XI.—Consideration of the duties 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.

We are now prepared for a definite application of the law and the facts, under which the determination of the Tribunal is to be made, to the question of the duties of Great Britain, in the premises of the Arbitration, and its performance thereof or failure therein.

The ample discussions of pertinent questions and principles of public and municipal law, to be found in the Cases and Counter Cases of the two Governments, and subjected to comment in an earlier part of this Argument, it is not our purpose here to repeat or renew. We shall better observe the requirements of the Argument at this stage of it, by a brief statement of the propositions which should assist and control the judgment of the Arbitrators in deciding the main issue of fact on which their award is to turn, that is to say, the inculpation or the exculpation of Great Britain in the matter of the offending vessels.

Propositions of law.

Measure of international duty.

I. The Three Rules of the Treaty furnish the imperative law as to the obligations of Great Britain in respect of each of the vessels which is brought under review. The moment that it appears that a vessel is, in itself, within the description of the first article of the Treaty, as being one of “the several vessels which have given rise to the claims generically known as the ‘Alabama Claims,’” it becomes a subject to which the three rules are applicable.Rules of the treaty imperative.

II. This primary inquiry of fact, which simply determines that the jurisdiction of the Tribunal embraces the vessel, is followed, necessarily, by the further inquiry of fact, whether or no the vessel in its circumstances, falls within the predicament of either the first clause or the second clause of the first rule. If it does, the Tribunal has further to consider whether Great Britain has used, in regard to said vessel the “due diligence” which is insisted upon by that rule, and the failure in which inculpates Great Britain, and exposes it to the condemnation of responsibility and reparation therefor to the United States.Application of the first rule.

III. Whatever may be the scope and efficacy of the second Rule, and of the third Rule, in future or in general, for the purposes of the present Arbitration, the subjects to which either of them can be applied, in reference to the issue of the inculpation or exculpation of Great Britain, must be embraced within the limitation of the first article of the Treaty, and so, connected with some or one of “the several vessels which have given rise to the claims generically known as the ‘Alabama Claims.’” But in regard to any such vessel, the [Page 147] general injunctions of these two Rules furnish, in their violation, a ground for the inculpation of Great Britain, and its condemnation to responsibility and reparation therefor to the United States.Application of the second and third Rules.

IV. It is not at all material or valuable, in its bearing upon the deliberations or award of the Tribunal, to inquire whether the obligations of duty laid down in the Three Rules are commensurate with the obligations imposed by the “principles of International Law which were in force at the time when the claims mentioned in Article I [of the Treaty] arose.” These Rules constitute the LAW of this controversy and of this Tribunal in its jurisdiction of it, by force of the twofold declaration, (1) that, “in deciding the matters submitted to the Arbitrators, they shall be governed” by them, and (2) that “in deciding the questions between the two countries arising out of those claims, the Arbitrators should assume that Her Majesty’s Government had undertaken to act upon the principles set forth in these Rules.”These Rules constitute the law of this controversy.

V. The true force of the subordinate provision that, besides the Rules, “such principles of International Law, not inconsistent therewith, as the Arbitrators shall determine to have been applicable to the case,” shall govern them in their decision, is, necessarily, to introduce from the general doctrines of International Law whatever may corroborate or increase the vigor of the Rules, and their scope and efficiency, but to admit nothing, from such general doctrines, in reduction or disparagement of the Rules.Nothing admissible which diminishes their force.

VI. An assent to these indisputable propositions disposes of a very considerable part of the more remote argument of the Case and Counter Case of Her Majesty’s Government.

(a) The duties in respect of which the conduct of Great Britain, in fulfilling or failing to fulfill the same, is to be judged by the Tribunal, are, by the terms of the Treaty, authoritatively assigned as duties of Great Britain towards the United States, of international obligation. Not only does the Treaty declare that Great Britain was “bound” to the fulfillment of these duties, but it further declares that “the Arbitrators should assume that Her Majesty’s Government had undertaken to act” in obedience to that obligation. All speculations, therefore, of a legal or practical character, presented in the Case or Counter Case, and turning upon the question of the duties here under judgment being duties of Great Britain to its own alws and its own subjects, and its accountability to the United States being only secondary and of comity, seem unprofitable to the present inquiry.The obligation of Great Britain to observe these rules was an international one.

(b) The efforts of the Case and Counter Case to ascribe to, or apportion among, the various departments of national authority, legislative, judicial, and executive, principal or subordinate, the true measure of obligation and responsibility, and of fault or failure, in the premises, as among themselves, seem wholly valueless. If the sum of the obligations of Great Britain to the United States was not performed, the Nation is in fault, wherever, in the functions of the state or in their exercise, the failure in duty arose.This obligation not affected by internal distribution of powers of British government.

