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II 1\Vr,LK OF CONTENTS. I. argi:mi:nt of the rMiHo statks dklivkked to tiii: tkiiu'xal of AK'MITKATIOX AT (iFNFVA, .irXK IT), l-T-i. rau I, iMitoDrciioN : Aiyiiiiii'iit pri'siMitcil ill lU'L'oi'diini'i' witli inov i.>ions of the Tioaty of Wiihliiii.utim 'J'lu' rfs|>i'ctivi' C'iisi'saml DiKMiiueiits ('(Ill liter Cases The issues to he (h'tenuiiied are now settled II. Tin; CoNi i;i>\ Kiisv SruMiiTKi) to Aimuii: ation : The Aihilrators already ae(|i>aiiited with the jitiieral nature of I lie faets.. Ill siiiiiiressiuj;- an armed iiisiirreetiou tlii^ United .Stales exercised helli'^- erent flowers, and prevented insurgents from earryiiiy on niaritinio war from their own resources The ri^ht to do this un([uestic)ned : other nations no jiarties to the con- lliet Ahstinenee of intervention hy another I'ower is not neutrality It is a niainteiianeii of jirevioiisly existiuj;' ndations ()ther Powers have to (h'cide in stieh ease only whether vhe\ a('(|aiesco in the exercise; of hellij;'erent powers by the .Soverei;;n ' Non-aei|uiescen('e is intervention (Questions aiisin;;- beyond territorial limits of tho .S()Vi.'roij>n should he de- cided as they arise , Such course secures impartiality and, when justitied Ijy results, an eiiuality between contenilinu' jiarlies whicdi resembles what is known as neutrality when exercised b(;tween rightfi'l bellij;t'rents This inineiple reco;;nized by f'nited States Supreme Court 1 'rev i oils instances in jioint l)ellii>'ereiit jiowers liehdii;- to the Sovereij;ii of rij;lit ; to the rebel id" suf- ferance Conferrin,:;- bellij;ereiit rights on insurgents by Great IJrituiii was an in- tervention The (^>ucen's ]!roclaination was voluntary and anticipatory , was not called for by the relations between tho Governments had no Justilieation and ( haiigud the legal relations between Great Ibitain and the in- surgents Its effect upon the act of carrying on war on the high seas Its ell'ect upon coniniereial contracts It was followed l)y systiMiiatic contributions in aid of the insurgents .. . The rnited States su fir red great injuries Which n;sulted from aid and assistance originating in JSritish jurisdie- tioii This aid was organized, systematic, and oHicial Nature; of tho injuries iiiiiicted on the I'nited States No nation but Great JJritain iiistriunental in inllieting them They form the subject of this arbitration I'rovisions of the Treaty of Washington resjieeting the arbitritticm Description o*' the claims The IJules of the Treaty Tho provisions of Article VII EtVect of an award The measure of iiidemnitv claimed 8 s 8 8 8 u 10 10 10 10 10 10 11 11 11 11 12 12 i:? i:{ 13 14 14 14 16 ir> 10 16 IV CONTKNT.S. III. (ii:xi:i!.\i. Dix i»i(i\ (ii (/I KMHiNs ur Law: CVintfiitioii of I'liitiMl .States rf<;iinliii;f liiilmc of fJicat ISritiiiii to niaiii- taiii neutrality 'Rfs|ioiisiliility icsiiKini;- iVoiii such I'aihirt' Sro)ic of tlir slllmiissioii Mcaiiinj;- of the laiii;iiagt' "all claims j;i(i\viii;^ oiii of tlin acts of the ciiiiscrs" Coiiti'iit ions of (ircat liritaiii I'io]ios('(l con ISO of aij^nnn-nt (icncial considerations of law (.Jreat liiitain j;nilty of culjiahle nej;li;^enee, (;ven when measurinj;' its dn- tics hy the I'oieiirn-Hnlistnient Act International dnties inch'pendent of ninnieijial law J>fects of Foicij;ii-l".nlistinent Act They niij;ht have heen icniedi(;d These are not (|nestions of neutrality (ireat liritain le^ially res] tonsil ile to I'nited States .Sir 1{. I'hilliinore's authority cited liCfral tlicory i>{' I'nited States resiiectiui;' i| nest ions at issue Rijiht to make war JJij^ht to j;i\c cause for -war AN'tiat may he can>e Neutrality War. what it is Sales of arms and contra hand ol' \var Disjiatch of armed vessels .K'es]ionsihility of .'>overei);n for \iolatiuu of m-utrality Constitutional inaVulities cannot he pleaded in ausiver to ;i charge (d' such violation Aliened constitutional inahi lit y of (ireat 1 hi tain cxamiiicil 'i'li(> i>rerojiative power of the Crown 1\'. MrscKi.r.ANKors CoNsiDKitAnoNs : Many irrelevant nmtters in th(» British Case and Counter Case Its treatin(iit of thelhitish Forei.i;ii-ladistmcnt Act of l"^!',* its comjiarisou Ik;) ween the Ihitish and Anu'rican acts nnju.-t The Governnu'Ut ot the I'liited States hasalwaysheen anxious to possess le^iislative powers sullicient for the performance of its duties as a neu- tral Disinclination of J 'arl lament to lej^islate on the suhjc'ct Lcgislalion of other countries Disiinction hetween prevention and punishment France Italy .'Switzerland Ihazil rortn-;al Spain Itelginm and Holland Ivussia and Prussia Denmark and .Sweden Comiiarative review Conclusions The history of the Fnited States as a ni'Utral a part of the ISritish ple-u',- inu,s Its relevancy denied Neutrality toward Grciit Britain durinj; I'resident ^^'aslllngton■s administration Fxpedition of Miranda l.'evolt of Sitanish-Anicrican colonies War hetween l'ortnj;al and the Banda Oriental Walker's exiiedition Cnha Fenians British enlist nn-nts dnrinjr the Crimean War The eonrsi! of (Jrcat Britain as a Ijelligerent toward neutrals I'n-r ()r(h'rs in Council Course toward France durinj' the American KevoIuti(Ui Course toward the Netherlands General ohli^^atious of neutrids ... 17 IS Ifj 18 lit 111 lit lit lit lit ^tt 'JO '■>(> 'JU •JO '2'2 '2'i oo •>•> •Ji i>3 2S '24 ■,'lt :w ;vi :;4 :!4 ;!."> :{7 :'.7 :'.7 :iS :]s 4(t 41 A-2 44 44 44 4.'> 4t> 4S 4S 4i» 4l> 41) fONTKNTS. 17 18 1^ 18 10 111 lit lit lit lit •^11 Uil '20 '2:i 'i'.i 'U 2'.) ;vi :;4 \\\ :!."> :u; ;'.(> :'.7 :!7 II s \i4 40 41 4i 44 44 44 4;') 4() 4rt 4S 4l> IV.— Ml^^iin.I.AM.nCS ("((N.-IKIIIIATIDNS — ( '(Hit illllcd. .Iiiliii Lairil as a witin-ss. ( NdIc "i 'il l'(ir(hii>f ol' anus, i N'otf) ">l v.— Si.vri'Mi.M oi Si. mi; (ii.Ni:it\r. I'm is ri;i!ii\i:M lo inr. lN<,>rii;v a.m> Arri.icAr.i.i; to Kacii ( imisii;, Yu'i^n/n' 111' lads siatiil in tlir Aiiiciiiaii Case tii csialilisli thr niitViciKlly iiiiiiiiiis ol' till'. I>i h isli (JdvciiMifiit anil in'oplc ."