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
[Page IV]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
[Page V]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
[Page VI]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
[Page VII] 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
[Page VIII] 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
[Page IX]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
[Page X]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
[Page XI]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
[Page XII]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
[Page XIII]

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
[Page XIV]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
[Page XV]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
[Page XVI]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