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

Under Article I of the treaty concluded at Washington on the 8th May, 1871, between Her Britannic Majesty and the United States of America.

[undated.]

Argument.

Her Britannic Majesty’s Government now presents to the Tribunal of Arbitration, under the fifth article of the Treaty of Washington, a summary of the chief points on which Great Britain relies in argument, in answer to the claims of the United States. This summary will principally consist in a recapitulation of the more material facts and considerations already placed before the Arbitrators in the Case and Counter Case of Great Britain.

It will be obvious that Her Majesty’s Government, having cast upon it the duty of defense against these claims, can only meet the arguments on the part of the United States as they are from time to time brought forward. Those arguments which were brought forward in the original Case of the United States it has endeavored to answer fully and explicitly in the British Counter Case, to which it now desires to refer. The arguments of that Counter Case, and the statements of facts and evidence contained in it, and in the original Case of Great Britain, and the Appendices to both those Cases, are necessarily the arguments and the evidence on which the Government of Great Britain now relies; and all that it is possible, at present, usefully to do, is to sum up, in a condensed form, the general substance and results of those arguments and evidence, with some additional remarks made necessary by new matter contained in the Counter Case of the United States (itself a brief document, entering into few or no details of argument) and the Appendices thereto, or arising out of the evidence originally put in by the United States.

Her Majesty’s Government infers from the Counter Case of the United States, that it is the intention of the Government of the United States to enter, at the present stage of the proceedings, at some length into controversial arguments, in which it may possibly take occasion to offer such replies as may seem to it proper to the Counter Case of Her Majesty’s Government. Should this prove to be the fact, Her Majesty’s Government fully relies upon the justice of the Arbitrators, who will doubtless avail themselves of the opportunity of calling for further statements or arguments upon any points, either of law or of fact, which may hot have been adequately dealt with by anticipation on the part of Her Majesty’s Government.

1. The questions which the Tribunal of Arbitration is called upon to decide, relate to certain claims which the United States conceive themselves to have against Great Britain, founded on circumstances which occurred during the late civil war in the United States. These claims are defined in the Treaty of Washington, 8th May, 1871, as having arisen out of the acts of certain vessels which are referred to, but not designated by name, in the Treaty; and the claims are further defined by a generic or class description, which had been appropriated to them, and under which they had become known to the two Governments, before the date of the Treaty.Scope of the Arbitration.

2. The course of proceeding to be followed by the Tribunal is pointed out by the Treaty. The Tribunal is to determine, as to each vessel separately, whether Great Britain has by any act or omission failed to fulfill any of the duties set forth in three “Rules,” laid down for this purpose in the Treaty, (Article VI,) or recognized by the principles of international law not inconsistent with such Rules, and to certify such fact as to each of the said vessels. This is the first duty of the Arbitrators. Their second duty (which will arise only in case they find that Great Britain “has failed to fulfill any duty or duties as aforesaid”) is confined to adjudicating, either by the award of a gross sum or by determining the extent of liability, on the pecuniary reparation, if any, which in that event should, in their judgment, be made to the United States by Great Britain. It follows that any alleged failure of duty, which should not consist in an act or omission as to one or more of the particular vessels indicated, would not be within the cognizance of the Arbitrators. Great Britain recalls attention to this, not because she has any doubt of her ability to give a conclusive answer to any charge whatever that might be brought against her, of having, in anyway or in any particular, imperfectly discharged her international duties, but because it is on all accounts right and necessary that the limits of a reference to Arbitration, jointly agreed to by the parties in difference, and embodied in a solemn Treaty, should be strictly observed.Course of proceeding to be followed by the Tribunal.

3. The vessels as to which (and as to which alone) the United States are at liberty to prove, if they can, a failure of duty against Great Britain, are referred to in the Treaty as “the several vessels which have given rise to the claims generically known as the ‘Alabama claims.’” The only vessels in respect of which any claims had been made by the Government of the United States upon Great Britain from the commencement of the civil war up to the time of the conclusion of the Treaty, were the Florida, Alabama, Georgia, and Shenandoah; and these claims had, in the correspondence which passed between the two Governments, become generically known as the “Alabama claims;” a phrase understood by Great Britain to mean claims, on account not only of the Alabama herself, but of other vessels respecting which complaints had been made of a like character, and on like grounds, to those made respecting the Alabama.¹ Vessels to which the claims of the United States relate.

4. The United States have specified in their Case “the cruisers, for whose acts” they “ask the Tribunal to hold Great Britain responsible.” The list includes, beside the Florida, Alabama, Georgia, and Shenandoah, certain small vessels alleged to have been armed and employed as tenders of the Florida and Alabama, and also five other vessels, in respect of none of which any claim had previously been made against Great Britain, and of which three were never obtained from, much less equipped within, the dominions of Her Majesty; whilst the remaining two were built and sold as vessels of commerce, and had ceased to have any connection with Great Britain before they were adapted or used for any purposes of war. Great Britain has not thought proper to insist on the objection that the additional vessels, in respect of which no claims had previously been made, ought, on that account alone, to be rejected from consideration by the Tribunal, as not falling within the description inserted in the Treaty. But she contends that it is contrary to the true meaning of the Treaty to bring forward new claims in respect of any vessels, on grounds not falling within any of the three Rules in Article VI, nor within the principle of any claim which had been previously made; and she insists that no award in respect of any of these vessels ought to be made by the Arbitrators.

5. It is clear, at any rate, that the claims of the United States must, in this Arbitration, be confined to those vessels which are specified in their Case as “the cruisers for whose acts the United States ask the Tribunal to hold Great Britain responsible.” Nevertheless, the United States have introduced into the list of claims, appended to their Case, claims for captures made by two Confederate cruisers (the Boston and Sallie) which are not among the vessels specified in the Case itself. They have likewise inserted in the same list claims for expenses said to have been incurred in relation to the Chesapeake and Rappahannock, which again are not among the specified vessels. Further, they have, at the time of presenting their Counter Case, added claims for captures made by the Jeff. Davis, the V. H. Joy, and the Music, three other Confederate vessels, neither specified in the Case among those in respect of which reparation was claimed, nor even so much as mentioned in it.¹ It must be added that the United States have not assigned any ground or reason for the claims which they make on account of the vessels not so specified. No failure of duty has been charged against Great Britain in respect of any of them. Yet the United States claim for captures made by them, and for expenses said to have been incurred in trying to capture-them, without alleging, in support of the claim, anything which Great Britain can answer. And, in the case of the Jeff. Davis, the V. H. Joy, and the Music, the claims have been put in after the expiration of the period within which evidence could be presented by Great Britain.

6. Her Majesty’s Government had supposed, and had so stated in its Counter Case, that the claims presented in the Appendix to the Case of the United States, on account of vessels not mentioned in the Case itself, had been introduced by inadvertence.² But the subsequent addition of claims for captures by the Jeff. Davis, the V. H. Joy, and the Music, appears to be inconsistent with this supposition. It is necessary, therefore, for Her Majesty’s Government to declare, in the most explicit manner, that claims in respect of vessels not specified in the Case of the United States, among those “for whose acts the United States ask the Tribunal to hold Great Britain responsible,” are not, in the view of Her Majesty’s Government, open to argument or discussion, since they cannot properly be taken into consideration by the Arbitrators for any purpose whatever.

7. In connection with this point it is necessary here to take notice of the following statement introduced into the Counter Case of the United States:

Her Majesty’s Government assume that the reclamations of the United States are to be confined to claims growing out of the acts of the Florida, the Alabama, the Georgia, and the Shenandoah. The claims growing out of the acts of the other vessels named in the American Case are regarded by the United States as also embraced within the terms of the treaty. They form part of the claims generally known as the “Alabama claims.” They are enumerated in the fourth of a series of five volumes, printed by order of the Senate of the United States, which are part of the “documents, correspondence, and evidence,” submitted with the Case of the United States. These volumes, when thus collected and printed, were entitled “Claims of the United States against Great Britain.” It is believed that under that title they were in the library of the Foreign Office at London before Her Majesty’s High Commissioners received their instructions. It may also be said, without impropriety, that under the same title they were on the table of the Joint High Commission during the negotiations which preceded the conclusion of the treaty. The United States, therefore, while re-asserting their construction of the language of the Treaty in this respect, feel that they have the right to ask the Arbitrators to assume that Her Majesty’s High Commissioners had notice of, and acquiesced in, that construction.³

In vol. iv, pp. 446–475, of the Appendix to the Case of the United States, the Arbitrators will find the document referred to in the above paragraph. It purports to be a “list of American vessels captured and destroyed by rebel vessels during the late war,” and to be compiled in answer to a resolution of the House of Representatives, requesting information “relating to the destruction during the late war, by rebel vessels, of such American vessels as were engaged in trade or commerce.” This list contains the names of certain Confederate ships—twenty-three in number, (not, however, including the V. H. Joy and the Music, which are now for the first time mentioned)—with the captures made, or alleged to have been made by them, respectively, so far as information on the subject had been received at that time by the Department of State. Of these twenty-three ships, four (the Alabama, Florida, Georgia, and Shenandoah) are described as having been fitted out in or from British ports; three others as having been tenders to the Florida; one as having been a tender to the Alabama; twelve others (among which are the Boston, Chickamauga, Jeff. Davis, Nashville, Retribution, Sallie, Sumter, and Tallahassee) as having been fitted out in the Confederate States. Three (among which is the Olustee) are entered without any indication of the place of equipment. It is now said, in effect, that, because this list, which purports to be a return of all captures made during the war by Confederate armed ships, wheresoever fitted out and under whatever circumstances, was subsequently bound up, with a multitude of other documents, in one of five large volumes presented to the Senate of the United States, under the general title “Correspondence concerning Claims against Great Britain,” the British Government must be deemed to have had notice that the United States would attempt to charge all such captures against Great Britain. Her Majesty’s Government will merely say that such an intention, was one which it would not have deemed itself justified in supposing on the part of the United States, unless it had been clearly expressed. Yet it appears that the United States have actually proceeded on this principle in presenting their claims to the Arbitrators; although, for some reason not yet explained, they have hitherto abstained from extending those claims to every ship which the principle would seem to include.

8. Attention has been drawn in the Counter Case of the United States (sec. iii, par. 2) to a statement made in the British Case that “in and soon after the month of May, 1861, a number of armed ships were fitted out and sent to sea from ports in the Confederate States,” and it is observed that, if it be intended “to lead the Arbitrators to suppose that there was any insurgent vessel preying on the commerce of the United States when the Florida or when the Alabama escaped from Liverpool, the United States cannot too strongly protest that Her Majesty’s Government is in error in this respect.”

The following are the dates of the cruises of the several vessels mentioned in the list in vol. iv of the Appendix to the Case of the United States, omitting the Florida, Alabama, Georgia, Shenandoah, and their tenders: Calhoun, (fitted out at New Orleans,) May, 1861; Savannah, (fitted out at Charleston,) June, 1861; Jeff. Davis, (fitted out at Charleston,) June to August, 1861; Winslow, (fitted out at Wilmington,) July to August, 1861; Sumter, (fitted out at New Orleans,) July, 1861, to January, 1862; York, (place of fitting out not mentioned,) August, 1861; Sallie, (fitted out at Charleston,) October, 1861; St. Nicholas, (captured by the Confederates in Chesapeake Bay,) June and July, 1862; Echo, (place of fitting out not mentioned,) July, 1862; Retribution, (fitted out in Cape Fear River,) January and February, 1863; Boston, (place of fitting out not mentioned,) June, 1863; Tallahassee, (fitted out at Wilmington,) August, 1864; Chickamauga, (fitted out at Wilmington,) October, 1864; Olustee, (place of fitting out not mentioned, alleged to have been identical with the Tallahassee,) November, 1864.

The Florida left Liverpool on the 22d March, 1862, and was detained at Nassau till the 7th August following; the Alabama left Liverpool on the 29th July of the same year. Five captures are recorded in the list as having been made in the interval between the 22d March and the 29th July, 1862, by the vessels Echo and St. Nicholas.

It may be added that, as early as the 4th June, 1861, Her Majesty’s Government was informed by the British Minister at Washington that “the privateers of the Confederate States were at that moment in full activity, and had met with considerable success.”¹

9. The argument to be offered on the part of Great Britain will be strictly confined, in the first instance, to the question whether, as to any one or more, taken one by one, of the vessels specified in the Case of the United States as “the cruisers for whose acts the United States ask the Tribunal to hold Great Britain responsible,” Great Britain did, by any act or omission, fail to fulfill any duty set forth in the three Rules, or recognized by the principles of international law not inconsistent with those Rules. This is the Single question with which the Arbitrators have, in the first instance, to deal. On the questions, therefore, whether, in regard to the general traffic in munitions of war or in other articles, between ports of Great Britain or her colonies and the Confederate States, or in regard to the general employment of agents of the Confederate Government for financial and other purposes in England, or in regard to the general partiality erroneously alleged to have been shown to Confederate vessels in British and colonial ports, the British Government did, or did not, fail in the performance of any of its neutral obligations—on these questions, and such as these, Great Britain, while referring the arbitrators to the statements as to both law and fact, contained in her Case and Counter Case, and the Appendices thereto, forbears to offer any new argument before the Tribunal. She has fully and amply vindicated the conduct of her Government on all these heads. But she declines to treat them as presenting, apart from the questions as to the particular cruisers, legitimate matter for argument between the parties to the reference, or elements for the consideration of the Tribunal.Nature of the argument on the part of Great Britain.

10. As regards the Sumter, Nashville, Tallahassee, Chickamauga, and Retribution, Great Britain has been unable to discover in the Case or Counter Case of the United States any reasonable or intelligible ground for making the acts of these vessels, or the conduct of the British Government in respect of them, the foundation of claims against her. It will be sufficient, therefore, to refer the Tribunal to Part II of the British Case, and Parts V and VIII of the British Counter Case, in which the facts relating to these vessels are stated and commented on.² The Sumter, Nashville, Tallahassee, Chickamauga, and Retribution.

11. It will be seen—

(a.) That in the case of the Tallahassee and Chickamauga, no failure of duty has been even alleged, much less proved, against Great Britain. These vessels were built, indeed, in England, but they were built, and were used, as ships of commerce; it was by an after-thought, when they were already within the waters of the Confederate States, and had become the property of the Confederate Government, that they were armed for war, and their employment as ships of war lasted but a few weeks in the one case, and but a few days in the other. They were armed in and dispatched from a Confederate port, (Wilmington,) and to the same Confederate port they returned.¹

(b.) That the Sumter and Nashville were not even built in the Queen’s dominions; and in respect of their original outfit, nothing is, or can be, alleged against Her Majesty’s Government. Setting aside some other minor complaints, which will not bear a moment’s examination, it is suggested only that they received in British ports such hospitalities as were extended to Confederate vessels in general in the ports of neutral nations.²

(c.) That, in the case of the Retribution, also a vessel not built or fitted out in the Queen’s dominions,³ the facts alleged show nothing more than that her commander contrived on one occasion, by fraudulently personating the master of a prize captured by him, and concealing the fact that she was a prize, to dispose of the cargo in a small island of the Bahama Archipelago, remote from the seat of government; and that, on another occasion, by means of a fraudulent conspiracy with a party of “wreckers,” he managed to carry a prize into the same place, and to extort, through the wreckers, from her master and owners, a ransom, under pretense of salvage.⁴ These facts, if proved, establish no failure of duty against Great Britain.⁵

12. As to the vessels said to have been employed as tenders by the Florida and Alabama, no failure of duty is alleged against Great Britain. The only question, therefore, which can arise in connection with them is, whether, in case any liability should be established against Great Britain in respect of the Florida or Alabama, such liability should be extended to the acts of these vessels.The Clarence, Tacony, Archer, and Tuscaloosa.

13. The discussion, therefore, in the view of Great Britain, confines itself practically, as well as of right, to the Alabama, Florida, Georgia, and Shenandoah, the four vessels on account of which claims had been made by the United States against Great Britain before the conclusion of the Treaty of Washington.The Alabama, Florida, Georgia, and Shenandoah.

As to these vessels, the material charges made by the United States appear to be in substance as follows:Substance of charges.

(a.) That the British Government did not exercise due care to prevent them from being equipped or specially adapted within British territory for war against the United States;

(b.) That the British Government did not cause them to be arrested or detained when they subsequently visited ports within the colonial possessions of Great Britain;

(c.) That they were suffered, in such ports, to obtain supplies and effect repairs, of a nature, or to an extent, inconsistent with the obligations of Great Britain as a neutral power.

14. It is not incumbent on Great Britain to prove that these charges are erroneous. It is for the United States to prove that they are true. But since the evidence of the real facts applicable to each of these vessels is before the Tribunal, Great Britain will proceed to state the principles which, in her view, ought to be applied to these facts.

15. In view of the arguments which have been employed in the Case of the United States, the British Government will refer, in the first place, to the general principles of international law which were in force at the time when the facts occurred, setting aside for the moment the three Rules which have been adopted by Great Britain and the United States, and inserted in the sixth article of the Treaty of Washington.General principles of international law in force when the facts occurred.

16. The general principles of international law are such only as have been settled by the general consent of nations. For evidence of this general consent, it is customary to refer to the works of text-writers of acknowledged merit, who have made it their business to examine the sources from which such evidence may be legitimately drawn. Opinions, however, of individual publicists, judicial decisions of the tribunals of a particular country, acts of any one State or Government, cannot by themselves establish a rule of international law; they can only contribute toward the formation of such a rule, or to the proof of its existence. It is to be added that acts of a State or Government, when used for this latter purpose, ought to be shown to have proceeded from a sense of international obligation, and not from motives of policy or international comity.¹

17. Under the general principles of international law, a broad distinction is drawn, in reference to the question of national responsibility, between the acts of a sovereign State or Government and those of individual citizens or subjects of the State or Government. And a further distinction is drawn between acts of individuals which the Government is under an obligation to prevent so far as it is able, and acts as to which the Government owes only a negative duty, the duty of not protecting the persons by whom they are done from penal consequences, which the law of nations attaches to them.²

18. These distinctions rest on the principle that, while a Government has complete control over its own acts, and may therefore with justice be held completely responsible for them, the control which it can exercise over the acts of its subjects is of necessity very limited and imperfect. This control is limited on all sides by the very nature of civil government, and by the principle of individual liberty; by considerations both of what is generally practicable and of what is generally expedient.