-J Tlir IJi il isli n spouse no (Iniial .'"J Ivcjoindcr to tlir ISiitisli rcspon ..i' .">:{ liclcvaiicy of tile facts to I lii' issue .">:i Lonl Weslhmy .'4 Mr. Moiitau,iH' 1' -iiiavd "(4 Karl Itiissell .-.I The liiilisli Case ."."> Th(! facts stated in the Aiuericau Case to lie cousideieil as (Moveil ."),'> The proofs suliuiilled w illi the AMU-rican Case of the sy> teuialic and of- ficial use of I'.ritish territory l>y liie iusmnents w iili the knowledge of Cleat itritaiii .")."> 'J'licsc facts also to he taken as |)Mi\ ed ;">(! \L — Till'. l'i,i»i;ii>A .">r At Liverpool .")7 In Ion nation l)y .Mr. .Vdaiiis ,"7 Action of Her Majesty's (iox-erunicut .")7 She was then evidently a iiian-of-war .'cs C ha racier of Mr. Adams's repicsentatinn T)'.! .Action of the liritish (iovciniuent (ill What ini;;hl have been done : (ill What actually was done (ill l.'euistry of tl'ie Florida (il Clearance (i*,* Jt'rsiiiiii' (i'2 Ne;iliiieiU'o of ISritish oflicials (!;! A\'hat, inijiht have lieeii done under tin .Merchants" .*^hippin,u'-.\ot (i4 Arrival at Nassau (il! Conduct of JJiitish oflicials there (i(i AV'aiit of diu! diligence (iii .Judicial ]>roc"edin^s at Nassau (i7 Partial and uin'rieiidly ciuidiict of the Colonial Aiithoritii.'s (ill Seizure of the Florida 7:5 'J'rial and relea.so ; the criticisuis on these proc('ediiii;s in the Aiiuulciin Case are sustained 7.") Arnianieiit of the I'lorida 7.') At Cjirdeiias, at Middle 7(i At Nassau, January "J."), 18lil5 : receives coal, sup]dies, and recruitniciils.. 77 At liarhados, February "■^4, led:? ; receives coal and repairs 77 At 1 'eriiaiubuco 77 At liennuda, July l.'>, If^iV.] ; rejiiiirs and coals 77 At Ilrest ; receives recruits aiul new luacliiuery from Liverpool 7"' At .Mai'tinique 7s< At lialiia 7'.» Her tenders , ... 7'.» All,— TlIK Al.AIiAMA H) Her adaptation to war is not disputed Ml The (|Uestion to b(> decided .^il Mr. Adams j;ives information respectini;' the Alabama .Iiine *':?, It'D'i .-fl L'eferred to Law-(lflicers of the Crown H"i Their action upon it >'"i l'roc(M'dini>,s of Customs Authorities e;! Mr. Adams informed tliat the American (Joiisul may snlimit evidence to the C(dlector at Liverpool 84 Tiie Consul directed to furnish information to the Collector K") He does so - 8,''» Conduct of the Collector p(i lie declines to act 87 Jlr. Adams instructs tlu; Consul to continue to collect jiroof ,■^7 The Consul does so, and presents it to the Collector, with a reipiest to seize the vessel 87 J..aw-Advisers of the Customs !~8 VI CONTENTS. Piiiro VII.— Tin; Ai.\r.\M \— ('(iiitiiiiicil. ridoi' Miliiiiittcd to till' 'I'lciisiuy July "i'i ,<;) Also to Kiirl liiisscll 1 ,wi) Addii idiiiil i»riiol' h<> l.)[)iiii()n o I' Mr. Collier ,■.;> I'ltsiiitcd witli iil'lidiivils to CoiiimissioiRrH of Ciistoiiis .Inly ii:$ HI) Action oC tilt' lioard H'.l I'm tlicr f\ idfiicc sulunittcd I>y .Mr. AilaiiiH ll(» ilcr ^l.ijcsty's (iovTiiimciit ii,i;rci' to kci'p a watch on the vcssid HI 'rill' I.aw-OI'liccrs think the vcnscI .shouhl he detained ill Illness ot Sir .John ilai'din,!:; Inellicieiicy of the snhse(|nent proceed inj;s ij-t I'.arl h'nsseil thiidvs this a scandal '.i;{ .Mr. t'ohdeli's \ iews i|;{ A\'ant of dne dili;;enee ; in what it consisted 114 ArnianMiit from tin- J'.ahaina .■ IKJ At Martiiiiqne IKJ Destroys the Ilatteras cf;i>try. clearance, and departure 1(17 Tlie Ahir 108 Armament ot' thi' (;eor,:j,ia 1(18 Mr. Adams f;i\ cs information to Karl Knss'dl ](I8 liisnlticieiit action ol' Her Majestv'.s Government 101) At Hahia .'...'. 101) At Trinadi 101) At Simon's r>av lO'J At Chcilioum' 110 At Liverpotd 110 Sale 110 I.\.— I'lir. Siir.NAMio.ui Ill (ieiicral re\ iew of facts estahlishiiig want of due dili,neuce HI riirchase ol' the Sea Kin.i;' ll."> Her de]iartnre llf) Di'partmc of thi' Laurel with her crew and arnuiniciit 11, '> Armament of the Shenandoah .. , IKJ Arrives at Mi'lhonrne 117 Permission to coal and njake n.'pairs granted 118 I'rotcst of the Consul ^. 118 I'lilrieiidly conduct of tlu^ Colony 118 IJecrnitment of men at Melhoiirne Ill) The Colonial Authorities informed of the contemplated recruitments, and do not prevent them.. I'iO Their ineiticient proceedings lvJ2 Further jwoof of recruiting furnished to the unthorities 1*24 They parley with the commander of the Shenandoah in place of acting.. 1'2'> Further information of contemplated recruitments 12C> Ifefusal of the Colonial Anthorities to act 127 Large recruitments of men ; departure from Melbourne V28 Excessive repairs at Melbourne I'M Coaling there excessive 'I'.W Contrast l)etweon the course of Brazilian and of British Authorities l'X\ At Liverpool 134 CON'TKNT.S. VII 89 m m m 89 90 91 1)1 ill '.(•i '.•2 '.t:t '.»:{ '.tl iti) 111) it7 it? IW iW itlt in) iti) 1(10 ml 1(11 KH lol 1(1-2 104 104 1(14 107 108 1(H lOS 10'.> io;> lOi) lOi) 110 no 110 111 111 iir. iir> 11.') ii(> 117 118 118 118 Hi) 120 122 124 125 120 127 128 i:w •r.jo i:<:i 134 X,— TiiK Sr\iTfi;, rm; N\>ii\ ii.i.i:, rm; IJi rciiu iiox, (iii: 'r.u.i.ui \-sr.i;, A.Ni) mi: C lilt ixA.MAi <; \ \Xt Till" Snmtvr l:'-"> At C'maciia. nt I'riiii.lail, at .Martiiiii|ii'', at Cadi/ 1 :!.">- 1 :!(! At (;il.raltar i:!i". At Livciiiool i;«8 Tho NasliN illo at Itiinnida l:!8 at S(>iitliaiiii>t(.iii l-'i) Tlio T^ctiilnitioii 1 10 Tli.'Tallalia-s.T I l;5 Tlic (.'hickaiiiaiiLia 1 l"> XI. — Consii>ki;ai ION <>i- mi: ix iv i>y (Jimm I'iIM i ai\, as Iv iaiii.i>iii:i> AM) Ki:( iKiM/r.u \:y iiii: ■|'i:i:\i\, iv l>'ii.\i;i> lo mi: Oi i i:.mii\(; Vkssf.i.s, .\m> 1i> 1"aii I i;i: iiili(ati(iii of till' lii-l Iviilc I III Apiilical ion dl' till' sci'oiiil and tliinl liiilrs 1 It! Tl !