Note A.–Observations on certain special criticisms in the British counter case on the case of the United States.

I.—The British Foreign Enlistment Acts.

On the eighth page of the British Counter Case it is said: “The following sentence is given as a quotation from a dispatch signed by Earl Russell: ‘That the Foreign Enlistment Act, which was intended in aid of the duties * * * of a neutral nation,’ &c. What were the words of Earl Russell? They were these: ‘That the Foreign Enlistment Act, which was intended in aid of the duties and rights of a neutral nation, can only he applied,’ &c. The meaning of the sentence is altered by leaving out two of the most important words.”British Foreign Enlistment Acts.

The Counsel of the United States are unable to discover how the insertion of the omitted words would increase or decrease, modify or affect, the proposition that the Foreign Enlistment Act was intended in aid of the duties of a neutral nation as represented by the United States.

On the same page of the British Counter Case it is further said:

“The report of the Commission appointed in 1867 to consider the laws of Great Britain available for the Enforcement of Neutrality is thus referred to: ‘The Tribunal of Arbitration will search the whole of that Report and of its various appendices in vain to find any indication that that distinguished body imagined or thought or believed that the measures which they recommended were not in full conformity with international obligations. On the contrary, the Commissioners say that so far as they can see, the adoption of the recommendations will bring the municipal law into full conformity with the international obligations.’ Viewing their acts in the light of their powers and their instructions, the United States feel themselves justified in asking the Tribunal to assume that that eminent body regarded the acts which they proposed to prevent by legislation as forbidden by international law. What is the passage which the Government of the United States have referred to, but have refrained from extracting? It is this: ‘In making the foregoing recommendations we have not felt ourselves hound to consider whether we were exceeding what could he actually required by International Law, but we are of opinion that if those recommendations should be adopted, the municipal law of this realm available for the enforcement of neutrality will derive increased efficiency and will, so far as we can see, have been brought into conformity with your Majesty’s international obligations.’ Thus by leaving out the words in which the Commissioners observe that their recommendations may exceed the requirements of International Law, and by using in one sense words which (as the context proves) they employed in another, they are represented as saying the very thing which they expressly guarded themselves from being supposed to say, namely, that all the acts which they proposed to prohibit were, in their judgment, already forbidden by international law.”

The United States accept without hesitation the issue thus raised by Her Majesty’s Government, and they maintain that the language quoted in the British Counter Case does not justify the statement that the Commissioners observe, that their recommendations “may exceed the requirements of international law.

The Commissioners did not say this, nor anything which in any “sense” gathered from the “context,” by any rule of interpretation, can be construed into the meaning which is attributed to it in the British Counter Case. They did use the exact language quoted in the American Case. They said that, if their recommendations should be adopted, the municipal law of Great Britain would, so far as they could see, have been brought into conformity to international obligations. They also said that, in making those recommendations, they had not felt themselves bound to consider whether they were exceeding what could be actually required by international law. In other words, they said that although it seemed to them that, while the proposed recommendations were in harmony with existing international obligations, yet they did not found the recommendation on that fact, but on its own intrinsic merits. The Arbitrators will judge whether this is not the fair and reasonable construction of the language.

[Page 227]

II.—AMERICAN NEUTRALITY IN 1793–’94.

It is said on page 10 of the British Counter Case that “it is pleaded that in 1793, during General Washington’s Administration, the representative of Great Britain in the United States pointed out to Mr. Jefferson, who was then Secretary of State, acts ‘which were deemed by Her Britannic Maiestu’s Government to be breaches of neutrality done in contravention of the President’s Proclamation of Neutrality,’ and he invited the United States to take steps for the repression of such acts, and for the restoration of the captured prizes,” and that “it appears that the United States complied with these requests.” It will he seen that the representations then made on the part of this country to the United States were founded on the character of the acts themselves, which were deemed by the British Government to be breaches of neutrality, and not upon the fact that they were prohibited by the President’s Proclamation.”American neutrality in 1793–’94.