(c) So, too, the particular institutions or habits of the people of Great Britain, or the motives or policy of its Government in respect of commercial freedom, unrestricted activity, maxims or methods of judicial procedure, limitations of prerogative, and similar internal arrangements of people and Government, cease to have any efficacy in determining the judgment of this Tribunal upon the fulfillment of, or default in, international duty. Domestic liberty, however valuable to, and in, a state, is not a warrant for international [Page 148] license; nor can its advantages be cherished by Government or people at the cost of foreign nations. Indeed, when a special obligation or particular motive induces, and in some sense justifies, failure in international duty, the offending nation assumes the necessary amends and reparation to the foreign state. A notable instance of this is found in the course of the United States toward Great Britain, when the former had failed in what they admitted to be their international duty to prevent the outfit of French privateers, by reason of certain special relations to France. Compensation to Great Britain for injuries by the offending cruisers was conceded.Nor by the institutions or habits of the British people.

VII. The preceding observations leave the affirmative statement of the obligations resting upon Great Britain to secure the fulfillment of this international duty to the United States, free from difficulty.

(a) These obligations required that all seasonable, appropriate, and adequate means to the accomplishment of the end proposed, should be applied and kept in operation by Great Britain, from the first occasion for their exhibition until the necessity was over.Great Britain should have used seasonable, appropriate, and adequate means to preserve its neutrality.

(b) As the situation calling for the discharge of these obligations on the part of Great Britain was not sprung upon it unawares, but was created by the Queen’s Proclamation, (a measure of state adopted after deliberation in its own Government, and upon conference with another great European power,) the means to meet the duties of the proclaimed neutrality should, at once, have been found at the service of the Government, or promptly prepared, if deficient that no space might intervene between the deliberate assumption of these duties by the Government, and a complete accession of power to fulfill them.Which means should have been available as soon as required.

(c) The dangers and difficulties that would attend and embarrass the Government in the fulfillment of these duties, from the actual disposition of its own people, and the urgent needs of the Rebel belligerents, constituted necessary elements in the estimate of the actual duties the Government must be prepared to fulfill, and in the forecast of the means to meet and cope with such dangers and difficulties. The immense temptation to British interests to absorb the share of the commerce of the world, which its great competitor possessed, the immense temptation to the Rebel belligerents to allure these interests of the British people to an actual complicity in the preparation and maintenance of maritime hostilities, and, finally, to drag the British Government into formal war against the United States, were within the immediate field of observation to Her Majesty’s Ministers and made a principal feature of the situation they had produced, and were required to control. The British Case and Counter Case have given prominence to these considerations, in deprecation of the judgment of this Tribunal against Great Britain for the actual incompetency with which it met the duties of the situation. They tend rather to a condemnation, in advance, for negligence of Great Britain, thus advised of the duty imposed upon it, and failing to meet it successfully.British sympathy with insurgents an element to be considered in preparing means.

(d) The aptitude or sufficiency of the system or staff of public officers at the command of the Government for the required service of this international duty to the United States; the possession of Executive power to conduct the duties of the situation of neutrality which it had been competent to create, or the need of recourse to Parliament to impart it; the force and value of the punitive or repressive legislation designed to deter the subjects from complicity in the Rebel hostilities, in violation of the Government’s duties to prevent such [Page 149] complicity;—all these were to be dealt with as practical elements in the demands upon the Government in fulfillment of its duties, and were to be met by well-contrived and well-applied resources of competent scope and vigor.Other elements to be considered.

In view, then, of all these considerations, from the issue of the Queen’s Proclamation to the close of the rebellion, the Rules of the Treaty of Washington exact from Great Britain the preparation and the application, in prevention of the injuries of which the United States now complain, of seasonable, appropriate, and adequate means to accomplish that result.

The means of fulfilling international duty possessed by Great Britain.

I. That Great Britain possessed all the means which belong to sovereignty, in their nature, and, in a measure, of energy and efficacy, suitable to her proud position among the great Powers of the world, to accomplish whatever the will of the Government should decree, has never been doubted by any other Power, friendly or hostile. The pages of the British Case and Counter Case devoted to suggestions to the contrary, will not disturb this opinion of the world, and Great Britain, for the purposes of this Arbitration and the judgment of the Tribunal, must remain the powerful Nation which it is, with the admirable Government which it possesses in all other relations. Whatever infirmity shall have shown itself in the conduct of the Government, in the premises of this inquiry, it is attributable solely to debility of purpose or administration, not to defect of power.Her Majesty’s Government possessed full power to carry out its selected course of action.