(•>(' K'uli'S cniisi itiitf tlic law of I lii-; coiit lovci xy 117 Ndtliiii'^' ailiiii^-.ilili- wliirli diiiiiiiislifs I licir force 1 17 Tiu' olili'^at ion of I ileal liritaiii to ohsiivi' these K'liles wa-; an iiiteriiatioiiai one 117 Tliis oliliiiatioii not allee'eilliy iiiteiiial di.sdiliiuiou of powers of llriiisli (io\-eninieiir 1 17 Nor Ity tlie institutions or lialiits ol' tin- ISrilisli peoiile 1 17 (iicat I'liitain sliould liave used seasonalile. apin-oiniate. and ad- e(|nate means to pieseive its neutrality I H Wliieli should Iiave lieeii avallaUlo as soon as rei|nired 1 IS I'.rilish synipatliy with insuriicnts an (>leiin'iil to he considered in ini'iiariiiij; means I 18 ( )i her (lenient s to he considered 1 18 The Midiiy lit' J'lilli'liiii/ I iiliriiiltinnill Itiihlims \si;t hij t i I'lill lif'ilil'iii . . 1 li) Her Majesty's ( los cinment possessed full jMiwer for earryiiii;- out its selected eolll'se of action 1 I'.l The prerogative ol the frown 1 l'.» Its exercise diirine- the I'ehellion Mi) Pre\ cntivo jiower inseparalile fiiuii the idea of e\ecuti\o power l.')l reciiliar ad\ aiita;^es of I ler 3IaJesty"s ( Joveriiinent for the exer- cise of executive power 1."»2 Omnlpotenei' of Fail i anient 1.'j2 The (Infii of llrmt llrilniii hi i!x trvaimnit of tlir offiiidini/ rissils Airi:K thi'ir jir-'il ilhfiiil oiiljil und ini^ajir from l!rili-:li jmrls ir>2 ' The privih'u'e of exterritoriality accorded to a vessel of war is political and discretionary 1")2 It should not he acceded to a lielli<;ereiit not recoj^iii/.ed as a poli:iciil Power 153 The only remedy aj;aiiist such hellij^tn-ent in iieasi; like the pres- ent is the remedy against the vessels themselves 15:5 Great lUitaiii oiieht. therefore, to have seized tin? vessels l'>.\ Due (Uliinii'T, un rniiiirvd /»// iJu' thne l>'iilri of the Treaty and tliv priii- cq)h'K of iiifiriialiiiiial Ian- nut inronxlxtcnt lliircivith 154 After proof of hostile acts on neutral territory the Imnh'ii of ])roof isoii the neutral to show due diligence to prevent them. 154 Diliii'ciiee not a teclinieal word 154 "Due" implie.s seasoiiableness, approi>viateiiess, and ade([iiat(!- ness 155 Ohjections to ISritish definition of the term 1.55 Judicial detinitions hy Ihitisli and American Courts loii The United States do not desint a severe eoiistruction 157 They do not projiosi? to hecomo <;iiara!itors of their people 1.57 The Arbitrators the judges of what constitutes due diligence . . . 157 Yin C'ONTKNTS. PllgO. Nir.— 'I'lii: I'Mi.riir, i>\- (iiii;\i Ui.iiain h. I'm. in, i, l\- l)riii>, \s K>i.\ii- i,i,>«iii;i> AM> Ki ( iniM/i.D v.\ I in; 'J'i!i;.\i V, ( ••N>ii'i:iii;i) lro\ rin; V\cis l.V.i ( 'nllNiiliTJllii'lo dl' ;;t'licrnl :ilil>lic;ll inli l.V,> Till' \ oM'ls (■(iiicrriiiiiL' w li(i>f Mi'|> I lie I'linti'iitioh i> l."i',» I'llilillc nriiiciil 111 it ;i ill In In ill II it^ (il(li;;ilt itill.s l.'i'J Ni7;lij;fii(i' in (ililniiiiii;; inl'iiriiKitinii l."i'.t Nil HtlU'Illl llirilllS III' illlltll'llilllc .H'lioll lilIlN i(l( ll l(((» Nil ;iiMicr.ii iii>li iicticiiis fo mil ill I Mi II \ iniliiiirc Dill No tpliiccis iliiir;;((l W illi ili.st It III ill;; illld lilli illtilillill;;' lilOfffdiuy.S . . Kit! No stcjis ImIscIi til lircilli lip I lie lliislilc .s\nIciii l('il» 'I'lif i tiikcii l>y (iC- lii'ci's of till- I nil rd St, 'it IS in (iinil liiiliiin llil 'J'lic (io\ »'l llllirlit 111' till' I liilcd Stillrs ;d\\ il,\ .> iliriir->t to lllililitaill il» du- ties ns ii iii'iitiiil Hil AlisriRT ot' Miili i'iirni'>tiii'>> nil till' jiiiil ol'iircMi )i:it:iiii ii lii'i'iise for till' iU't> of liiiNtility ( nliililiiilird of Id;; I'll ii II 11' 111 ;isciTi;iiii r.xtriit ol •-tilt II I my uiid prciiinatiM' iiowt-is 111:'. I'll i lull' to r.M'iiMM' till' li'iiyiil |iirrii,niitivr ItJfi 'J'lir l'iiri'i,i;ii-i;iilistnir!it .\v\ wiis an insiiflii iml ini'an.s fm pi'i tin niiii;; iiitt'iiiiit iniiiil ilut irs. and its cl'iirary was diiiiinislii'd liy judicial nin- strilctioli mill iitliiilll lri|llilrllirllts .'. llil'i C'liiitiast lii't wi'i'ii tliis art Illld tlii' .\iii(i ii'iiii Siiitiiti; as coiistriU'd and iidiiiinistriid IdT I'ritisli ri'liancr ii|ioii tin' l'iini;;ii-i',iilistiiiciii ,\i| a fiiiliiic of d'U' dil- ijiciici' IT'J 'J'lir iii';;l(ct to animd tlic I'uni^ii-l'.iilisi nu'iil .\i't a fiiiliiir of dm- dil- ij^i'Iiri' 17;'. C'lintrast lirtwri'ii tin- coium' of (irnu liiit.iin ainl the Loiir.sr of tin' I 'nit I'd Statrs in tiiisi- ri'siii'cis IT;; 1 'nil HIT ill diir dilii;riii'i' nil it tlir i"-i'iii'i' of tlir < riii>ris 17."i In not dfliiiiiiii;; oilriMlinn ciiiisris wlifii nuaiii i.i liritish ]iorts.... IT.'i Tiiis olili;;iit inn not drti'iiiiiiird liy loininis^lonin;;' a criiisi'i' irti In not ('xrliiiliii;^ cs api'd crnisris Irniii I'rilisVi ]ioiis 17li Till' ri'))risi'ii1atiniis to insaf^i'ut a;;i'nts ri'spi'i'tinu ilii'si- ('riii.si'i's wi-ri' so lnn;f di'liiyi'd and .sn fi'i'Mr as to ainoiint tn Avaiit nl' diii' dili;4i'iii'i'. . 17.^ Till' l{rit isli coiiiMi' ih tlii'si' ri'spfcts was vnlniitaiy 1-1 Till' I'xcliisinn of jir'zi's frnni Jiiitisli jioits was no licni'tit to tln' I'liiti'd Stiitis l-l Till' ii'sponsiliilit> of (iirat Iiiitiiin for tln-si' tniliiii's in din' dili'^i'iur t'nnt iiini'd until tin' rnd of tin' rairrr of the ciiiisi'is 1>'J No <'\ idriiif of till- I'Xi'liist' of dill' diliiifiicr .-iiliiiiit tid liy (irrat Jiiitain 1 "i A\'liat \i'ssi'ls nil' under tlir Jiirisdict ion of I lir J'l ilniiial l^,'> XLII. — N.^Ti i;i: .\M) A.miuni m Uamaci:.-- C'i..mmi:i) i;\ iiii; r.Mri;ii .SrAii;s, 1. I'lrfatniy roilsidiiatiolls IH! (iriii'ial roiii'lii.sinn.s l^li (iicat IJiitiiiii i('.s)ioiisilili' for the Il(■t.^ of tin ri ni>ii-. ISti Measure of lialiiliry e L-^T Tliese elaiins all eoiiipielieiided in tlie terms ol' tiie Treaty 1>7 V,'. Question of Jiiiisdietion 1^8 (ireat I'litiiiii eonteiids that the ilaim.s styl.d •• Indirect" are not •within the M'i)]ie of the .Vrliilrat ion Iss The term " iiidiieet" not found in the Trent y l-^s I'l joinder of the I'nited States to the liritish assiiiiiiitioii ]»S " Indireet," as used in this eontrov ersy, i • ei|iii\iili'nt to "national" l^-i The word " indireet ," used in the ne;ioliiitioiis which resulted in the Treaty. 