19. By the general principles of international law in force when the facts now in question occurred, a neutral Government was net under an obligation to prevent or restrain the sale within its territory, to a belligerent, of articles contraband of war, or the manufacture within its territory of such articles to the order of a belligerent, or the delivery thereof within its territory to a belligerent purchaser, or the exportation of such articles from its territory for sale to, or for the use of, a belligerent.³

20. A ship, specially adapted for warlike use, had been held by publicists in general to belong to the class of articles which are contraband of war. The citations given in Annex A to the British Counter Case from Hübner, Tetens, Galiani, Lampredi, Azuni, Rutherforth, Martens, Piantanida, Story, Wheaton, and Heffter, abundantly prove this position. Neither the sending of such a vessel from a neutral to a belligerent country for sale to the belligerent Government, nor the sale of it within the neutral territory to a belligerent Government or its agents, was regarded as an act which, by the general principles of international law, the neutral Government was under any obligation to prevent. (Lampredi, Azuni, Story, Wheaton.) By one well-known writer, (M. Hautefeuille,) it had even been contended that such a vessel, if not actually armed, was not to be regarded as contraband of war, but was an object of legitimate commerce, whatever might be her force and whatever the character of her construction.

21. It was immaterial, in the view of international law, whether the vessel were sold in the market, when completed, to the belligerent purchaser, without any contract prior to her completion, or were built to the order of the purchaser. In each case the belligerent purchaser acquired an implement of war by means of a commercial transaction with a private person in the neutral country, and the adverse belligerent sustained in the one case no injury which he did not sustain in the other.

22. If, therefore, the facts brought to the knowledge of a neutral Government consisted only in this, that a vessel specially adapted for warlike use had been, or was about to be, acquired within the neutral territory by a belligerent Government or its agents, or that such adaptation was in progress in order to the delivery of the vessel to the belligerent purchaser, the neutral Government was not bound to interfere.

23. The general principles of international law did, on the other hand, require that a neutral Government, having reasonable ground to believe that any port or place within its territory was being used, or was about to be used, by either belligerent as a base or point of departure for a military or naval expedition against the other, should exert reasonable diligence to prevent this abuse of neutral soil. Publicists had not attempted to define the meaning of the expressions employed above; they had commonly had recourse to simple and obvious illustrations, such as the assembling of an armed force (“rassemblement militaire”) or the fitting out of privateers to cruise from a neutral port, (“ausriüstung von Kapern,”) as was done in France in and after 1776, and in the United States in and after 1793. The circumstance that the several constituent parts of a military or naval expedition (such as men, arms, a ship or ships) had been separately procured from a neutral country, has never been held sufficient to convert the neutral country into a base or point of departure for the expedition. In the celebrated case of the Independencia, which came (under the forensic title of the Santissima Trinidad) before the great American Judge Story, the ship, which had been originally built and equipped at Baltimore as a privateer, during the war with Great Britain, was sold after the peace to new owners, who dispatched her from that port, loaded with a cargo of munitions of war, and armed with twelve guns, (constituting a part of her original armament,) under the command of Captain Chaytor, an American citizen, on a voyage ostensibly to the northwest coast, but in reality to Buenos Ayres; the supercargo being instructed to sell the vessel to the Government of Buenos Ayres, (then in revolt and at war with Spain,) if he could obtain a suitable price. At Buenos Ayres the vessel was sold to Captain Chaytor himself and two other persons; and soon afterwards she assumed the flag and character of a public ship, and was understood by the crew to have been sold to the Government of Buenos Ayres, Captain Chaytor made known these facts to the crew, and asserted that he had become a citizen of Buenos Ayres, and had received a commission to command the vessel as a national ship; he invited the crew to enlist in the service, and the greater part of them accordingly enlisted; and the ship afterwards cruised, made prizes, and was recognized in the United States as a public ship of war of Buenos Ayres. This whole transaction was held lawful in the Courts of the United States; while certain augmentations of the force of this vessel, subsequently made in a port of the United States, were, by the same Courts, held unlawful.¹

No publicist, again, had undertaken to determine what ought to be held a reasonable measure of care or diligence, nor to resolve the question what grounds of belief—or, in other words, what evidence—ought to be deemed sufficient for a Government to act upon.

All equipments, which by their nature were applicable indifferently to purposes of war or commerce, were by the instructions issued by the Government of the United States in 1793 declared to be lawful, whatever might be the character of the vessel, or her actual or intended employment.²

24. In the first of the three Rules laid down in the Treaty of Washington the duties of a neutral Government are defined, with some increase of strictness as well as of precision. According to this rule, a neutral Government is bound to use due diligence to prevent the fitting out, arming, or equipping, within its jurisdiction, of any vessel which it has reasonable grounds to believe is intended to cruise or to carry on war against a power with which it is at peace; and also to use like diligence to prevent the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such vessel having been especially adapted, in whole or in part, within such jurisdiction, to warlike use.The three Rules of the Treaty of Washington.

25. The reasonable construction of this rule appears, to require that the intention as to the future employment of the vessel should be an actual, present, fixed intention, not contingent on the happening of some uncertain event; that the contemplated employment should be proximate, not remote; and that the intention should exist at the time when the alleged obligation to interfere arises—either when the vessel is being fitted out, armed, or equipped in the neutral port, or when, after receiving there her special adaptation for war, she is about to depart from the neutral territory. The equipment, the departure, which the neutral Government ought to use due diligence to prevent, is an equipment, a departure, with an intention that the vessel shall be employed in operations of war, and with a view to her employment in such operations.

26. As to the character of the belligerent intention which, coupled with the act of equipment or special adaptation for war, makes it, according to the rule, the duty of the neutral Government to interfere—as to the nature or the grounds of the belief on which the neutral Government ought to act—as to the measure of diligence or care which it is bound to exercise—as to those, the rules introduce no new principle, nor do they augment the breadth or stringency of any principle previously recognized. It was never supposed that a neutral Government was or could be bound, under any circumstances, to prevent the fitting out of a vessel, unless it had reasonable grounds to believe that she was intended to cruise or carry on war against a power with which the neutral was at peace. The words “due diligence,” in the three Rules, exact from the neutral, in the discharge of the duties therein stated, that measure of care, and no other, which is required by the ordinary principles of international jurisprudence, and the absence of which constitutes negligence.¹

27. When it is said that a Government has reasonable grounds to believe that an act is intended, which act the Government, if it possess such reasonable grounds, is bound to endeavor to prevent, and can prevent only by the enforcement of a law, more is meant than that the Government has grounds for suspicion, founded on rumor or mere circumstances of probability. Such grounds as these may indeed determine a Government to undertake voluntarily the responsibility and risk of trying to enforce the law; but they cannot create an obligation. This can only arise when the Government has adequate grounds, not for suspicion only, but for belief, that is, for such a belief as is sufficient to justify it in setting the machinery of the law in motion.Meaning of the words “reasonable ground to believe.”

28. Due diligence on the part of a Government signifies that measure of care which the Government is under an obligation to use for a given purpose. This measure, where it has not been defined by international usage or agreement, must be deduced from the nature of the obligation itself, and from those considerations of justice, equity, and general expediency on which the law of nations is founded.² “Due diligence.”

29. Where the substance of the obligation consists in the prevention of certain acts within the territory of a neutral power, from the consequences of which loss might arise to foreign States or their citizens, it would not be reasonable to exact, as of right, from the Government, a measure of care exceeding that which Governments are accustomed to exert in matters affecting their own security or that of their own citizens. No duty which nation owes to nation can possibly be higher or more imperative than that which every State owes to its own members, for whose welfare it exists, and to whom the Government, however constituted, is morally and primarily responsible for the right exercise of its powers.³ An extract from the able Danish jurist, Tetens, bearing on manifestly just and reasonable principle, has been given in a note at page 23 of the British Counter Case.

30. An observation to the same effect as the foregoing in the Case of Great Britain has been excepted to in the Counter Case of the United States, on the ground that “it sets up as the measure of care a standard which fluctuates with each succeeding Government in the circuit of the globe.⁴ This is an error. Where individuals are in question, the only general standards of due care which it has been found possible to frame, are framed with reference either to the care which the particular individual, against whom negligence is alleged, is accustomed to exert in his own concerns, or to the care which men in general, or particular classes of men, are accustomed to exert in their own concerns. To standards of this kind, with various modifications and under different forms of expression, jurists and judicial tribunals in all countries have commonly had recourse, to assist them to a decision in cases of alleged negligence. Where the acts or omissions of a Government are in question, it is certainly not unreasonable that the general standard of care, so far as any general standard is possible, should be drawn from the ordinary conduct of Governments in matters affecting those interests which they are primarily bound to protect. The objection suggested by the United States, that the standard is a fluctuating one, is therefore not only erroneous in itself, but might with equal reason be urged against the principles of decision commonly applied to analogous cases in the administration of private law. Its tendency, if admitted, would be to introduce a universal hypothesis of absolute and arbitrary power, as the rule of judgment for all such international controversies.

31. Great Britain has, however, submitted to the arbitrators that the question, what measure of care is in a given case sufficient to constitute due diligence, cannot be defined with precision in the form of a general rule, but must be determined on a careful consideration of all the circumstances of the given case.¹ In the British Counter Case the history and experience of the United States themselves, during the war between Great Britain and France at the close of the last century, during the wars between Spain and Portugal and their revolted colonies, and still more recently in the cases of expeditions and hostile movements organized within the United States against Mexico, Cuba, and Great Britain, has been largely referred to, for the purpose of showing what has heretofore been deemed sufficient by the Government of the United States to satisfy the obligations incumbent upon them in this respect toward other nations, and how imperfect a measure of success has attended their efforts to restrain their citizens from lawless acts, inconsistent with those obligations.² The statements in the British Counter Case on this subject will be found to be corroborated by the papers appended to the Counter Case of the United States. Those papers show the various instructions and proclamations issued with the object of preventing violations of the American law. The British Counter Case shows how, for a long series of years, and also very recently, those instructions and proclamations have been successfully evaded. Mr. Seward, in his dispatch to Mr. Adams, dated the 2d March, 1863, thought it sufficient to express the desire and expectation of the President that Her Majesty’s Government would “take the necessary measures to enforce the execution of the law as faithfully as his own Government had executed the corresponding statutes of the United States.”³ This is a test of due diligence, by which Her Majesty’s Government might safely be content to have its conduct tried. It does not believe that upon any candid mind the comparison would leave an impression to the disadvantage of Great Britain.

32. It is absolutely necessary, in considering charges such as are made against Great Britain by the United States, to take into account, for some purposes, the laws and institutions of the nation charged, the powers with which its Government is invested, and its ordinary modes of administrative and judicial procedure. These are among the circumstances which bear on the question of negligence, and they have a most material bearing on it. In all civilized countries, the Government possesses such powers only as are conferred on it expressly or tacitly by law; the modes of ascertaining disputed facts are regulated by law; through these powers the Executive acts, and to these methods of inquiry it is bound to have regard. To exclude these from consideration in questions relating to the performance of international duties, would at once render such duties intolerable and their performance impossible.British law, and powers of the Executive in Great Britain.

33. These considerations in no way affect the principle that the duties of neutrality are in themselves independent of municipal law. Those duties are not created by municipal law; they cannot be abolished or altered by it. But since, in the discharge of international duties, every nation acts through its Government, and each Government is confined within the sphere of its legal powers, the local law and local institutions cannot be disregarded when the question arises, whether in a given case a Government had sufficient grounds of belief to proceed upon, and whether it acted with proper diligence.

34. It was, therefore, material to show what, at the time when the acts complained of by the United States are alleged to have been done, was the state of British law in relation to such matters; what powers the Executive Government possessed; in what modes those powers could be exercised; and what were the general rules of administrative and judicial procedure, including those relating to the judicial investigation of facts and the reception of evidence.

35. In reference to this part of the question the following propositions, already laid down on the part of Great Britain, may be repeated here:

In every country where the Executive is subject to the laws, foreign States have a right to expect—

(a.) That the laws be such as in the exercise of ordinary foresight might reasonably be deemed adequate for the repression of all acts which the Government is under an international obligation to repress, when properly informed of them;

(b.) That, so tar as may be necessary for this purpose, the laws be enforced and the legal powers of the Government exercised.

But foreign States have not a right to require, where such laws exist, that the Executive should overstep them in a particular case, in order to prevent harm to foreign States or their citizens; nor that, in order to prevent harm to foreign States or their citizens, the Executive should act against the persons or property of individuals, unless upon evidence which would justify it in so acting if the interests to be protected were its own or those of its own citizens. Nor are the laws or the mode of judicial or administrative procedure which exist in one country to be applied as constituting a rule or standard of comparison for any other country. Thus, the rules which exist in Great Britain as to the admission and probative force of various kinds of testimony, the evidence necessary to be produced in certain cases, the questions proper to be tried by a jury, the functions of the Executive in regard to the prevention and prosecution of offenses, may differ, as the organization of the magistrature and the distribution of authority among central and local officers also differ, from those which exist in France, Germany, or Italy. Each of these countries has a right, as well in matters which concern foreign States or their citizens as in other matters, to administer and enforce its own laws in its own forum, and according to its own rules and modes of procedure; and foreign States cannot justly complain of this, unless it can be clearly shown that these rules and modes of procedure conflict in any particular with natural justice, or, in other words, with principles commonly acknowledged by civilized nations to be of universal obligation.¹

36. It has been shown that the law of Great Britain, as it existed at the time of the civil war in the United States, was such as, in the exercise of ordinary foresight, might reasonably be deemed adequate for enabling the British Government to perform its obligations as a neutral Government. It was modeled upon the law of the United States, which had long existed and had frequently been brought under consideration in the courts of that country; it equaled that law and even surpassed it in stringency; and offenses against it (if any there were) had been so rare as to have left hardly any trace in the judicial records of Great Britain.¹

Compared with the laws of other countries, which have been collected and placed before the Arbitrators, it will appear to have been (as it really was) singularly stringent in its prohibitions, and copious and particular in detail. But the question is not whether it was stricter or less strict than the laws of other countries, but whether it was such as might reasonably be deemed sufficient in the exercise of ordinary foresight. It is impossible to deny that it was such.

37. It appears to be suggested, on the part of the United States, that some defect or defects, which might not have been foreseen, in the law of Great Britain, was or were brought to light by the case of the Alabama, and that the law ought to have been amended in consequence of this discovery. The answer to this is that, as respects the Alabama herself, the question of the liability of Great Britain, on account of her departure from this country, must be tried on the facts as they existed at that time, and not upon any subsequent state of facts. In respect of the Alabama, Great Britain must be held to be liable (if at all) on the ground that her Government failed to prevent the departure of the Alabama, and not on the allegation that she did not afterward amend her law, and thus failed to arrest the Georgia or the Shenandoah. But, further, it has been already shown that the departure of those two vessels was in no respect due to any deficiency in the law. It is not only true that the law of Great Britain was then more stringent than that which existed at the time in the United States, and has ever since been, and now is, deemed sufficient in that country, and which, a year after the departure of the Alabama, (July 11, 1863,) was spoken of by Mr. Seward as “exactly similar to that of Great Britain;”² but it is also clear that, if the law of Great Britain had, in truth, been an exact copy of that of the United States, and had been interpreted and enforced in precisely the same way, no facts existed—much less were known to the British Government—which would have warranted the arrest of either of these latter vessels for a breach of that law.

38. Again, to the allegation that, on a particular point—the question whether a vessel specially adapted by construction for belligerent use, though not armed so as to be immediately capable of hostilities, was within the prohibitions of the Foreign-Enlistment Act—the provisions of the Act were regarded as of doubtful construction, and that in one case (that of the Alexandra) the doubt was resolved in the negative by a decision of a British Court, the members of which were equally divided in opinion about it, the answer (if any answer can be supposed to be necessary) is equally clear. The Act itself was, on this point, expressed in more stringent language than that of the United States; the legal advisers of the Government, and the Government itself on their advice, did not act on the laxer, but on the more severe, construction of it; the doubt referred to was never judicially raised till June, 1863, and it did not, in any case which afterwards occurred, operate to prevent the detention of any vessel which was intended to be employed in cruising or making war against the United States. It may be true that the law admitted of two different constructions on this point in England, as it certainly did in the United States; it may be true that it had, before 1863, been (to some, though only to a very limited, extent) judicially interpreted in the United States, whilst no case calling for a judical interpretation had occurred in England; but it is clearly impossible to contend that it must for that reason be considered to have been, before 1863, less stringent in England than in the United States, or to argue that because some officers of a particular Department of Government (that of the Customs) honestly understood it in the less stringent sense, this fact constituted a failure of international duty on the part of Great Britain.

39. It is, therefore, abundantly clear that no argument against Great Britain can be founded on any supposed defect in the Foreign-Enlistment Act.

40. As to the general powers of the Executive Government in Great Britain and the rules of procedure established there, the following statements have been made on her part to the Arbitrators.

(a.) The Executive cannot deprive any person, even temporarily, of the possession or enjoyment of property, nor subject him to bodily restraint, unless by virtue and in exercise of a power created and conferred on the Executive by law.

(b.) No person can be visited with a forfeiture of property, nor subjected to any penalty, unless for breach of a law, nor unless such breach is capable of being proved against him.

(c.) Under the Foreign-Enlistment Act the Government had no power to seize or detain a ship, unless with a view to subsequent condemnation in due course of law, and on the ground of an infringement of the law sufficient to warrant condemnation.

(d.) Before authorizing the condemnation of a suspected vessel, the law required that the facts alleged against her should be capable of proof. Open investigation before a Court is the mode appointed by law for sifting all allegations and distinguishing ascertainable facts from mere rumor. This is an ordeal which a British Government must always be prepared to encounter if, in the exercise of the powers intrusted to it, it seizes or interferes with the person or property of any one within its jurisdiction. The British Government, therefore, justly held itself entitled and bound, before seizing any vessel, either to have sufficient proof in its possession or to have reasonable grounds for believing that it would be forthcoming before the trial of the case should begin.

