Papers Relating to the Foreign Relations of the United States, Transmitted to Congress with the Annual Message of the President, December 2, 1872, Part II, Volume III

XII.—The failure of Great Britain to fulfill its duties, as established and recognized by the treaty, considered upon the facts.

June 10, 1872.

Considerations of general application.

It is assumed in the British Case, and argued in addition in the Counter Case, that the only vessels which fall within the description of the first Article of the Treaty as “the several vessels which have given rise to the claims generically known as the “Alabama claims,’” are the Florida, Alabama, Georgia, and Shenandoah. As to these vessels there is no contention in this respect, and they and their history and career are included, indisputably, within the jurisdiction conferred upon the Tribunal by the Treaty of Washington.The vessels concerning whose acts the contention is.

The Case of the United States sets forth a list of certain other vessels, which they understand to be embraced within the jurisdiction of the Tribunal, and the circumstances of whose dispatch and career bring them within the application of the Rules of the Treaty, and of the condemnation of Great Britain by the Tribunal for failure to fulfill the duties in this regard insisted upon by these Rules, and the principles of International Law not inconsistent therewith. Of these, three, viz, the Clarence, the Tacony, and the Archer, are described as tenders of the Florida; and one, the Tuscaloosa, as a tender of the Alabama. The others, the Sumter, the Nashville, the Retribution, the Tallahassee, and the Chickamauga, are independent vessels. In addition to the evidence furnished by the history of each of these vessels in the Case of the United States, the Counter Case presents special considerations to show that all these vessels fall within the description of the Treaty jurisdiction of the Tribunal.¹

The specific facts connected with these several vessels have been made the subject of comment in previous pages of this Argument, and they do not need to be further specially noted at present. Undoubtedly the “considerations of fact of general application,” which now occupy our attention, have their most important relation to the Florida, the Alabama, the Georgia, and the Shenandoah, the principal agents in the injuries to the United States which enter into the subject of this Arbitration, and any special applicability to the circumstances of the other vessels need not at present attract our attention.

We present now to the notice of the Arbitrators certain general, facts which inculpate Great Britain for failure to fulfill its obligations in the premises, as assigned by the Treaty.Failure of Great Britain to fulfill its obligations.

I. The absolute omission by Great Britain to organize or set on foot any scheme or system of measures, by which the Government should be put and kept in possession of information concerning the efforts and proceedings which the interests of the Rebel belligerents, and the co-operating zeal or cupidity of its own subjects would and did plan and carry out, in violation of its neutrality, is conspicuous from the outset to the close of the transactions now under review. All the observations in answer to this charge, made in the contemporary correspondence, or in the British Case or Counter Case, necessarily admit its truth, and oppose the imputation of want of “due diligence” on this score, upon the simple ground that the obligations of the Government did not require it, and that it was an unacceptable office, both to Government and people.Negligence in obtaining information.

Closely connected with this omission was the neglect to provide any systematic or general official means of immediate action in the various ports or ship yards of the kingdom, in arrest of the preparation or dispatch of vessels, threatened or probable, until a deliberate inspection should seasonably determine whether the hand of the Government should be laid upon the enterprise, and its protect broken up and its projectors punished. The fact of this neglect is indisputable; but it is denied that the use of “due diligence to prevent” involved the obligation of any such means of prevention.No general means of immediate action provided.

We cannot fail to note the entire absence from the proofs presented to the Tribunal of any evidence exhibiting any desire or effort of the British Government to impress upon its staff of officers or its magistracy, of whatever grade, and of general or local jurisdiction, by proclamation, by circular letters, or by special instructions, any duty of vigilance to detect, of promptitude to declare, of activity to discourage, the illegal outfit or dispatch of vessels in violation of international duty towards the United States.No general instructions to maintain vigilance.

It is not less apparent that Great Britain was without any prosecuting officers to invite or to act upon information which might support legal proceedings to punish, and, by the terror thus inspired, to prevent the infractions of law which tended to the violation of its international duty to the United States. It was equally without any system of executive officers specially charged with the execution of process or mandates of courts or magistrates to arrest the dispatch or escape of suspected or incriminated vessels, and experienced in the detective sagacity that could discover and appreciate the evidence open to personal observation, if intrusted with this executive duty.No officers charged with instituting and maintaining proceedings.

It is no answer to the imputation of want of “due diligence” in all this, that Great Britain dispensed with prosecuting officers in its maintenance of public justice, and relied upon the private interests of aggrieved parties to prosecute, at their own charge, and by their own lawyers, for crimes or offenses against the laws. It may be that murder, and burglary, and forgery, and frauds, in Great Britain, can be thus safely left to private prosecutions, because of the common interest and protection of the community securing due attention to the public justice, where all are enlisted to punish, and all feel the need of protection. But what analogy is there, in this situation, to the case of international obligation, where a foreign nation is the only sufferer, and interest and feeling in the domestic community are, at the best, indifferent and remote from the crime and its consequences? The actual hostile disposition of the population of the ports and emporiums of Great Britain at the time of these international injuries to the United States we need not, for the purpose of this suggestion, insist upon.

The result of all this was that the Government of Great Britain, in the various ways we have suggested, exhibited none of the disposition or action which we have insisted upon as included in the requirement of “due diligence to prevent the occurrence of the injuries to the United States from the offending vessels of which they now complain. Early advised and persistently reminded by the Minister of the United States of the system and organization introduced within the jurisdiction of Great Britain to prepare, put forth, and maintain from thence maritime war against the United States, the Government of Great Britain took no steps to be informed of, to break up, or to punish this system, or preclude or render difficult, in advance, particular projects in aid of this general purpose. It early adopted and steadily adhered to the method (1) of regarding the whole duty as a domestic one of enforcement of municipal law, and (2) of reducing the function of the Executive Government of England to that of a magistrate receiving the complaints of the United States, and, with such legal acumen as it could command, disposing of them upon the sole consideration of the completeness of the offense against the municipal law, and the competency and sufficiency of the proof in hand to secure a conviction, should a prosecution be thought worth while.No steps taken to break up the hostile system.

This theory and practice of Great Britain, rejecting the international duty and, necessarily, omitting any spontaneous, strenuous, and organized movements, as a Government, towards or in the discharge of such duty, were in themselves wholly inconsistent with, and contrary to “due diligence to prevent” the injuries to the United States, for which redress is now asked through the judgment of the Tribunal.The idea of an international duty toward the United States rejected.

The proposition covers the case of vessels which, in the absence of these necessary means for inspection and scrutiny, escaped the special notice of the Government. That they were not complained of, or discovered by the Minister of the United States, does not relieve Great Britain from its duty of “due diligence” to discover them, and to prevent their escape. The duty would have existed, if misfortune had deprived the United States of such a representative, or if broken diplomatic relations had removed him from the Kingdom. The proposition covers the cases of the Florida and the Alabama, were their more immediate features less obvious, and Great Britain’s failure in duty only general. The proposition covers the cases of the Georgia and the Shenandoah, which escaped without attracting the notice of the British government, for the very best reason in the world, that it had taken no means to observe, to detect, or prevent their departure.The obligations of Great Britain independent of steps taken by the officers of the United States in Great Britain.

The Arbitrators will observe the wide difference from these views and conduct of Great Britain in the estimate which the United States have put upon their duty in these respects, of spontaneous, organized, and permanent vigilance and activity, and in the methods and efficacy of its performance. On all the occasions upon which this duty has been called into exercise, the Government of the United States has enjoined the spontaneous and persistent activity of the corps of District Attorneys, Marshals, Collectors, and the whole array of their subordinates, in the duties of observation, detection, information, detention, prosecution, and prevention.

These chapters in the history of the law of nations, as observed by the United States, need not here be reviewed. The materials in the proofs before the Arbitrators are ample for their examination, if occasion in their delibrations should arise. Whatever actual failures may have occurred in the execution by the United States of this admitted duty, they have been not for the want of, but in spite of, the exhibition and earnest prosecution of these general, spontaneous, and comprehensive means of prevention, the entire absence of which we complain of in the conduct of the Government of Great Britain. Nor has the conduct or other great rowers, under a similar obligation of duty, either adopted the theory or followed the methods by which Great Britain governed itself. That the Government, as such, should act and continue to act, and have and use the means of acting, and, in default of so doing, be responsible for the consequence, is, we submit, the public law of nations as observed by the principal Powers, including Great Britain in other cases than that now in judgment before the Tribunal.The Government of United States always earnest to maintain its duties as a neutral.

It was the failure of the British Government “to use due diligence” to maintain inviolate its international obligations to the United States, in form, manner, and effect, as above stated, that gave the first warrant and license to the enlistment of the sympathies for the rebels and hostility to the Government of the United States, (which animated such large and influential interests in Great Britain,) in the actual practical service of the Rebellion. It was this absence of an active affirmative disposition of diligence in the Government, so apparent to all its subjects, to the Rebel agents, and to the Minister and Consuls of the United States, that threw the whole unchecked freedom of trade and industry, enterprise and appetence of gain, so much insisted upon in the British Case and Counter Case as a necessary part of British liberty, into zealous complicity with, and earnest adhesion to, the maritime war against the commerce of the United States, whose disasters are under review before the Tribunal. In this course of practical non-administration of the duty assigned by the Treaty as binding upon Great Britain, we ask the Tribunal to find a definite and substantial failure to fulfill that duty, and to inculpate the Nation accordingly.Absence of this earnestness on the part of Great Britain a license for the acts of hostility complained of.

As early as August 28, 1861, the principal newspaper of Liverpool (the Post) correctly described the state of feeling in the British community as follows:

We have no doubt whatever that the vast majority of the people of this country, certainly of the people of Liverpool, are in favor of the cause espoused by the Secessionists. The defeat of the Federalists gives unmixed pleasure; the success of the Confederates is ardently hoped, nay, confidently predicted.