1-".) I'sed ill the same sense in this discussion ]^[) What (laims are within the jurisdiction of the Trihinial lsi» JRi'xiinn' of iie;;ot ill t ions respect iiij;' Alaftaniii (.'laims l5:".t Mr. Adams. NoM'mlier. Ir&i, asks •' redress for private and ii'i- tional injuries" l-;> Liability denied liy (iieat Ikitaiii H',> I'nited States refuse to reliininish their claims I'.ti) Manv claims loili>ed diiriii'' the war. Init disciis.sioii deferred.. r.)0 CONTHNTS. IX l.v.t i.v.» l.v.t l.V.) l.v.t till) ll'lll liltl Kill K',1 nil h\-> nr. im; ICiT IT-,' 17:5 i:;'. 17.". 17.'. ini 17ii 17. -< l-l 1 l-l 1-J 1 1 -.' 1>"> 1-C. isd 1-7 1^7 l.'e.S iss IHS le.-i l^'.t l-l'.t l-".> l.-^'.» I'.H) I'JO XUI — N M ri;i'. \ni> Amhin i <»i' Kam vci.s, Ai'. -('niitiiiiitil. K'i'Mx.iis lor calliii;;' nil tlii' I'l.iiiiis Alaliiiiiia C'laiiii:^.. I'.X) III April. l"i'..''. till' I'liiti'il Stiilc.s ii'iicw tlis(ii.>siini ll'O l,'r.s]i()ii>iliilil V 1)1' (iii'al iiiitaiii ic-asscrtril I'.M Di'iiial t.r liaiiilily I'-'i Miiy, l-^li.">, tlir riiilcil Slatis clji.-siry rtaiiii>. as " (liictt" ami " iiiiiiitti," ami driiiaml rriiaial ion fur all U'l (iriMt i.i'ilaiii ilriiii's lialiilily liir imliri'il ami ri'l'iisrs ailiilia- tioii lor diiccl claiiiis I'.M 1,1 ml i;ii-si'll I 111' aiillior uf ilii' term "Alahaiiia Claiiiis" I '.••.' 'I'llis trrill well Klliiwii ill ( triolicr, l^l'tl 1'.'- I.iilil lilisscll ]iri)]i(.s('S to li't l.y;;n||t'S lie l.\ ndiii'-. i'l'^ Till' r hi In I Slatrs dcrlitii' tii \\ai\i' any nl' t ln'ii claiiiis 1 '.'',' 'I'lic ."stall li'y-.li.liiisoii Con vent ion VXi 'I' 111' .Iiilinsi.n-CliircnilKn ('niivi'iilii.n ll':'. I.iii'il (iiaiiN illi' tliiiiks it ailiiiils niiliinitril ar.uuiiii'iil as In tin' iMi'iil, (if till' Alalia ma Claims \'X'> 'I'liiis Cull VIII til III niil arci'j.taMr to llu' I'liili'il ."siah's i'.il Mr. .loliiisiiii iiil'iirms i,iiiil Clari'mluii that tlir rnitiil Slatrs liavr claims of tlicir ow ii on (in 'at iSiitaiii I'.M Sir Milw.'inl 'riiiiriiloii mlviscs I, mil ( 'larcmlun that the Coii\cii- tiiiii is rcjci'tril lii'cansi' it i.s tliiiiij;lit tli.'it it docs not iii- clmlr the imiiri'ct claims I'.il Mr. Mill icy inlorms Lord Clarcmloii lliat the I'nitcd .Stales il.i not aba 111 loll the mil i una 1 cl.iiiiis 1'.'.. And that tiic .lolinsoii-Clan'iidoii CniiM' itinn did not allord snf- licicnt I't'drcss lor till' national injiirifs I'.*.'. 'i'lic imliri'ct clainis as considi'ti'il hy Lord * lari'iidon 1'.'.'. I'lcsidi'iit's nii'ssann to Congress I tcccmln r, l"ii'.* I'.'ii Same ill l"'7ll '. l'.»i'i In .la Hilary, 1-71 , the words "Alalia r •' Claim> were iimlcistood to include all claims of rnitcd .Siaies a;;ai!ist liieat liiitaiii, liotli national and imlividnal I'.MI .Nt'iiotiatioiis oiieiied .'it \\'ashinj;ton IlK! licasiins which induced those iie;;otiations I'. Ml I'reliminaiy inoiios.'ils and eoircspondeiic. li'T 'i'lie jiidiioscd cominissioii to treat of the "Al'ili.ima Claims" I'.C I'liited l-tati's (,'onimissii)iicis ai>]>iiinteil and coniiiined on the corresiiondcnce, and their powers limited I ly it 1'.'7 '•'I'lic Alaliaiiia Claims," tlieAmeriean Comniissioner.s slate their nnderstaiidinij; of the mcmin;;- of tliost' words I'.H I'liev iii'opose a mode of asceitaiiiiiij^ liie amoiiiit I'lf the daiii- ajies r.''.» And that ]iaymeiit t hereof should he made !'.•'.• 'I'llis would ha\(> Iteeii an a mica I de settlement !'.•'.' I'.iit no waiver of any cla.ss of uhiinis 1'.''.' The i)ii.posal dci'lined I'.i'.t Without exception to the dcliiiition of the term '•Alaliama Claims" I'.t'.i A reference proposed hy (ileal lirilaiii 'JitH rnwillini;ly aece])ted liy the United States "inn The Treaty of Wasliineton •jiii) Meaninj.' of the words "amiealile settlement" ','Oii Cliams for reference iiinler the Treaty 'Jiiil 'J'he name which were descrilied in iireliminaiy correspondence 'Ji'i* No waivoi' of indirect claims yiMi l^.wer.s of tln3 Triliiiiial 'idl I'ower to assess dama,ues not limited yni Views of .Mr. Bernard. ;.'(ll Twelfth .-irtielo of the Treat v -iOl Sir.StalVord Xorthcotc .' •,'OJ Lord III lion *iil'J Mr. IJunianl 'Jil'^ Kvidence from rrotocol II t>0'J Debate in Parliament — Loid (iranville "2**2 Lord Cairns .says the indirect claims im Inded in theTreafy ^o:'. « His eonstnictioii not ijitestioiied IJn:'. Lord Hijxin'.s views xjo:', Sir Statford Xortlicote yiil X CONTENTS. Pnge. ' XIII.— N.vTiiu: ANMt A:m()Int ok ])a:ma(;i:s, iVc. — coiitiiHiwl. Ciiiicliisioiis 2or> Tlio AiiKM'icaii C.'isc stuteil the claini.s in the liin,;;iia{;e of the Joint llif;ii Coniinissioncrs '20't Lonjf delay in objecting to it by (ireat ISiitain "JdO Snpi>ose(l concessions to United States in Uie Treaty '2{H'> The Kuhvs *i(i() Expiess'rii ot' regret "JOt; Fenians .' rjliO Conchisions 207 Lord (iranvilh;"s speeeli ',>(W Explanation of the niisnnderstanding '20'.) lirxiinu' r*lli> Arbitration takes tlu^ jdaco of war 210 The Tri1)nnal the jndgc of its own powers 210 Pradier Fodrre 210 ("alvo 210 Mr. ^lontagne ]5ernaril 211 :?. Measure of damages 212 liiiles for measuring damages 212 Severity to he sjiown to the wrong-doer in ehdnis fonndud on torts. 212 Tlie aninnis of the wrong-doer an element of danuiges 212 The relation between the injury and its cause '21:? Whether the natural result of the wrong-doer's act 2l;> Damages should be an indemnity 21."> AVhether so or not a (j nest ion of fact 21."> Apidication of i)rinci])les 21.") As to jtersonal iujuiies 21.") As to iirojierty of the I'nited States destroyed 21.') As to property destroyed and injuries inllicted niion citizi-ns of Ihel'iutetl States 21."> As to expenses in puisnit of tlu' cruisers 21() Alleged eondonenient by the United States 2^ The arbitration substitutes damages in the place of reparation bv war '. 