(e.) By proof, in an English court of law, is understood the production of evidence sufficient to create in the mind of the judge or jury (as the case may be) a reasonable and deliberate belief of the truth of the fact to be proved, such as a reasonable person would be satisfied to act on in any important concerns of his own. And by evidence is understood the testimony, on oath, as to facts within his or their personal knowledge, of a witness or witnesses produced in open court and subject to cross-examination.¹

41. It may well be true, and doubtless is so, that these rules of procedure, administrative and judicial, differ, more or less, from those which exist in some other countries; that the powers lodged in the Government in some of those countries are larger than in Great Britain; that an authority may exist elsewhere, which in Great Britain was absent, to act on mere suspicion; that the principles applied to the admission and the credibility of evidence may not be the same. But it is plainly impossible to contend that the rules established in Great Britain were in any respect contrary to natural justice or in conflict with any principles of public law generally recognized by civilized States, or so restrictive of the powers of Government as to disqualify it from the discharge of ordinary international duties. Their general principles do not, in fact, differ from those which have been inherited from the same original sources by the United States. Those principles are esteemed essential in Great Britain for the preservation of public and private liberty. The British Government was therefore entitled and bound to observe and act on the rules founded upon them; and no charge of negligence can be founded on, or supported by, the fact that it did so observe and act on them in respect of any of the vessels to which the claims of the United States relate.²

42. Taking into account these circumstances, and bearing in mind the principles of the decision which have been laid down, the Arbitrators have first to determine whether, in failing to prevent the fitting out, arming, or equipping, within Great Britain, or the departure from Great Britain after a special adaptation for war, of any of the vessels above mentioned, the British Government is, or is not, justly chargeable with a failure of duty for which Great Britain owes compensation to the United States.Facts which must be proved before an award can be made against Great Britain.

43. Before an award can be made against Great Britain in respect of any vessel, the Arbitrators have to be satisfied—

(a.) That she was in fact fitted out, armed, equipped, or specially adapted, either wholly or in part, to warlike use within British territory;

(b.) That the British Government had, before she was beyond their authority and jurisdiction, reasonable ground to believe that she was intended to cruise or carry on war against the United States;

(c.) And also that, having such reasonable ground of belief, the Government did not use due diligence to prevent her equipment as aforesaid, or else to prevent her departure.

44. For the purpose of determining these questions, the Arbitrators have to place themselves in the situation in which the British Government was at the time, and not to impute to it a knowledge of facts which it did not then actually possess, unless in any case it should be proved to the satisfaction of the Arbitrators that other facts must have been known to it, had it exerted reasonable care.

45. The case of the Florida was the first in order of time. No attempt on the part of the Confederate Government to fit out or procure a vessel of war within British territory had up to that time come to the knowledge of the British Government, or had in fact been made. No facts were known to the British Government proving or tending to prove that such an intention existed.The Florida.

46. The material facts relative to this vessel are stated in the Case of Great Britain, Part V, in the Counter Case of Great Britain, Part VI, and in the documentary evidence therein respectively referred to.

47. As to her original departure from Great Britain and the circumstances which preceded it, the Arbitrators have seen—

(a.) That the first communication made to the British Government on the subject was received on the 19th February, 1862, three months after the attention of the United States Consul at Liverpool had been directed to her, and at a time when she was ready for sea;¹

(b.) That, a fortnight before the date of this communication, it was known to Mr. Dudley and to Mr. Adams that she was taking in her coal, and appearances then indicated that she was about to sail before the end of that week. They made, however, no representation to the Government, which might have led the Government to institute inquiry;²

(c.) That, in the communication made on the 19th February, no proof whatever was furnished of the intended employment or true ownership of the vessel, and no circumstance stated which, even if it had been verified, could have produced more than a bare suspicion;³

(d.) That, vague and scanty as were the allegations in Mr. Adams’s letter, inquiry was instantly directed by the Government. No information, however, could be obtained tending to connect the vessel in any way with the Confederate States. She was declared by the builder to he ordered for a firm at Palermo, a member of which, being a native of that city, was registered, on his own declaration, as her sole owner, and had frequently visited her when building.⁴ She had on board no troops and no arms or military supplies. The contrary supposition, entertained at one time by the United States, was founded on a mere misunderstanding of blanks in a printed form of clearance.⁵ Her first destination, as stated in her clearance, was Palermo; and her crew were nominally (and, as they evidently believed, really) hired for a mercantile voyage.⁶ On the one hand were the positive statements of the builder, the registered owner, and the collector of customs; on the other, the suspicion of Mr. Dudley that the vessel was still intended by her owner to pass, sooner or later, into the hands of the Confederate Government. But a suspicion is one thing, reasonable ground of belief another; and the British Government, while it would have been bound to act on a reasonable belief that there was a present fixed intention to employ her as a Confederate ship of war, was neither bound by international duty, nor empowered by its municipal law, to act on a bare suspicion that she might pass into that employment;¹

(e.) That the results of this inquiry were communicated to Mr. Adams on the 26th February;² that more than three weeks elapsed from that time till the sailing of the ship; yet that, during the whole of that time, no further communication was made to the Government by the American Minister or Consul. Either they had no information, or, having information, they did not produce it. It appears from the contemporaneous correspondence of the Government of the United States with their agents at Liverpool, that this ship was in reality supposed by those agents to be one of a numerous class then fitting out at that port, of which the rest proved to be blockade-runners, intended and used for commercial and not for warlike purposes.³

48. It is stated in the Counter Case of the United States (see. v, par. 5) that from the evidence furnished in the British Case and Appendix, “it appears clearly that before the Florida left Liverpool, the British Government received information from the Government of His Majesty the King of Italy, that the pretense that the Florida was constructed for the Italian Government was a fraud.” This is an error. The Florida (then the Oreto) left Liverpool on the 22d of March.⁴ At that time the only information received from the Italian Government was that conveyed in a telegram from the British Minister at Turin of the 1st March, to the effect that M. Ricasoli had no knowledge whatever of the ship Oreto, but would cause inquiry to be made.⁵ The later announcement by M. Ratazzi that every inquiry had been made and that the Italian Government knew nothing of the vessel, was not made to the British Minister till the 25th of March, three days after the Florida had sailed from the Mersey.⁶

49. On these facts, the United States charge Great Britain with a failure of international duty, rendering her liable to make compensation for all losses subsequently occasioned by, or attributable to, the Florida, after she had been converted into a Confederate ship of war. The converson took place about five months afterward; the cruise, in the course of which her prizes were made, commenced from a Confederate port, about ten months afterward. On the part of Great Britain it is submitted that this charge is without foundation; that it finds no support in any just or reasonable conception of international obligations hitherto recognized by other Powers; and that, were it to be sustained, no neutral State could be secure.

50. As to the subsequent departure of the Florida from Nassau, the Arbitrators have seen that this vessel, from the time when she entered the waters of the Colony, was watched by the local authorities;⁷ that she was finally seized, on a charge of a violation of the Foreign-Enlistment Act;¹ that proceedings were, by the Governor s direction, instituted in the proper court, with a view to her condemnation; and that, alter a fair and regular trial, she was ultimately released by a judicial sentence.² It is impossible, therefore, to contend that the departure of the Florida from Nassau was due to negligence on the part of the local authorities or of the Government of Great Britain; on the contrary, the authorities did what they could to prevent it. The United States have attempted to impute to the chief Law-Officer of the Government in the Colony unfaithfulness to his superiors, and dishonesty in the performance of his official duty. Personal charges of such a nature ought not to be made unless they are clearly relevant, nor unless they can be sustained by the clearest evidence. But they have been shown, on the contrary, to be destitute of any shadow of foundation.³ The United States criticise also the ruling of the Judge on a doubtful point of law. A Government, however, is not to be charged with negligence because a court of competent jurisdiction may pronounce, on a matter of law or fact, properly submitted to it for decision, a questionable or even an erroneous judgment. The Executive has performed its duty when it has brought the case before a competent tribunal, and cannot afterward take it forcibly out of the control of the court, or refuse obedience to its decree. If this be true (as it is) in ordinary cases, it is still more clearly so when the whole transaction takes place in a remote colonial dependency.⁴

51. The facts relative to the departure of the Alabama, and the circumstances which preceded it, are stated, in the British Case, Part VI, and in the British Counter Case, Part VI.The Alabama.

52. It has been seen:

(a.) That this vessel was constructed by a large ship building firm at Birkenhead, whose regular business included the building of ships of war for the British Government, and for foreign Governments or their agents, and who built her to order, purely as a commercial transaction, and without any knowledge as to the manner in which she was afterwards to be armed for war—believing, indeed, according to their own statements, that she was to be carried for that purpose into a Confederate port;⁵

(b.) That the first representation made on the subject was received on the 24th June, 1862;⁶

(c.) That, on the 25th June, the Government ordered inquiries to be made on the spot, and also referred the matter to the Law-Officers of the Crown;⁷

(d.)That inquiries were made accordingly, but failed to produce any evidence that she was intended for the Confederate Government or Service;⁸

(e.) That, on the 4th July, the result of this inquiry was communicated to Mr. Adams, with a suggestion that he should instruct “the United States Consul at Liverpool to submit to the Collector of Customs at that port such evidence as he might possess, tending to show that his suspicions as to the destination of the vessel were well founded.¹

(f.) That, on the 10th July, a letter was received from the Consul, which furnished no evidence, and gave nothing but mere reports, received from anonymous persons, of statements alleged to have been made by others who could not be found, or who, if found, could not be compelled to testify, since their testimony would have tended to criminate themselves;²

(g.) That, on the 21st July, for the first time, some evidence was produced by the Consul to the Collector, but that it was scanty and imperfect;³

(h.) That some additional evidence was furnished on the 23d, and some again was received by the Board of Customs on the 25th;⁴

(i.) That on Tuesday, the 29th, the Law-Officers reported their opinion that the evidence was sufficient, and that the vessel ought to be seized.⁵

53. It has not been shown by the United States that, before the time when the first representation was made to the British Government, any circumstances proving or tending to prove that the vessel was intended for the service of the Confederate States were, or ought to have been, known to this Government or any of its officers.

54. It appears from the statements made on the part of the United States themselves, that, although she had been an object of suspicion to the United States Consul for more than six months, and although, within his knowledge, she had been gradually advancing to completion, had made her first trial trip, and had begun to get ready for sea, yet no evidence whatever proving, or tending to prove, that she was intended for the Confederate States was produced to the British Government or any of its officials till eight days before she actually sailed, and at a time when it was believed that she might depart at any hour: and that what was then furnished was so imperfect that it needed to be strengthened by additional evidence, part of which was delivered on the sixth, and other part on the fourth, day before her departure. It is clear then that up to the very eve of her sailing the American Minister and Consul either possessed no proof at all that she was intended for the Confederates, or, having such proof, did not disclose it.6 ⁶

55. It may be proper here to notice the allegations made in the Case and Counter Case of the United States, that it would have been useless to make any representations to the British Government, because that Government required to be furnished with technical evidence of a violation of the law before it would act, and even before it would institute inquiry, and would listen to no representations which did not furnish such evidence; that “Her Majesty’s Government declined to investigate charges and to examine evidence submitted by Mr. Adams as to repeated violations of British territory, which subsequent events proved were true in every respect;” and that an expression in a letter written by Earl Russell, in March, 1863, coupled with the division of opinion in the Court of Exchequer, respecting the case of the Alexandra, in January, 1864, was “an abandonment in advance of the obligation to use due diligence.” All these assertions are erroneous. The British Government did indeed require, as it had the right to do, before seizing a vessel, either to have in its possession what seems to be described by the United States as “technical” evidence, that is, evidence which could be publicly produced and tested before a judicial Tribunal, or else to have reasonable grounds for believing that such evidence would be forthcoming before the trial of the case should begin. But in no single case, from the beginning to the end of the war, did it refuse to listen, to representations on the ground that they did not furnish such evidence, or refuse or forbear on that account to make any representation the subject of instant inquiry. The conduct of Mr. Adams in 1862 could not have been affected by circumstances which occurred in 1863 and 1864. Nor does it appear that those circumstances did in fact affect in any way, or at any time, either the conduct of Mr. Adams or that of the British government; since Mr. Adams continued, after the Alexandra case, as well as before it, to make representations to the Government in every case of suspicion, without producing “technical” evidence, and the Government continued in every case to investigate facts, and to detain vessels against which any proof could be obtained, on the same grounds as before.¹ Finally, it is clear that, in the Alabama case, Mr. Adams’s representations were not deferred till he had obtained “technical’’ evidence, since they were made a month before he was able to produce any evidence at all; and the Government did not refuse inquiry till after evidence was furnished, since they directed and prosecuted inquiry more than three weeks before any was furnished.

56. It is possible that the “charges” and “evidence” submitted by Mr. Adams as to “repeated violations of British territory,” to which the Government of the United States refers, may have reference to certain complaints as to the existence of Confederate Agents, the negotiation of pecuniary loans, and the purchase of supplies and munitions of war for the Confederate States in this country, and as to the trade in articles contraband of war and the fitting out of ships to run the blockade, which were, undoubtedly, from time to time, made by Mr. Adams. If such complaints were in any cases not investigated, it was because they manifestly related to acts not contrary to the law of Great Britain, and which Her Majesty’s Government was under no obligation by Treaty or international law to prevent.

57. It has been clearly shown that, as regards the period which elapsed before the 21st of July, no pretense exists for imputing negligence to the British Government. Eight days after that date the vessel sailed, unarmed, and incapable of offense or defense. Within the interval written depositions to prove that she was intended for the Confederate Government were furnished in successive portions or installments to the British Government. That the question whether the evidence was credible and sufficient in law to sustain a seizure, was one on which the Government had a right, before acting, to consult its legal advisers, and to take reasonable time for consideration, is undeniable; and it has been shown that the depositions were, in fact, referred to the Law Officers as soon as they were received from time to time.

58. The United States allege in their Counter Case (Sec. VI, par. 1) that the official legal advisers of the Customs gave opinions on the evidence contained in Mr. Adams’s representations, which were in conflict with the opinions of the Law Officers of the Crown; that these opinions were given upon the questions after they had been submitted to the Law Officers of the Crown, and before the latter had rendered their opinions, and that the Customs Department acted on the opinions of their own advisers at a time when they must have known that the Law Officers of the Crown had the subject under consideration.

It cannot be admitted that this is an accurate representation of the facts as they occurred. The opinion of the legal advisers of the Customs upon the evidence furnished was, that it was insufficient to justify the seizure or detention of the ship by the Officers of Customs.¹ They recommended, however, that the opinion of the Law Officers of the Crown should be taken.² In the interval which elapsed before the opinion of the Law Officers was received, the Customs Department, as was natural and right, abstained from directing a seizure which they themselves considered would be unauthorized. As soon as the decision of the Government was communicated to them, immediate steps were taken for carrying it into effect.³

59. In the Counter Case of the United States, (Sec. VI, par. 3,) it is further stated that:

It appears that the Commissioners of Customs knew on Tuesday, the 29th of July, that the Alabama had escaped that day, and that it was not until Friday, the 1st of August, that the Collectors at Holyhead and Beaumaris received instructions to detain her. On the 2d of August the Collector at Beaumaris reported that he had attended to his instructions, and had found that the Alabama had left Point Lynas on the morning of Thursday, the 31st. If, therefore, the instructions given on the 1st of August had been given on the 29th of July, the Alabama might have been detained at Point Lynas.

An examination of the facts, distances, and dates will show that such a course would have been nearly, if not quite, impossible.

The Commissioners of Customs received telegraphic information on the 29th of July that the vessel had left the port of Liverpool that morning.⁴ The opinion of the Law Officers that the vessel should be seized had not at that time been received, nor was anything known as to her movements. The United States Consul at Liverpool appears to have been in doubt, even the next day, whether she had not gone out on a trial trip and would not return to Liverpool.⁵

On Wednesday, July 30, the Customs Department in London received a letter from the Solicitors employed by the United States Consul, in which they stated their belief that the vessel had gone to Queenstown.

On the same morning, the United States Consul at Liverpool received information that the steam-tug Hercules, which had accompanied the Alabama, had returned the night before, and that the master reported the gun-boat to be cruising off Point Lynas. This information Mr. Dudley communicated to the Collector of Customs at Liverpool, in a letter which seems to have been received at about 1 p. m. the same day.⁶

This was the first information pointing to the vicinity of Point Lynas as the place where the vessel might be found. Point Lynas is situated on the northern coast of the Island of Anglesea, about fifty miles from Liverpool, and more than two hundred miles from Queenstown. The nearest custom-house stations are Beaumaris and Holyhead, from which it is distant in a direct line about fourteen and sixteen miles respectively, but much more by road.⁷

Supposing, therefore, that the Customs Collector at Liverpool had been at the time aware that the Government had decided on the seizure of the vessel, and that he had telegraphed the rumor of her movements up to London on the afternoon of the 30th of July, this would have been the earliest moment at which instructions could have been sent to the Collector of Customs at Beaumaris to look out for the vessel off Point Lynas. The Collector would then have proceeded to the coast-guard station at Amlwch, and from thence to Point Lynas, to make inquiries; but supposing all possible dispatch to have been used, it is still doubtful whether he could have succeeded in arresting the Alabama, which was at Moelfra Bay, five miles away, and which left at 3 o’clock on the morning of the 31st.¹ He would have had, moreover, nothing but a coast-guard boat at his disposal. The crew of the vessel appear to have been on the lookout,² and she might without difficulty have steamed away on his approach.

60. The charge brought by the United States against Great Britain of a failure of duty in respect of the departure of the Alabama really reduces itself to this: that, in the interval between the 21st and 29th July, during which the evidence was coming in, the British Government took a little more time to satisfy itself that there was ground sufficient to warrant a seizure than the United States think was necessary. On this ground, in reality, the United States found their claim that all the losses caused by the Alabama, after she had been armed in Portuguese waters and converted into a Confederate ship of war, should be paid by Great Britain.