II. The whole body of the powers suitable to the regulation and maintenance of the relations of Great Britain, ad extra, to other nations, is lodged in the Prerogative of the Grown. The intercourse of peace, the declaration and prosecution of war, the proclamation and observance of neutrality, (which last is but a division of the general subject of international relations in time of war,) are all, under the British Constitution, administered by the Royal Prerogative. Whether, or to what extent, the common or the statute law of England may or should punish, by fines or forfeitures, or personal inflictions, acts of the subjects that thwart or embarrass the conduct by the Grown of these external relations of the nation, are questions which belong to domestic policy. Foreign nations have a right to require that the relations of Great Britain with them shall be suitably administered, and defective domestic laws, or their defective execution, are not accepted, by the law of nations, as an answer for violations of international duty.The Prerogative of the Crown.

We refer to the debates in Parliament upon the Foreign Enlistment Bill in 1819, and on the proposition to repeal the Act in 1823, and to the debate upon the Foreign Enlistment Bill of 1870, (as cited in Note B of the Appendix to this Argument,) as a clear exhibition of this doctrine of the British Constitution, in the distinction between the executive power to prevent violations of international duty by the Ration, through the acts of individuals, and the punitive legislation in aid of such power, which needed to proceed from Parliament.

We refer, also, to the actual exercise of this Executive power by the Government of Great Britain, without any enabling act of Parliament to that end, in various public acts in the course of the transactions now in judgment before the Tribunal:Its exercise during the rebellion.

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1. The Queen’s Proclamation of Neutrality, May 13, 1861.1

2. The regulations issued by the Government of Her Britanic Majesty in regard to the reception of cruisers and their prizes in the ports of the Empire, June 1, 1861; June 2, 1865.2

3. The Executive orders to detain the Alabama at Queenstown and Nassau, August 2, 1862.3

4. The Executive orders to detain the Florida at Nassau, August 2, 1862.4

5. The Executive orders to detain the rams at Liverpool, October 7, 1863.5

6. The debate and vote in Parliament justifying the detention of the rams by the Government “on their own responsibility,” February 23, 1862.6

7. The final decision of Her Majesty’s Government in regard to the Tuscaloosa, as expressed by the Duke of Newcastle to Governor Woodhouse, in the following words:

If the result of these inquiries had been to prove that the vessel was really an uncondemned prize, brought into British waters in violation of Her Majesty’s orders made for the purpose of maintaining her neutrality, I consider that the mode of proceeding in such circumstances most consistent with Her Majesty’s dignity, and most proper for the vindication of her territorial rights, would have been to prohibit the exercise of any further control over the Tuscaloosa by the captors, and to retain that vessel under Her Majesty’s control and jurisdiction, until properly reclaimed by her original owners.—November 4, 1863.7

8. The Executive order that, “for the future, no ship of war belonging to either of the belligerent powers of North America shall be allowed to enter or to remain or to be in any of Her Majesty’s ports for the purpose of being dismantled or sold,”8 September 8, 1864.

9: The final Executive orders to retain the Shenandoah in port “by force, if necessary,” and to “forcibly seize her upon the high seas”9 September and October, 1865.

10. The rejection by Parliament of the section of the new Foreign Enlistment Bill, which provided for the exclusion from British ports of vessels which had been fitted out or dispatched in violation of the act, as recommended by the Report-of the Royal Commission. This rejection was moved by the Attorney General and made by Parliament, on the mere ground that this power could be exercised by Order in Council.10

That these acts were understood by the Government of Great Britain to rest upon the Prerogative and its proper exercise, is apparent from the responsible opinions of the Law Officers given upon fitting occasions.

1. In regard to the Alabama, the Law Officers of the Crown wrote to Earl Russell on July 29, 1862:

We, therefore, recommend that, without loss of time, the vessel [the Alabama] be seized by the proper authorities; after which an opportunity will be afforded to those interested, previous to condemnation, to alter the facts, if it may be, and to show an innocent destination of the ship.11

2. In the case of Laird’s rams, the Law Officers of the Crown wrote to Earl Russell, on October 19, 1863:

We are of the opinion, with respect to the first question submitted to us, that the answer to parties who have a right to make the inquiry should be that the seizure [of the rams] has been made by the orders of Her Majesty’s Government under the authority of the provisions of the Foreign Enlistment Act.12

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3. In the House of Commons, on February 23, 1864, the Solicitor General, speaking of the seizure of the rams and defending the action of the Government, said: “We have done that which we should expect others to do for us, and no more.”1