218 Tvejdy to Arguments in the lUitish Counter Case 218 Indemnity should follow injury 220 Award of a sum in gross 220 Jt should include interest 220 Case of the Canada 220 Award under the Treaty of (Jhent 220 Awiird under the Jay Treaty 220 Contingent reference to assessors 220 Claims of private persons 221 The indirect claims 221 Eiduiuced rates of insurance 221 Transfer of United States eonunercc to British Hag 221 I'rolongatiou of the war 221 Whether too remote for consideration to be deterudned by the Tribunal 222 M''ws of Mr. Pradier Fodere 222 Cleneral considerations 222 The United States do not desire extreme damages 2'2'.\ The jurisdiction of the question belongs t(» the. Tribunal 221$ Without an adjudication upon it there will not be a full settlement of all dilfereiiees 221 Conclusion 224 NoTK A. — Onsi'.iiVATiONs ON Ckiitain SricciAi, CiMTicis?,[^< IN riir, Biiinsii CouNTKi! Cask ox tiik Cask oi" tiik Un i ri;i) SrATKs 220 1. The British-Foreign Enlistment Acts 220 2. Anu'riean nentralitvin l/iKl-'lM 227 ;i. The United States and Portugal 228 4. Nassau in December, IdOl, and January, ldli2 229 NoTio B.— ExrRAf'T.s vkom VARfOT's DF.nATKS IN THK Pari.iamknt ok Grkat BlMTAlN liKKKliliKI) TO IN TIIK FoHKtiOlNG AlidUMKN T 231' lit 2or> 20") •20t> 2()() 2(»r> 2(i(> 2(10 207 2(IH 2(l!> 21 nt 210 2l(> 210 210 211 212 212 212 212 21 :? 211? 21 r> 215 2ir> 21 r> 2ir> 21.'> 21<> 218 21 -s 218 220 220 220 22(» 221 > 220 220 221 221 221 221 221 222 222 222 22:1 22:? 221 221 22G 22r. 227 228 229 VT 231 CONTENTS. . XI Pnjio. NOTK B.— ExTKAcrs, &(•.— Contiiiiicd. 1. 'J'lif I'orciiiii-Kiilistiiiciir Act (if .Inly :'.. l-li> •»:U 2. Liird Altliorii's luotiDU tV)i tlie n-pt/al nf llif FttiiMj;ii-Hiilistiiu.'iit Act ^;:!l :i. Tlie an'iiir at Tcrcciia 2:! I -I. Tlie Fuivinn-KiilistiiuMit Act of Aiijiust 1>. l~To 2:i() .">. Tlu; Treaty of \VasUiiij;tuii 'j:'.;> NoTi; C. — Mkmokamxm nr ('i)i;i;i'.>ri)Ni.i;N< k am> ]>(irrMi:M-; l.'i.i.viiMi lo TiiK AMi:M)Mi.Ni' (ir iiii: Km.i.i-ii l"i>i;i;i(;\-i;M.i>i mi.n 1 Acr. 18()l-71 242 NOTK D. — CONSIDI'.IIATIOX or Till', CLAIMS AlilSINci I\ IIIK DlSTi; , ( Hi iN of Vi'.ssi.i.s A.\i> I'KKi'KiM V r.v nil: Si;\ r.KAi. ( i;i im:i;> ijl-^ Detailed statcnieiits lia\ e lieeii ]iiesiiite(l o.\i^ With tlu! evidence fiiriiisli(d by tlic claimants to sii)>iiort tliem ','18 Tlie I'nited States desire an award of a Mini in <;i()ss on the evi- dence [irescutcd 2H IJritish criticisms on tliis evidence -Jl-^ The answer to such criticisms •Ji;i Injustice of tlie Itiitisli estimates of the salne of the \e>sel.s de- stroyed •.'!;» Trices olitaiiied under forced sahs no criterion 'j.'id Wlialiiiii' and lishimn' vess(ds " •.'.")!) Letter of Mr. t'lapo' 2.M> rrojierfy destroyed 2.'il How }iro\e(l •3'i\ Oil ('V tish destroyed 011 whalers or lishin^- vessels 2.''il 1 Vrsonal etfeets. .' 2.'>2 Claims of insurance eomiiaiiics o.'ii No doiblc claims sn|i]iorted liy t he I ' 11 i ted States •>:)■> Charter-iiarties or fieij;hts ■,'.'.;! Loss of iiidlits '. J.'i:', A part t)f the ilaiiiau'es in act ions in tort 2.">;> ilreaUiiiii ii|) voya;;es of whaliiiii-vessels •,>.■■);! Claims of tlie oflicers ami crews , . 2-'il II. ARCl'MENT 01{ SIMMAUV, S1I()WI\(; Till; I'OIN'IS AND RKFKl.'HINf; TO THE EVIDENCE ]M:LIED IT'ON I'.V THE (it iVEK'NMKN T ( »F \IIAI UKITANNK,' MAJESTY IN ANSWER TO THE CLAIMS Course of proceeding;' to lie follow ed liy the Trili.inal 2."il( Vessels to which the claims of tlu- I 'nited States rclati' 2iiO Nature of llie Ai'j;umeiit on the part of (ireat liritain 2til! The Sumter, Nashville, Talluhassct\ Cliickaiiiaiij;a. and Retrihutioii 2(i;{ The Clarence, Tacotiy, Archer, and Tuscaloosa 2iil The Alaliami'. Florida, Georiria, and Sheiiando.ih 2tll Suhstaiice of eharjics 2(1-1 (leueral principles of International Law in force when the tacts iHciiried.. . 2(1."> The three Utiles of the Treaty of Washiuf^toii 2ti7 Meaniiifj,' of the words " rea.sonublc ffroiuul to believe" 2(iH "Due diliKeiiee"'. 20^ Ihitish law and jiowers of the Executive in (Jreat llritaiu 2(il> Facts wiiicli must bti proved before au award can be made against Grejit Ikituiii 27:? The Florida 27 4 The Alabama 27<; Thv Georuia 2"^ I XII CONTENTS. Alt'W.MKNT l>l' Sl'MMAia . \ I'. — C'ollt illllcd. 'J'lii; Slit'iiainliiali Concliisioii as to tlie Florida, Alal)aiiia, (icuiiiia. and Sliciiaiiiloali (icncral coiirsf |»ursMi'd l)y tlif I>ri\ ish (JoNcnuiii'iit in ii'gard to tlio l■e[ll•t.'^sL'll- t at ions iiiadc liy Mr. Adams (Miarnv that tlif ainiamtMit of ci'itaiii vessels was jtroeiired I'loinCireal Jlritaiu Cliaijie tliar the crews of eeitain vessels were ])aitly eoni[i()se»l of iSiitish siilijeets Cliai'jre as to Confederate Ai^eneies in (ireat Uritain (iirwar ^nrjioses ('oni!)laint that Confeih'rate einisers \ isitiii,;;- Jiritisli [lorts were not seized and iletaiiied .Con!i)laini as to hosjiitalilies aeeorded to Coni'ederate cruisers in Ihitish ]iorts L'eview of the t'.ronnds on a\ liich the (lain is of the I'nited States rest Cliaiactcr of the claims of the I'uiteil States 01)ser\ ation> on the iniu(i|de and nn-asure ol' conqiensation ( 'onclnsion Annkx a. CoMMiNK a rioNs nin wi:i;n Tin; liiiiMsii am> A.mkimc ax (Jov- KliXMKXrS DUIMXG IIIK ClVlI. WaI!, Willi li'l'.l'KIiKXt T. K ) IIIK SrArKoK th;, NKtTi!Ai.irv Laws oi (inivvr liuiTAix AxxKX IJ. I'lM.xc'ii Ti!AXsi,ATH)\ or iiii: TiiitKic Eii.ios ix Aktici.k. \ I or rin: Tin: at v oi A\'asiiix(.tox AxXt.X C. Ii'i;i'ol!T OI' lllK CoM.MlTTKi; A I'l'OlXrKI) liV lIlK liOAl!!) Ol' Ti;a;)i; Cla-isA ChlfS I] Cla»C (lass 1) (lass K. 1 Correction and cunil)ination ot' allowances Summary I. As to the vessels and out fits II. As to freijihts and earniiij;s III. As to the car;m>es 1\'. A> to claims lor damages and ]iersona] efteets \". Kcsnlt '. Note> Tahle No. 1. showing' proeressivo increast^ in the amount of claims for losscji iiuurred throu,^li tin; respective cruisers as stated at dif- ferent