61. On the part of Great Britain it is submitted, that to rest such a claim on such a complaint, the complaint itself being supported by so slight and at the best so doubtful a foundation, is to assume a standard of international obligation which was never before acknowledged by any Government, and could not with safety or justice be conceded. It demands that the conduct of a Government, with its various departments, with modes of action which are of necessity complex and more or less methodical, shall always proceed with a mechanical precision which is inapplicable to the practical business of life. It makes no allowance for reasonable doubts, for the importance of careful deliberation when difficult questions of law are involved, for accidental delays occasioned by illness or other causes, or for the casual impediments which are liable to occur in matters of administration. The establishment of such a standard would be neither reasonable nor just, and would be of serious consequence, not to maritime States alone, nor in questions relating to neutrality only, but to the general peace and tranquillity of nations. It will be remembered that one cause of some delay in this case has always been understood to have been the illness of the then Queen’s Advocate.³

62. Further, if it should appear (which Great Britain does not admit) that, through the fault or mistake of any subordinate official of the Government, either before or after the sailing of the Alabama from Liverpool, a chance or possibility of detaining her was let slip without the knowledge of the Government, this again cannot be held to afford a foundation for charging Great Britain, as against the United States, with a failure of duty and a grave international injury.⁴

63. It has already been observed that an equitable judgment as to all these points must be formed with reference to the facts as they were known at the time, and not as varied or affected by subsequent information or subsequent events. Mr. Adams made a contemporaneous report of the facts as to the Alabama to his Government upon the 1st August, 1861,¹ and on the 13th August the President desired Mr. Adams to express to Earl Russell his satisfaction at the “just and friendly proceedings and language of the British Government” with respect both to the Oreto and the Alabama.² No subsequent departure from this tone can alter the fact that this was the original impression produced upon the mind of the American Government by the circumstances which had occurred down to the 1st August, 1861, as they were known to Mr. Adams on that day.

64. The facts relative to the Georgia are stated in Part VII of the British Case, and in Part VII of the British Counter Case.The Georgia.

65. In the case of the Georgia no information or representation whatever was given or made to the British Government until six days after the ship had put to sea. Information about her had for a long time before (according to the statement of the United States) been in the possession of the American Minister and Consular officers, but they had not communicated it.³ If what they knew furnished reasonable ground to believe that she was a vessel of an unlawful character, intended for the naval service of the Confederate States, they ought to have communicated it, and are themselves the persons to blame; if not, the necessary conclusion is, that the industry of these officials had failed to discover any information of that kind. Even the statements at last made by Mr. Adams were erroneous, as well as unsupported by any proof.

66. That there was nothing about the vessel herself, or her equipment, which could make it the duty of the Government to seize her, or even to institute inquiries about her, nor anything which ought to have excited the suspicions of the officers of the Revenue, is clear. She was, to all appearance, a vessel intended for commerce; and her build, rig, and fittings, her register, her clearance, her professed destination, the manner in which her crew were hired, and the terms of hiring, were all perfectly consistent with her apparent character and employment.⁴ There is not, at this moment, any evidence whatever that she had been specially adapted for warlike use, either wholly or in part, before she left this country.

67. The intelligence of the departure of the Georgia from the Clyde, when first furnished by Mr. Adams to the British Government, together with the assertion (a bare assertion unsupported by any proof) that she was intended for the Confederate service, was accompanied by a statement that “her immediate destination is Alderney, where she may probably be at this moment.” One of Her Majesty’s ships of war was sent to Alderney in consequence of this statement, but it proved to be erroneous.⁵ The Georgia did not go to Alderney, but proceeded to French waters, where she received her armament. It is suggested, on the part of the United States, that it was the duty of the British Government to employ its naval forces in searching for and pursuing her on the high seas. No such duty exists, or has ever been recognized by maritime powers. It appears further to be suggested that she ought to have been pursued and seized in French waters. So far was this from being the duty of the British Government that it would have been a violation of the territorial sovereignty of France and a direct offense against the law of nations.¹ Her Majesty’s Government is not aware that any claim has ever been made upon France by the United States, on the ground that this vessel was not prevented from being armed for war within the territorial jurisdiction of that country.

68. The facts relative to the Shenandoah are stated in Part VIII of the British Case, and in Part VII of the British counter Case.The Shenandoah.

69. The Shenandoah was a vessel designed and built solely for a merchant-steamer, and with a view to employment in the China trade; was originally employed in that trade; was afterwards sold in the London market to a Liverpool ship-owner; and was by him dispatched from London with a clearance for Bombay. At the time when she left England she was in no way fitted out, armed, or equipped for war. She had on board two smooth-bore, 12-pounder guns, but they were only the same guns which she had carried during her mercantile employment, and such as are usually carried by ships trading in the China seas, to be used as signal-guns, and for other purposes common to merchant-vessels.²

70. No representation was made, no information whatever was given to, or possessed by, the British Government, respecting this ship before her departure from England. The Government first heard of her five weeks after she had sailed, and then not from the Minister or Consul of the United States, but from Her Majesty’s Consul at Teneriffe.³

71. There is not the slightest pretense for alleging that, in the character and appearance of the vessel, in her fittings or equipment, in her clearance, or in the hiring of her crew, there was anything whatever to excite suspicion in the officers of the Government at the port of London or elsewhere, or to lead to inquiry; nor that she had been, in fact, specially adapted to warlike use, either wholly or in part, before her final departure from this country. It has indeed been suggested, on the part of the United States, that the British Government ought to have known the name of the English merchant by whom she had been bought and was owned when she left England, and the circumstance that he was a connection by marriage of a member of the Liverpool firm of Fraser, Trenholm and Co.; and that it was a proof of a want of “the most ordinary diligence,” on the part of Her Majesty’s Government, not to be acquainted with and “take notice of” this circumstance.⁴ On the part of Great Britain, it is not thought necessary to trouble the Arbitrators with any argument in answer to this remarkable suggestion.

72. In the case of the Shenandoah, as in that of the Georgia, the United States seek to hold Great Britain liable for negligence in not having prevented the equipment or departure of a vessel which was never fitted out, armed, or equipped for war in British territory, and was never specially adapted therein for warlike use; as to which no representation or communication had been made to the Government, and no ground whatever existed for believing that she was intended for the Confederate States; which presented no circumstance of suspicion, and of the very existence of which the Government was totally uninformed. These pretensions are unsupported alike by the three Rules, and by the previously recognized principles of international law.

73. It is submitted that, as to every one of these four ships, the United States have failed to establish the facts necessary to support an award against Great Britain. It has not been, and cannot be, shown, in the case of any one of them, that the British Government, having reasonable ground to believe that she was intended to cruise and carry on war against the United States, failed to use due diligence to prevent her from being fitted out, armed, or equipped for that purpose within British territory, or from departing thence, after having been specially adapted within it to warlike use.Conclusion as to the Florida, Alabama, Georgia, and Shenandoah.

74. It was stated in the case of Great Britain that, in the course of the years 1861, 1862, 1863, 1864, and 1865, many representations were addressed by Mr. Adams to Her Majesty’s Government respecting vessels which he believed to be either actually employed in carrying on trade with blockaded ports in articles contraband of war or other things, or to be preparing for such employment; and also with respect to other vessels which he believed to be intended to be used as privateers or commissioned ships of the Confederate States in cruising and carrying on war against the United States. To complaints of traffic carried on with blockaded ports, or in articles contraband of war, it was answered, on the part of Her Majesty’s Government, that these were enterprises which Her Majesty’s Government could not undertake to prevent, and the repression of which belonged to the United States as a belligerent Power. Allegations, on the other hand, that vessels were being prepared for cruising or carrying on war were immediately referred to the proper officers of the Government at the several localities for careful investigation and inquiry. If, on such investigation, it appeared by sufficient prima-facie evidence that any illegal act was being or had been committed, the vessels were forthwith seized, and proceedings instituted according to law; if not, the result was at once communicated to Mr. Adams, and directions were given to the local authorities to watch closely the vessels as to which his suspicions had been aroused.¹ General course pursued by the British Government in regard to the representations of Mr. Adams.

It is said, in the Counter Case of the United States, (Sec. III, par. 14,) that “the United States do not understand that it is true that ‘allegations that vessels were being prepared for cruising or carrying on war’ were in all cases followed by seizure of the vessels when sufficient prima-facie evidence of the illegal purpose was furnished. They understand the exact contrary to be the case.”

The general course pursued by the British Government in these matters is correctly described in the foregoing extract from the British Case The United States question whether, “in all cases,” this course was adhered to. Even with this addition, however, the proposition questioned is true, excluding only the case of the Alabama, in which some evidence sufficient to justify action on the part of the Government was indeed furnished, but furnished so late that the departure of the vessel took place before the Government had been advised to that effect.

75. It is, however, alleged, on the part of the United States, that each of these four vessels, if not actually armed and equipped for war within British territory, obtained her armament from thence; that this armament was in each case purchased and sent out by the same person or persons who had procured and sent out the ship; that such person or persons was or were an agent or agents of the Government of the Confederate States, employed for these purposes; and that the crews with which the vessels were manned were chiefly composed of British subjects, obtained from England by the same agency. And it is contended that, under these circumstances, the Tribunal ought, as against Great Britain, to assume that these vessels were really armed and fitted out within British territory, and to make its award on that assumption.Charge that the armament of certain vessels was procured from Great Britain.

76. To assume, under any circumstances, that vessels armed in the waters of Portugal or France were armed in Great Britain, is to assume a fiction; and to base an argument or award on this assumption, would be to base an argument or award upon a fiction. International duties and liabilities cannot be made to repose on such a foundation. If it be meant to affirm that a neutral Government is as much bound to prevent arms from being sent abroad for this purpose and under these circum stances, as to prevent the actual arming of a belligerent vessel of war within the neutral jurisdiction, where is the proof of this supposed obligation, and when was it sanctioned by the general consent of nations? It is perfectly unknown, and was never heard of before. The acts, which are supposed to be virtually the same, and which the neutral Government is on that account supposed to be under the same obligation to prohibit, are in reality different, and the reasons which support the international obligation in the one case are wanting in the other. To attempt to found such an obligation on the second of the three Rules, which prohibits, in language previously familiar to publicists, the use of neutral territory, by the permission or with the acquiescence of the neutral Sovereign, as a base of naval operations, or for the renewal or augmentation of military supplies or arms, would be clearly indefensible. Upon the manner in which the phrase “base of operations,” and other similar expressions, have been from time to time applied to subjects not within their proper meaning in the diplomatic correspondence of the American Government, some observations will be made hereafter; in this place it is sufficient to point out that the sending abroad of munitions of war which are intended to be used in arming a particular ship, is not the same thing, and does not involve the same hostile use of neutral territory, as the placing of the same armament on board of the belligerent vessel in the port of the neutral country, from whence she is to sail when so armed; nor is it, like the latter, comparatively easy of repression without an unreasonable interference with neutral trade. How indeed is the neutral Government to know the destination of the arms, or for what market or vessel they are intended? This is a matter into which neutral Governments have never been held bound to inquire, and would certainly never undertake to inquire. Does the supposed obligation in respect of the export of arms arise when ship and arms are procured from different countries, or only when they are obtained from the same country?—when from different ports, or only when from the same port?—when purchased by different agents, or only when the agent is the same? Where is the line to be drawn, and is it to be the duty of the neutral Government to search out all these various circumstances, or how many of them; and how is it to do so? Little consideration is needed to show that, although the several acts, by which a ship, and the armament which is to be put on board of her, are separately procured and sent abroad, may, as against the persons by whom or by whose orders they are done, be regarded as so many steps in the execution of a single enterprise, and parts of one transaction, they cannot with justice be so regarded as against the neutral Government, which (so far as it can deal with them at all in the way of prevention) can only deal with them separately, and which may, and most frequently would, be wholly ignorant of the existence of the plan that was their sole connecting link, or at any rate unable to substantiate it. For the acts done beyond its territorial jurisdiction, whether by neutral citizens, or by belligerents with their aid, the neutral State cannot be held responsible.¹

77. The facts relative to the arming of the several vessels now in question have been stated in, the Case and Counter Case of Great Britain, and they will be found to illustrate the truth of the foregoing propositions.

78. The Alabama departed from Great Britain wholly unarmed,² and appears to have been equipped for war in the waters of the Azores, or partly in those waters and partly on the high seas, receiving her armament from two vessels which sailed respectively at different times from Liverpool and from London, without any apparent, known, or suspected connection with her. One of these, the Agrippina, cleared in the month of August from the port of London for Demerara; the other, the Bahama, cleared from Liverpool on the 11th of the same month for Nassau.³ There is nothing, so far as the British Government is aware, to distinguish these two vessels from others freighted with munitions of war, which might be destined for places in the Confederate States, or to attract the special attention of the officers of customs at the several ports.⁴ No information ever reached the British Government which could lead to the belief that they were employed to carry arms to a ship intended for the war service of the Confederate States, or for any purpose which the British Government could be called upon to prevent.

79. The Georgia, which also left Great Britain unarmed, received her armament in French waters from the Alar, a small steamer, which was stated to be a regular trader between the port of Newhaven in Sussex, on the British Channel, and the Channel Islands.⁵ The Alar sailed from Newhaven with a regular clearance for Alderney and St. Malo. It subsequently appeared that, about two hours before her departure, (which occurred at 2 o’clock in the morning,) a number of persons, some of whom appeared to be seamen and some mechanics, had arrived by railway, and gone on board of her. On the day following that on which she sailed, the agent for the steamer told the collector of customs that she had munitions of war on board.¹ At the time of her departure, there was nothing whatever to connect her with the Georgia, which had sailed three days before, under her original name of the Japan, from Greenock, for Point de Galle and Hong-Kong, and of which nothing was known to the customs officers at Newhaven or to the Government; nor does there appear to have been anything which would have warranted the customs officers in detaining or interfering with the Alar. No information had been received, nor was there any fact within the knowledge of the Government or their officers, until she had already sailed, indicative of anything hostile to the United States in her employment or destination.

80. The Shenandoah, which likewise sailed from England without armament, took it on board in Portuguese waters, near to the Madeira Islands.² The steamer Laurel, by which it was conveyed thither, had sailed from Liverpool with a regular clearance for Nassau and Matamoras.³ There was nothing whatever to connect her with the Shenandoah, which had sailed on the previous day from the port of London for Bombay, under her original name of the Sea King, and of which nothing was or could be known to the customs officers at Liverpool, nor to the Government. It appears that some suspicion had been excited in the mind of the United States consul at Liverpool as to the Laurel; but the suspicion was that she was intended to become a Confederate cruiser or privateer.⁴ He had, as he said himself, no evidence, and he made no representation to any officer of the Government. Nor does there appear to have been any ground of belief or suspicion which would have warranted the customs officers in detaining or interfering with her. Of her real errand nothing whatever was known, until the receipt of intelligence from the British consul at Teneriffe. Her Majesty’s Government is not aware that any claim has ever been made by the United States against Portugal, on the ground that the Shenandoah was converted into a ship of war within Portuguese territory.

81. The Florida is the only vessel of which it is alleged that she was armed in British waters. The circumstances stated on this head in certain affidavits, which, more than two years afterward, were for the first time produced by the United States,⁵ and which the British Government has no means of verifying or disproving, were as follows: That before the Florida (then known as the Oreto) sailed from Nassau—which she did after having cleared as a merchant-steamer, and with a very small crew, hired in the port—a schooner called the Prince Alfred had put to sea, apparently with the design of running the blockade, and freighted with some guns and ammunition as cargo. There was nothing whatever to connect her with the Oreto, which was then lying in the harbor, after having been released by the judge of the proper court from seizure under the charge previously made against her, but not substantiated, of violating the Foreign-Enlistment Act. There does not appear to have been any circumstance within the knowledge of the local authorities to direct special attention to the cargo of the Prince Alfred, to disclose her errand, or to furnish a reason for detaining her. No complaint or representation respecting her seems to have been made by the consul of the United States at the time, nor until about a month afterward.¹ It is stated that while at sea she was overhauled by the Oreto, (or Florida,) and that the two vessels then proceeded to Green Cay, where the cargo of the Prince Alfred was transferred to the Florida. If this was so, it was certainly a violation of British territory by both vessels. But it was a violation which furnished no proof of negligence on the part of the local authorities, still less of the British Government, which was the party wronged and not the wrong-doer. Green Cay is a small island at a considerable distance from Nassau, uninhabited, and visited only by fishermen.² Violations of neutral territory committed by a belligerent in remote and unfrequented places, where no effective control can be exercised, were never before imputed to a neutral Government, as permitted or allowed by it in breach of its obligations toward the other belligerent. Over such a dominion as the Bahamas—which consist of several hundred islands, scattered over a wide surface, most of them desolate and uninhabited, and some merely small rocks or islets—no Government in the world could reasonably be expected to exercise such a control as to prevent the possibility that acts of this kind might be furtively done in some part of its shores or waters.

82. It is suggested, on the part of the United States, that the arms finally put on board of the Florida had previously been transported to Nassau from Hartlepool in the steamer Bahama. No evidence of this is produced by the United States. But, if it were true, the facts placed before the arbitrators by the United States themselves clearly prove, that the purpose, to which the Bahama’s cargo was intended to be applied, was unknown alike to the British government and to the officials of the United States in England. By the latter it was believed to be destined for a confederate port, and intended to run the blockade.³ The Florida herself did, in fact, go into and re-issue from a confederate port before she began to cruise against the shipping of the United States.⁴

83. It has thus been made clear that all the arms and munitions of war which were sent from ports within the Queen’s dominions, in order to be used in arming confederate vessels, were shipped as in the ordinary course of commerce; that the purpose to which it was intended that they should be applied was not known to the British Government or its officers; that they had no means of knowing, and no reason even to suspect it. Hence, if it were possible to suppose that any obligation to prevent the shipment of cargoes destined for such a purpose was incumbent on a neutral Government, there would be no just ground for imputing negligence on that score to the Government of Great Britain. But no such obligation in fact existed; and the facts above stated appear to show that the effectual discharge of any such obligation would ordinarily be impossible to a neutral Government, unless by the total and indiscriminate prohibition of the export of arms and munitions of war. The second rule of the treat Washington is directed, not against proceedings of this kind, but against the use of neutral territory as a base of operations for naval warfare, or for the renewal or augmentation of military supplies or arms to ships employed, or intended to be employed, in the war-service of a belligerent, with the consent, or by the sufferance, of the neutral Government.