The letter from Mr. Hammond to Mr. Jefferson, which will be found on pages 240–41 (No. 6) of the fifth volume of the British Appendix is the best reply to this averment. The Minister of Her Britannic Majesty says to the American Secretary of State that he “does not deem it necessary to enter into any reasoning upon these facts, as he conceives them to be breaches of that neutrality which the United States profess to observe, and direct contraventions of the proclamation which the President issued on the 22d of last month.” The United States submit that this letter is a complete justification of this allegation in their case which is contested by Her Majesty’s Government.

Again, on page 29 of the British Counter Case, referring to the commission appointed under the seventh article of “Jay’s Treaty,” to ascertain the amount to be paid to Great Britain by the United States, it is said:

“Three leading decisions pronounced by them will be found in the Appendix to this Counter Case. By these decisions it was ruled:

“1. That according to the true construction of Article VII of the Treaty, coupled with Mr. Jefferson’s letter, no claim could be made on account of a capture made before the 5th of June, 1793.

“Hence, compensation was refused in the case of a British vessel which had been captured on the 8th of May, by the Sans-Culottes, a privateer fitted out in Charleston, and had been openly brought by her captors into the port of Philadelphia.

“2. That no compensation would be made by vessels illegally fitted out within the jurisdiction of the United States, unless the prizes had been subsequently brought into an American port. The owners, therefore, of a vessel which the captors had destroyed at sea were entitled to no compensation.

“3. That where the prize has been brought in, no compensation could be claimed, if the claimant had not taken proceedings in a District Court of Admiralty, and proved his case there by sufficient testimony, or if there had been any negligence or any delay in instituting or carrying on such proceedings, or in enforcing the judgment if obtained.

“And it is said, on page 31, referring to what had been said by the United States in this case concerning this precedent: ‘Her Majesty’s Government deems itself entitled to ask whether these are correct representations of the facts stated in the foregoing pages.’ ”

The first point referred to in the Counter Case of Her Majesty’s Government is, it will be perceived, an adjudication by the tribunal as to the extent of its jurisdiction, i. e., that it did not extend to cases arising before the 5th day of June, 1793. The United States did not suppose that this point would be questioned by Her Majesty’s Government. They are at a loss to understand exactly what is intended by Her Majesty’s Government in its remarks in respect to this point. The United States, in their Case, (on page 129,) say that Mr. Hammond was informed on the 5th of June, 1793, that “as to restoring the prizes it could not be done;” and on page 130, it is said that the United States Government also determined at that time as to the fitting out of privateers, that “it was its duty to repress them in future,” and “to restore prizes that might be captured,” &c., “or if unable to restore them, to make compensation for them.”

The reasons for this distinction drawn between acts committed before, and those committed after, June 5, 1793, were fully and fairly stated by Lord Tenterden in his memorandum which is to be found in the third volume of the British Appendix, and the United States had supposed that no historical fact was better settled than that the British Government at that time and ever since had acquiesced in the propriety and the justice of the distinction drawn by General Washington.

When the United States made their statement now challenged, although they took the precaution to indicate that it referred to captures made after June 5, 1793, they might have assumed that it would have been so construed without that precaution.

The second proposition, on the twenty-ninth page of the British Counter Case, is to be taken in connection with the other controlling and limiting remarks in the statement of the commissioner who rendered the decision.

[Page 228]

There was in the Case no allegation of permission or neglect by the Government of the United States as to the arming of the French cruiser. The commissioner said:

“The Counsel for the claimant seemed to suppose that the obligation to compensate arose from the circumstance of the privateer having been originally armed in the United States. But as there is not the smallest evidence to induce a belief that in this or in any other case the Government permitted, or in any degree connived at, such arming, or failed to use all the means in their power to prevent such equipment, there is no ground to support a charge on the fact that the armament originated in their ports.”

In view of the fact that this very material qualification of the doctrines laid down in the case of the Jamaica is excluded from the British Counter Case, the United States think they are justified in repeating as to the statements in the British Counter Case, the question there propounded by Her Majesty’s Government, whether these are correct representations of the facts.