In the same debate the Attorney General, Sir Roundell Palmer, said:

The honorable gentleman asks what right the Government had to detain the ships. [Mr. Seymour Fitzgerald: “Hear, hear.”] The honorable gentleman cries, “Hearbut I do not hesitate to say boldly, and in the face of the country, that the Government, on their own responsibility, detained them.2

He, Sir Roundell Palmer, said further:

In a criminal case we know that it is an ordinary course to go before a magistrate, and some information is taken of a most imperfect character to justify the accused’s committal to prison for trial, the prisoner being remanded from time to time. And that course cannot be adopted in cases of seizing of vessels of this description. The law gives no means for that; and therefore it is that the Government on their own responsibility must act, and have acted, in determining that what had taken place with regard to the Alabama should not take place with respect to these ships.3

4. In the House of Commons, on the 28th of April, 1864, the Attorney General, Sir Rounded Palmer, defending the action of the Government in regard to the Tuscaloosa, as expressed in the dispatch of the Duke of Newcastle, before quoted, said:

Can it be said that a neutral sovereign has not a right to make orders for the preservation of his own neutrality, or that any foreign power whatever violating these orders, provided it be done willfully or fraudulently, is protected to any extent by international law within the neutral territory, or has any right to complain on the ground of international law of any means which the neutral sovereign may see fit to adopt for the assertion of his territorial rights? By the mere fact of coming into neutral territory in spite of the prohibition, a foreign power places itself in the position of an outlaw against the rights of nations; and it is a mere question of practical discretion, judgment, and moderation, what is the proper way of vindicating the offended dignity of the neutral sovereign.4

5. On the 26th of August, 1864, the Attorney and Solicitor General, writing particularly of the proposed executive order before referred to, in regard to the sale of belligerent war vessels in the ports of Great Britain, used these words:

The enforcement of such orders and directions, concerning as they do ships which, on their entrance into any port of Her Majesty, will have the character of public ships of war of a foreign Power, and will not yet have become the property of any of Her Majesty’s subjects, does not belong to the municipal law of this country, but to the same branch of the Royal Prerogative, by virtue of which Her Majesty has the power of making peace and war and generally of conducting and controlling the external relations of this country with foreign Governments.5

6. On the 21st of April, 1865, the Law Officers of the Crown thus wrote to Earl Russel, in reply to a request for instructions to Governor Darling:

With respect to his Excellency’s request that he may receive instructions as to the propriety of executing any warrant under the Foreign Enlistment act on board a Confederate (public) ship of war, we are of opinion that, in a case of strong suspicion, he ought to request the permission of the commander of the ship to execute the warrant; and that, if this request be refused, he ought not to attempt to enforce the execution; but that, in this case, the commander should be desired to leave the port as speedily as possible, and should be informed that he will not be re-admitted into it.6

V. That the faculties for this preventive service are inseparable from the Executive power of every Government, in the conduct of its foreign relations, is proved by the concurrent evidence furnished in the proofs laid before the Arbitrators, respecting the means possessed by the principal nations of Europe, and by the [Page 152] United States and Brazil as well, for the fulfillment of the international duties of neutrality. The full power was exercised by the administration of President Washington before any such authority was imparted by Congress, and the later explicit communication of such authority by the legislation of the United States rested upon the propriety of corroborating Executive power under a Government without any personal prerogative in its Executive head. This distinction was well understood in the British Parliament, and is insisted upon in the debate upon the Foreign Enlistment Bill of 1819, set forth in Note B of the Appendix to this Argument. It was to this consideration that the preventive vigor which constitutes so important a difference between the statutes of the United States and Great Britain owes its origin.Preventive power inseparable from the idea of executive power.

VI. The limited territory of Great Britain, its complete system of magistracy, its extensive and ramified organization of commercial and port regulations, for the inspection and control of its immense customs revenue, shipping, and navigation, its network of railroads and telegraphs, which brought every part of its narrow territory under the eye and hand of the central administration, gave to the Government the instant and universal means of executing its purposes of international duty, without chance of miscarriage or need of delay.Peculiar advantages of Her Majesty’s Government for the exercise of Executive power.

VII. The omnipotence of Parliament, the great principle of the British constitution, was always at the service of the Government, to supply, extend, or confirm its authority in the mater of international duty, and the means and agencies of its prompt, vigilant, and adequate exercise. Parliament was in session at the time of the Queen’s Proclamation, and took notice, at the moment, of the effects it had produced in the law of piracy as applicable to the maritime violence it would induce, as well as of the probable maritime instruments that the Rebel interests would press into their service. Parliament was in session, also, when the Florida and Alabama were in course of construction, when the Government was deliberating upon their detention, and when they actually escaped unimpeded. The alacrity with which Parliament could respond with immediate and effective legislation at the call of the Government, and upon the occasion of opening war calling into exercise the fulfillment by Great Britain of its international duty of neutrality, is clearly shown by the debate and action of Parliament in the passage of the new foreign-enlistment act of 1870. We refer again to Note B of the Appendix to this Argument.Omnipotence of Parliament.