It was an appreciation of this influence prevailing in that community and affecting the local officers of the Government, that prompted Earl Russell to say:

It appears to me that if the officers of the Customs were misled or blinded by the general partiality to the cause of the South, known to prevail at Liverpool, and that prima-facie case of negligence could be made out, Great Britain might fairly grant a sum equivalent to the amount of losses sustained by the captures of the Alabama.¹

It needs no argument to show that if the Government of Great Britain in 1861 and 1862, when the systematic operations of the Rebel agents, in a community thus enlisted in their cause, were denounced by the Minister of the United States, had used to those agents and that community the language employed by Earl Russell in 1865, and had executed the sentiments thus expressed, there would have been no “Alabama claims” to occupy the attention of this Tribunal. Earl Russell, after stating that “he was sorry to observe that the unwarrantable practice of building ships in this country, to be used as vessels of war against a State with which Her Majesty is at peace, still continues,” proceeded to say: “Now, it is very possible that by such shifts and stratagems the penalties of the existing laws of this country, nay, of any law that could be enacted, may be evaded; but the offense thus offered to Her Majesty’s authority and dignity by the de facto rulers of the Confederate States, whom Her Majesty acknowledges as belligerents, and whose agents in the United Kingdom enjoy the benefits of our hospitality in quiet security, remains the same. It is a proceeding totally unjustifiable, and manifestly offensive to the British Crown.”¹

II. The next great practical failure to fulfill its duty to the United States, on the part of Great Britain, was in its omission to ascertain its resources of Prerogative and statutory authority for maintaining its neutrality, and to announce to its subjects and to the Rebel agents the possession of these powers and the determination to use them. If an examination had satisfied the Government that it was not endued with the requisite faculties of prevention, it should have put them in practice, and scattered the machinations against its peace and honor, and against the maritime interests of the friendly power to which it was so closely engaged to observe its international duty. If, on the other hand, such examination disclosed doubts or defects of preventive Power, it should have obtained from Parliament the adequate authority. If the Government received from its principal Law Officers an interpretation of the Prerogative and of the Foreign Enlistment Act, that put at its service the seasonable, appropriate, and adequate means for the prevention of the acts and occurrences within its jurisdiction, which the Rules of the Treaty prescribe, it should have placed the ship builders of Liverpool and the Clyde in the predicament of open contemners of the laws of the realm, and of actual conflict with the whole power of the Government.Failure to ascertain extent of Prerogative and statutory powers.

If, on the other hand, these Law Officers advised a corroboration of the preventive power of the Government, it should have been granted by statute. We have searched in vain for any evidence in these regards of “due diligence” on the part of the Government at the opening of the Rebel hostilities. We find inflammation of popular sentiment urging a participation in those hostilities, and instant occasion for the Government to be energetic and alert. We find earnest and persistent appeals to take such a position made to the Government by the representatives of the United States. In 1870, when the war between France and Germany broke out, we find Great Britain enacting a vigorous Foreign Enlistment Statute, and exhibiting zeal and alacrity in the exercise of its new powers, and in putting in motion all the requisite prerogative authority by Orders in Council.

Suppose, for a moment, that in May, 1861, in sequence of the Queen’s Proclamation, the Attorney General of England had brought into Parliament a Foreign Enlistment Bill to place at the service of the Executive Government the means of maintaining toward the United States the duties of neutrality which that Government by the Proclamation had assumed—such a Bill as was passed in 1870. Suppose, in so doing, he had, speaking the purposes and motives of the Executive Government, said:

I think the House will agree that, upon the breaking out of this unexpected and most calamitous war, Her Majesty’s Government would have been very much to blame if they had delayed for a single day to introduce this measure.²

Suppose other members of the Government had supported the Bill by arguments like these:

He need not adduce arguments to show how unjustifiable and monstrous it would be for British subjects to take part in hostilities, when the avowed policy of the Government was that of perfect neutrality. * * * A similar law existed in the United States; while on the continent, Governments were able to prevent their subjects from violating neutrality.

The measure gave power to the Secretary of State to detain a suspected ship; as also to local officers at the ports, who would report to the Secretary of State, so as to cast on him full responsibility. It embodied all the recommendations of the Report, with the exception of that relating to the reception of vessels into British ports, and this object could he accomplished by Orders in Council.¹

Suppose arguments against its interference with freedom and shipbuilding had been answered as follows:

The fact that war was raging (on the Continent) was no reason for not amending our municipal law in points where this was notoriously defective. It was ridiculous to say that a builder did not know that the vessel he was building was for war purposes; and it was a less evil that the ship-building interest should suffer a little, than that the whole nation should be involved in difficulties.²

It would not occur in one case out of a thousand that the builder of a ship would have the smallest difficulty in proving what his contract was, and under what circumstances it was undertaken.

The object of the clause was to prevent the escape of suspected ships from the harbors of the kingdom till the Secretary of State has been communicated with. The clause gave an ad interim power of seizure.³

The object was to give power to any officer who saw a ship about to escape to prevent such escape.

The officers named would be able to seize a vessel without special instructions, in order that such vessel might not be allowed to escape. It was a most important power.

The clause was copied from the Merchant Shipping Act, which had been in force for twenty years without any complaint.⁴

Suppose all this, and we should have seen a performance by the British Government of the duty of “due diligence” in the particular now insisted upon, for the absence of which we now inculpate that Nation. But we should have seen no Florida, or Alabama, or Georgia, or Shenandoah upon the ocean, and redress for injuries would never have needed to be sought from the justice of this Tribunal by the United States.

But we are not left to argument to show how wide and beneficial would have been the practical effects of such action by the British Government, at the opening of the rebel hostilities, in checking and frustrating the proclivities of British subjects to aid and invigorate the maritime war against the United States, nor how readily the subordinate and local official staff could have worked out these provisions of the law. Some extracts from the correspondence of the German Embassador and the British Foreign Secretary will exhibit this influence and its results in the clearest light. Count Bernstorff, under date of October 8, 1870, wrote to Earl Granville an elaborate representation on the subject of the export of contraband of war, and therein speaks as follows:

According to Your Excellency’s own admission the executive has the power to prohibit the export of contraband of war. But you state the practice is to make use of this right only in the interest of England, as in the case off self-defense. A letter of the Duke of Wellington to Mr. Canning, dated the 30th of August, 1825, and reprinted in a London newspaper immediately after the indiscretion of Count Palikao, refutes this assumption, proving that England, as a neutral, has repeatedly prohibited the export of arms by an Order in Council, “according to the usual practice as the renowned Duke says. In one part of his letter the words occur, I am afraid, then, that the world will not entirely acquit us of at least not doing our utmost to prevent this breach of neutrality of which the Porte will accuse us.”

Practice, consequently, is in itself not opposed to the adoption of a measure desired by us for the prohibition of the sale of arms to our enemy. But the law allows Government a certain latitude of consideration to make use of their power according to circumstances. Your Excellency is, however, of the opinion that the present customs system would require a radical reform in order to prevent the export of contraband of war. I gladly concede that the lax method of dispatch and control on the part of the custom-house authorities which has become usual in the interest of an unfettered commercial intercourse, bars the energetic carrying out of a measure prohibiting the exportation of contraband of war. But, on the other hand, I think the very fact of such laxity tends to show that, for the purpose of rendering an Order in Council effectual, no new organization would be required, but simply more stringent instructions for the customs and harbor authorities, reminding them of the existing regulations.

In concluding his reply under date of October 21, 1870, Lord Granville says:

Your Excellency will, I think, admit that though Her Majesty’s Government are not prepared to change the practice of the country in regard to neutrality, they have been vigilant in watching and checking any symptoms of violation by British subjects of existing law. Some weeks before your excellency drew attention to the cases of the Hypatia and Norseman, the proper authorities of this country had been engaged in investigating them, and the watchfulness shown on those occasions has doubtless been the reason that no attempt has been made to sell or dispatch vessels in contravention of the Foreign Enlistment Act. A report which had reached Her Majesty’s Government that attempts were being made to enlist Irishmen for military service in France was acted upon with the greatest promptitude by the authorities of the Home Office, even at a time when, as it appears from the note which you addressed to me on the 11th instant, it did not appear to you that much importance teas to be attached to the rumors. I can assure Your Excellency that no effort shall hereafter be spared to deal promptly with any actual or contemplated infractions of the law.

We respectfully submit that, in the failure of the disposition and the action of “due diligence” in the matters insisted upon under this head of the argument, the conduct of Great Britain merits and must receive the condemnation of the Tribunal, and must render that nation responsible therefor to the United States in its award.

III. The next great failure of Great Britain “to use due diligence to prevent” the violation of its neutrality, in the matters within the jurisdiction of the Tribunal, is shown in its entire omission to exert the direct Executive authority, lodged in the Royal Prerogative, to intercept the preparations and outfits of the offending vessels, and the contributory provisions of armament, munitions and men, which were emitted from various ports of the United Kingdom. We do not find in the British Case or Counter Case any serious contention but that such powers as pertain to the Prerogative, in the maintenance of international relations, and are exercised as such by other great Powers, would have prevented the escape of every one of the offending vessels emitted from British ports, and precluded the subsidiary aids of warlike equipment and supplies which set them forth, and kept them on foot, for the maritime hostilities which they maintained. The contention of the British Case and Counter Case on this head is somewhat indefinite and uncertain, but substantially comes to this: (1) a disparagement of the vigor and extent of this Prerogative; and (2) a deprecation of its vigorous or extensive exercise, for reasons of domestic interest or policy.Failure to exercise the Royal Prerogative.

We have given full consideration to the question of the possession of this Prerogative authority under the head devoted to the subject as a proposition of law, and have called the attention of the Arbitrators to the resort to it, from time to time, taken by Her Majesty’s Government during the progress of the transactions under review. We are unable to see any discrimination between the occasions and the means for direct interposition of this power of the Government, as we insist upon them, and the occasions on, and means by, which it was actually applied by the Government, except as such discrimination was controlled by choice or disposition. We beg the careful attention of the Arbitrators to the debates in Parliament, cited in note B of the Appendix to this Argument, as bearing upon this question of the Prerogative of the British Crown in all matters of international obligation. These debates are not referred to by us for the sake of the individual opinions or reasoning of the eminent members of various British administrations, and of the leading members of Parliament, that took part in them. Each of these debates is upon an occasion of definite action by Parliament on the subjects before it, which commits the national will and authority in support of the propositions insisted upon in the debates, and in the sense in which we insist upon them here.