84. The tribunal may be here reminded that even the fact that any particular vessel was freighted with arms and munitions of war would not of necessity be known to the officers of the customs before her departure, and would probably be unknown to them if the parties concerned in the shipment had any motive whatever for not disclosing it. Unless where an exemption was claimed from customs duties otherwise payable, or a remission of import duties already paid, the law did not require that any statement or specification of the particulars of any cargo should be furnished to the officers of the revenue before the sailing of a ship. The specifications, being required only for the compilation of the statistical returns from the various ports, might be furnished at any time within six days after clearance. Nor were there any means of ascertaining, otherwise than by the statement of the master or owner, to what port a vessel was destined, or of guarding against the contingency that, having cleared for a specified destination, she might change her course when at sea.¹

85. It is suggested, on the part of the United States, that the crews of all or some of these four vessels were in part composed of British subjects. If that fact could be proved, it would not impose any liability on Great Britain. If, indeed, the British government had given permission to one of the belligerents to enlist men in Great Britain, for either its military or naval service, this might have given just ground for remonstrance and complaint to the other belligerent, especially if the latter were refused a like privilege. But it is not pretended that anything of this kind occurred. If, again, a vessel of war of either belligerent had been suffered, by connivance or acquiescence on the part of the authorities of a British port, to increase her strength in the port by adding to her complement of men, this would undoubtedly have been a proper subject of complaint under the general principles of international law, as well as under the second of the three rules. But nothing of this kind has been proved. It may be assumed to be true that, in the cases of the Alabama and Georgia, a considerable number of seamen were induced to leave England with an intention, on the part of the persons who induced them to go, that they should afterward be solicited to enlist in the naval service of the Confederate States, and that many of these did afterward enlist in that servive; and it may probably be true that some of them knew or suspected that they would be invited to do so. But the facts show that (unless, perhaps, in one or two individual cases) no proposal to take service under the Confederate Government was made to them until they were at a distance from England; that persuasion was then used to induce them to join, by promises of high pay and prize-money; that some consented and others refused; that the latter were sent home, and the former signed fresh articles and entered into a new engagement and a new service. In every case the same course appears to have been pursued. Sailors were hired in England for an ordinary mercantile voyage, in the hope that they might afterward be won over, when at sea, by large promises, and by appeals, which it might well be thought would not be addressed in vain to men of careless, roving, adventurous habits. In fact, however, this expectation was in no small measure disappointed. The crew who went out on board the Oreto (afterward the Florida) lodged complaints before a magistrate at Nassau, on the ground that there had been a deviation from the voyage for which they were hired; they thus obtained their discharge from the ship, and a fresh crew were afterward hired at Nassau, who refused to sail because they had doubts about her real character and intended employment.¹ The crew by which she was manned during her cruise was hired at Mobile.² With respect to the crew of the Alabama, it appears from Clarence Yonge’s affidavits, produced on the part of the United States, that, after the vessel had put to sea, he was directed to “circulate freely” among them and “induce them to go on the vessel” after she should get to Terceira.³ Many men when, after arriving at Terceira the new proposal to join was actually made to them refused, and were sent back to England.⁴ Of the seamen who went on board of the Japan (afterward the Georgia) and the Alar, a considerable proportion—twenty-four at the least—refused in like manner to join the confederate service, when invited to do so, the vessels being then in French waters.⁵ Of the crew of the Sea King (afterwards the Shenandoah) only three or four yielded; and these, it was stated, were under the influence of liquor. Forty-two refused, although tempted by the most profuse offers and far from home.⁶ Charge that the crews of certain vessels were partly composed of British subjects.

86. It is clear that acts and contrivances of this kind on the part of a belligerent, although the netral power may regard them as injurious to itself, and as tending to endanger its friendly relations with the other belligerent, do not, even when partially successful, give to the latter any claim against the neutral.

87. It came to the knowledge of the British Government during the civil war that endeavors were being made to induce British subjects to go inconsiderable numbers to the United States, nominally to be employed in making railways or other works of a like kind, but really with the intention that, when there, they should enlist in the United States Army, Her Majesty’s Government does not attribute these endeavors to the Government of the United States, nor hold that Government responsible for them. They were made, however, and they partially succeeded, as was known to and admitted by the Government of the United States.⁷

88. Efforts have been made, on the part of the United States, to prove that the Shenandoah was enabled to ship a considerable addition to her crew at Melbourne by the connivance or culpable negligence of the colonial authorities. This charge is one which, from its nature, would require to be supported by the clearest evidence. But it has not been so substantiated; on the contrary, it is disproved by the facts.

The accusations on this head, contained in the Case of the United States, have already been answered in detail in the British Counter Case, (pages 94–100,) to which Her Majesty’s government would refer the Tribunal as affording also a sufficient reply to the further observations contained in the Counter Case of the United States. The physical obstacles which delayed the repairs of the Shenandoah have been fully explained¹, and the peculiar difficulties under which the Colonial authorities labored, from the absence of any British vessel of war, and the impossibility of exercising an efficient control over the shipment of men from different parts of the Bay. On the other hand, the active vigilance enjoined upon and exercised by the authorities, the examination of the vessel by Government officers before permission to repair was given, the daily reports furnished to the Governor of the progress of the repairs, the stringent course adopted toward the commander of the vessel in order to obtain the arrest of the men who were discovered to have gone on board other, and the prosecution and punishment of those of them who were amenable to the law, all show the determination of the Governor and his advisers to prevent any violation of neutrality so far as it was in their power to do so. Such was, in fact, the impression originally made by the report of their proceedings upon the mind of Mr. Adams, as shown by his letter to Mr. Seward of the 12th April, 1865.²

The United States have, in their Counter Case, (Sec. VIII, par. 4,) questioned the accuracy of the observations made at page 160 of the British Case as to the composition of the crew of the Shenandoah, and as to the statements made by a man named Temple on the subject. The correspondence which took place at the time on this point will be found at pages 691–724 of the first volume of the Appendix to the British Case, and will, Her Majesty’s Government believes, amply bear out all that has been said in the British Case. It will be seen from the list annexed to Temple’s affidavit (page 701) that the composition of the crew was as stated, and from the police report (page 714) that Temple himself admitted that a considerable portion of his own affidavit was false.

89. Stress has been laid, in the Case of the United States, on the alleged facts that the vessels in question were built and prepared for sea under the superintendence of Bullock, who was an agent of the Confederate Government, or some other agent of that Government; that the armament sent out for them was also procured and sent out under Bullock’s orders, and that the officers and men drew their pay through a firm of merchants in Liverpool.Charge as to Confederate agencies in Great Britain for war purposes.

Although most of the evidence adduced in support of these allegations is of little value, and they rest even now, to a considerable extent, on conjecture and suspicion, there is little doubt that, as to some of the vessels, they are substantially true. But it cannot be admitted that, if true, they impose a liability on Great Britain.

90. It is to be observed, in the first place, that the information on which the United States now rely was not, at the times with reference to which the question of due diligence has to be determined, in the possession of the British Government; much of it had not even been acquired by the Government of the United States. Of Bullock’s employment, and of the facts that he was an agent of the Confederate Government, and that he had anything to do with the contract for building the Alabama, the British Government, up to the time of the departure of the Alabama, and until long afterward, had no proof beyond such statements—unsupported by anything which could properly be called evidence—as were contained in the depositions furnished by Mr. Dudley and Mr. Adams, in relation to that vessel, a few days before she sailed.³ Bullock’s transactions were surrounded with the utmost secrecy, and screened by the employment of intermediate agents; and what the Government of the United States knew or suspected about them appears to have been derived from reports which they were unable to authenticate. After the departure of the Alabama, Bullock does not appear to have succeeded in sending to sea a single vessel intended for a Confederate cruiser. After the arrest of the Alexandra and the defeat of the scheme for procuring the two rams, he seems to have transferred his operations to France, where he contracted for six iron-clads, and succeeded in obtaining one.¹ It does not appear, nor does the British Government understand the United States to allege, that he had anything to do with the Georgia or Shenandoah.

91. It must be observed, further, that schemes and operations, such as are attributed to Bullock, can in England be repressed by the interposition of the Executive, only when and so far as they take the form of actual infringements of the law. The law selects those acts which it is practicable and expedient to prohibit and punish as criminal, and these it prohibits and punishes; the Executive can act only by enforcing the law, and it has not the power to expel from its territory persons whose proceedings it may disapprove, or whom it may regard with suspicion. Nor does Her Majesty’s Government understand that such a power exists in the United States. The numerous expeditions which have been fitted out in the United States against friendly countries have been organized systematically by persons residing in the United States, sometimes resident there for that special purpose. But the Government of the United States has admitted no liability on that account,² and has not interfered, unless or until it had reason to believe that the law was being broken.³ The payment of money to the families or relatives of men serving in Confederate ships was not a breach of the law. On the other hand, enlisting men for that service, or inducing them to go abroad for that purpose, was an offense; and, whenever evidence of this could be obtained, prosecutions were instituted against the persons incriminated.⁴

In a letter, dated January 27, 1865, from Mr. Morse, the Consul of the United States in London, communicated by Mr. Adams to Earl Russell, mention was made of the “head of the Confederate Navy Department in Europe, Commodore Barron.”⁵ This officer was resident at Paris, from whence he appears to have issued instructions to officers commanding Confederate ships of war. A letter of instructions from him to the Commander of the Florida, dated Paris, 25th January, 1864, was found on board of that vessel when captured at Bahia.⁶ Her Britannic Majesty’s Government is not aware that any proceedings were taken against Commodore Barron by the Government of France.

92. It would be extravagant to contend that the want of power to prevent a belligerent from having agencies in a neutral country for the purpose of making mercantile contracts for such articles as it needs, or for the payment and receipt of money on its account, (although some of such contracts and payments may have been connected with ships intended for, or actually in, its service,) is equivalent to a permission to that belligerent to employ the neutral territory as “a base of naval operations.”

93. Upon this subject it seems necessary to observe that, although, in the diplomatic correspondence, during the war, of the American Government with Mr. Adams, its minister in Great Britain, and of Mr. Adams with the British Government, allegations were frequently made that Great Britain and her colonies were used as a “base of operations” against the United States, that “war was Virtually carried on,” and that hostile “expeditions” were prepared from and in British ports—the same correspondence, when examined with care, and with a due regard to the order of events, proves that these and similar phrases were really employed to describe what the Government of the United States regarded as the combined and aggregate effect of a great variety of matters—the existence of Confederate agencies and agents in Great Britain, the supplies of arms, munitions of war, and ships, by blockade-running and otherwise, to the Confederate States, and the negotiation of the Confederate cotton loan—with each and all of which the British Government was continually urged to interfere, although (except as to such of them as could be brought within the terms of the Foreign-Enlistment Act) they were neither enabled by their own municipal law, nor bound by international law, to do so.

94. Of this statement, the following proofs will suffice. On the 12th May, 1862, Mr. Adams wrote thus to Earl Russell: “It is very certain that many British subjects are now engaged in undertakings of a hostile character to a foreign State, which, though not technically within the strict letter of the enlistment act, are as much contrary to its spirit as if they levied war directly. Their measures embrace all the operations preliminary to openly carrying on war—the supply of men, and ships, and arms, and money, to one party, in order that they may be the better enabled to overcome the other;” * * * and he, immediately afterward, speaks of “this virtual levying of war from the ports of a friendly power.”¹

On the 9th March, 1863, (many months after the Alabama had commenced her cruise,) Mr. Seward wrote to Mr. Adams on the subject of a recent capture by the Florida, and of the question, then under consideration by the President, whether letters of marque should be granted to protect the commercial marine of the United States against the confederate cruisers. “The argument,” he said, “as it is put in American commercial circles, is, that war is carried on against the United States by forces levied and dispatched from the British Islands, while the United States are at peace with Great Britain. Though we may regard this statement of the case as extravagant, if not altogether erroneous, it cannot be concealed that it has sufficient appearance of truth on this side of the ocean to render it necessary to protect our commerce by employing every possible means of defense.”² This dispatch was read by Mr. Adams to Earl Russell on the 26th March, 1863.³

In replying to these and similar letters, the distinction between what had actually been done, and a virtual carrying on of war from Great Britain, or the use of British territory as a base of warlike operations, was well pointed out by Earl Russell, in letters dated the 12th June, 1862, 27th March, 1863, and 2d April, 1863;¹ at the same time that he declared the determination of the British Government to use all the means in its power to prevent any breaches of the Foreign Enlistment Act. The good faith with which those declarations were acted on was on many subsequent occasions acknowledged.

Mr. Adams, on the 6th of April, 1863, with reference to certain American authorities which had been appealed to by Earl Russell and the soundness of which he (Mr. Adams) admitted, thus put his argument: “The sale and transfer, by a neutral, of arms, of munitions of war, and even of vessels of war, to a belligerent country, not subject to blockade at the time, as a purely commercial transaction, is decided by these authorities not to be unlawful. They go not a step further; and precisely to that extent 1 have myself taken no exception to the doctrine. But the case is changed when a belligerent is shown to be taking measures to establish a system of operations in a neutral country, with the intent to carry on a war from its ports much in the same way that it would do, if it could, from its own territory; when it appoints agents residing in that country for the purpose of borrowing money to be applied to the fitting out of hostile armaments in those very ports, and when it appoints and sends out agents to superintend in those ports the constructing, equipping, and arming ships of war, as well as the enlisting of the subjects of the neutral country, to issue forth for the purpose of carrying on hostilities on the ocean.”²

The doctrine suggested in this letter, that the existence of a blockade gives to a trade in articles contraband of war with the blockaded belligerent a character different, in the view of international law, (so far as the duties of a neutral Government are concerned,) from that which it would otherwise possess, is (as Her Majesty’s Government conceives) entirely unwarranted, either by reason or by authority.

On the 14th November, 1863, Mr. Seward, communicating to Mr. Adams information which he had received from the Canadian authorities, as to certain designs of emigrant insurgents in Canada against the territory of the United States, and expressing the satisfaction of the President at the friendly proceedings of those authorities, followed up a suggestion as to some possible amendments of the laws of the two nations, by the inquiry: “Could we possibly avoid conflicts between the two countries, if British shores or provinces should, through any misunderstanding, be suffered to become bases for military and naval operations against the United States?”³ He then, apparently, still considered the suggestion that they had already become so, (in the language of his former letter of the 9th March, 1863,) as “extravagant, if not altogether erroneous.” Yet, on the 6th of January, 1864, he wrote to Mr. Adams as if certain papers, showing “that the belligerents have a regularly constituted treasury and counting-house, with agents in London for paying the wages of the British subjects who are enlisted there in this nefarious service,” were sufficient to “prove, beyond a possible doubt, that a systematic naval war has been carried on for more than a year, by subjects of Her Majesty, from the British Islands as a base;” and that, by means of this evidence, the difficulty previously felt by Her Majesty’s Government in acting upon remonstrances, which were “held inconclusive and unsatisfactory, because it was said that they were not attended with such clear, direct, and conclusive proofs of the offenses complained of as would enable the Government to arrest the offenders, and apply judicial correction to the practices indicated,” had been “fully and completely removed.”¹

This was followed up, on the 11th of March, 1864, by another letter from Mr. Seward, in which he said: “It was seen, as we thought, early in the month of December last, that British ports, at home and abroad, were becoming a base for operations, hostile and dangerous to the United States;”² and, on the 2d of July, 1864, by a further letter, saying (with manifest reference to the trade of blockade-runners, carried on from the Bahamas and elsewere,) “You can hardly omit to inform Earl Russell that the whole of the British West India Islands are practically used by our insurgent enemies as a base for hostile operations against the United States; and the profits derived by British subjects from these enterprises are avowed in every part of the British empire with as much freedom, and as much satisfaction, as if the operations were in conformity with international law, and with treaties.”³

It is satisfactory to Her Majesty’s Government to be able to add to these extracts another, from a letter written by Mr. Seward on the 28th of the same month of July, 1864: “During the latter part of the year 1863, the Government of Great Britain manifested a decided determination, not only to avoid intervention, but also to prevent unlawful naval intervention by British subjects. This manifestation produced a very happy effect in the United States.”⁴

95. What was, from time to time, actually and successfully done by Great Britain to prevent any unlawful equipments, or augmentation of the naval force of the Confederate Government within her territory, has been sufficiently stated in the British Case.⁵ The Arbitrators also know in what instances, and under what circumstances, the vigilance of Her Majesty’s Government is said to have been insufficient, or to have been eluded. But a still more adequate conception of the difference, between the plans which, according to the information from time to time obtained by the agents of the United States, were formed or supposed to have been formed, for obtaining ships useful for war purposes of the Confederate States from British territory, and the actual results of those plans, (and, therefore, a more adequate conception of the general efficacy of the attitude assumed and the means used by the British Government for the maintenance of Her Majesty’s neutrality,) may be arrived at from some other parts of the same correspondence, contained in the first volume of the Appendix to the Case of the United States.

96. In August, 1861, Mr. Seward heard, through what he considered “a very direct channel,” that Captain Bullock had “contracted for ten iron steamers—gun-boats—all to be armed, at $750,000 for all, and all to come out as war-vessels.”⁶ In February, 1862, he received information from Mr. Morse, the United States Consul in London, that the Confederate Agents in London and Liverpool were “engaged in preparing a whole fleet of piratical privateers,” to depredate on American commerce in European waters.⁷ Mr. Adams had heard in April, 1862, that “as many as fifteen vessels” were preparing to sail from British waters “to assist the insurgents.”⁸ On the 28th of April, 1862, Mr. Seward wrote: “Captain Bullock, of Georgia, is understood to have written that he has five steamers built, or bought, armed, and supplied with material of war in England, which are now about being, or are on their way to aid the insurgents.”¹ In May, 1862, Mr. Dudley, the United States Consul at Liverpool, gave information to Mr. Adams and Mr. Morse of “the purchase of thirty steamers, for the purpose of making a combined attack on our coasts.² On the 8th September, 1862, Mr. Seward wrote: “We hear, officially and unofficially, of great naval preparations which are on foot in British and other foreign ports, under cover of neutrality, to give the insurgents a naval force. Among the reports is one that a naval armament is fitting out in England to lay New York under contribution.”³ In certain intercepted letters of Confederate Agents, of August and October, 1862, it was stated that a person (an American) named Sanders had contracted with the Naval Department of the Confederate States for six iron-clad steamers from England;⁴ with respect to which he said, “great skill and diplomacy must be exercised to avoid the interference of European Governments.”⁵ On the 30th December, 1862, Mr. Dudley informed Mr. Seward of the preparation of a most formidable ram at Glasgow, and two iron-clad rams in London, and three other suspected vessels, (besides the Alexandra, and the rams at Birkenhead.)⁶ In April, 1863, information came of privateers fitting out in Vancouver’s Island:⁷ and at a later date, February, 1865, of an expedition against New York, to consist of “five ironclads, on their way from French and English ports,” with the aid of “five blockade-running steamers, to be converted into privateers, armed with two guns each.”⁸

97. This series of reported designs, which were never accomplished, at once proves how impossible it was for the British authorities to act indiscriminately, and without evidence, upon every alarming report and rumor which might be conveyed to them by the Agents of the United States in this country, and shows what might actually have been done, if those authorities had really been careless or negligent as to the enforcement of the law, or had really permitted Her Majesty’s territory to be used as a base of hostile operations against the United States. If such designs were formed, Mr. Adams merely spoke the truth, when, writing of the Confederacy on 21st of July, 1864, he said “its audacious attempts to organize a navy in this kingdom (Great Britain) have utterly failed.”⁹

98. An answer has been given to the complaints which the United States make against Great Britain in respect of the alleged equipment in British ports of vessels intended for the Confederate service, and of the original departure from British territory of vessels alleged to have been specially adapted with in it to warlike use. But it is further urged, on the part of the United States, that the four vessels now in question, (the Florida, Alabama, Georgia, and Shenandoah,) after having been procured from British ports by agents of the Confederate Government, and converted into ships of war, entered, whilst cruising in that character, several ports within the Colonial possessions of Great Britain; and it is contended that, when that occurred, the British authorities were under an obligation to seize and detain them; and that for the non-performance of this obligation Great Britain is liable to the United States.Complaint that Confederate cruisers, visiting British ports, were not seized and detained.