Upon the whole, then, it is not to be gainsaid that the Government of Great Britain had at its command every means in their nature and in their energy and scope that any Power needs or possesses for the fulfillment of the obligations assigned to it within the premises of this Arbitration, by the Treaty of Washington or the law of nations.

The duty of Great Britain in its treatment of the offending vessels after their first illegal outfit and escape from British ports.

I. This subject, discussed at some length in the British Case and Counter Case, may be disposed of by a few elementary propositions:

(a) It is undoubtedly consonant with principle and usage, that a public-armed vessel of a sovereign power should be accorded certain privileges in the ports and waters of other national jurisdictions not accorded to private vessels. The substance of these privileges is a limited concession of the character [Page 153] of continued territoriality of the State to which they belong, and a consequent exemption from the jurisdiction of the courts and process of the nation whose ports or waters they visit. But the same reason which gives support to this immunity throws them under the immediate political treatment of the hospitable State, as represented by its Executive head, in the conduct of this international, if subordinate, relation. How, under the circumstances of each case calling for Executive action, the vessels are to be dealt with is determined, in the first instance, by the Government having occasion to exhibit the treatment. For its decision, and the execution of it, it is responsible, politically and internationally, and not otherwise, to the sovereign whose public ships have been so dealt with. That, ordinarily, the offense calling for remonstrance or intervention would not be made the subject of immediate and forcible correction, applied to the vessel itself, but would be brought to the attention of its sovereign for correction or punishment and apology, or other amends, may be assumed. But all this is at the discretion of the power having occasion to exert, control, seek redress, or exhibit resentment. The flagrancy or urgency of the case may dictate another course, to be justified to the sovereign affected upon such considerations.The privilege of ex-territoriality accorded to a vessel of war is political and discretionary.

(b) When, however, the anomalous vessels of a belligerent not recognized as a nation or as a sovereign claim a public character in the port of hospitality, the only possible concession of such character must, in subtracting them from judicial control, subject them to immediate political regulation applied to the vessels themselves. There is behind them no sovereign to be dealt with, diplomatically or by force. The vessels themselves present and represent at once whatever theoretical public relation exists or has been accepted. To hold otherwise would make the vessels wholly lawless and predominant over the complaisant sovereign, helplessly submissive to the manifold irresponsibilities the quasi public vessels assume to themselves.It should not be acceded to a belligerent not recognized as a political power.

(c) The necessary consequence is that when the offending vessels of the non-sovereign belligerent have taken the seas only by defrauding or forcing the neutrality of the nation whose hospitality they now seek, such nation has the right, and, as toward the injured nation demanding its action upon the offending vessels, is under the obligation, to execute its coersive, its repressive, its punitive control over the vessels themselves. It cannot excuse itself to the injured nation for omission or neglect so to do by exhibiting its resentment against, or extorting redress from, any responsible sovereign behind the vessels; nor can it resort to such sovereign for indemnity against its own exposure to reprisals or hostilities, by the injured nation, or for the cost of averting them.The only remedy against such belligerent, in a case like the present, is the remedy against the vessels themselves.

II. Upon these plain principles, it was the clear duty of Great Britain, in obedience to the international obligations insisted upon by the Treaty, and the supporting principles of the law of nations invoked by its requirement, to arrest these offending vessels as they tell under its power, to proscribe them from all hospitality or asylum, and thus to cut short and redress the injury against the United States which it had, for want of “due diligence” in fulfilling its duty of neutrality, been involved in. The power, full and free, to take this course is admitted by the British Government in its Case and Counter Case. Whatever motives governed Great Britain in refusing to exercise this power, such refusal, as toward the United States, is without justification, and for the continued injuries inflicted by the offending vessels Great Britain is responsible, and must make indemnity.Great Britain ought, therefore, to have seized the vessels.

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Due diligence as required by the three rules of the treaty and the principles of international law not inconsistent therewith.

I. The subject of “due diligence,” both in its nature and its measure, as an obligatory duty of Great Britain under the Three Rules of the Treaty, is much considered, upon principle and authorities, in the Case of the United States, and is commented upon, with some fullness, in the British Case and Counter Case. Neither a very technical nor a merely philosophical criticism of this definite and practical phrase, adopted by the High Contracting Parties and readily estimable by the Tribunal, can be of much service in this Argument. Some propositions and illustrations may aid the Arbitrators in applying the obligation thus described to the facts and circumstances under which its fulfillment or failure therein is to be decided by their award.Due diligence.