But, manifestly, there is but one answer that this Tribunal can accept for the omission to use the Royal Prerogative in regulation and control of the situation of neutrality, which had been produced by its intervention, either in respect of its debility or the impolicy, for domestic reasons, of resorting to it. This answer is, a supply of the power, thus failing or intermitted, by other forms of accredited and safe authority that was also seasonable, appropriate, and adequate. This brings us to the consideration of the mode in which existing statutory powers were wielded, and the plenary authority of Parliament to improve or extend them, was dealt with by Her Majesty’s Government.

IV. The insufficiency and inefficacy of the Foreign Enlistment Act of Great Britain, in force during the whole period of the American Rebellion, if it included the whole preventive power possessed by Her Majesty’s Government for the fulfillment of the duties prescribed by the Three Rules of the Treaty, are both undisputed and indisputable. The absolute omission from its provisions of all Executive authority, except in subservience to the judicial proceedings and punitive purposes of the law, furnishes to our minds a strong argument, if any further were needed, that, as was held in the Parliamentary discussion which attended its passage, its provisions were punitive and punitive only, because the direct authority of interception and prevention was possessed by the Crown.

But if, in addition to this debility of the Statute as a resort for seasonable, appropriate, and adequate means of fulfilling the international duty in question, apparent upon any construction of the Statute, we take the Statute, impoverished and emasculated, (1,) by judicial construction of its narrow reach to punish and deter; (2,) by the impossible requirement in the matter of evidence: that is to say, the requirement of voluntary evidence sufficient to convict, before accusation or arrest of person or vessel; and (3,) by the timidity, alike of Cabinet Ministers and Custom House Officers, and all intermediate Executive functionaries, in undertaking the execution of the law, for fear they should themselves be berated for their audacity, or condemned in damages as trespassers and law-breakers, for daring to interfere with the domestic liberty of British subjects to engage in war against American commerce, while their Government was at peace with the United States—taking, we say, the Statute, as thus construed and administered, there can be no pretension that the furnishing of a Government, as the sum of its authority, with powers so unseasonable, inappropriate, and inadequate, for the fulfillment of this international obligation, was compatible with that obligation as enjoined by the Three Rules of the Treaty.The Foreign Enlistment Act was an insufficient means for performing international duties, and its efficacy was diminished by judicial construction and official requirements.

Now, the true measure of the force and value of a statute as an expression of the sovereign’s will and purpose, is to be found in its judicial interpretation and its practical execution. Some pains have been taken in the British Case and Counter Case to insist upon the equality with, or perhaps the superiority over, the Neutrality Act of the United States shown in the Foreign Enlistment Act of Great Britain. Compared upon the text of their provisions, the great feature of preventive power in the American statute, stamps with manifest distinction these two systems of legislation. But compared in the practical efficiency which judicial interpretation and administrative execution have imparted to the American statute, as a part of its substantive vigor and value, and in the debility by the same means infused into the British Act, they are scarcely to be recognized as parallel legislation.

Certain great features mark the American Act as a working means to the Government for fulfilling the international obligations within its purview:Contrast between this act and the American statute as construed and administered.

1. The direct and unlimited administrative power vested in the President as the Executive head of the Government, to intercept, arrest, and prevent, by strong hand, the meditated international injury, by detaining, upon discretion, suspected instruments of such purposed injury.

2. The personal inflictions and the property forfeitures visited upon participation in the offense at any stage, and in any degree, however far short of completion in fact, or however small in agency, by the American Act as interpreted and applied, provided the project or purpose when completed and combined is illegal, gave the Government the means of punitive intervention, with effect and in time, to intercept and frustrate, even by judicial means, the projected schemes.

3. The initiation of judicial proceedings at early stages of illegal enterprise gave at once the opportunity to coerce proof by compulsory process, and made it the necessary interest of the parties interfered with to establish the innocent, or abandon the guilty, design.

4. The American statute stimulated the zeal of direct private interest to the service of conveying information and securing evidence to forfeit the offending vessel, by rewarding this service by the payment of one-half of the forfeiture to the informer. The influence of such a feature in the risk of illegal outfits of great and powerful cruisers, worth hundreds of thousands of pounds, is threefold in its operation: (1) The direct exposure of the enterprise, while in progress, to betrayal and conviction, by this appeal to the interests of some or one of the hundreds of subordinates, in the confidence of the transaction by necessity. (2) The discouragement to the offending belligerent to undertake an enterprise, thus in peril up to the moment when it might have absorbed the full investment of its funds. (3) The danger to the neutral ship-builder from this prolonged menace, from the cupidity which might strike him when the blow would fall upon his own capital, wholly uncovered by payments. It is not too much to say that projects of the magnitude, both in value and in length of time, involved in the building of a Florida or an Alabama, were little likely to risk the danger of a casual or a professional informer under such an inflammation to his zeal.

5. The exclusive judicial enforcement of the American Act is confided to the Federal Courts in their admiralty jurisdiction, as courts known to and governed by the law of nations, and not to the local, domestic, and common-law tribunals of the States. The Constitution of the United States, with sagacious comprehension of the duty and the difficulty of maintaining a jurisprudence in questions of international relation, trustworthy to and trusted by the interests of foreigners and foreign States, has vested the exclusive admiralty jurisdiction in the Courts of the United States, and by this jurisdiction the forfeiture of ships under the Neutrality Act is adjudicated.

We refer the Tribunal for a most competent authority on this whole subject of American jurisprudence and its methods of securing the practical end in view by even judicial means, to the note of Mr. Dana, the learned commentator on Wheaton, which is printed in full in vol. VII of the American Appendix, pp. 11–38. We quote a few passages.

Our obligation arises from the law of nations, and not from our own statutes, and is measured by the law of nations. Our statutes are only means for enabling us to perform our international duty, and not the affirmative limits of that duty. We are as much responsible for insufficient machinery, when there is knowledge and opportunity for remedying it, as for any other form of neglect. Indeed, a nation may be said to be more responsible for a neglect or refusal which is an imperial, continuous act, and general in its operation, than for neglect in a special case, which may be a fault of subordinates.¹

As to the preparing of vessels within our jurisdiction for subsequent hostile operations, the test we have applied has not been the extent and character of the preparations, but the intent with which the particular acts are done. If any person does any act, or attempts to do any act, toward such preparation, with the intent that the vessel shall be employed in hostile operations, he is guilty, without reference to the completion of preparations, or the extent to which they may have gone, and although his attempt may have resulted in no definite progress toward the completion of the preparations. The procuring of materials to be used, knowingly, and with the intent, &c., is an offense. Accordingly, it is not necessary to show that the vessel was armed, or was in any way, or at any time, before or after the act charged, in a condition to commit acts of hostility.1

No cases have arisen as to the combination of materials, which, separated, cannot do acts of hostility, but united constitute a hostile instrumentality, for the intent covers all cases and furnishes the test. It must be immaterial where the combination is to take place, whether here or elsewhere, if the acts done in our territory, whether acts of building, fitting, arming, or of procuring materials for these acts, be done as part of a plan by which a vessel is to be sent out with intent that she shall be employed to cruise.

As to penalties and remedies, parties guilty are liable to fine and imprisonment; and the vessel, her apparel and furniture, and all materials procured for the purpose of equipping, are forfeited. In cases of suspicion revenue officers may detain vessels, and parties may be required to give security against hostile employment; and the President is allowed to use the army and navy or militia, as well as civil force, to seize vessels, or to compel offending vessels, not subject to seizure, to depart from our ports. What vessels shall be required to depart is left to the judgment of the Executive.²

Observe, now, the practical operation of the Foreign Enlistment Act as it was worked by Her Majesty’s Government in fulfillment of its obligation “to use due diligence to prevent” the infractions of neutrality practiced to the prejudice of the United States.

1. All preventive intervention, in that name and of that design, was excluded from the resources of the law. It was confined to punishment of committed offenses. The personal inflictions were not severe enough to deter; and the proceedings to forfeit a guilty vessel for a committed offense might, incidentally, by its judicial arrest, thwart, or delay her injurious cruise; but only incidentally. The punitive prosecution for forfeiture might have place after, as well as in anticipation of, the hostile cruise.

2. It was held that arming the vessel itself within the jurisdiction was essential to guilt, and that any project for the cruiser that proposed to take out her armament, her munitions, or her men by separate bottoms, like the Alar, or the Hercules, or the Bahama, or the Laurel, or the Prince Alfred, was not within the penalties of the law. These supply-vessels, in turn, were safe under the law, as they were not intended “to cruise or commit hostilities against” the United States. Indeed, under this construction of the act, there seemed to be nothing to prevent the intended cruiser from taking in tow the tug which had its armament, its munitions, and its men, for transshipment on the high seas. For this purpose would, if proved, demonstrate that the cruiser had not taken, and did not propose to take, any armament, &c., within the jurisdiction, and that the tug was coming back, and had no “intent to cruise or commit hostilities.”

3. It was constantly enjoined by the Government upon all officials, that they must be extremely careful not to attempt to interfere with the freedom of these suspected enterprises, unless they had in hand volunteer evidence sufficient to secure success; for, otherwise, they and their superiors would be exposed to heavy damages for failure.

4. It was made very prominent that demonstration of the warlike build or fitness of the cruiser would not procure a forfeiture without satisfactory proof, in advance of any act, of the conscious intent to which a jury could not shut its eyes. It was then held that, when the intent was made manifest by the inception of the cruise, as on the trial of the Florida at Nassau, no conviction could take place, because the warlike build and fitments having occurred in the home port of Liverpool, and the demonstration of intent in a colonial port, the actual cruise must be suffered to go on unimpeded. When, however, the principal law-officers of Her Majesty’s Government attempted to reform this administration of the law, the principle that the full-blown consummation of the enterprise, by the cruiser’s taking the seas under a commission, protected it from any further judicial scrutiny, barred all further proceedings.

We offer to the attention of the Arbitrators some extracts from official papers relating to the cases of the Oreto (or Florida) and Alabama, as instances of the system of the administration of the Foreign Enlistment Act of which we are now complaining, and which we also conecive to furnish a fair illustration of the general ineffectual nature of the action and result in all the attempts to enforce it.