As to the third proposition, on the twenty-ninth page of the British Counter Case, the United States refer to the opinion in the case of the Elizabeth, (British Appendix, volume v, pp. 319–328,) upon which it is said to be founded, which in the opinion of the United States forms no adequate or just foundation for the assertion that it was there decided that no compensation could be claimed “if there had been any negligence or any delay in instituting or carrying on proceedings in a district court of admiralty,” or if the claimant “had not proved his case there by sufficient testimony,” or if there had been “delay in enforcing a judgment if obtained.” The Tribunal will also judge whether this is a correct representation of the facts.

III.—THE UNITED STATES AND PORTUGAL.

On pages 32 and 33 of the British Counter Case will be found an extract from a letter from Mr. da Serra, Portuguese Minister at Washington, to the Secretary of State of the United States, dated November 23, 1819; and, commenting upon this extract, it is said on page 33 that—United States and Portugal.

“In the Case of the United States, the Minister who writes thus earnestly and vehemently is represented as attaching little or no importance to the matter. The reason given is that he has chosen the moment to make a visit to Brazil. But in the sentences which precede and follow, and of which no notice is taken in the Case of the United States, he has explained why he chose to leave his post at that particular time, namely, that until, by amendment of the law or otherwise, the proper means should be found for putting an end to this ‘monstrous conspiracy,’ he found by experience that complaints were useless, and should refrain from continuing to present them without positive order.”

The statement in the Case of the United States which is thus commented upon was the following:

“On the 23d of November, 1819, the Minister again complained. He says: ‘One City alone on this coast has armed twenty-six ships which prey upon our vitals, and a week ago, three armed ships of this nature were in that port waiting for a favorable occasion of sailing for a cruise.’ But he furnishes no facts, and he gives neither proof nor fact indicating the city or the district which he suspected, and nothing to afford the Government any light for inquiry or investigation. On the contrary, he says: ‘I shall not tire you with the numerous instances of these facts;’ and he adds, as if attaching little or no real importance to the matter, ‘relying confidently’ on the successful efforts of this Government, I choose this moment to pay a visit to Brazil.” (American Case, p. 143.)

The first fact that will strike the Tribunal is that in this statement assailing the fairness of the analysis of this letter which is given by the United States, the extract at the close of the United States analysis is not to be found. In fact, the British Counter Case omits the following paragraphs of Mr. da Serra’s letter, which, in the judgment of the United States, are the paragraphs the most essential in this controversy:

“The Executive, having honorably exerted the powers with which your Constitution invests him, and the evil he wished to stop being found too refractory, it would be mere and fruitless importunity if I continued with individual complaints except by positive orders. This Government is the only proper judge of what constitutional depositions or arrangements may be established for the enforcement of the laws, and he alone has the means of obtaining them, which are constitutionally shut to any foreign minister. I trust in the wisdom and justice of this Government that he will find the proper means of putting an end to this monstrous infidel conspiracy, so heterogeneous to the very nature of the United States.

“Before such convenient means are established, the efforts of a Portuguese Minister on this subject (the only one of importance at present between the two nations) are of little profit to the interests of his Sovereign. Relying confidently on the successful efforts of the Government to bring forth such a desirable order of things, I choose this moment to pay a visit to Brazil, where I am authorized by His Majesty to go. My age [Page 229] and my private affairs do not allow much delay in making use of this permission, and I intend to profit by the first proper occasion that may offer.” (British Appendix, volume iii, page 155.)

The United States submit to the Arbitrators that the letter of Mr. da Serra, when completed by adding the passage omitted in the British Counter Case, justifies the statement made in their Case.

1. It refers to representation made “during more than two years” previously. This reference to what had already been noticed in the analysis in the American Case it was not necessary to repeat.

2. It makes an averment as to twenty-six ships armed in one city, and as to three armed ships which were said to be in that port the previous week. This averment is given in the American Case in Mr. da Serra’s own language.

3. It says that Mr. da Serra will not tire Mr. Adams with the numerous instances of the facts, but he gives a reason for this which is omitted in the British Counter Case, namely, that while he is sick of receiving communications of Portuguese property stolen, he recognizes that the Government of the United States has been sincere in its desire to suppress what he complained of, and has exerted itself as much as it could to that end.