II. The foundation of the obligation of Great Britain to use “due diligence to prevent” certain acts and occurrences within its jurisdiction, as mentioned in the Three Rules, is that those acts and occurrences within its jurisdiction are offenses against international law, and, being injurious to the United States, furnish just occasion for resentment on their part, and for reparation and indemnity by Great Britain, unless these offensive acts and occurrences shall be affirmatively shown to have proceeded from conduct and causes for which the Government of Great Britain is not responsible. But, by the law of nations, the state is responsible for all offenses against international law arising within its jurisdiction, by which a foreign State suffers injury, unless the former can clear itself of responsibility by demonstrating its freedom from fault in the premises.After proof of hostile acts on neutral territory, the burden of proof is on the neutral to show due diligence to prevent them.

The High Contracting Parties, mindful as well of this principal proposition of responsibility of a State as of this just limitation upon it, have assigned as the true criterion by which this responsibility is to be judged, in any case arising between nations, the exhibition or omission on its part of “due diligence to prevent” the offenses which, of themselves, import such responsibility. The offenses and the injuries remain, but the responsibility of the one nation and the resentment of the other therefor are averted by exculpation of the State at whose charge the offenses lie, upon adequate proofs to maintain its defense.

The nature of the presumptive relation which the State bears to the offenses and injuries imputed and proved, necessarily throws upon it the burden of the exculpatory proof demanded, that is to say, the proof of due diligence on its part to prevent the offenses which, in fact, and in spite of its efforts, have been committed within its jurisdiction, and have wrought the injuries complained of.

III. It is incumbent, then, upon Great Britain to satisfy the Tribunal that it used “due diligence to prevent” what actually took place, and for which, in the absence of such “due diligence to prevent,” the Tribunal will adjudge it responsible. The nature of “diligence,” and the measure of it exacted by the qualifying epithet “due,” may now be considered.

(a) The English word diligence in common usage, and in the text of the treaty alike, adheres very closely to the Latin original, diligentia. It imports, as its derivation from diligo (to love, or to choose earnestly) requires, enlistment of zealous purpose toward the object in view, and activity, energy, and even vehemence, in its attainment. It has been adopted both in the civil law and in the common law of England, from common speech, and for this virtue in its [Page 155] vulgar meaning, which can give practical force and value to the legal duty it is used to animate and inspire. So far, then, from the word bearing a technical or learned sense, in its legal application either to private or national obligations, the converse is strictly true. A definition from approved authorities of the English language, common to the high contracting parties, is the best resort for ascertaining the sense intended in the text of the treaty. Webster defines “diligence” as follows: “Steady application in business of any kind; constant effort to accomplish what is undertaken; exertion of body or mind, without unnecessary delay or sloth; due attention; industry; assiduity.” He gives also this illustrative definition: “Diligence is the philosopher’s stone that turns everything to gold;” and cites, as the example of its use, this verse from the English Scriptures: “Brethren, give diligence to make your calling and election sure.”Diligence not a technical word.

We confidently submit that no appreciation of the sense of this cardinal phrase of the Treaty is at all competent or adequate which does not give full weight to the ideas of enlisted zeal, steady application, constant effort, exertion of all the appropriate faculties, and without weariness or delay, attention, industry, and assiduity.

(b) The qualifying epithet “due” is both highly significant and eminently practical. It requires the “diligence,” in nature and measure, that is seasonable, appropriate, and adequate to the exigencies which call for its exercise. It is to be, in method, in duration and in force, the diligence that is suitable to, or demandable by, the end to be accomplished, the antecedent obligations, the interests to be secured, the dangers to be avoided, the disasters to be averted, the rights that call for its exercise.1Prœstat exactam diligentiam,” a phrase of the civil law, is a just description of the undertaking “to use due diligence.” Those who incur this obligation to prevent an injury are excused from responsibility, if they fail only by deficiency of power. “Ceux qui, pouvant empêcher un dommage que quelque devoir les engageait de prévenir, y auront manqué, pourront en être tenus suivant les circonstances.”2 “Due” implies seasonableness, appropriateness, and adequateness.