99. The demands of the United States upon Great Britain during the war were, as to many things, greatly in excess of what could be justified by international law; but an obligation like this was never suggested, except upon the view that all Confederate ships of war and privateers, which might be found upon the ocean, ought to be treated as pirates, and denied any belligerent character or belligerent rights.

100. It rests with the United States, which assert this obligation, to prove that it existed. They have attempted to support it by putting a forced interpretation on one of the clauses in the first of the three Rules—an interpretation plainly at variance with its natural and obvious meaning. If the sense thus ascribed to the Rule had been its true sense, it could have applied only to vessels which could be proved to have been specially adapted within British territory to warlike use, a description which might include the Alabama, but could not possibly include the Georgia or Shenandoah. To these, therefore, the rule, even if construed in this strained and unnatural manner, could not apply. But the reasons given in the British Counter Case (Part II, p. 17) for altogether rejecting this construction, which was not at the time within the contemplation of the high contracting parties, and is wholly repudiated by Great Britain, are, in the view of the British Government, conclusive.

101. That the argument of the United States on this point is not only unsupported by the principles which have hitherto governed the admission of public ships of war into neutral ports, but in direct conflict with those principles, has likewise been shown in the Counter Case of Great Britain, (Part II, pp. 18–20.) The general principle was there stated as follows:

A vessel commissioned as a public ship of war, entering a foreign port, is a portion of the naval force of the Government by which she is commissioned, commanded by its officers, and displaying the ensigns of its authority. Any, act of force directed against her (unless to prevent or repel aggression, or compel her to depart after having been required to do so by competent authority) would be directed against her Government, and would at the same time, if done without previous warning, be an infraction of a recognized understanding, on the faith of which she entered, and on the observance of which she had a right to rely. If, while in neutral waters, she commits any violation of neutrality or other offense against the neutral, force may undoubtedly be employed, in any way which may be necessary, in order to prevent or arrest the unlawful act, and to compel her departure. But redress ought not to be sought against the ship herself: it should be sought, if needful, against her Government. A fortiori, this is true if the offense were committed before she arrived at the neutral port. Thus, of the violations of neutrality committed during the war the grossest and most flagrant by far was that perpetrated by the Wachusett in the harbor of Bahia. The Brazilian authorities would have been amply justified in firing on that vessel while engaged in the act, and sinking her if necessary. If she had afterward presented herself in a Brazilian port, they would doubtless have refused her admission; but they would have rightly abstained, even on such provocation, from seizing and detaining her. A multo fortiori, the same proposition holds good if the act complained of were done before the offending ship came into the possession of the commissioning Government, or before she was incorporated into its naval service.

The British Government believes this statement to be agreeable to authority, and to general usage. It is supported by the American judgments, in the cases of the Santissima Trinidad¹ and the Exchange.²

102. Were then these vessels, supposing it proved that they or any of them had, before being commissioned, become liable to seizure for an offense against law, (the proof of which rests with the United States,) not correctly regarded by the British Colonial authorities as public commissioned ships? It would be enough to answer that, if this were so, the same error was committed by the authorities of France, Brazil, the Netherlands, and other neutral Powers, and similar accusations might with equal justice be directed against them also.¹ But no error was committed either by those Powers or by Great Britain. The vessels in question entered the ports of neutral nations with those evidences of being public commissioned ships, which by universal usage would have been accepted as sufficient if they had borne the flag of a recognized sovereign State; and these evidences were accepted in other neutral ports as well as those of Great Britain. There is no reason to doubt that they were in fact validly commissioned, according to established usage under the authority of commissions and orders issued by the Government of the Confederate States. The circumstance that the particular act² by which the vessel was invested with a public character was in each case done, not within the territory held and controlled by that Government, but at sea, was not, according to usage, material, since it is perfectly competent for any Government to commission, out of its dominions, vessels which may never have been within the circuit of them, and this has been of no infrequent occurrence.

Indeed, in the very year 1864, in which the Shenandoah was commissioned, a merchant vessel called the Takiang was chartered and commissioned for the United States naval service at Shanghai, and an officer, a party of men, and a gun having been placed on board of her, she was dispatched to join the allied fleet in Japan, where she took part in the action fought at Simonasaki on the 4th of September.³

103. The only question, therefore, which remains is, whether the circumstance that the Confederate States, though recognized as belligerent, had not been recognized as sovereign, made it the duty of the authorities of neutral ports, in this one particular respect, not to treat vessels commissioned by the Confederate Government as they would have been bound to treat commissioned ships of a recognized Power. The answer to this question cannot be doubtful, if we consider, in the first place, the principle of a recognition of belligerency; and, secondly, the reason of the general immunity from local jurisdiction every where conceded to public vessels of war.

104. A neutral power which recognizes as belligerent a community which it has not recognized as sovereign, thereby allows, as against itself, to that community all the jura belli; the first of which is the right to employ military and naval forces, and to make provision, in the customary modes, for their command and discipline. The right to appoint and commission officers, and to commission ships of war, is essential to the exercise of the jus belli at sea; regular warfare—in other words, war regulated, controlled, and moderated by established rules and usages—would, indeed, be impossible without it; such commissions, therefore, are of necessity recognized by the neutral Power; and vessels armed with them are allowed to exercise, as against the ships and subjects of the neutral, those jura belli, which are by usage exercisable by regularly commissioned ships. To merely honorary privileges, such as salutes and the like, officers of a Government not recognized as sovereign have no claim, though no law or custom forbids that the courtesies which officers of different nations are accustomed to exchange should be shown to them personally. The British Government, during the war, gave orders that the Confederate flag should not be saluted.¹ But the principle of an impartial neutrality requires that any powers, liberties, or immunities, the refusal of which to one belligerent would place him at a disadvantage in matters relating to the war, should be admitted to belong, for the purposes of the war, to both alike.

105. What, then, is the reason of the immunity from local jurisdiction, which is secured by custom to public ships of war, and to what class of privileges does it belong? Is it to be reckoned among honorary privileges, and regarded as affecting only or chiefly the dignity of the Sovereign or State under whose flag the vessel sails? Clearly, this is not so. The reason (which has been frequently explained) is, that this exceptional immunity is necessary, in order to prevent the operations in which, and the objects for which, a military or naval force is employed, from being subject to be defeated or interfered with by the action of a foreign Power. It is essential that the supreme and undivided command of those forces and every part of them should be exercised by the Head or Government of the State, independently of all external control; and this is a right which no State would ever consent to forego.² It is manifest that this reason is as strong in the case of a community, under a de facto Government, carrying on war, but not recognized as sovereign, as in that of a recognized sovereign State; and that to refuse this freedom to one of two belligerents and grant it to the other, would place the former at disadvantage in matters relating to the war, and would not be incompatible with impartial neutrality. It would be in effect to grant to the one and refuse to the other access to the ordinary hospitalities of the neutral port; since it is improbable that any belligerent Government would suffer its armed ships to subject themselves, by entering the territorial waters of a foreign sovereign, to any other jurisdiction than its own. Such has been the practice of all civilized nations during revolutionary wars, before an insurgent population has established its title to be recognized as an independent State; such were the principles and the practice of the United States during the wars between Spain and Portugal and their revolted Colonies, before those Colonies had achieved their independence.

106. A passage in Mr. Justice Story’s judgment in the case of the Santissima Trinidad sums up in so clear a manner the consequences resulting from the existence of belligerency and neutrality, in a case of civil war, that it may, with much advantage, be here subjoined. The question related to the ship Independencia, which had passed into the war service of the Revolutionary Government of Buenos Ayres, under the circumstances stated in an earlier part of the present Argument.³

“In general,” said that eminent judge, “the commission of a public ship, signed by the proper authorities of the nation to which she belongs, is a complete proof of her national character. A bill of sale is not necessary to be produced, nor will the Courts of a foreign country inquire into the means by which the title to the property has been acquired. It would be to exert the right of examining into the validity of the acts of the foreign sovereign, and to sit in judgment upon them, in cases where he has not conceded the jurisdiction, and where it would be inconsistent with its own supremacy. The commission, therefore, of a public ship, when duly authenticated—so far, at least, as foreign Courts are concerned—imports absolute verity, and the title is not examinable. The property must be taken to be duly acquired, and cannot be controverted. This has been the settled practice between nations; and it is a rule founded in public convenience and policy, and cannot be broken in upon without endangering the peace and repose as well of neutral as of belligerent sovereigns. The commission in the present case is not expressed in the most unequivocal terms; but its fair purport and interpretation must be deemed to apply to a public ship of the Government. If we add to this the corroborative testimony of our own and the British Consul at Buenos Ayres, as well as that of private citizens, to the notoriety of her claim to a public character, and her admission into our ports as a public ship, with the immunities and privileges belonging to such ship, with the express approbation of our own Government, it does not seem too much to assert, whatever might be the private suspicion of a lurking American interest, that she must be judicially held to be a public ship of the country whose commission she bears.

“There is another objection urged against the admission of this vessel to the privileges and immunities of a public ship which may well be disposed of in connection with the question already considered. It is that Buenos Ayres has not been acknowledged as a sovereign, independent Government by the Executive or Legislature of the United States, and therefore is not entitled to have her ships of war recognized by our courts as national ships. We have in former cases had occasion to express our opinion on this point. The Government of the United States has recognized the existence of a civil war between Spain and her colonies, and has avowed a determination to remain neutral between the parties, and to allow to each the same rights of asylum and hospitality and intercourse. Each party is therefore deemed by us a belligerent nation, having, so far as concerns us, the sovereign rights of war, and entitled to be respected in the exercise of those rights. We cannot interfere to the prejudice of either belligerent, without making ourselves a party to the contest and departing from the posture of neutrality. All captures made by each must be considered as having the same validity; and all the immunities which may be claimed by public ships in our ports under the law of nations must be considered as equally the light of each.”¹

107. Some inconvenience may arise (as appears to be suggested in the Counter Case of the United States) from the circumstance that, should any cause of complaint arise, no official representations can be made by the neutral to a Government with which it has no official intercourse. But this inconvenience is liable to occur in every case in which a belligerent cruiser commissioned by such a Government may have done any unlawful or improper act on the high seas, such as an irregular exercise of the right of search or an illegal capture. This has not, however, prevented neutrals from conceding to such cruisers on the high seas the exercise of the rights which belong to ships duly commissioned. Again, inconvenience may arise where citizens or subjects of the neutral, who may be within the territory held and ruled by such a Government, have suffered from any real or apparent abuse of power. Yet it has not been the practice of neutrals in such cases to treat the de facto Government as non-existent, although they may not have recognized it as sovereign. More than once during the war Her Majesty’s Government was desirous of addressing unofficial representations to the Government existing in the Confederate States; and it was prevented from doing so only by the refusal of the United States Government to allow such communications to pass through the blockaded ports. But it is clear that this refusal could not impose on neutral powers any obligation to treat Confederate ships or the Confederate Government itself in a manner different from that in which they would otherwise have been entitled to treat them.

108. The British Government will here repeat, as bearing on this part of the subject, two propositions already stated in the commencement of its Case, and which it believes to be incontrovertible:

Maritime war being carried on by hostilities on the high seas, and through the instrumentality (ordinarily) of vessels commissioned by public authority, a neutral power is bound to recognize, in matters relating to the war, commissions issued by each belligerent, and captures made by each, to the same extent and under the same conditions as it recognizes commissions issued and captures made by the other.

Where either belligerent is a community or body of persons not recognized by the neutral power as constituting a sovereign State, commissions issued by such belligerent are recognized as acts emanating, not indeed from a sovereign Government, but from a person or persons exercising de facto, in relation to the war, the powers of a sovereign Government.¹

111. It is further suggested by the United States that these vessels, when admitted into ports of the British Colonies, were allowed to enjoy there facilities and advantages which were not accorded to armed vessels of the United States. And (since it is evident that mere partiality, though it would be a deviation from neutrality, and, as such, a proper subject for remonstrance, would not supply a ground for such claims as those of the United States) it is also contended that these facilities and advantages were such as by the rules of international law no neutral may concede to any belligerent, and that they enabled or assisted the Confederate cruisers to inflict the losses on which the United States found their claim against Great Britain.Complaint as to hospitalities accorded to Confederate cruisers in British ports.

112. It has been clearly shown, on the contrary, in the British Counter Case, not only that the particular restrictions for which the United States contend as imposed by international law had in reality no existence, were not known to that law, and are not deducible from the three Rules of the Treaty of Washington, (Counter Case, Part II, pp., 15, 16;) but it has likewise been amply proved by a detailed examination of the facts, that all the complaints of the United States on this score are devoid of the slightest foundation; that the British Colonies, though occasionally resorted to by Confederate ships, were by far more largely and more freely used by armed vessels of the United States; that no partiality whatever was shown to the former; and that, if infractions of the Queen’s Regulations were sometimes committed, the United States cruisers were the more frequent offenders; lastly, that the treatment of Confederate cruisers in British ports was essentially the same as that which they received in the ports of other neutral nations, and by no means more lax or indulgent. (Counter Case of Great Britain, Part IX.)¹

113. It has thus been made manifest that the complaints of the United States, notwithstanding their number, the character of gravity which has been ascribed to them, and the warmth with which they have been urged, reduce themselves when examined to a very small compass. After all charges which are irrelevant, plainly inadmissible, or absolutely trivial, have been set aside, there remain only some allegations, (which Great Britain contends are erroneous,) applicable, at the most, to one or two isolated cases of unintentional delay or mistaken judgment on questions new and doubtful, on the part either of the Government itself or of sub-ordinate officials in Great Britain or in distant colonies and dependencies. The multiplied and heavy-claims which the United States make against Great Britain rest on this slender foundation.Review of the grounds on which the claims of the United States rest.

114. The British Government will here repeat some observations which it has already presented to the consideration of the Arbitrators:

A charge of injurious negligence on the part of a sovereign Government, in the exercise of any of the powers of sovereignty, needs to be sustained on strong and solid grounds. Every sovereign Government claims the right to be independent of external scrutiny or interference in its exercise of these powers; and the general assumption that they are exercised with good faith and reasonable care, and that laws are fairly and properly administered—an assumption without which peace and friendly intercourse could not exist among nations—ought to subsist until it has been displaced by proof to the contrary. It is not enough to suggest or prove that a Government, in the exercise of a reasonable judgment on some question of fact or law, and using the means of information at its command, has formed and acted on an opinion from which another Government dissents or can induce an Arbitrator to dissent. Still less is it sufficient to show that a judgment pronounced by a court of competent jurisdiction, and acted upon by the Executive, was tainted with error. An administrative act founded on error, or an erroneous judgment of a Court, may, indeed, under some circumstances, found a claim to compensation on behalf of a person or Government injured by the act or judgment. But a charge of negligence brought against a Government cannot be supported on such grounds. Nor is it enough to suggest or prove some defect of judgment or penetration, or somewhat less than the utmost possible promptitude and celerity of action, on the part of an officer of the Government in the execution of his official duties. To found on this alone a claim to compensation, as for a breach of international duty, would be to exact, in international affairs, a perfection of administration which few Governments or none attain in fact, or could reasonably hope to attain, in their domestic concerns; it would set up an impracticable and, therefore, an unjust and fallacious standard, would give occasion to incessant and unreasonable complaints, and render the situation of neutrals intolerable. Nor, again, is a nation to be held responsible for a delay or omission occasioned by mere accident, and not by the want of reasonable foresight or care. Lastly, it is not sufficient to show that an act has been done which it was the duty of the Government to endeavor to prevent. It is necessary to allege and to prove that there has been a failure to use, for the prevention of an act which the Government was bound to endeavor to prevent, such care as Governments ordinarily employ in their domestic concerns, and may reasonably be expected to exert in matters of international interest and obligation. These considerations apply with especial force to nations which are in the enjoyment off free institutions, and in which the Government is bound to obey, and cannot dispense with, the laws.¹

115. What, then, are the claims which, on these slight and unsubstantial grounds, the United States have presented to the tribunal? They are claims for the value of all captures made by all the ships enumerated in their Case—nay, even (as it would seem) for all captures whatever ascertained to have made by confederate armed ships during the war; for all losses inflicted by them which the American citizens who have suffered thereby may think proper to ask to have charged against Great Britain; and, further, for the expenditure alleged to have been incurred in trying to capture those ships or to protect United States commerce against them.Character of the claims of United States.

116. The British Government has thought it right to present to the notice of the arbitrators some considerations, which it believes to be just and material, directed to show that any claims of this nature for losses in war, alleged to have been sustained through some negligence on the part of the neutral, are, in principle, open to grave objections. It has been observed that the alleged default of the neutral, even if it be established, is not, in any true or proper sense, the cause of the loss to the belligerent; certainly, it is in no sense the direct or active cause; that the only share in producing this loss which can be attributed to the neutral is indirect and passive, and consists in mere unintentional omission; that to ascertain with any approach to precision what that share really had been would be in almost all cases difficult, and in many impossible; that there is no precedent for such claims, and that any argument which can be derived from the treaty of 1794, and the proceedings of the commissioners under it, militates against them. It was further pointed out that the relation actually held toward the United States by the people of the Confederate States, who were the active agents in inflicting the losses complained of, and by whom, according to the reasoning of the United States themselves, the neutrality of Great Britain was violated or eluded, is itself an argument against these demands. These States are part of the Union, and would share in any benefit which would accrue to its public revenue from whatever the arbitrators might award to be paid by Great Britain. On what principle of international equity, it was asked, can a Federal Commonwealth, so composed, seek to throw upon a neutral, assumed at the most to have been guilty of some degree of negligence, liabilities which belonged in the first degree to its own citizens, with whom it has now re-entered into relations of political unity, and from which it has wholly absolved those citizens?¹ Observations on the principle and measure of compensation.