On the 16th of June, 1862, the question being upon the seizure of the Oreto at Nassau, Governor Bayley wrote to Commander Hickley, in part as follows:

The Oreto, as you are aware, has, in deference to your remonstrances and my orders, discharged her cargo of shell, shot, and ammunition, and is ready to clear in ballast. She has thus divested herself of the character of an armed vessel leaving this port for belligerent purposes. I do not think it consistent with law or public policy that she should now be seized on the hypothesis that she is clearing out for the purpose of arming herself as a vessel of war beyond the limits of the harbor. We have done our duty in seeing that she does not leave the harbor equipped and prepared to act offensively against one of two belligerent nations, with each of whom Great Britain is at peace.

And if she has still any such intention, an intention which cannot be fulfilled within the harbor, I think this could be effectually thwarted by giving instructions that the vessels which are supposed to be freighted with her arms, and to be prepared to go out with her, should not leave the harbor within forty-eight hours after the Oreto has left it.¹

On the 21st of June, 1862, Governor Bayley, after detailing certain incidents which had taken place in regard to the Oreto (Florida) at Nassau, thus reported to the Duke of Newcastle:

7. Throughout these occurrences I was averse from proceeding to extremities. Not that I considered the conduct of the Oreto to be entirely free from suspicion, or indeed from discourtesy to a neutral government. But I was unwilling to assume a hostile air; and, moreover, I felt that, however suspicious appearances were, it might be exceedingly difficult to bring either the Oreto or her crew within the scope of the Foreign Enlistment Act.

8. But when, having been several times dissuaded by me from seizing the vessel, and having, after seizure, released her in deference to my views, Captain Hickley, in his letter of 16th June, reiterated the expression of his professional opinion, not only that the Oreto was equipped as a vessel of war, but that she could be made ready for battle with the enemy in twenty-four hours; that other vessels then in the harbor could steam out with her, and help to arm her within a few miles off this port; and that her real destination was openly talked of, I thought that a strong prima-facie case was made out for a judicial investigation, even although the evidence were insufficient to warrant her condemnation. And I thought it better to sanction an appeal to the law in favor of our neutrality, and in deference to the honest convictions of a gallant and experienced officer, than to allow the Oreto to leave our shores unchallenged and unobstructed on an expedition of pillage, piracy, and destruction.

9. These reflections were strengthened by others. I felt that if the Oreto were allowed to take in arms, ammunition, and a crew here, a similar impunity must be in future conceded to any other vessel belonging to either of the two belligerent states. The consequences of dealing out this even-handed justice would, in the existing state of popular feeling, be highly inconvenient and embarrassing. The boon obtained by a Confederate vessel would be claimed by a Federal vessel. If granted, it would be granted grudgingly and sulkily, and it was more likely that it would not be granted at all; hence would arise disputes, jealousies, and angry altercation. More than this, we have reason to believe that armed Federal vessels are lying at a very short distance from this port. * * * The refusal to accord to northern vessels the same indulgence which has been accorded to those of the South, might, under these circumstances, provoke an affray between the ships of the two contending federations, and involve, not only this colony, but even the mother country in a very serious collision.

12. Your Grace will see that it is easy to do very much in the way of equipping a vessel for hostile purposes, arming her, and enlisting a crew, without establishing a case of such strong testimony as would justify her condemnation by a court of competent jurisdiction; and although it is repugnant both to our policy and our sense of justice to strain the letter of the law, even on the side of a reasonable inference against the rigid rules of technical evidence, yet it is easy to see that a strict adherence to these rules may be suspected to be the result, and may produce the fruits, of a deliberate collusion with the enemies of a State on terms of amity with our own country.¹

On the 30th of June, 1862, the evidence in regard to the Alabama being under consideration, Mr. Hamel, Solicitor of Customs, thus reported to the Commissioners of Customs:

The officers ought not to move in the matter without the clearest evidence of a distinct violation of the Foreign Enlistment Act, nor unless at a moment of great emergency, the terms of the Act being extremely technical, and the requirements as to intent being very rigid. It may be that the ship, having regard to her cargo as contraband of war, might be unquestionably liable to capture and condemnation, yet not liable to detention under the Foreign Enlistment Act, and the seizors might entail upon themselves very serious consequences.²

On the 11th of July, 1863, Consul Dudley’s letter in regard to the Alabama being under consideration, Mr. Hamel, Solicitor, thus advised the customs:

There is only one proper way of looking at this question. If the Collector of Customs were to detain the vessel in question, he would, no doubt, have to maintain the seizure by legal evidence in a court of law, and to pay damages and costs in case of failure. Upon carefully reading the statement, I find the greater part, if not all, is hearsay and inadmissible, and as to a part the witnesses are not forthcoming or even to be named. It is perfectly clear to my mind that there is nothing in it amounting to prima-facie proof sufficient to justify a seizure, much less to support it in a court of law, and the Consuls could not expect a Collector to take upon himself such a risk in opposition to rules and principles by which the Crown is governed in matters of this nature.³

On the 24th of July, 1862, after the Florida had been seized at Nassau on account of the “due diligence” of Commander Hickley, Vice-Admiral Milne thus wrote to the Secretary of the Admiralty:

I abstain from giving effect to my first intention, which was to express to Commander Hickley my approval of the zeal displayed by him on this occasion, in giving proof that our neutrality between the belligerents was a reality, and that when the occasion offered, Her Majesty’s officers were quite ready to accept the responsibility of acting as in this case, wherein it appeared to be notorious, however incapable of legal proof it may turn out to be, that the vessel in question was fitted out in a British port as an armed Confederate cruiser.

Should the Law Officers of the Crown be of opinion that the seizure was illegal; that the very grave suspicion of being intended for employment as a Southern cruiser; the fact of the vessel being fitted in every respect like one of Her Majesty’s ships, and specially adapted for war; her armament ready to be put on board, with a crew of fifty men, and officers of the Confederate States ready to command her; should these facts be insufficient, in their opinion, to justify legally and technically the seizure, I yet trust their Lordships will see fit to exonerate Commander Hickley from all blame and consequent responsibility.¹

On August 23, 1862, the Home Government having thought it desirable to send some Custom House Officers from Liverpool to Nasau, who could there give evidence of the facts which had taken place at Liverpool in regard to the Florida, Collector Edwards thus closes a letter to the Commissioners of Customs:

I am satisfied that she took no such [warlike] stores on board, and indeed it is stated, though I know not on what authority, that her armament was conveyed in another vessel to Nassau. The Board will, therefore, perceive that the evidence to be obtained from this port will all go to prove that she left Liverpool altogether unarmed, and that while here she had in no way violated the law.²

On the 11th of August, 1862, Governor Bayley, reporting the release of the Oreto, wrote to the Duke of Newcastle in part as follows:

I do not think it likely that we shall ever obtain stronger proof against any vessel than was produced against the Oreto, of an intention to arm as a belligerent. Therefore we may assume that no prosecution of the same kind will be instituted, or, if any be instituted, that it will fail. The natural consequence will be that many vessels will leave England partly equipped as men-of-war or privateers, and intended to complete their equipment here. But the notoriety of this practice will induce Federal men-of-war to frequent these waters, and virtually blockade the islands, in greater force than they have hitherto done; and when they are assembled in numbers, it will be vain to reckon on their observing any respect for territorial jurisdiction or international usage; I should neither be surprised to see Federal ships waiting off the harbor to seize these Confederate vessels, nor to see the Confederate ships engaging with Federal men-of-war within gunshot of the shore. The only means of preserving the peace and neutrality of these waters will be afforded by the presence of an adequate naval force.³

On the 23d of September, 1862, Governor Bayley reported in part as follows to the Duke of Newcastle:

I have the honor to inform your Grace that the Oreto, after her liberation by the admiralty court, left this harbor three or four weeks ago; and that she is supposed to have Since been finally transferred to the service of the Confederate States. If that is so, she is entirely out of my jurisdiction, and I could no more legally seize her were she to re-enter the port than I could seize any man-of-war belonging to the Government of the United States.⁴

5. Another marked trait of the actual administration by her Majesty’s Government of the punitive features of the Foreign Enlistment Act, is their failure in the clearest cases to enforce a forfeiture. When we consider that the pretensions of efficiency in this act are confessedly put upon its terrors to evil-doers and the dissuasion from illegal projects to be thus accomplished, it is with the greatest surprise that we find credit claimed for the British Government for the losses and sacrifices which that Government sustained in its purchases of its own peace from its law-breaking subjects by payment of damages, by agreement, for the prosecution of the Alexandra, and by payment in full for the Laird rams, instead of persisting in their forfeiture. Not more intelligible is the claim of credit for the course of the Government in the case of the Pampero, where the forfeiture was admitted by the claimants, but was never brought to an actual sale, which would inflict the loss of its value upon the guilty projectors of its intended cruise. Certainly, the British Government accomplished the detention both of the Pampero and of the Laird rams, and the United States have never omitted to express their satisfaction at this real benefit which they received from the success of Her Majesty’s Government in these instances. But, that the punitive terrors of this act should have lost the example of actual forfeiture to the Rebel resources, or to the guilty British ship-builders, of the great value invested in them, and that the British Government should have refunded the money, exhausted by the guilty enterprise of the Laird rams, in season for its new use by the Rebel agents and their accomplices in the same illegal service, can never seem to the United States a valuable contribution to the efficiency of the Foreign Enlistment Act as an instrument of punishment of these proscribed and dangerous proceedings.

These various traits in the actual dealing of Her Majesty’s Government with the Foreign Enlistment Act as an instrument, and as its only instrument, for maintaining its neutral obligations to the United States, became as well known, and were as clearly appreciated by all Her Majesty’s subjects, and through all her imperial dominions, as if they had been announced by a Queen’s Proclamation. No wonder that a learned judge of one of Her Majesty’s superior courts declared that a whole fleet of ships of war could be driven through the statute! That, as matter of fact, a whole fleet of ships of war was driven through that statute, is in proof before this Tribunal.

Upon the whole proofs, then, and in their application to the cases of all the offending vessels, we confidently submit to the Arbitrators, that the Foreign Enlistment Act, as construed and administered, was not an adequate instrumentality for, and its actual employment by the Government did not amount to, the use of “due diligence to prevent” the violations of the international obligations of Great Britain to the United States, which are now under review.British reliance upon the Foreign Enlistment Act a failure of due diligence.