(c) The British Case and Counter Case attempt to measure “due diligence” in the performance of this international duty to the United States in the premises of this Arbitration by the degree of diligence which a nation is in the habit of employing in the conduct of its own affairs. It is objection enough to this test that it resorts to a standard which is in itself uncertain and fluctuating, and which, after all, must find its measure in the same judgment which is to pass upon the original inquiry, and to which it may better be at once and directly applied. It is quite obvious, too, that this resort can furnish no standard, unless the, domestic “affairs” referred to be of the same nature, magnitude, and urgency as the foreign obligations with which they are thus to be compared. Probably, the United States might be well satisfied with the vigilance and activity, and scope and energy of means, that Great Britain would have exhibited to prevent the outfit and escape from port of the Alabama and her consorts, had her own commerce been threatened by the hostilities they were about to perpetrate, and her own ships been destined to destruction by the fires they were to light. But this is not the standard which the Arbitrators are invited to assume by this reasoning of the British Case and Counter Case. They are expected to measure the due diligence [Page 156] which Great Britain was to use, under the requirements of the Treaty, to prevent the destruction of the commerce and maritime property of the United States by the ordinary system of detection of frauds upon the customs. Even this comparison would not exculpate, but would absolutely condemn, the conduct of Great Britain in the premises; but the standard is a fallacious application of the proposed measure of diligence, and the measure itself, as we have seen, is wholly valueless.Objections to British definition of the term.

III. The maxims and authorities of the law of “due diligence” in the determination of private rights and redress of private injuries may not very often present sufficiently near analogies, in the circumstances to which they are applied, to the matter here under judgment, to greatly aid the deliberations of the Tribunal. There is, however, one head of the law of private injuries, familiar to the jurisprudence of these two great maritime powers, which may furnish valuable practical illustrations of judicial reason which they both respect, and whose pertinency to certain considerations proper to be entertained by the Arbitrators cannot be disputed. We refer to the law of responsibility and redress for collisions at sea. Judicial definitions by British and American courts.

In the first place, this subject of marine collisions is regarded by scientific writers on the law of diligence as falling within the rules which govern liability for ordinary negligence, the position in which the contentions of the British Case and Counter Case seek to place international responsibility of Great Britain to the United States.

In the second place, the controversy between the parties in these cases is admitted to exclude the notion of intent or willful purpose in the injury, an element so strongly insisted upon in defending Great Britain here against the faults laid to her charge by the United States.

In the third place, the circumstances of difficulty, danger, obscurity, uncontrollable and undiscoverable influences, and all possible opportunities of innocent error or ignorance, form the staple elements of the litigation of marine collisions, as they are urged, with ingenuity and persistency, in defense before this Tribunal against the responsibility of Great Britain for the disasters caused to the United States by the means and agencies here under review.

And, lastly, the eminent judges who have laid down the law for these great maritime Nations, in almost complete concurrence, in this department of jurisprudence, have not failed to distinguish between fault and accident, in a comprehensive and circumspect survey of the whole scene and scope of the occurrences, from the moment that the duty arose until the catastrophe, and through all the stages of forecast, precaution, provision, and preparation, which should precede, and of zeal, activity, promptitude, and competency, which should attend, the immediate danger. We cite a few cases, not dependent upon a knowledge of their special facts for the value of the practical wisdom they inculcate, and taken, with a single exception, from British decisions:

In law, inevitable accident is that which a party charged with an offense could not possibly prevent by the exercise of ordinary care, caution, and maritime skill. It is not enough to show that the accident could not be prevented by the party at the very moment it occurred, but the question is, could previous measures have been adopted to render the occurrence of it less probable? (The Virgil, 7 Jur., 1174; 2 W. Rob., 205: Notes of Cases, 499; The Juliet Erskine, 6 Notes of Cases, 633; The Mellona, 3 W. Rob., 13; 11 Jur., 783; 5 Notes of Cases, 450; The Dura, 5 (Irish) Jur., (N. S.,) 384.)1

In order to establish a case of inevitable accident, he who alleges it must prove that what occurred was entirely the result of some vis major, and that he had neither contributed to it by any previous act or omission, nor, when exposed to the influence of the force, had been wanting in any effort to counteract it. (The Despatch, 3 L. J., (N. S.) 220.)2

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It is not a vis major which excuses a master, that his vessel had caused damages to another in a tempest of wind, when he had warning and sufficient opportunity to protect her from that hazard. (The Lotty, Olcott, Adm., 329.)1

It is no excuse to urge that from the intensity of the darkness no vigilance, however great, could have enabled the vessel doing the damage to have descried the other vessel in time to avoid the collision. In proportion to the greatness of the necessity, the greater ought to have been the care and vigilance employed. (The Mellona, 11 Jur., 783; 3 W. Rob., 13; 5 Notes of Cases, 450.)2