117. Supposing, however, the question of compensation to arise, and supposing the arbitrators to be of opinion that claims of this nature are not altogether inadmissible in principle, it has been maintained, on the part of Great Britain—

That the losses which may be taken into account by the arbitrators are at the utmost those only which have directly arisen from the capture or destruction, by one or more of the cruisers specified in the case of the United States, of ships or property owned by the United States, or by citizens of the United States, and that the extent of the liability of Great Britain for any such losses cannot exceed that proportion of them which may be deemed justly attributable to some specific failure or failures of duty on the part of her Government in respect of such cruiser or cruisers;

That it is the duty of the arbitrators, in deciding whether claims for compensation in respect of any particular default are tenable, and on the extent, if any, of liability incurred by such default, to take into account, not only the loss incurred, but the greater or less gravity of the default itself and all the causes which may have contributed to the loss, and particularly to consider whether the alleged loss was wholly or in part due to a want of reasonable activity and care on the part of the United States themselves, to an omission on their part to take such measures as would have prevented or stopped the depredations complained of, and conduct the operations of war, proper for that purpose, with the requisite degree of energy and judgment;

That the claims for money alleged to have been expended in endeavoring to capture or destroy any confederate cruiser are not admissible together with the claims for losses inflicted by such cruiser;²

That the claims for interest are clearly inadmissible. The demands of the United States are not for a liquidated sum, payment of which has been delayed by the fault of the debtor. They are a mass of doubtful claims, of unascertained amount, which have been a subject of negotiation, which Great Britain has long been willing to refer to arbitration, and which would have been so referred, had not obstacles been repeatedly interposed by the United States;³

That, should the tribunal award a sum in gross, this sum ought to be measured solely by the extent of liability which the tribunal may find to have been incurred by Great Britain on account of any failure or failures of duty proved against her.¹

118. These propositions appear to Great Britain too clear to need the support of argument. It is evident that should the arbitrators be satisfied that, as to any ship and in any particular, there has been a clearly ascertained default on the part of Great Britain, it would then become their duty to examine wherein the default consisted, and whether it was a just ground for pecuniary reparation; and, if so, to determine the general limits of the liability incurred, having regard both to the nature and gravity of the default itself and the proportion of loss justly and reasonably assignable to it. The liability thus determined, or the aggregate of such liabilities, as the case may be, constitutes, it is evident, the only just measure of the compensation, if any, to be awarded to the United States. The basis of the award must be the fact, established to the satisfaction of the arbitrators, that certain losses have been sustained on the one side, which are justly attributable to certain specific failures of duty on the other, in respect of a certain ship or ships; and the basis of the award must also be the basis for computing the sum to be awarded. The power of awarding a gross sum does not authorize the arbitrators to depart, in substance, from this basis, although it may relieve them from the necessity of a minute inquiry into the particulars of alleged losses and from intricate and perhaps inconclusive.

The only question which can arise, should the tribunal be satisfied that Great Britain has failed in the discharge of any international obligation toward the United States, is, what, if any, compensation in money would afford a just reparation for loss caused by that default? International law, while it recognizes the obligation, as between sovereign States, to redress a wrong committed, knows nothing of penalties. Two alternative modes of ascertaining the amount have been provided by the treaty. But, which mode soever it may be found convenient to pursue, the question continues to be in substance the same; for the foundation of the award must remain the same (some specific failure or failures of duty, alleged and proved to the satisfaction of the Tribunal,) and the principle of calculation, therefore is, of necessity, the same. What is due from Great Britain? would be the question for the arbitrators; what is due from Great Britain? would, in like manner, be the question for the board of assessors, and justice would as clearly forbid that more than what is due should be awarded by the former as that less should be awarded by the latter.

119. Lastly, it has been shown by a fair and careful examination of the various classes of claims presented by the United, so far as such an examination was possible in the absence of the necessary materials, (which the United States have not furnished,) that the estimates of losses, private and public, which have been laid before the Tribunal, are so loose and unsatisfactory, and so plainly excessive in amount that they cannot be accepted as supplying even a prima-facie basis of calculation. It has been likewise shown that the estimates of expenditure were the claims on that head to be considered admissible, are also too unsatisfactory to serve a similar purpose.²

Some new matter being contained in the revised list of claims appended to the Counter Case of the United States with reference to these points, Her Majesty’s Government has thought it most convenient to embody their further views and arguments on this part of the subject in a further report from the committee appointed by the Board of Trade, which constitutes the Annex (C) to this argument. A further note on the claims presented by the Government of the United States for expenditure alleged to have been incurred in the pursuit and capture of the confederate cruisers is also appended as Annex (D.)

120. With reference to the question of compensation, it has been observed that it would be unjust to hold a neutral nation liable for losses inflicted in war, which reasonable energy and activity were not used to prevent, on the plea that the vessels, which were instrumental in the infliction of the loss, were procured from the neutral country, even though it may be alleged that there was some want of reasonable care on the part of the neutral government. The utmost period over which a liability once established on the ground of default could be extended on any rational principle would be that which must elapse before the aggrieved belligerent would, by the use of due diligence and proper means on the own part, have opportunity of counteracting the mischief.¹ The United States seem to take exception to this position. To Great Britain it appears to be just and reasonable in itself, to be supported by sound legal principles and analogies, and to be a necessary limitation of claims of this nature, should they be considered admissible in principle.

121. The British government has been compelled, therefore, to take notice of the inefficiency of the measures which were adopted by the Government of the United States during the war to protect their commerce at sea and prevent the losses of which they now complain—losses sustained from ordinary operations of war, the whole burden of which the belligerent seeks, now that the contest is at an end, to transfer to a neutral nation. It can hardly be doubtful that these would have been in great measure averted, if the naval resources of the United States had, at the time, been employed with reasonable activity for the purpose.²

122. It is not, then, without reason that the British government has in the concluding paragraphs of its Counter Case, described the claims which the tribunal is asked to sanction by its award as of grave and serious consequence to all neutral nations. In truth, it is not too much to say that, were they to be affirmed as the United States have presented them, and were the principles on which they have been framed and argued to obtain general acceptance, the situation of neutral powers would be entirely altered, and neutrality would become an onerous and, to the less powerful states, (such, especially, as cherish the freedom of commerce and have free institutions,) an almost impossible condition. It is the interest of all nations that the recognized duties of neutrality should be discharged with good faith and reasonable care; and Great Britain requires of others in this respect nothing which she is not ready to acknowledge herself equally bound to perform. But it is likewise the interest of all nations, and in a still higher degree, that these duties should be as little burdensome as possible.Conclusion.

123. The question submitted to the tribunal is not whether the subordinate officials of the British government, or even the government itself, might or might not, on some occasions during the war, have acted with greater dispatch or with better judgment. [Nor has it to determine whether it would be for the advantage of the world that rules of action which have not been recognized in past time should be established for the future. These are matters of opinion which Great Britain would not have consented to refer to arbitrators. The question for decision is a question of positive duty and liability, to be determined solely by the application of accepted rules and settled principles to ascertained facts. And no award can with justice be made against Great Britain to which the United States, or Italy, or Switzerland, or Brazil, or any other power, under similar circumstances, would be justly unwilling to submit.

1. British Case, p. 3.
1. See Revised List of Claims, pp. 219, 290.
2. British Counter Case, p. 2.
3. Counter Case of the United States, sec. i, par. 2.
1. Appendix to Case of United States, vol. i, p. 56.
2. See also British Counter Case, Part IX, pp. 107, 108, as to the Sumter and Nashville, and p. 114 as to the Chickamauga.
1. British Counter Case, p. 102. Appendix to British Case, vol. v, p. 143; Appendix to Case of the United States, vol. vi, pp. 723–726, 728–730.
2. British Case, pp. 12–22. British Counter Case, pp. 67–71, 107–109. Appendix to British Case, vol. ii, pp. 1–82, 87–129.
3. Case of the United States, p. 390; Appendix to Case of the United States, vol vi, p. 736.
4. British Counter Case, p. 104. Appendix to British Case, vol. v, pp. 21–24, 165–197.
5. See British Counter Case, Part X, pp. 126, 127.
1. For argument on this point, see British Counter Case, pp. 6–11.
2. See Heffter and other writers, quoted in Annex (A) to the British Counter Case (pp. 143, et seq.)
3. See British Case, p. 23; and precedents quoted in British Counter Case, pp. 49, 50. (note.)
1. Appendix to British Case, vol. iii, pp. 85–90.
2. British Counter Case, p. 27. Appendix to British Case, vol. v, pp. 269, 270.
1. British Counter Case, p. 21.
2. British Case, p. 24, proposition 9.
3. British Case, p. 167. Counter Case of the United States, see. ii, par. 3.
4. British Case, p. 24, proposition 10. British Counter Case, pp. 21, 22.
1. British Counter Case, pp. 22, 125.
2. Ibid., pp. 25–47.
3. Appendix to Case of the United States, vol. i, p. 669.
1. British Case, pp. 24, 25; see also British Counter Case, pp. 72, 73.
1. British Case, pp. 29, 30.

2. Appendix to Case of the United States, vol. i, p. 670.

   For evidence as to the particulars in which the British law is more stringent than that of the United States, see the opinion of Mr. Bemis, quoted in Annex (B) to the British Counter Case, (p. 149.) In the Counter Case of the United States (section iii, par. 11) the attention of the Arbitrators is called to a dispatch from Sir Frederick Bruce, British Minister at Washington, as furnishing evidence of the superiority of the United States’ statute over the British act. But the dispatch referred to nowhere mentions the British Foreign-Enlistment Act, nor does it attempt to make any comparison between the statutes of the two countries. The passage quoted in the Counter Case of the United States will be found, when taken in its entirety, to refer merely to the advantages possessed by the United States Government in proceeding against vessels, as contrasted with the comparative difficulty of proceedings under the same law directed against persons. “I may remark,” writes Sir F. Bruce, “that the Government of the United States has considerable advantages in proceeding against vessels under the statute. They have, on the spot where the preparations are being made, the district attorney, a legal officer responsible to the Government, to whom the duty of investigation is committed. The libel is in the nature of a proceeding in admiralty in rem. It is decided by a judge conversant with international and maritime law, and without the intervention of jury. The failure of the attempt to stop or punish the persons engaged in the expeditions against Cuba, and the suspension of the proceedings against the men who took part in the Fenian raids against the British provinces, in spite of the clearest evidence, shows the difficulty of enforcing the law when it has to be put in operation in personam, and when it is dependent on the verdict of a jury.” (Appendix to Case of the United States, vol. iv, p. 182. Appendix to British Case, vol. iii. Report of Neutrality Laws Commission, p. 68.)

   In Annex (A) at the end of this summary will be found a review of all the communications which passed during the war between the British and American Governments with reference to the state of the neutrality law of Great Britain.

1. British Case, pp. 30, 51. British Counter Case, pp. 73, 81.
2. The Counter Case of the United States contains (in section iii, par. 15) some observations on the explanations, given at page 57 of the British Case, of the meaning of the terms registry” and “clearance,” and of the duties of the officers of the Government charged with the registration and clearance of vessels in British ports. The United States invite the attention of the Tribunal to extracts of the British Merchant Shipping Act of 1854 and of the Customs Consolidation Act of 1853, as conferring, in their opinion, more extended powers upon the officers of the British Government than are stated in the British Case. The point is not one which is material to the questions at issue; the acts in question were designed exclusively for commercial and fiscal purposes, for the protection of the revenue and the proper regulation of British shipping, and their provisions could not be applied to the prevention of attempted or apprehended violations of neutrality, for which the necessary powers have been conferred by separate legislation in the Foreign-Enlistment Act. The statement made in the British Case was, however, perfectly correct; and although, for the reasons above mentioned, Her Majesty’s Government thinks it unnecessary to enter into the matter in detail, it will be ready, should the Arbitrators so desire, to furnish a statement showing what has been the uniform practice of the branches of the Administration charged with the execution of these laws, and proving that that course was followed in the case of each of the vessels under discussion.
1. British Case, p. 53; British Counter Case, pp. 74, 75; Appendix to Case of the United States, vol. vi, p. 383.
2. British Case, p. 53; Appendix to Case of the United States, vol. vi, p. 215.
3. Appendix to British Case, vol. i, p. 1.
4. British Case, pp. 54, 55; Appendix to British Case, vol. i, p. 10.
5. British Case, pp. 56, 57; British Counter Case, p. 75; Appendix to British Case, vol. i, pp. 7, 8.
6. British Case, pp. 58, 65; Appendix to British Case, vol. i, p. 161.
1. British Counter Case, p. 75.
2. British Case, p. 55; Appendix to British Case, vol. i, p. 3.
3. Appendix to Case of the United States, vol. i, pp. 529, 649.
4. British Case, p. 58; Appendix to British Case, vol. i, p. 7.
5. Appendix to British Case, vol. i, p. 3.
6. Ibid., vol. i, p. 6.
7. British Case, pp. 61–63; Appendix to ditto, vol. i, pp. 12–23.
1. British Case, p. 64; Appendix to ditto, vol. i, pp. 14, 27.
2. British Case, pp. 64–66; Appendix to ditto, vol. i, pp. 38–52.
3. British Counter Case. pp. 76–78: Appendix to British Case, vol. v, pp. 19–25.
4. The United States have called attention in their Counter Case (section v, par. 3) to the fact that the success of the Florida in passing through the United States blockading squadron off Mobile was described by the Admiral in command as only a case of “apparent neglect.” It is clear, however, that the Government of the United States did not so regard it, by the very severe sentence passed on the officer in fault, who was summarily dismissed from the service. (Appendix to British Case, vol. i, p. 73.)
5. British Case, p. 117; British Counter Case, pp. 81, 86.
6. British Case, p. 81; Appendix to ditto, vol. i, pp. 177; British Counter Case, p. 82.
7. British Case, p. 82; Appendix to ditto, vol. i, p. 180, 181.
8. British Case, p. 83; Appendix to ditto, vol. i, p. 182.
1. British Case, p. 84; Appendix to ditto, vol. i, p. 184.
2. British Case, p. 84; Appendix to ditto, vol. i, p. 185; British Counter Case, p. 84.
3. 3 British Case, p. 87; Appendix to ditto, vol. i, p. 188; British Counter Case, p, 84.
4. British Case, pp. 92–94; Appendix to ditto, vol. i, pp. 194–198.
5. British Case, p. 95; Appendix to ditto, vol. i, p. 200.
6. British Counter Case, p. 85.
1. British Case, pp. 31–46; British Counter Case, p. 81.
1. Appendix to British Case, vol. i, p. 193.
2. Ibid, p. 197.
3. Ibid, p. 205.
4. Ibid., p. 200.
5. Ibid., p. 249.
6. Ibid., pp. 204, 249.
7. See map opposite.
1. Appendix to British Case, vol. i. p. 207.
2. It is stated in the report of the Customs Collector at Beaumaris, that they would not allow a boat from the shore to come alongside. (Appendix to British Case, vol. i. p. 207.)
3. British Case, p. 118; Appendix to ditto, vol. i. p. 249: British Counter Case, p. 85.
4. British Counter Case, p. 87.
1. Appendix to Case of the United States, vol. iii. p. 35, vol. vi, p. 414
2. Ibid., vol. i, p. 541.
3. British Case, p. 120; Appendix to ditto, vol. i, p. 399; British Counter Case, p. 90; Appendix to Case of the United States, vol ii, pp. 665, 667.
4. British Case, p. 122; Appendix to ditto, vol. i, pp. 404, 413; British Counter Case, p. 89; Appendix to Case of the United States, vol. vi, p. 512.
5. Appendix to British Case, vol. i, p. 418. It is remarked in the Counter Case of the United States (sec. vii, par. 3) that “it appears that orders were given to a British vessel of war to proceed to Alderney; hut it does not appear whether those orders were or were not obeyed.” Her Majesty’s Government did not think it desirable to add to the already voluminous correspondence laid before the Arbitrators by the insertion of documents which were not absolutely necessary. It might be taken for granted, and it is of course the fact, that the captain of Her Majesty’s ship Dasher obeyed his instructions, and it was equally certain that he could obtain no intelligence at Alderney of either the Alar or Japan, both of which vessels were afterward found to have gone not to Alderney but to Ushant. The dispatch from the Governor of Alderney reporting the unsuccessful result of the mission of the Dasher is, however, at the disposal of the Arbitrators if they should desire its production.
1. British Counter Case, pp. 90, 91.
2. British Case, p. 143; Appendix to ditto, vol. i, pp. 481, 494–97, 724, 725; British Counter Case, p. 93.
3. British Case, p. 136; Appendix to ditto, vol. i, p. 477.
4. Case of the United States, p. 417.
1. British Case, pp. 31, 32.
1. See correspondence between the United States and Portugal: Mr. J. Q. Adams to the Chevalier de Serra, March 14, 1818, and September 30, 1820, (Appendix to British Case, vol. iii, pp. 150, 157.)
2. British Case, p. 97; Appendix to ditto, vol. i, p. 205.
3. British Case, pp. 100–104; Appendix to ditto, vol. i, pp. 208–213.
4. Among the papers laid before Congress by the Government of the United States, and now also printed in vol. i of the Appendix to the British Case, (p. 252,) are two dispatches from Mr. Dudley, the United States consul at Liverpool, to his Government. The first of these, dated August 12, 1862, states that he “understands that Laird’s gunboat 290 is somewhere either on the coast of England or Ireland, and that they are shipping to-day fifty more men who are to be taken to her to-night on a steamer.” In the second, dated the following day, he reports that the men were placed on board the Bahama, which, after shipping them, and cannon, shot, and ammunition, had left her dock at 3 o’clock that morning, and was no longer to be seen. She had, in fact, sailed to meet the Alabama, which was, at that time, not off the coast of England or Ireland, as supposed by Mr. Dudley, but at Terceira, in the Azores, (see affidavits of Redden and Yonge, Appendix to British Case, vol. i, pp. 210, 220.) There appears no reason to believe that Mr. Dudley, before the sailing of the Bahama, knew or supposed that she was intended to carry out men or arms for the Alabama; nor, though he states that he had (apparently on the 13th, after her departure) written all the particulars to Mr. Adams in London, and to the United States consul at Dublin, was any representation made or information given to the British authorities either in London or Liverpool on the subject. The first information received by Her Majesty’s government of the armament of the Alabama off Terceira was derived from a report of the customs officials at Liverpool, dated the 3d September following, on the return of the Bahama to that port. (Appendix to British Case, vol. i, p. 208.)
5. British Case, pp. 121–128; Appendix to ditto, vol. i, pp. 401–418.
1. British Case, p. 123; Appendix to ditto, vol. i, p. 405.
2. British Case, pp. 136–141; Appendix to ditto, vol. i, pp. 477–490.
3. Appendix to British Case, vol. i, pp. 492,493.
4. Appendix to Case of United States, vol. vi, p. 556.
5. British Case, p. 67; Appendix to ditto, vol. i, p. 85.
1. Appendix to British Case, vol. i, p. 87.
2. Ibid., vol. i, p. 90; vol. v, p. 20.
3. British Counter Case p. 74; Appendix to Case of the United States, vol. vi, pp. 222, 223.
4. British Case, p. 67; Appendix to ditto, vol. i, p. 73: Case of the United States p. 350; Appendix to ditto, vol. iv, p. 458.
1. See British Case, p. 57.
1. British Case, p. 65; Appendix to ditto, vol. i, pp. 46, 49; Appendix to Case of the United States, vol. vi, p. 264.
2. British Case, pp. 67, 78; Appendix to ditto, vol. i, pp. 116–125; British Counter Case, p. 79.
3. Appendix to British Case, vol. i, p. 220; vol. ii, p. 221; Appendix to Case of United States, vol. vi, pp. 432, 438.
4. See Redden’s affidavit; Appendix to British Case, vol. i, p. 210: Appendix to Case of the United States, vol. vi, p. 423.
5. See Affidavits of Thompson and Mahon; Appendix to British Case, vol. i, pp. 412–415; Appendix to Case of the United States, vol. vi, pp. 511–515.
6. British Case, pp. 136–141; Appendix to ditto, vol. i, pp. 477–481, 485–490; Appendix to Case of the United States, vol. vi, pp. 566–571.
7. Appendix to Case of the United States, vol. i, pp. 270, 281, 533, 590; vol. ii, pp. 406 460; vol. iv, p. 248.
1. The paper referred to in the Counter Case of the United States, as showing that the repairs to the machinery of the vessel were not commenced until she had been fourteen days in port, gives also the reason of the delay, viz, that they could not be effected until the vessel was placed upon the slip. This latter operation had been delayed by the state of the weather and tides. Appendix to British Case, vol. i, pp. 529, 530.
2. Appendix to Case of the United States, vol. i, pp. 641, 642.
3. British Case, pp. 87–89, 92, 95; Appendix to ditto, vol. i, pp. 189–192, 195.
1. Appendix to Counter Case of the United States, pp. 850, 857; British Counter Case, p. 122.
2. In a correspondence which has recently passed between the Governments of the United States and of Nicaragua, and which has been published in the Official Gazette of the latter Republic, the United States have distinctly declined to agree to the reference to a Commission of the claims of Nicaraguan citizens arising out of the acts of filibustering expeditions from the United States, and the bombardment of Greytown, declining all responsibility in regard to these claims, and stating that, as regards the acts of Walker, the filibustering chief, they felt conscious that they had fulfilled all that could be required of them, either by the laws of the United States or by international law.
3. British Counter Case, pp. 25–47; pp. 82–85, (note.)
4. See the trial of Messrs. Jones and Highatt, for enlisting men for the Georgia; of Mr. Rumble, for enlisting men for the Rappahannock; of Captain Corbett, for enlisting men for the Shenandoah; of James Cunningham, Edward and James Campbell, and John Seymour. Appendix to Case of the United States, vol. iv, pp. 550–618.
5. Appendix to Case of the United States, vol. ii, p. 175.
6. Appendix to British Case, vol. i, p. 150.
1. Appendix to Case of the United States, vol. i, p. 663.
2. Ibid., p. 576.
3. Ibid., p. 581.
1. Appendix to Case of United States, vol. i, pp. 665, 584, 589.
2. Ibid., pp. 591, 592.
3. Ibid., p. 576.
1. Appendix to Case of the United States, vol. i, p 609.
2. Ibid., p. 358.
3. Ibid., p. 613.
4. Ibid, p. 508.
5. British Case, pp. 31–50.
6. Appendix to Case of the United States, vol. i, pp. 517, 518.
7. Ibid., pp. 344, 345.
8. Ibid., p. 240.
1. Appendix to Case of the United States, vol. i, p 243.
2. Ibid., p. 649.
3. Ibid., p. 542.
4. Ibid., p. 573.
5. Ibid., p. 571.
6. Ibid., p. 651.
7. Ibid., p. 596.
8. Ibid., p. 635.
9. Ibid., p. 507.
1. Appendix to British Case, vol. iii, p. 86.
2. See British Counter Case, p. 20, note.
1. British Case, pp. 12, 17. Appendix to British Case, vol. vi, pp. 1–148. British Counter Case, pp. 119–123.
2. As to this, see British Case, p. 24.
3. Correspondence respecting affairs of Japan, (Japan No. 1, 1865.) presented to Parliament 1865, pp. 100–109.
1. British Counter Case, p. 121. Appendix to British Case, vol. v, p. 129.
2. British Counter Case, pp. 14, 19.
3. See ante, p. 7.
1. Appendix to British Case, vol. iii, p. 86. A portion of the passage given above was cited by Mr. Justice Grier when delivering the judgment of the Supreme Court in the cases of the British ship Hiawatha and three other vessels captured by United States cruisers in the first year of the civil war. See also judgments in the case of the Divina Pastora and Estrella. (Ibid., pp. 80, 81.)