We have never been able to appreciate the practical difficulties in preventing the emission of these hostile vessels from British ports. They were a long time in course of construction; they were long under the actual notice of the Government; its apparatus and resources for the fulfillment of the required duty were deliberated upon, explored, and understood. In truth, no practical difficulties did exist. But, whether or no this plain and easy execution of the practical duty itself could not become uncertain, difficult, and even impossible, by the adoption of theories and methods and agencies which, framed only diverso intuitu, naturally ended in failure, is a very difficult question. These constant failures were never from ignorance, from accident, or misfortune. They were not like the failures which may happen under any Government, where remoteness of ports, impediments of communication, obscurity, and insignificance of the projects and the vessels themselves, give opportunity for concealment and surprise. Such are the instances industriously collected in the British Case and Counter Case from the earliest years of the existence of the Government of the United States, and again in the period of the Spanish-American and Portuguese-American hostilities. The situations are very dissimilar; the conduct of the British Government here, and of that of the United States at those early periods, proceed upon very different systems; the causes of failure, as bearing upon responsibility therefor, are entirely distinct.

It is quite agreeable to be relieved from puzzling over the complexities, and delicacies, and obstacles which seemed to embarrass Her Majesty’s Government, under Earl Russell’s management of this international duty, in reference to so simple a matter as arresting these great ships of war, the Florida, the Alabama, the Georgia, and the Shenandoah, by the frank and practical view of the duty and the task expressed by Earl Granville, in Parliament, in the debate on the Washington Treaty. Earl Granville said:

On the one hand, nothing is so easy as to prevent a vessel of the Alabama class escaping from our shores, and the only loss to the country which would result from such a prevention, would be the small amount of profit which the individual constructing and equipping the vessel might derive from the transaction, which in almost every case is contrary to the Proclamation of the Queen.¹

Nor are we able to see how Her Majesty’s Government can escape from the dilemma which, on its failure to stop the Florida and the Alabama, and its easy success in stopping the Laird rams, was proposed to it by Sir Hugh (now Lord) Cairns, in Parliament.

What will you say to the American Minister now? Do not you suppose that the American Minister will come to you and say, “You told me last year that unless you had a case for seizure, and proof by proper evidence, you could not arrest a ship at all; that you could not detain her? Although you admitted that the facts I brought before you created very great suspicion, you said that you could not seize the Alabama, therefore you could not touch her. But look at what you did in September. For a whole month you detained these steam-rams in the Mersey, while, according to your own words, you were collecting evidence, and endeavoring to see whether your suspicions were well founded.” * * 1 maintain that when the United States hold this language, either our Government must contend that what they did in September was unconstitutional, or they ought to have done the same with regard to the Alabama, and are liable.²

V. Manifestly, if the Foreign Enlistment Act of Great Britain was thus inadequate and unsuitable, as an efficient instrument in the hands of the Government for the fulfillment of its international duty to the United States, it was a failure in the “use of due diligence to prevent” the injuries now complained of, not to obtain from Parliament a suitable and efficient act for the fulfillment of the duty. The demonstration of the existence of this obligation, and of its being early brought to the notice of Her Majesty’s Government by the United States, and of the refusal of Great Britain to meet the obligation, is complete. We refer the Tribunal to a statement of the contemporary correspondence on this subject between the Governments, and a memorandum of the action of Great Britain in the matter, after the close of the Rebellion, contained in Note C of the Appendix to this Argument.The neglect to amend the Foreign Enlistment Act a failure of due diligence.

In strong contrast with this inaction of Great Britain, and with its justification by Her Majesty’s Government, is the course taken by the Government of the United States in 1793, at the instance of Great Britain, in 1817, at the instance of Portugal, and again in 1838, to meet an exigency in the interest of Great Britain, tor the maintenance of its sovereignty over the Canadian provinces.Contrast between the course of Great Britain and the course of the United States in these respects.

On the 3d of December, 1793, President Washington, in his message to Congress, after stating the means that he had used to maintain a strict and impartial neutrality, said:

It rests with the wisdom of Congress to correct, improve, or enforce this plan of procedure, and it will probably be found expedient to extend the legal code and jurisdiction of the courts of the United States to many cases which, though dependent upon principles already recognized, demand some further provisions.

When individuals shall, within the United States, array themselves in hostility against any of the powers at war, or enter upon military expeditions or enterprises within the jurisdiction of the United States, or where penalties on violations of the law of nations may have been indistinctly marked or are inadequate, these offenses cannot receive too early and close an attention, and require prompt and decisive remedies.

On the 20th of December, 1816, the diplomatic representative of Portugal thus wrote to Mr. Monroe, then Secretary of State:

What I solicit of him (the President) is the proposition to Congress of such provisions by law as will prevent such attempts for the future.¹

Six days later, President Madison addressed a message to both Houses of Congress in part as follows:

With a view to maintain more effectually the respect due to the laws, to the character, and to neutral and pacific relations of the United States, I recommend to the consideration of Congress the expediency of such further legislative provisions as may lie requisite for detaining vessels actually equipped, or in course of equipment, with a warlike force, within the jurisdiction of the United States; or, as the case may be, for obtaining from the owners or commanders of such vessels adequate securities against the abuse of their armaments.²

At the same time, Mr. Monroe, Secretary of State, wrote to Mr. Forsyth, chairman of the Committee on Foreign Relations:

I have now the honor to state that the provisions necessary to make the laws effectual against fitting out armed vessels in our ports for the purpose of hostile cruising, seem to be:

1st. That they should be laid under bond not to violate the treaties of the United States under the law of nations, in all cases where there is reason to suspect such a purpose on foot, including the cases of vessels taking on board arms and munitions of war, applicable to the equipment and armament of such vessels subsequent to their departure.

2d. To invest the Collectors, or other Revenue Officers, where there are no Collectors, with power to seize and detain vessels under circumstances indicating strong presumption of an intended breach of the law, the detention to take place until the order of the Executive, on a full representation of the facts had thereupon, can be obtained.

The existing laws do not go to this extent. They do not authorize the demand of security in any shape, or any interposition on the part of the magistracy as a preventive, when there is reason to suspect an intention to commit the offense. They rest upon the general footing of punishing the offense merely where, if there be full evidence of the actual perpetration of the crime, the party is handed over, after trial, to the penalty denounced.³

The circumstances under which the temporary Neutrality Act of 1838 was passed, are fully stated in the Case of the United States, (p. 133,) and the act itself can be found in the documents presented therewith.⁴

Not less in contrast with the indifference and obstructions with which Her Majesty’s Government met the earnest applications of the Government of the United States, in the stress in which it was placed, for an improvement of the Foreign Enlistment Act, are the solicitude and attention bestowed by Great Britain upon the amendment of this act after the rebellion was suppressed. The report of the Royal Commission, appointed to consider the subject, upon the defects of the old law and the necessary amendments to give it due vigor, leaves nothing to be said in condemnation of the persistency with which Great Britain clung to it during the whole period of the Rebellion. The promptitude of Parliament in enacting the new statute upon the breaking out of the recent war between Prussia and France, has already been referred to, and is exhibited in the extracts from the debate on its passage, set forth in Note B of the Appendix to this Argument.

It is unnecessary to argue that the passage of the present Foreign Enlistment Act in May, 1861, following upon the Queen’s Proclamation of neutrality, and its reasonable enforcement, would have precluded the scandals deplored by the British Government and the injuries suffered by the United States from the emission of the Alabama and her consorts from British ports. The text of the act carries its own argument. Well might that eminent publicist, Phillimore, immediately after the passage of this act, “rejoice that the English Government has, by the statute of this year, strengthened the hands of the Executive, and given greater force and prominence to the maxim that, with respect to the external relations of the State, the will of the subject is bound up in that of his Government.”¹

We confidently submit that, in refusing to amend the Foreign Enlistment Act in aid of the fulfillment of the duty prescribed by the Three Rules of the Treaty, Great Britain failed “to use due diligence to prevent” the injuries for which the United States demand redress from the justice of this Tribunal.

VI. We pass now to an examination of the question of “the use of due diligence to prevent” the violation of its international duty to the United States, as exhibited in the course pursued toward the offending vessels by Great Britain, after their first escape from British ports, under the circumstances and consequences of inculpation for such escape which have already been considered. Except for the actual violence and depredations committed by the escaped cruisers after their emission from British ports, the injuries to the maritime property of the United States and the enormous connected losses to the national wealth would not have been inflicted. In every view, therefore, the subsequent career of the cruisers becomes of the highest importance to the practical determination by this tribunal of the matters in judgment before it.Failure in due diligence after the escape of the cruisers.

1. It is indisputable, that if, in respect to any one of the vessels incriminated, the escape of that vessel from the home port should have been shown by Great Britain, to the satisfaction of the Tribunal, to have taken place in spite of “the use of due diligence to prevent” it, the principles of the Three Rules and of international law not inconsistent therewith will require that the same inquisition must be applied to any subsequent escape from another port of the British Empire, home or colonial, where the Government had an opportunity to lay hands upon and arrest her.In not detaining offending cruisers when again in British ports, a want of due diligence.

Thus, suppose, for a moment, that the British Government was not in fault in respect of the first emission of the Florida from the port of Liverpool, her subsequent history at Nassau must then be examined. If her openly allowed departure from Nassau, “on an expedition of pillage, piracy, and destruction,” (to quote Governor Bayley again,) was not in spite of the use of due diligence “to prevent the departure from its jurisdiction” of a vessel which had “been specially adapted in whole or in part within such jurisdiction to warlike use,” such departure is, in itself, a failure by Great Britain to fulfill the duties set forth in the Three Rules of the Treaty, and must be so pronounced by the Tribunal. As the Florida, until after she left Nassau, remained in the same plight of a British vessel as when she left Liverpool, and did not receive a (so-called) “commission,” or change her flag until afterward, there is no opportunity for cavil upon this point.

2. If, on the other hand, the original escape of any of the offending vessels from the home port shall inculpate Great Britain under the Rules of the Treaty, it is obvious that the original fault and accountability of Great Britain in the supposed case only enhance the obligation which, we have seen, requires “the use of due diligence to prevent” the subsequent departure from its jurisdiction of a vessel whose original escape from the home port has not been imputed to a default in such diligence.