4. The United States cannot be said to have represented Mr. da Serra as attaching little or no importance to the matter. “What they actually said was,” he adds, as if attaching little or no importance to the matter, “relying confidently on the successful efforts of this Government, I choose this moment to pay a visit to Brazil,” and they submit that he certainly did not do what it said in the British Case that he did do, “Explain why he chose to leave his post at that particular time, namely, that until, by the amendment of the law or ortherwise, the proper means should be found for putting an end to this ‘monstrous conspiracey,’ he found by experience that complaints were useless, and should refrain from continuing to present them without positive orders.”

IV.—NASSAU IN DECEMBER, 1861, AND JANUARY, 1862.

On page 62 of the British Counter Case, it is said:

“It may, however, be convenient, since the Government of the United States has charged Earl Russell with having neglected to make inquiry and contented himself with announcing ‘a condition of affairs at Nassau’ which was ‘imaginary,’ to state what was actually done by Earl Russell upon the receipt of Mr. Adams’s representation, what had been previously done, and what were the facts existing at the time.”Nassau.

The allegation that “the United States have charged Earl Russell with having neglected to make inquiry, and contented himself with announcing a condition of affairs at Nassau which was imaginary,” is itself an imagination. The United States did not deny that Earl Russell made an inquiry. They said that had Earl Russell seriously inquired into the complaints of Mr. Adams, a state of facts would have been disclosed entirely at variance with the report which Earl Russell, on the 8th day of January, 1862, sent to Mr. Adams as a correct statement of what was taking place at Nassau, and that that statement was imaginary. The facts which are shown prove this. Mr. Adams, on the 8th day of October, 1861, transmitted to Earl Russell a letter showing that “a quantity of arms and powder,” for the use of the insurgents, was “to be shipped to Nassau,” consigned to Henry Adderley. Earl Russell answered this complaint on the 8th day of January, 1862, by saying that the Lieutenant Governor of the Bahamas had received a letter from Mr. Adderley denying the allegations brought against him, and that the receiver-general at Nassau said that no warlike stores had been received at that port. The United States proved in their Case that on the 8th day of January, warlike stores had arrived in Nassau, and had been transshipped. Her Majesty’s Government, in its Counter Case, has since proved the same thing more in detail. On the 12th December, Lieutenant Governor Nesbitt knew of the consignment. (British Appendix, vol. v, p. 27, No. 8.) On the 28th December, he knew of the transshipment. (Same, No. 9.) It is clear, therefore, that the averment of the United States that the “condition of affairs at Nassau,” as announced by Earl Russell on the 8th of January, was “imaginary” is correct. Whether the inquiries of Earl Russell were “seriously” prosecuted, the United States leave to the Arbitrators to decide, on a comparison of dates. The complaint by Mr. Adams was made on the 1st of October, 1861. (United States Evidence, vol. i, p. 520.) The instructions to the Lieutenant Governor to make the investigation were dated the 15th October. (British Appendix, vol. v, p. 26.)

The inquiry of Adderley was made on the 16th November, and the answer communicated to London on the 20th November. On the 9th day of December the Gladiator arrived, with palpable proof that the answer of the 20th November had misinformed Her Majesty’s Government. Between that day and the 8th January, the date of Earl Russell’s note to Mr. Adams, there was plenty of time to have given Her Majesty’s Government correct information, which was not “imaginary.” That was either not done, or if done it was never communicated to the Government of the United States.

[Page 230]

On page 65 it is said:

“It might have been reasonably supposed, therefore, that the course pursued by the authorities at Nassau in the case of the Flambeau and her coal ships, would have merited the approval of the Government of the United States instead of being denounced as a violation of neutrality. * * What, then, is the grievance of the United States? It is that the United States cruisers were precluded from using the Bahamas for belligerent operations.”

The United States cannot permit themselves to characterize this statement as it deserves. They do not complain that they were “precluded from using the Bahamas for belligerent operations,” but they do complain, and they assert that they have proved, that the insurgents were encouraged to use all the British ports for such operations.