jn'iiods Tahle No. '2. showing;- the result of tlu' ciu'rections and re-ai»i)ro]Mia- tions of the claims and the corresjiondiiin' all(nvan<-cs in summa- ries Nos. 1. '■>, and o, of I'irst Keport, in accordanco with remarks in j>resent Reiiort Tahh; No. :i. Showing, under respective divisions of classes, intoest. and cruisers, the claims advanced under the Kevised Statement, to^iether with the .lUowances to meet them Table No. 4. Showing' the \essels ca[)tured hy the Alahama. the \t\hi- ation the cajitors ]ilaced on each vessel, the allowance deemed ad- eiiuate tor each. iV c Axm:\ I>. FrnTiiKi! Notk ox 1111; C^i.ai.m I'IM'skxtki) itv thi: OoVEiix- Mi'.xr OK Tilt; I'xiiiri) ,Stati:s roi; K\i>r.xiUTt'i!i; Aii.Ktiri) ro iiavi; itKKx ix( I i!i!i'.i> in iTir, rriisrii and ('Ai-Trin; oi' Coxikdi.katk Ciais- Ki.'s. Eii'oi;ts maki: T(» cAiTriti. Coxit;ih;i;aik Ci!Itsi-,1!s Alahama Flori eases \ander'.iilt San .lav '.nto Aujiusta 1 ).'icotah Nia :5:'.o ;?:v- :?:!;• ■MO ■MO •Ml ■M2 ■m:) :!Ui ■MS :;."() :{,->4 :!.'.(; :{.v.» :!(iii :t(i-.i :{():{ :!ti:5 :!ii4 :{ii4 ;!(i4 :!(i4 :{().-. :5-o OS,-) •J'.ll I •MA :'.(i4 -.'.nl :io: •.ur) ;iv!l -.i-iC) '.V.iO :v.v,> ;v.«) :',:«> :5:!;t :M0 ;'.4i :,\-2 ■m:, :!Ui •348 :?r.4 :!.v.t •.!i;4 :'>('>4 :«; » ;}70 CONTENTS. Xlir iir. 81TPLEA[1:NTAUY .STAri:.MK\TS OR AlMl'MKN IS MADH I'.V TilK RK- si'KCTivE a(;hnts (>i; coinsiil sri!si:(^»ri:MLv to filinc; tiu; AUUUMENT.S ACC'OKDIM; to Tin: I'liOVI.SlONS OF I'llE TKEATV. Til?;*-. I.— Statkmknt <>i' Sii! li'oixnr.i.i, T'ai.mi;!!, madi: \v iiii: Sr.vKNTii C'o\- 1 KItK.SCK, DX Tlir. ViTTH JiNi;. 1^7"i IC) I'oiiits 1I1I011 which he desires fiirtlier iirj;iiinenr '.M'y II. — Kki'lv or TiiK C'(HNsi;r, of tiik I'Nm-.ii Staiks in K'K^roxsK to tiik roi!i;(;oiNii Stati:.mi:m- or Siii IioiXDi.i.i, rAi..Mi:i: :?7() Koason.s Avhy riiither arguiiieiit shouhl not he ordered iit this stage of the i»i'ocee(linu;s '.'.T*) 111. — Aiicr.MK.NT or 8n: IJoindkll 1'ai.mi.i: on ttu: Qikstion of '"Di i: Dir.KiKNtF."' ■•Tiik Effkct of Commi. -^ions irox tiik I\s(I!gknt Ci;iisKi!s,'- AND "Tiik .Sifi'i.iks of Ct)AL to sixn Culiskus in J5i;iiisii I'ouTs"' :3«r) 1 . Oil the (iiKytinii of Ihie J)iliii^7 J'.t'fect of prohibitory nnuiieiiial hiws tJ-'H Tlie three Utiles of tln! Treaty of Washin,!j,ton :5^'.> (u'ueral i»riiiciitles for fiiidiiij;' what dilin'iMiee is due ti'.XJ 'i'lu' iiiaxiiiis cited by the 1,'iiited States from Sir R. rhilleiiKne ;UM) For what purposes Great IJrituiu refers to her niiuiieii)al laws. . 'MA Doctrine of Teteiis MA Iiiliiiciice upon the .(iiestion of dili,nenee of the ditVerent forms of National (ioverunients ?>9\ Ctbjeetions to any tlieory of the diliu'eiiee iliio from iieiilial (iov- einmeiits which involves a universal hypothesis of arbitrary power ;5'.'4 Ari;uni(.'iit of the United States as to tin.' nceessity of a reliance on prerogati\e 395 Aijiumeiit as to preroj^ative powers belonging to tlie Jhitish Crown 3',C> True (U)ctrine as to powers of th(! Crowj,i '.'■'.•7 American view of an « ^/it'i/'/ obligation '.'>'.'d The Uritisli Crown has power to usi; the forces of the realm to stop acts of war within British territority 3'JD The assertion that (ireat JUitaiii relies on imnitive ami lujt preventive law disproved 4l Baiiiit IltamweU's view of the inici national as distinct from municipal oblioution aniecd with tiiatol'the Aniciicaii Attor- ney-Cieiieral in' l-ll...' , 4"ii (!)!! the arguments as to due diligeiu'c ileii\ cd l:y tlie rnited States I'ltuii Ibreigu laws 40'i On the comparison made by the I'tiited Stali> luiweeit their own laws and British laws l(ir> Examinat iiui ot' the; )ire\ cnt i ve powci s of the Auieiican < ioN ei ti- meiit under their acts ot'Coiis^fess tor Ihe pn-seival ion ol'iicu- trality Hi-') Testimonies of Mr. licmis and Mr. Seward on this suliject I"!) Aigument from the Fcueign-Enlistment Act of l>7n 40*) Illustrations ot' the doctrine of due diligence Irom the history of the Fnited States '.. '. 410 Arguments of the rnited States from sugge>ted det'ects in the administratiM! machinery ot' British law, and from the evi- roper i.il'ni'iiiation and to ))ievent breaelies (d" the law II,: XIV CONTEXTS. Vago. III. — AiiiiiMKNi or Sii; IJiirNOii.i. r.vr.:\n;i!— Continiit'il. 'Jliry tolliiwfil lip all iiiluniiiitioii it'ctht'd l>y iirttpci' iiKjiiirit's. -ll;> NiLcssity ami iHDinii'ty ul" ^slM.•kil)J;• fviilencc from those avIio <;iv(' inroriiiai ion 415 Ml . .Icllfi son's IctttT of Sc]itfnilicr o. 17ii;> .115 Oiins iiii)>os('(l on Hritisli t ions i Otlier ant iiori tics 4-,'- The IJnle cannot reiiniic an act wrongful liy iiiti-rnatiomil law 4'i'.) Tiicic is no iiile oliliging ;i neiilial to exclude from his ports ships of tiiis dcsci ijition 4o0 In any view the latter part tif liul" 1 cannot iipiily to the Georgia or the' Sjieiiand'iah \ 4:{il Tile distinction >i4ggest il liy the I'liited States het ween ships of war of iccogni/ed nation- and si.:,. s of a non-recognized State 4IU All the s]ii]is in :! JJoth jiarties in Ihe wa;' ei|na!ly recei\ ed such supplies 41!:! Such sit). plies arc not witliin tlie rule as to not using neutral terri- tory as a hase ol' operations 415)? A^"llat is meant l>y I lie words "a hase of iia\al operations" 4;U ^^ hat is not meant hy tlioso words 4I55 ('onse'|iiences of a lax use of the jihrase 4;)5 Kfl'ect iiiiigton's niles nnd other authorities 4:i(i Acts of Congicss (')f ITIU and I-IS 4:iti l!riti.-h Foreign-Knlistmeiit Act of l-l'.l 4:?ti I'ni\ crsal nndcistanding and practice 4:57 Intention of tlie se((ind IJiile of the Treaty on this poiMt 4:57 ]>iiti>li rigiila lions -115 415 410 4-iO 4'>2 4'i;? \->\ 4-J4 424 4-25 420 421) 4'>ti 4->r 4'2~ 4-J~ 4-i'J 4:50 431 1 4;u 4:?-J 4:'.:! 4;53 4:?4 4:55 4:55 4:?5 4:55 4 ".Hi 4:?(i 4:?i) , 4:57 4:?7 4;iT of ii'o 43^< 4'3'.i 440 441 CONTENTS. XV l\. — Ai:(irMi;.Nr ui ?tli!, K\Ai;rs, iVc — Continued. Due .lili-vncf 44:? 