3. This obligation, whether in the alternative of the original escape of the offending vessel being for want of, or in spite of, the “use of due diligence to prevent” it, must endure until it has been fully and successfully met by the arrest and detention of the offending vessel, and her “expedition of pillage, piracy, and destruction” brought to a close.

We have already considered whether this indisputable general proposition needs to be qualified by the impediment insisted upon to its continued application, arising from the (so-called) “commission” as a public ship of a belligerent not recognized as a nation or a sovereign.¹ We have shown that, in regard to public ships of recognized nations and sovereigns, this public character by comity withdraws them only from the jurisdiction of courts and process, and leaves them amenable to the political and executive power. We have shown that, in the case of public ships having no recognized state or sovereign behind them, the political and executive power deals with them, in its own discretion, with strong hand, in administration of every duty and every right pertaining to itself or owed to another nation. The grounds upon which we put our inculpation of Great Britain for dealing with these Rebel cruisers, as it did, after their commission as public ships, do not involve any contention as to whether or not judicial control should thereafter have been asserted over them. This domestic question of comity to the Rebel cruisers on their “expeditions of pillage, piracy, and destruction,” may be at the discretion of a Government. But the pretensions that the international duty by which Great Britain was “bound” to the United States to use due diligence to prevent these offending vessels of guilty origin from departing from its ports when it was master of the opportunity so to do, was cut short and overmastered by the Rebel “commission,” upon the reasons already given, we entirely deny.This obligation not determined by commissioning a cruiser.

4. It is conspicuous upon the proofs before the Tribunal that it was quite in the power of Her Majesty’s Government, by arresting these offending vessels at their first, or even later, visits to British ports after their successful fraud upon the neutral obligations of Great Britain in their original “escape,” to have intercepted these “expeditions of pillage, piracy, and destruction,” and at once repaired the misfortune or the failure of duty which had made such “escape” possible, and struck a fatal blow at the systematic project and preparation of such expeditions from the home ports of Great Britain. There was no adequate motive for, or benefit from, these guilty enterprises if the first escape were to leave the vessels homeless and shelterless upon the ocean, with no asylum in British ports except such as mere humanity offers against stress of storm and danger of shipwreck. Such asylum, upon the very motive on which it is yielded, upon the very plea upon which it is begged, the sentiment of humanity, would have exacted the abandonment of the career of violence, meditated or commenced, and a submission to the outraged authority of Great Britain, whose peace and dignity were compromised by the original escape from its ports.Not excluding escaped cruisers from British ports was a want of due diligence.

It is a notable fact that not one of these offending vessels ever returned to a home port of Great Britain, except the Georgia, to be dismantled and sold, and the Shenandoah to be surrendered to the Government of the United States. The Florida once, and the Alabama once, sought the commercial recruitment which the hospitality of the ports of France conceded them, on the plea of relâche forcée. They had not violated the neutrality of France in their original outfit, and had no resentments or restraints to fear in her ports. But why prefer France to England? Was it on motives of market and convenience? The supplies for these cruisers while in the French ports were sent to them from England. Every interest, every inclination, every motive would have carried them to England, had not some overwhelming reason deterred them from that resort. They had violated her neutrality; they had brought scandal and reproach upon the administration of her laws. They were not lacking in courage or effrontery; but that the government of Great Britain would tolerate their presence in her ports to replenish their resources, and “their expeditions of pillage, piracy, and plunder,” was impossible to be conceived, and they avoided the danger. But the wide power of that nation “whose morning drum-beat, commencing with the sun and keeping company with the revolving hours, surrounds the whole earth with one continuous strain of the martial airs of England,” does not outrun the obligations of public justice or of international duty. What it would shock the moral sense of Englishmen to deny must have been the action of Her Majesty’s Government at home, should have been, but was not, their action throughout their colonial possessions.

On the 26th day of April, 1864, in the debate in the House of Lords on the dispatch of the Duke of Newcastle to Governor Wodehouse, instructing him that he should have detained the Tuscaloosa, Earl Russell, defending this instruction, said in part as follows:

It must be recollected that all these applications of principles of international law to the contest between the Federal and so-styled Confederate States, have to be made under very exceptional circumstances. It has been usual for a Power carrying on war upon the seas to possess ports of its own in which vessels are built, equipped, and fitted, and from which they issue, to which they bring their prizes, and in which those prizes, when brought before a court, are either condemned or restored. But it so happens that in this conflict the Confederate States have no ports, except those of the Mersey and the Clyde, from which they fit out ships to cruise against the Federals.¹

In the same debate, the Attorney General, Sir Roundell Palmer, also defending the dispatch, in addition to the words we have quoted supra, said:

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.²

In February, 1864, Mr. Vernon Harcourt thus wrote in a letter to the London Times:

I think that to deny to the Florida and to the Alabama access to our ports would be the legitimate and dignified manner of expressing our disapproval of the fraud which has been practiced upon our neutrality. If we abstain from taking such a course, I fear we may justly lie under the imputation of having done less to vindicate our good faith than the American Government consented at our instance, upon former occasions, to do.³

On the 13th of May, 1864, in a debate relative to the course that should be adopted in regard to the Georgia which had come into Liverpool, the Attorney General said:

I have not the least doubt that we have a right, if we thought fit, to exclude from our own ports any particular ship or class of ships, if we consider that they have violated our neutrality.⁴

In 1867, Her Majesty’s Commissioners having been empowered to report what changes ought to be made in the Foreign Enlistment Act for the purpose of giving it increased efficiency and bringing it into full conformity with international obligations, all joined in this report:

In time of war no vessel employed in a military or naval service of any belligerent which shall have been built, equipped, fitted out, armed, or dispatched contrary to the enactment, should be admitted into any port of Her Majesty’s dominions.¹

That these are not extreme or disputed propositions, is evident from the concurrence therein of Lord Cairns, Baron Bramwell, Sir Roundell Palmer, and Mr. Gregory, as well as Dr. Phillimore, Mr. Vernon Harcourt, Mr. Thomas Baring, and Mr. Forster.

On the 4th of August, 1870, in the House of Commons, the attorney-general, Sir R. P. Collier, having reference to the omission, from the Foreign Enlistment Act, of a clause carrying out the report above cited, said:

He had to explain that, although the Royal Commissioners made a recommendation to the effect of this clause, they did not intend that it should be embodied in an act of Parliament, but that it should be carried out under the Queen’s regulations. The Governor of a Colony would, under this clause, have to determine whether a ship entering his port was illegally fitted out or not, and this was enough to show the object the commissioners had in view could not be carried out by an Act of Parliament. It was intended instead to advise Colonial Governors of the escape of any illegally fitted vessels.²

Thus it appears that Her Majesty’s Government fully recognizes the power of the Royal Prerogative to exclude from British ports any vessel or class of vessels which has violated its neutrality. Brazil, when the occasion for the exercise of this right was presented, considered it equally a duty, and issued and executed her order, for the exclusion of the Alabama and Shenandoah from any port of the Empire.³

Probably, the suppression of the maritime hostilities, from which the United States have suffered, would have followed from the milder measure of proscription from British ports, enforced by arrest and detention, if the prohibition was transgressed. The lead thus taken by Great Britain would naturally, if not necessarily, have been followed by the other powers whose possessions afforded a casual and infrequent resort for the offending vessels. Following, at greater or less interval, as they had, the recognition of belligerency declared by Great Britain, these powers would have admitted the common duty of neutrals, in the peculiar situation of maritime hostilities presented, to accept the denunciation by Great Britain of the escaped vessels as outlaws and not belligerents, and denied them further hospitality.

5. Certainly, in the absence of such proscription, it would seem necessary that some representations should have been made by Her Majesty’s Government to the persons with whom it was in the habit of communicating as, in some sort, accredited by the Rebel organization for such purpose, concerning the flagrant violations of neutrality in which Great Britian was involved, by the system of operations of the Rebel agents heretofore brought to the notice of the Tribunal.⁴The representations to insurgent agents respecting these cruisers were so long delayed and so feeble as to amount to want of due diligence.

The Arbitrators will search the British Case and Counter Case, and the body of their appended proofs, in vain, for the least intimation of such representations. But we are not left to inference based upon this state of the evidence. In the American Appendix will be found certain correspondence between Earl Russell and Mr. Mason, (then permanently resident in London,) which exhibits an entire unconcern in the mind of Her Majesty’s Foreign Secretary at the time the escape of the Alabama was a fresh incident at home, and the dealing with the escaped Florida by the colonial authorities at Nassau was under the notice of the Home Administration. During the very period of these two matters of the Florida and the Alabama, which Earl Russell subsequently stigmatized in Parliament as “a scandal and a reproach” to England, a correspondence between the Foreign Secretary and Mr. Mason was in progress, in which the most friendly tone and topics prevailed. This correspondence begins with July 17, and terminated with a letter of Earl Russell, August 2, 1862. This, it will be noticed, runs through the time of the deliberations of the British Government as to the arrest of the Alabama, and beyond the consummation of her successful evasion from Liverpool. But not a word on the subject is found in the correspondence.¹

Again, at the end of the year 1864, another correspondence between the same writers took place, and that nothing of expostulation or resentment, or exaction of redress for these continuing outrages, finds place in it, may be well inferred from the manner in which Mr. Slidell feels justified in commenting to Mr. Benjamin, of the Confederate Cabinet, upon Earl Russell’s concluding letter:

His Lordship voluntarily went out of his way to say the most disagreeable thing, possible to the Northern Government; Ms reference to the Treaty of 1783 will, I think, be especially distasteful to them, placed in connection with his twice-repeated, recognition of the separate existence of the North and South, as never merged in a single nationality. I should be much surprised if this letter does not call forth a universal howl against his Lordship from the Northern press.²

That Her Majesty’s Government could promptly, and without enfeebling courtesy, discharge this duty of remonstrance to a belligerent against supposed or intended violations of its neutral obligations, is demonstrated by the correspondence of Earl Russell with Mr. Adams in regard to some matters which seemed to Her Majesty’s Government to require explanations from the United States.