It is necessary that the measures taken to avoid a collision should not only be right, but that they should be taken in time. (The Trident, 1 Spink’s Eccl. and Adm. Rep., 222.)3

If circumstances arise evidently and clearly requiring prudential measures, and those measures are not taken, and the natural result of such omission is accident, the court would be inclined to hold the party liable, even if such result were only possible. (The Itinerant, 2 W. Rob., 240; 8 Jur., 131; 3 Notes of Cases, 5.)4

The want of an adequate look-out at the time on board a vessel at sea is a culpable neglect on her part, which will, prima facie, render her responsible for injuries received from her. (The Emily, Olcott, Adm., 132; 1 Blatch. Ct. Ct., 236; The Indiana, 1 Abb., Adm., 330.)5

To constitute a good look-out there must be a sufficient number of persons stationed for the purpose, who must know and he able to discharge that duty. The George, 9 Jur., 670; 4 Notes of Cases, 161.6

IV. In assigning a just force to the “due diligence,” upon the presence of which, in the failure of Great Britain actually to prevent the injuries complained of, its exculpation by the tribunal is to turn, we have had no occasion to insist upon any severity or weight of obligation too burdensome for the relation of neutrality to endure. On the contrary, both the sentiments and the interests of the United States, their history and their future, have made, and will make, them the principal advocates and defenders of the rights of neutrals before all the world. In pleading before this Tribunal for indemnity at the hands of Great Britain for the vast injuries which its non-fulfillment of neutral duties has caused, the United States desire no rule or measure of such duties to be assumed or applied by this tribunal that its enlightened and deliberate judgment would not assign as suitable to govern the conduct of each one of the equal and independent Powers which are represented in this Arbitration. The United States do not themselves undertake to become to other nations guarantors of the action of all persons within their jurisdiction, and they assert no such measure of responsibility against Great Britain. They lay no claim to perfection or infallibility of administration, or security against imposition, misadventure, miscarriage, or misfortune, nor would they seek to charge Great Britain, or any other nation, upon any such requirement or accountability. But the United States do maintain that the disposition and action comporting with “due diligence as reasonably interpreted, are adequate to prevent, and will prevent, but for extraordinary obstacles or accidents, violations, by a powerful State, of its duties to other nations; that when such prevention fails, the proof of this disposition and action toward prevention, and of the obstacles and accidents that thwarted the purpose and the effort, are demandable by the aggrieved nation, and that upon that proof the judgment of exculpation or inculpation is to proceed.The United States do not desire a severe construction. They do not propose to become guarantors of their people.

V. In conclusion, we conceive that the Arbitrators are unquestionably the rightful judges of what constitutes “due diligence,” in the sense of the Treaty, and that this secures not only to the contending parties, but to the rights, duties, and interests [Page 158] cared for by the law of nations, a reasonable, a practical, and a permanent rule and measure of obligation, just in its judgment of the past, and wise and beneficent in its influence on the future. We concur in the final considerations of the British Counter Case on this subject of due diligence, in leaving “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 administration which they possess as persons long conversant with public affairs.”1 The Arbitrators the judges of what constitutes due diligence.

  1. Brit. App., vol. iii. p. 17.
  2. Ibid., pp. 17–22; ibid., vol. v, pp. 125–131.
  3. Ibid., vol. i, p. 203.
  4. Ibid., p. 29; ibid., vol. v, p. 55.
  5. Ibid., vol. ii, p. 384, et. seq.
  6. Am. App., vol. v, pp. 472-500.
  7. Brit. App., vol. i, p. 327.
  8. Ibid., vol. iii, p. 20.
  9. Ibid., vol. i, p. 657.
  10. Debate in Parliament, Note B, App. to this Argument.
  11. Brit. App., vol. i, p. 200.
  12. Ibid., p. 405.
  13. Am. App., vol. v, p. 496.
  14. Ibid., p. 477.
  15. Am. App., vol. v, p. 470.
  16. Ibid., p. 570.
  17. Brit. App., vol. i, p. 465.
  18. Ibid., p. 558.
  19. See Webster’s Dictionary in verbo Due.
  20. Domat, Lois civiles, liv. ii, tit. 8, § 4, No. 8.
  21. Pritchard’s Adm. Dig., 2d ed., vol. i, p. 133.
  22. Ibid., p. 134.
  23. Pritchard’s Adm. Dig., 2d ed., vol. i, p. 134, note.
  24. Ibid., p. 135.
  25. Ibid., p. 140.
  26. Ibid., p. 141.
  27. Ibid., p. 134, note.
  28. Ibid., p. 143.
  29. Brit. Counter Case, p. 125.