1. British Case, p. 4.

   The Counter Case of the United States contains the following statement, (sec. 1, par. 1:)

   “It is assumed in that (the British) Case that the rebels of the United States were, by Her Majesty’s Proclamation of May 3, 1861, invested with some undefined political attributes. But the United States have hitherto understood that Her Majesty’s Government merely assumed to regard the persons who resisted the power of the United States as a body of insurrectionists who might be recognized as clothed with belligerent rights at the discretion of neutral powers. They therefore think it right to conclude that the frequent use in the British Case of language implying recognized political attributes in the insurrection is an inadvertence.”

   The British Government is at a loss to understand what is intended by this observation, the United States having omitted to specify or indicate the particular expressions to which they refer. But, in order to avoid misconception, Her Majesty’s Government will refer to a judgment, pronounced since the conclusion of the war, by the Supreme Court of the United States, in reference to the character and status of the Confederate States and their Government during the war. There are, so far as Her Majesty’s Government are aware, no expressions in the British Case which might not be used with strict accuracy and propriety by a foreign Government in reference to a state of affairs which has been thus characterized by the domestic Tribunals of the United States, and by the highest of these, the Supreme Court.

   The case referred to is Thorington vs. Smith and Hartley, decided in the Supreme Court of the United States, in December, 1868.

   The Chief Justice delivered the opinion of the Court.

   “The questions before us upon this appeal are these:

   “1. Can a contract for the payment of Confederate notes, made during the late rebellion, between parties residing within the so-called Confederate States, be enforced at all in the courts of the United States?

   “2. Can evidence be received to prove that a promise expressed to be for the payment of dollars, was, in fact, made for the payment of any other than lawful dollars of the United States?

   “3. Does the evidence in the record establish the fact that the note for $10,000 was to be paid, by agreement of the parties, in Confederate notes?

   “The question is by no means free from difficulty. It cannot be questioned that the Confederate notes were issued in furtherance of an unlawful attempt to overthrow the Government of the United States by insurrectionary force. Nor is it a doubtful principle of law that no contracts made in aid of such an attempt can be enforced through the Courts of the country whose Government is thus assailed. But, was the contract of the parties to this suit a contract of that character? Can it be fairly described as a contract in aid of the rebellion?

   “In examining this question, the state of that part of the country in which it was made must be considered. It is familiar history, that early in 1861 the authorities of seven States, supported, as was alleged, by popular majorities, combined for the overthrow of the National Union, and for the establishment, within its boundaries, of a separate and independent confederation. A governmental organization, representing these States, was established at Montgomery, Alabama, first under a Provisional Constitution, and afterward under a constitution intended to be permanent. In the course of a few months four other States acceded to this Confederation, and the seat of the central authority was transferred to Richmond, Virginia. It was, by the central authority thus organized, and under its direction, that civil war was carried on upon a vast scale against the Government of the United States for more than four years. Its power was recognized as supreme in nearly the whole of the territory of the States confederated in insurrection. It was the actual Government of all the insurgent States except those portions of them protected from its control by the presence of the armed forces of the National Government.

   “What was the precise character of this Government in contemplation of law?

   “It is difficult to define it with exactness. Any definition that may be given may not improbably be found to require limitation and qualification. But the general principles of law relating to de facto Government will, we think, conduct us to a conclusion sufficiently accurate.

   “There are several degrees of what is called de facto Government.

   “Such a Government, in its highest degree, assumes a character very closely resembling that of a lawful Government. This is when the usurping Government expels the regular authorities from their customary seats and functions, and establishes itself in ing characteristic of such a Government is, that adherents to it in war against the Government de jure do not incur the penalties of treason; and under certain limitations, obligations assumed by it in behalf of the country, or otherwise, will, in general, be respected by the Government de jure when restored.

   109. It is an error therefore to suppose that it was the duty of the authorities in any British port to seize or detain Confederate ships of war on the ground that they were suspected or believed to have been originally obtained from England or equipped there by violation or evasion of the law. On the contrary, to do this would have been a departure from the principles of an impartial neutrality: to do it without some previous notice, excluding them from the right of admission to British ports according to the ordinary practice of nations, would have been a flagrant public wrong.

   “Examples of this description of Government de facto are found in English history. The statute 11 Henry VII, c. 1, relieves from penalties for treason all persons who, in defense of the King for the time being, wage war against those who endeavor to subvert his authority by force of arms, though warranted in so doing by their lawful monarch.

   “But this is where the usurper obtains actual possession of the royal authority of the kingdom; not when he has succeeded only in establishing his power over particular localities. Being in possession, allegiance is due to him as King de facto.

   “Another example may be found in the Government of England under the Commonwealth, first by Parliament, and afterwards by Cromwell as Protector. It was not, in the contemplation of law, a Government de jure, but it was a Government de facto in the most absolute sense. It incurred obligations and made conquests which remained the obligations and conquests of England after the Restoration. The better opinion doubtless is, that acts done in obedience to this Government could not be justly regarded as treasonable, though in hostility to the King de jure. Such acts were protected from criminal prosecution by the spirit, if not, by the letter, of the statute of Henry the Seventh. It was held otherwise by the judges by whom Sir Henry Vane was tried for treason, in the year following the Restoration. But such a judgment, in such a time, has little authority.

   “It is very certain that the Confederate Government was never acknowledged by the United States as a de facto Government in this sense. Nor was it acknowledged as such by other powers. No treaty was made by it with any civilized State. No obligations of a national character were created by it, binding, after its dissolution, on the States which it represented, or on the National Government. From a very early period of the civil war to its close, it was regarded as simply the military representative of the insurrection against the authority of the United States.

   “But there is another description of Government, called also by publicists a Government de facto, but which might, perhaps, be more aptly denominated a Government of paramount force. Its distinguishing characteristics are, (1,) that its existence is maintained by active military power, within the territories, and against the rightful authority of an established and lawful Government; and (2,) that while it exists, it must necessarily be obeyed in civil matters by private citizens, who, by acts of obedience, rendered in submission to such force, do not become responsible, as wrong-doers, for those acts, though not warranted by the laws of the rightful Government. Actual Governments of this sort are established over districts differing greatly in extent and conditions. They are usually administered directly by military authority, but they may be administered also by civil authority, supported more or less directly by military force.

   “One example of this sort of Government is found in the case of Castine, in Maine, reduced to British possession during the war of 1812. From the 1st of September, 1814, to the ratification of the Treaty of Peace in 1815, according to the judgment of this Court in United States vs. Rice, ‘the British Government exercised all civil and military authority over the place. The authority of the United States over the territory was suspended, and the laws of the United States could no longer be rightfully enforced there, or be obligatory upon the inhabitants who remained and submitted to the conqueror. By the surrender, the inhabitants passed under a temporary allegiance to the British Government, and were bound by such laws, and such only, as it chose to recognize and impose.’ It is not to be inferred from this that the obligations of the people of Castine as citizens of the United States were abrogated. They were suspended merely by the presence, and only during the presence, of the paramount force. A like example was found in the case of Tampico, occupied during the war with Mexico by troops of the United States. It was determined by this Court, in Fleming vs. Page, that, although Tampico did not become a port of the United States in consequence of that occupation, still, having come, together with the whole State of Tamaulipas, of which it was part, into the exclusive possession of the national forces, it must be regarded and respected by other nations as the territory of the United States. These were cases of temporary possession of territory by lawful and regular Governments at war with the country of which the country so possessed was part.

   110. But it may be observed that in order to charge Great Britain with a breach of international duty, and a consequent heavy liability, on the plea that they were not arrested and detained by the authorities of the British Colonies visited by them, it would be necessary to prove, not only that the forbearance to do so was a mistaken exercise of judgment on a question of at least reasonable doubt, but that it was a plain violation of a known and established rule. It would be impossible to maintain this with any semblance of reason. In truth, the colonial authorities acted rightly.

   “The Central Government, established for the insurgent States, differed from the temporary Governments at Castine and Tampico in the circumstance that its authority did not originate in lawful acts of regular war; but it was not, on that account, less actual or less supreme. And we think that it must be classed among the Governments of which these are examples. It is to be observed that the rights and obligations of a belligerent were conceded to it, in its military character, very soon after the war began, from motives of humanity and expediency by the United States. The whole territory controlled by it was thereafter held to be enemies’ territory, and the inhabitants of that territory were held, in most respects, for enemies. To the extent, then, of actual supremacy, however unlawfully gained, in all matters of government within its military lines, the power of the insurgent Government cannot be questioned. That supremacy did not justify acts of hostility towards the United States. How far it should excuse them must be left to the lawful Government upon the re-establishment of its authority. But it made obedience to its authority, in civil and local matters, not only a necessity but a duty. Without such obedience, civil order was impossible.

   “It was by this Government exercising its power throughout an immense territory that the Confederate notes were issued early in the war, and these notes in a short time became almost exclusively the currency of the insurgent States. As contracts in themselves, except in the contingency of successful revolution, these notes were nullities; for, except in that event, there could be no payer. They bore, indeed, this character upon their face, for they were made payable ‘after the ratification of a treaty of peace between the Confederate States and the United States of America.’ While the war lasted, however, they had a certain contingent value, and were used as money in nearly all the business transactions of many millions of people. They must be regarded, therefore, as a currency, imposed on the community by irresistible force.

   “It seems to follow as a necessary consequence from this actual supremacy of the insurgent Government, as a belligerent, within the territory where it circulated, and from the necessity of civil obedience on the part of all who remained in it, that this currency must be considered in courts of law in the same light as if it had been issued by a foreign Government, temporarily occupying a part of the territory of the United States. Contracts stipulating for payments in this currency cannot be regarded for that reason only as made in aid of the foreign invasion in the one case, or of the domestic insurrection in the other. They have no necessary relations to the hostile Government, whether invading or insurgent. They are transactions in the ordinary course of civil society; and, though they may indirectly and remotely promote the ends of the unlawful Government, are without blame, except when proved to have been entered into with actual intent to further invasion or insurrection. We cannot doubt that such contracts should be enforced in the courts of the United States, after the restoration of peace, to the extent of their just obligation. The first question, therefore, must receive an affirmative answer.”

   The reasons given for the judgment of the Court on the two remaining questions have no bearing on the subject of this note.

   The United States Counter Case states (sec. iii, par. 3,) that the Arbitrators will observe “that the other Governments did not recognize the title” (Confederate States) “which the insurgents had taken for themselves.”

   The British Proclamation of Neutrality, May 13, 1861, (Appendix to British Case, vol. iii, p. 17,) referred to the seceded States not as the “Confederate States,” but as “certain States styling themselves the Confederate States;” and throughout the civil war they were constantly spoken of in the British official correspondence and notifications as the “so-styled Confederate States.”

   On the other hand, the Spanish Proclamation of the 17th June, 1861, (Appendix to British Case, vol. iii, p. 23,) uses the designation “Confederate States of the South.” The United States Minister at Madrid informed the Spanish Government that “the President had read” this Proclamation “with the greatest satisfaction.” (Diplomatic correspondence laid before Congress, 1861, p. 224.)

   The circular instructions issued by the Government of Brazil, June 23, 1863, speak of “the steamer Alabama of the Confederate States.” (Appendix, vol. iii, p. 25.)

   The term used in the French Declaration of the 10th June, 1861, viz, “les États qui prétendent former une Confédération particulière,” is in fact equivalent in signification to the words of the British Proclamation, “styling themselves.”

1. It is stated in the Counter Case of the United States, sec. v, par. 5, that “it appears in clear colors that Bermuda was made a base of hostile operations by the Florida. The commander of that vessel having coaled, and having been at Barbados within less than seventy days, and having then cruised off the port of New York destroying American vessels, arrived at Bermuda and informed the Governor of all these facts. The Governor, with a knowledge of them, gave him a hospitable reception and permitted him to coal and repair.” This passage might lead to the impression that the Florida had coaled at Barbados within seventy days of her arrival at Bermuda, but this was not the fact. The Florida coaled at Barbados on the 24th of February, 1863. (Appendix to British Case, vol. i, p. 91.) She did not arrive at Bermuda till the 15th of July following, nor did she coal at any British port in the interval. On his arrival at Bermuda, her commander stated that he had been at sea seventy days, with the exception of visits to the Havana, Barbados, and a port in the Brazils, each of which had occupied less than twenty-four hours. (Appendix to British Case, vol. i p. 108.) No coal was taken in at Barbados on this second visit.
1. British Case, pp. 166–7.
1. British Counter Case, p. 132.
2. Ibid., p. 140.
3. Ibid., p. 141.
1. British Counter Case, p. 132.
2. British Counter Case, Part X, pp. 134–141; Appendix to British Case, vol. vii.
1. British Counter Case, p. 140.
2. Ibid., part X, pp. 138–140.