On the 30th of November, 1863, Earl Russell thus wrote to Mr. Adams in part as follows:

I have the honor to call your attention to the following statements, which have come to the knowledge of Her Majesty’s Government, respecting the shipment of British subjects on board the United States ship of war Kearsarge, when in the port of Queenstown, for service in the Navy of the United States.

I need not point out to you the importance of these statements, as proving a deliberate violation of the laws of this country, within one of its harbors, by commissioned officers of the Navy of the United States.

Before I say more, I wait to learn what you can allege in extenuation of such culpable conduct on the part of the United States officers of the Navy, and the United States Consul at Queenstown.³

On the 31st of March, 1864, Earl Russell wrote to Mr. Adams as follows:

I have the honor to bring to your notice an account, taken from a newspaper, of what passed at the trial before Mr. Justice Keogh of the British subjects indicted for having taken service in the United States ship Kearsarge, at Queenstown, in violation of the provisions of the Foreign Enlistment Act; and, with reference to the correspondence which has passed between us, I have the honor to request that you will inform me whether you have any explanations to offer on the subject.⁴

On the 9th of April, 1864, Earl Russell, writing to Mr. Adams, said:

I transmit to you herewith extracts from a deposition of one Daniel O’Connell, by which you will perceive that he was examined and sworn before, or with the knowledge of, officers of the United States ship of war Kearsarge, and furnished with the uniform of a United States sailor.

I know not how these circumstances, occurring on board a ship of war, can have taken place without the knowledge of the captain of the vessel.¹

So, too, Her Majesty’s Government did find occasion and opportunity to address its first remonstrance on the subject of these violations of neutrality to the persons with whom it was in the habit of treating as representatives of the Rebel organization. This was February 13, 1865, just two months before the final overthrow of the Rebellion and the surrender of Richmond. We append the opening and concluding paragraphs of this remonstrance. They form part of the letter from which important citations have been made in this argument, and a considerable extract from which is placed at the head of part v, of the case of the United States. By that extract it appears that “the unwarrantable practice of building ships in this country to be used as vessels of war against a state with which Her Majesty is at peace” was still continued, and formed a main subject of the remonstrance. We quote from Earl Russell’s letter:

It is now my duty to request you to bring to the notice of the authorities under whom you act, with a view to their serious consideration thereof, the just complaints which Her Majesty’s Government have to make of the conduct of the so-called Confederate Government. The facts upon which these complaints are founded tend to show that Her Majesty’s neutrality is not respected by the agents of that Government, and that undue and reprehensible attempts have been made by them to involve Her Majesty in a war in which Her Majesty had declared her intention not to take part.

You may, gentlemen, have the means of contesting the accuracy of the information on which my foregoing statements have been founded; and I should be glad to find that Her Majesty’s Government have been misinformed, although I have no reason to think that such has been the case. If, on the contrary, the information which Her Majesty’s Government have received with regard to these matters cannot be gainsaid, I trust that you will feel yourselves authorized to promise, on behalf of the Confederate Government, that practices so offensive and unwarrantable shall cease, and shall be entirely abandoned for the future. I shall, therefore, await anxiously your reply, after referring to the authorities of the Confederate States.²

We find, too, that in March, 1865, hardly thirty days before the surrender of Richmond, the Colonial Governor at Nassau advised the home Government of the means that had, at last, been found to make the evasion of another Florida impossible. The Governor writes to Mr. Cardwell, a member of the Ministry, as follows:

I take this opportunity of mentioning that for some weeks past I have had a report made to me of every steam-vessel arriving in the harbor, with special notice of anything in the construction or equipment of any which differ from the ordinary blockade-runners, and the officers of customs are on the alert to detect and report any attempts to violate the provisions of the Foreign Enlistment Act.³

It is unnecessary to point to the conclusion which the Arbitrators must have anticipated, that these powers of remonstrance and these resources of vigilance, if resorted to in February and March, 1862, would have foreclosed the controversy now in judgment before the Tribunal.

It is easy to see how these manifold failures of Great Britain to fulfill its international duty to the United States led to the enormous injuries, as their necessary consequences, which have constituted the sum of the grievance which, at the close of the Rebellion, the United States had suffered from this friendly power.

By confining attention and efforts to questions of legal conviction for municipal offenses, and becoming helpless in the meshes of lawyers and courts, Her Majesty’s Government saw the Florida and Alabama emitted from British ports, while they were “watched” by Government officers and debated about by eminent lawyers, and made them but forerunners of like offenders. The domestic law protected their evasion and paralyzed the government’s prevention, and the international obligation had no place or authority at that stage of the transaction. But the moment they were out they were protected in their “expeditions of pillage, piracy, and destruction” by the law of nations, which, it was said, compelled Great Britain to hold her hands, by reason of the respect which international comity inspires for the “commission” of even such cruisers.

It was true that this debility of municipal law, and this homage to comity, were wholly voluntary on the part of Great Britain, The one was curable by Parliament, and the other lay at the discretion of the Crown. But Her Majesty’s Government, while the events were in progress, did not find adequate reasons for any action, notwithstanding the wide-spread depredations which these offending vessels were committing.The British course in these respects voluntary.

There was one measure of restriction upon these depredations which Her Majesty’s Government adopted and persevered in, we mean the exclusion of prizes of either belligerent from British ports. This ordinance was consonant with sound principles, and adopted and enforced in sincere good faith. But to this measure we can trace no real benefit in actually repressing the maritime hostilities. On the contrary, its most afflictive feature, the destruction of ships and their cargoes at sea, flowed from the circumstance that the rebels had no ports of their own which the naval power of the United States had not closed, and that their prizes were excluded from neutral ports. This was well pointed out by Earl Russell in parliament, in a passage already referred to.Exclusion of prizes from British ports no benefit to United States.

It was for this reason that the well-meant exclusion of prizes from neutral ports gave to the rebel cruisers enlarged capacity for terror and for mischief, and shocked the civilized world with this spectacle of destructive violence. But the appeal that this consequence was a demonstration that maritime belligerency should never have been granted, and that the true remedy was to withdraw the concession, was not successful.

Under these two measures of homage to the rebel “commission,” though it covered a Florida or an Alabama, and of acquiescence in the destruction of enemy’s maritime property without adjudication, Amercan commerce was ground to powder, as between the upper and the nether millstone.

Meanwhile no retaliation of prize capture or destruction as enemy’s property was possible. The law of contraband and breach of blockade was the only weapon at the command of the United States against the fleet of blockade runners owned and navigated by the Rebel organization, but protected as neutral property by the British flag. This retaliation was, necessarily, submissive to the prize jurisdiction and to condemnation only upon special proofs. It was thus that the whole rebel naval warfare was prosecuted by cruisers of unlawful British outfit, protected by British recognition of the Rebel flag, while the whole Rebel commercial marine was protected by the cover of the British flag. So, too, no opportunity to shut up, or to capture, or to destroy, any vessel in port, was open to the Navy of the United States; every port accessible to such vessel was a neutral port, which the United States could neither blockade nor invade with their hostilities.

We have exposed these peculiar features of intolerable hardship to the United States in these maritime hostilities, for the bearing they have upon the failure of Great Britain to fulfill its obligations under the Rules of the Treaty in refusing to arrest the offending vessels in its ports, or to exclude them therefrom, after their original outfit and escape. We confidently submit that the Tribunal will find in this ground of inculpation, (1) a substantive failure of “due diligence,” in the sense of the Treaty, and (2) a maintenance of continued responsibility for “all claims growing out of the acts of” these vessels during their career to its end.The responsibility of Great Britain for these failures in due diligence continued until the end of the career of the cruisers.

It will remain, then, for the Tribunal to consider these various propositions of law and of fact, under which the actual conduct of Her Majesty’s Government is now to be judged, and to apply them, so far as they shall approve themselves to the enlightened judgment of the arbitrators, to the exact analysis of the evidence touching each offending vessel, in a previous division of this argument set forth. We gladly recognize the great advantages which the contending parties will derive from the practical and comprehensive estimate of the decisive elements of the controversy, which the experience and sagacity that belong to conversance with public affairs enable the arbitrators to bring to the determination of this controversy.

We confidently submit that the British Government has not laid before the Tribunal any evidence tending to show the exercise of “due diligence,” in respect of any one of the offending vessels, to prevent the occurrence of the violation of the international obligation imposed by the Three Rules of the Treaty. Indeed, we may safely go further and insist that, while the matters were in fieri, Her Majesty’s Government did not at any time apply its thoughts or its purposes to the direct prevention of such violation. It was wholly engaged in considering what prosecutions for penalties and forfeitures under the Foreign Enlistment Act it could hopefully institute. For the reasons we have pointed out, this does not tend to make out “due diligence” to prevent the violation of the international obligation assigned by the Treaty.No evidence of the exercise of due diligence submitted by Great Britain.

A phrase in the first clause of the first Rule speaks of a neutral Government’s duty being applicable to “any vessel which it has reasonable ground to believe is intended to cruise or to carry on war against a power with which it is at peace.” What attention was ever paid by Her Majesty’s Government, in its deliberations, its doubts, and its decisions, about arresting a vessel, to this broad criterion? We look in vain for the agitation of any such question in either of its elements, (1) of the subject of belief, or (2) the grounds required to support it. Instead, the whole topic of debate, of advice, and of determination before Her Majesty’s Government was (1) of belief that a forfeiture of the vessel could be obtained under the Foreign Enlistment Act, and (2) the support required for such belief was to be sworn voluntary evidence in hand sufficient to exclude appreciable risk of failure before a jury and consequent damages. Whenever the United States shall have submitted by Treaty to this test of the international obligations of Great Britain, it will be time enough to adjudge the cause by it.

We respectfully submit that there is nothing in the evidence, or argument even, which proves or asserts that the British Government was either without reasonable ground to believe, or did not believe, that the Florida or Alabama at Liverpool, or the Florida on her first visit to Nassau, was not intended to cruise against the United States. The only deliberation and doubt were, as to the prosecution under the foreign-enlistment act offering the means of judicially punishing, and so, incidentally, interrupting, the projected enterprise.