'J'lic lilies i.f tlic Tiiiity till' law of this Case 44:$ Sir IM'iilnn'r's nttt/nipt to (lisi)aia,i;t' flit; h'nlcs cxiiniiniil 44:i How far tlic 'I'rilmnal may icsurt to tlic IJnk's of International Law. .. 41(1 Sir II. I'almei'.s inineiples for thf coustruetion of Treaties examined 44(i l^lleet of a eomniission 44H I'nited States eonstnntion of the i'".st Kale 44s Klfeel of tile words "reasonable ground to believe '' 45(1 'i'he rules of law respeetinj;' the ell'eet of a eoiiiniission 451 Kxteiit of the ri,i;ht of exterritoriality <;ranted to shijjs of war 451 lieeo,i;nition of belligerency not a recoj;nition of sovereignty 452 Ai>idieation of the ]iriii(iiileH 452 Acts done in violation of neutrality are hostile acts 454 The neiitial wliost; neutrality has be(Mi violated is under no obligation of comity to the violator 455 Authorities to show that the eonstnietion in neutral teriittn'ies of a ship intended to carry on war against a belligerent is forbidden by the law of nations , 455 The ai)pli(aliility ol' liie rnhf to the (Jeorgia and tlic Shenandoah 45-! Till' (iiieNtion of coaling is a branch of tiie greater question of the use of liritisli ports as bases of hostile oiieratifuis 45S 'I'jie doctrine ol' asylum considered 45!t Analogy lietween the duties of a neutral on land and his duties at sea.. 45'.) laniitation of the right of commercial dealings in contraband of war.. lOH I'se of a neutral ])ort as a base of hostile opeiatioiis ; what it is 400 In the case ot the Xashvilh; 401 In the case ot the SlKMiandoah 4('>2 The f|nestion of the use, of the neutral i)ort as a base of hostile ojieia- tions being established, there remains tiie iiujuiry whether the neutral tlid Ol' did not exercise due diligence to prevent it 404 Such proc('edings ait^ not mere dealings in contraband of war 405 SfatenuMit of the Iiiiti>h argument on tiiis i)oint 40'.) The arming and e(|uiiiping the cruisers forbidden by the law of nations. . 471 They should therefore' lia\ o been disarmed when thev came anaiu within ' liritish ])orts '. ', 472 The construction of the IJiiles of the Treaty 472 Keview of Sir K. raliuer's criticisms upon the Argument of the United States 473 The prerogative of the Crown 474 I'reventivi; and punitive jiowers of each tioverumeiit 477 The failure of (in.'it Kritain to originate investigations or proceedings.. 47".) The due diligence re(|uire»l by the Kules i.s a diligence to i>reveiit a lutstilc act ." 4H1 Conii»aris()ii Ix't ween the statutes of the two nations 4^1 Till.' burden of ju'oot' ,... 4"^2 The Terceira alfair 4'-:5 Conclusion 4-4 V. — AiiiiiMr.M OF Ml!. Cisiii.M; in IIki i.v id riii: Si'Kci.m. Aiaii.Mr.Nr ni' Sii! IvDlNDKI.!. r.U..Mi;ii l-^O Due diligence 4-'7 A theoretical discussion not wanted 4."<7 Mews of Sir IJober^ riiillimoiv IS'.) Mews of Sir Koundell rainier in the case of Lairds' rams 4',ll De tin it ion of due diligence I',t4 Towers of the (hown 4'J5 Obligations inijiosed !)y international law as distingiii.shed from muni- cipal law 4'.tO Constitutional form of the liritish Government 41)0 Case of the IJussian ships lOi) Comparative laws of other countries 5(ll The laws of the I'liited States examined , 504 Jurisdiction of the Tribunal 50.:^ VI.— Hi:iTA' or Mw. W.\ni: to iiik Ait(ir:Mi;\T oi' Sut 1iihni)i:i.i, rAi.MKU ri'ox tin: SricTM, (j)i i:stiux \s t<» Sii'I'I.iks ok Coai. i.\ IJitnisii I'oiJT.s TO Com i.DKWATr. Siirrs 51:5 A base of operations essential to naval warfare 5i:$ \Vliat it is 513 ■ I XVI CONTEXTS. VI.— Kri'i.v or M::. Waiii:, iSlC— C'diitimu'd. It slidiild iH)t 1)1' ill lieu trill tcriitdiy r>l:{ Tlic iiisnif.'-t'iits liiid IK) siu'li biisc witliiii tlu'ir u\\ ii i.iritory .">I 4 (irciit liiitiiiii knew I his 'AX Till! ii(lviiiitiii;('.s of tlicsf i'iicts to tlm I 'nit I'd .States oil I'^liorts ot' tlic iiisiiri;ciits to obtiiiii liasL's of ojid'at ions in iiciitnil terri- tory r)ir> Toleration of use ciniivalciit to pcnnissioii .')!.'> Toli'iatioii iniiilics kuowlcil^^c ol"* (Jrcat iiritaiii liatl icasonalilo ^^roiiinl to hclicvc that tin; iiisiiri;ciits in- tfiitlcd to use its ]t()it,s .M," Their cirectivc vessels of war (.'aiiie from Gieut ISiitaiii r>ir) When obtained tliey Aven; nseless without abase of o]ierations ')l(\ Tiiey niij^lit have been cxeliideil from ISritish ports old This would have iirevcnted tins injuries which followed T l() T'he United States leqnested Great JJritain to jirevent this aljiiso of its territory olT firt at liiitaiii refused to prevent it olT Great JUitaiii eiieoiira.eed the nse of its ])orts by the iiisiirj^ents for re- ]);urs and for ol)tainiiij;' jiro visions and eoal ."1- All this constituted a violation of neiitralitv which entailed responsi- bility ; .'.lit ^■II.— AiKif.Mic.NT Of Sii; liotNDKi.i, I'.u.MKi; ().\ Till: <^ri;sTiM.\ of tim: Kk- Clinr.MKNT ()!■' ilK.N lOi; TIIK SlIK.NANDOAIl AT Mr.l.llOfliM: .V^(t VIII. — OliSKKVATIONS AI)I)l!KSSi;i) TO THK TlMIilNAI, liY .Ml!. ('iSllINt;, JN Till: XAMK OF Tin; Cor.NSFi, of tmf UNirFD Si Ai i:>. ON niK 21sr Aiiii sr, ls7:), AN'I) MfM01!AMMM AS TOTIIK K.M.IST.M FN rs Foil tllF SlI F.\ A.NDOAIl XV MfF,- lioriJM-: .")."•,» IX. — AiMir.MFXT OF Sii; Ii'oindfi.i. I'ai.mki: o\ iiif Si'KciAr, (j)ifsiio,\ as to riii': Li:(iAi, Kimixt oi- tiif i'..\ii!an( i; of riii; Fi.oniDA inio itik four of Molill.F, Oi: TIIF. UKsI'ONSlIiU.ITV, IF ANV, OI tJliFVT JiltlTAIN FOI! THAT SIIII'.. T)Al X. — JvKl'LV OF Tin; COINSFL OF TIIF U.NUFI) StATFS to TlIK AlKilMKNT OF IIkI! lilUTANXIC Ma.IFSTV's C'OrXSEI- ox TIIF, Sri.tTAI, rFSTION OF TIIF LF(iAr- Ef- I'FC T, IF ANV, OF THK T.XTliY OF TIIF Fl.OllIDA IXTO TIIF I'OltT OF Mol'.II.F, AFTFl! FFAVIXG Tin; IJAllAAtAS, AXl) liKFOKF MAKlXCi AXV CAI'TfltFS '\H\ XI. — AlIIHMFNT OF Sll! KofXDKI.t, PaI.MFI! OX TIIF C'l.AI.M OF TilF I'XITKD SlA tFS F01{ InTFHKST I5Y WAY OF DAMAiiFS ,"iO XII. — liFl'I.V OX TIIF V\KV OF TIIF I'.XITFl) STA IF < TO Til F AlJdlMFNT OF IlFI! Jil.'ITAXXIC MA.n.stY's CofXSFF OX TIIF Al.l.OWAXCF OF IXTFUFST IX 'IIIF COM- ITTATIOX OF IXliFMXrrY FX I )Flt 111 F TllFA lY OF "W'ASIlFNMiTOX ."jO- XIJI. — (,'oMi'AiiAiTVF Taiu.fs i'i;i:si;xrFi) nv riiF A(;Fxr of iiif Uxitfd STAri;s ON TllF r.lTIl OF AllilST, l^T'i, IX CO.MI'I.IAXn ■ . . > .