 471 |
| They should therefore have been disarmed when they came again within British ports | 472 |
| The construction of the Rules of the Treaty | 472 |
| Review of Sir R. Palmer’s criticisms upon the Argument of the United States | 473 |
| The prerogative of the Crown | 474 |
| Preventive and punitive powers of each Government | 477 |
| The failure of Great Britain to originate investigations or proceedings | 479 |
| The due diligence required by the Rules is a diligence to prevent a hostile act | 480 |
| Comparison between the statutes of the two nations | 481 |
| The burden of proof | 482 |
| The Terceira affair | 483 |
| Conclusion | 484 |
| V.—Argument of Mr. Cushing in Reply to the Special Argument of Sir Roundell Palmer | 486 |
| Due diligence | 487 |
| A theoretical discussion not wanted | 487 |
| Views of Sir Robert Phillimore | 489 |
| Views of Sir Roundell Palmer in the case of Lairds’ rams | 491 |
| Definition of due diligence | 494 |
| Powers of the Crown | 495 |
| Obligations imposed by international law as distinguished from municipal law | 496 |
| Constitutional form of the British Government | 496 |
| Case of the Russian ships | 499 |
| Comparative laws of other countries | 501 |
| The laws of the United States examined | 504 |
| Jurisdiction of the Tribunal | 508 |
| VI.—Reply of Mr. Waite to the Argument of Sir Roundell Palmer, upon the Special Question as to Supplies of Coal in British ports to Confederate Ships | 513 |
| A base of operations essential to naval warfare | 513 |
| What it is | 513 |
| It should not be in neutral territory | 513 |
| The insurgents had no such base within their own territory | 514 |
| Great Britain knew this | 514 |
| The advantages of these facts to the United States | 514 |
| Efforts of the insurgents to obtain bases of operations in neutral territory | 515 |
| Toleration of use equivalent to permission | 515 |
| Toleration implies knowledge | 515 |
| Great Britain had reasonable ground to believe that the insurgents intended to use its ports | 515 |
| Their effective vessels of war came from Great Britain | 515 |
| When obtained they were useless without a base of operations | 516 |
| They might have been excluded from British ports | 516 |
| This would have prevented the injuries which followed | 516 |
| The United States requested Great Britain to prevent this abuse of its territory | 517 |
| Great Britain refused to prevent it | 517 |
| Great Britain encouraged the use of its ports by the insurgents for repairs and for obtaining provisions and coal | 518 |
| All this constituted a violation of neutrality which entailed responsibility | 519 |
| VII.—Argument of Sir Roundell Palmer on the Question of the Recruitment of Men for the Shenandoah at Melbourne | 520 |
| VIII.—Observations addressed to the Tribunal by Mr. Cushing, in the name of the Counsel of the United States, on the 21st August, 1872, and Memorandum as to the Enlistments for the Shenandoah at Melbourne | 552 |
| IX.—Argument of Sir Roundell Palmer on the Special Question as to the Legal Effect of the entrance of the Florida into the port of Mobile, or the responsibility, if any, of Great Britain for that ship | 541 |
| X.—Reply of the Counsel of the United States to the Argument of Her Britannic Majesty’s Counsel on the Special Question of the Legal Effect, if any, of the entry of the Florida into the port of Mobile, after leaving the Bahamas, and before making any captures | 546 |
| XI.—Argument of Sir Roundell Palmer on the Claim of the United States for Interest by way of Damages | 550 |
| XII.—Reply on the part of the United States to the Argument of Her Britannic Majesty’s Counsel on the Allowance of Interest in the computation of Indemnity under the Treaty of Washington | 568 |
| XIII.—Comparative Tables presented by the Agent of the United States on the 19th of August, 1872, in compliance with the request of the Tribunal | 579 |
| XIV.—Tables presented by the Agent of Her Britannic Majesty on the 19th of August, 1872, in compliance with the request of the Tribunal | 610 |
| XV.—Reply of the Agent of the United States to the new matter introduced by the Agent of Her Britannic Majesty on the call of the Tribunal for elucidation in respect to the Tables presented by the two Governments | 633 |
| XVI.—A Note on some Observations presented by Mr. Bancroft Davis on the 29th August | 638 |