So, too, we confidently submit to the Tribunal that it does not appear on evidence or in argument before the arbitrators that Her Majesty’s Government professes or claims to have used “due diligence” within the premises of the Three Rules of the Treaty, unless due diligence to enforce forfeitures and punishments under the Foreign Enlistment Act is equivalent to due diligence to prevent the violation of the international obligation to the United States which is exacted by the Treaty. We have already considered this subject in some detail, but we apprehend that the wide distinction between these two propositions is too plain to require any further emphasis than its statement. All the laborious argument and voluminous evidence to prove due diligence in prosecutions under the Foreign Enlistment Act are but an “imbelle telum” against our challenge of due diligence as exacted by the treaty. An illustration of the difference between these two objects and measures of due diligence is presented upon the occurrences of the Florida’s first visit to Nassau. Here we have a legal trial of the question whether the forfeiture of the Florida could be obtained under the foreign-enlistment act in the Vice Admiralty Court. This issue was held to exclude all evidence of what had made her a vessel of war before she left Liverpool, and to include only the question of warlike equipment in Nassau as cognizable by the local court. The Vice Admiralty Court held that the evidence did not prove enough within this issue to forfeit the vessel, and judgment was given against the Crown. So much for this disposition of the question of private right involved in this trial in Admiralty.

But Sir Alexander Milne, and Commander Hickley, and Commander McKillop, and other naval officers, concurred in thinking that their duty, and the duty of Her Majesty’s Government, required the prevention, by strong hand, of the departure of the Florida. Accordingly, Commander Hickley seized her, and Sir Alexander Milne found a warrant for such action in “the very grave suspicion of being intended for employment as a Southern cruiser; the fact of the vessel being fitted in every respect like one of Her Majesty’s ships, and especially adapted for war; her armament ready to be put on board, with a crew of fifty men, and officers of the Confederate States ready to command her.”¹

This action, we submit, was such as the facts of the case required to meet the due diligence of the Three Rules of the Treaty. But the maintenance of the Foreign Enlistment Act was suffered to measure and control the international duty of the Government, and the only question left was, whether Commander Hickley should be protected from “blame and consequent responsibility” for his seizure.²

In the light of the propositions which we have insisted should govern the examination, we find it impossible to discover, in the proofs exhibiting the conduct of the British Government in respect of the offending vessels, any evidence tending to show the use of due diligence pointed at the fulfillment of the international duty exacted by the Treaty. Indeed, the fact that the Florida and Alabama escaped, when, as Lord Granville justly observed in the debate on the Treaty of Washington, “nothing is so easy as to prevent a vessel of the Alabama class escaping from our shores,” is conclusive evidence in the absence of countervailing proof that the due diligence of the Treaty was not exhibited to prevent the escape. In vain shall we look for evidence of inevitable accident, of imposition, or of misfortune, supervening to thwart or surprise Her Majesty’s Government and accomplish the offense, notwithstanding the employment of due diligence to prevent it.

It has been more or less argued, or intimated, that in the escape of the Alabama from Liverpool, some element of accident or casus mixed itself with the transaction, and is to affect the judgment of the Tribunal in inculpating or exculpating Great Britain for her escape.

We will briefly examine this question of supposed accident or casus. The Alabama was the subject of attention to Her Majesty’s Government, more actively and immediately, from the 23d day of June. The Law Officers on the 30th of that month state that it seemed “evident she must be intended for some warlike purpose,” and refer to a statement of Lairds’ foreman that the vessel was “intended as a privateer for the service of the Government of the Southern States,” and advise that steps be taken by Her Majesty’s Government “to ascertain the truth.” On the same day the surveyor at Liverpool reports her warlike build, &c., and states the current report that she is built for a foreign Government, and that this is not denied by the Lairds, with whom he has communicated on the subject, but that they decline to answer questions as to her destination.

On the 9th of July, the Collector was informed that the Lairds had said the vessel was for the Spanish Government, but that the Spanish Minister gave a positive assurance that this was not true. On the 21st of July the Collector sent to London the affidavits in the case, with information that he had been requested to seize the vessel, and asked for instructions by telegraph how he was to act, “as the ship appeared to be ready for sea, and may leave any hour she pleases.”

Upon the 23d of July, the “extreme urgency” of the case was represented to the Government, and that “the gun-boat now lies in the Birkenhead docks ready for sea in all respects, with a crew of fifty men on board.” On the 26th, the decision of the Government was urged, particularly as every day afforded opportunities for the vessel in question to take her departure.” On the 28th, “she was moved from the dock into the river; the men had their clothes on board, and received orders to hold themselves ready at any moment.” She remained in the river “until 11 or 12 o’clock of the 29th, and was seen from the shore by thousands of persons. The customs officers were on board when she left, and only left her when the tug left.” As early as July 4 Her Majesty’s Government had promised Mr. Adams that “the officers at Liverpool would keep a strict watch upon the vessel.” After she left, Her Majesty’s government gave orders to seize and detain her.

Here was a vessel under inquiry as to probable seizure for forfeiture, carrying the consequence of intercepting her illegal enterprise. She was ready to sail “at any hour,” six days before she did sail; the Government made no inquiry, demanded no pledge, took no precautions, placed no impediments affecting her entire freedom. The Government was fully informed of the situation, and was entreated to take action. The Alabama had her enterprise before her, and the Government had its duty to defeat it. These, objects and interests were repugnant. The Alabama, being wholly unimpeded by the Government, sailed before the arrest was ordered. The Government, knowing all about the situation, did not attempt to interfere with the vessel’s movements.

We are not here arguing as to diligence or duty, only as to accident or casus. It is said that some fortuitous circumstance retarded the decision of the Government. But the Government were all the while aware that the Alabama could sail when she pleased, and that she was under the most powerful motives to anticipate the adverse action of the Government by sailing. Sail she did; and this may be put to the account of casus, when pursuing an expected course, under adequate motives, and at the necessary time, is properly described as accidental.

Equally frivolous seems the only instance that is pretended of anything like imposition having been practised on Her Majesty’s Government in the course of these transactions. The so-called imposition consists in second-hand statements, that the Florida—which was the counterpart of one of Her Majesty’s gun-boats, had no storage, and was by no possibility “ancipitis usûs”—was not for the Confederate war service, but belonged to a firm of Thomas Brothers, of Palermo, in Sicily. Now, as this firm of British merchants established in Sicily had no recognition of sovereignty, or even of belligerency, it was very plain that this ownership of a war ship was as much a cover as John Lairds & Sons’, or William C. Miller & Co.’s, would have been. Accordingly, inquiries were addressed for the purpose of learning whether a Government, also suggested as a possible owner of this war vessel, had really any interest in her, and they were answered in the negative.

The worthlessness, as hearsay, of this evidence is as apparent as its falsehood in respect to the fact, and we only recur to the matter as being the single instance of imposition which is claimed to have occurred in the long history of “the several vessels which have given rise to the claims generically known as the ‘Alabama Claims.’”

In the deliberations of the Arbitrators, which are to guide them to their actual award, they will have occasion to consider the application of the second and third Rules of the Treaty, no less than of the first Rule, to all the situations and propositions of fact and of law that arise for decision. It is not necessary to distinguish in detail the special cases to which one or the other Rule may be exclusively or pre-eminently applicable.

The only further consideration which we need to present, under this division of the argument, has relation to the vessels which properly come within the jurisdiction of the Tribunal.What vessels under the jurisdiction of the Tribunal.

Observations on this subject in the Case and Counter Case of the United States have been intended to show that the whole list of vessels, for injuries from whose acts claims are presented to the Tribunal, is included within the jurisdiction conferred in and by the first article of the Treaty. We wish simply to add a reference to a passage in the protocol to the Treaty, of May 4, 1871.

A statement is there made which seems to possess much authority in ascertaining the intent of the Treaty on this point. It is found on page 10 of the Case, and reads as follows:

At the conference held on the 8th of March, the American Commissioners stated * * that the history of the Alabama and other cruisers, which had been fitted out, or armed, or equipped, or which had received augmentation of force in Great Britain, or her Colonies, and of the operations of those vessels, showed extensive direct losses in the capture and destruction of a large number of vessels, with their cargoes, and in the heavy national expenditures in the pursuit of the cruisers, &c.

It is respectfully submitted that this description of the protocol, beyond all controversy, includes the whole list of vessels as insisted upon in the Case and Counter Case.

1. Counter Case of the United States, pp. 3, 4.
1. Note B of Appendix to this Argument.
1. Am. App., vol. i, p. 631; cited on p. 309, Case of the United States.
2. Attorney General Collier in Parliament, August 1, 1870. Note B, Appendix to this Argument.
1. Lord Halifax in Parliament, August 8, 1870. Note B, Appendix to this Argument.
2. Viscount Bury in Parliament, Aug. 1, 1870, ibid.
3. Solicitor General Coleridge in Parliament, August, 1870, ibid.
4. Attorney General Collier in Parliament, August 3, 1870. Note B, Appendix to this Argument.
1. Page 35.
2. Page 37.
1. Brit. App., vol. i, pp. 24, 25.
1. Brit. App., vol. i, pp. 13, 14.
2. Brit. App., vol. i, p. 183.
3. Ibid., p. 187.
1. Brit. App., vol. i, p. 29.
2. Ibid., p. 34.
3. Ibid., p. 75.
4. Ibid.
1. Appendix to this Argument, Note B.
2. Am. App., vol. v, p. 493.
1. Am. App., vol. iii, p. 541.
2. Ibid., p. 542.
3. Ibid., p. 542.
4. Ibid., vol. iv, p. 62.
1. Phill. Int. Law, (ed. 1871,) p. 28, preface.
1. Supra, pp.
1. Am. App., vol. v, p. 535.
2. Ibid., p. 570.
3. Ibid., vol. iv, p. 204.
4. Ibid., vol. v, p. 583.
1. Am. App., vol. iv, p. 82.
2. See Appendix to this Argument, Note B.
3. Supra, p. 17, sec. viii.
4. Am. App., vol. vii, p. 113.
1. Am. App., vol. i, pp. 416–426.
2. Am. App., vol. i, p. 619.
3. Ibid., vol. ii, p. 421.
4. Ibid., p. 442.
1. Am. App., vol. ii, p. 448.
2. Am. App., vol. i, pp. 630, 631.
3. Brit. App., vol. ii, p. 589.
1. Brit. App., vol. i, p. 30.
2. Ibid., p. 30.