-,14 . . . - nij .'iri- "iiV- r.i.-» .M," r.ir, r.ir, . ■ - • -)!(; - . . - ru; f its r.17 r.i7 • " * ■ ' le- - - - . r.i-i )lisi- « • • .-.i',» Kk- . . . • :>•:>( t Tin; ^T-i, li:r,- . . . . .■).-•,» -• TO [■ OF 11'.. r.-ii 11 1:1: Ei-- TKI! ... r.if> TI',I> ,",(( :ii;i: OM- • . . > TiCi vri:s ■JIIK ...» 57',. riii: s.Vf,. GIO ll!(t- iirH 1 1 1 1: - - - . (ii;;; s ((X .... r,.".- X. ARGUMENT OP THE UI^ITED STATES DKI.lVKIiEO TO THE TRIBUNAL OF ARBITRATION AT ( r E N E V A JUN E 1 5 18 7 3 Ic A\ e have the honor, sir, to be your obedient servants C. CUSHING. ^YM. M. EVARTS. M. 11. WAITE. J. C. IJA^x'ROFT Davis, Esq., Agetit of the United States. * r ' i A 11 G U M E N T ■INTIIOJJLXTION. r>y tlic fifth article of tlio troaty of "Wasliiii^ton, it is proviiU'd that, " it shall be the duty of the aj;ent of each party, within two a,„„„,„i „,.„.„,. months after the expiration of the time limited for the de- ;,V,v,'rH;'„T';''r '.,"','. v livery of the counter case on both sides, to deliver in dupli- "' ^^'"'"'«"" cate to each of the said arbitrators and to the ajjent of the other ]>arty a written or printed ar<;uuient, showing- the points and referrinj>- to the evidence upon whidi his government relies." The undersigned have had the honor to receive the instructions of the (rovej-nment of the United States to prepare, anermitted,Avitli some advantage to the correct understanding of the precise service whicii we hope to be able to render to the arbitrators, in the discharge of the arduous and responsible duty which they have undertaken, to point out the character and extent of the discussions on the i)art of the two contending nations, which have already been laid before the tribunal. In tlu* ('ase of the (_lovernment of the United States and in that of Her liritannic ^[ajesty's goveinnient, delivered to the tri- bunal on the tWteenth day of December las^, are carefully set forth, in consitleral>le fullness of detail, the itrin(!i; matters of historical I'act, of legal i)ro])osition, and of supporting evidence and authorities, vt'hich make up tiu> body of the controversy submitted to the judgujcnt of the tribunal by the high contracting ])arties to tiu' treaty of Washington. Jn the seven vobunes of proofs whicli accom- ])any the (.'ase of the United States, and in the four volumes which iiold a like relation to the Case of (Ireat JJritain, are collected, -with much else that is i^ertinent and important, the documents of the diplomatic treat- ment of the speeilic controversy, from the commencement of the Ameri- can rebellion to the conclusion of the treaty, exhibiting, in the nmst authentic form, the real nature of the differences between the two na tions, as they showed themselves in the immediate presence of the events which gave rise to them. In the (Counter Cases of the two governments, delivered to the tribunal on the lifteenth of April last, the deliberate criticisms of the adverse parties upon the respective original cases have al- ' "" " ready advised the arbitrators wherein there is a substantial concurrence between them in their estimates of the facts and the law of the matter in II." AUOUMKNT OF TIIK UNITKH STATES JudKUioiit, and wluTciiioppositoor qualifying- (►jiiiiioiis are insisted upon, or are reserv(!d (or fuller treatnu'ut in the ar;;iinieiit i>rovided for in tlie liftU article of tlio treaty. The vohnues of i)roofs which hav(^ been pre- sented with the Counter (Jases s(Hini desi<;;ned either to supply what was thouj^ht wanting in the orij^inal exhibition of proofs, or to meet tho(u»n- tentions raised by the respective adverse orij^inal Cases of the two jjov- erninents. It may be assumed, then, that these vohnues of proofs, and the Cases and ('ounterCases of the two j^overnnuMits, not oidy present .M.'r,or!r."n' '.H.w iill thc uiaterials necessary or useful for the comi»leto intel- lifjence and. just determination of this ffieat controversy by the tribunal, but have, in a {jfreat measure, reduce«l the dis[>utation be- tween the i)arties and the rcsi)on.sible deliberations of the arbitrators within some«letinit(! ami established limits. To ascertain these limits ami verify them to the approval of the tri- bunal, and to conline the subsecpient discussion rij^idly within them, we venture to think should be a leadiuf;' juirposo of this arj^uinent. Jf that purpose shall be successfully adhered to, and if we shall be able to array in a candid tem])er and with circumspect and comprehensive ]>ertinency, the considerations that shouhl control the adjudication of this tribunal U])on the issues thus raised for its solution, we may hope to render, in aid of the deliberations of the arbitrators, in some dej^ree, the service which it was the object of the lifth article of the treaty to i)rovide. If, liowever, we should have the mislbrtune to fail in our estimate of the true points of the controversy, or in our eiforts to meet them, as they shall present themselves to the greater learning and intelligence of the tribunal, such error or misconcei)tion will not be remediless. The arbitrators may at any time before their deliberations are closed, " if they desire further elucidation with regard to any point, require a writ- ten or i)rinted statement or argunu'ut, or oral argument by counsel upon it." ^^ ith any such requirement it will be, at all times and in any form, both our duty and our jtleasurci to comi»ly, and we shall hold our- selves in readiness to attend upon the wishes of the arbitrators in this regard. II.-TIIK ('ONTI(il\ EKSY SLUnilTTI'D TO AllHITRATION. Thr couiist'l ot' the United States, in inopoiindiii;; to this iuif^iist tri- Imiiiil the k)ican«l its ;;:;^ ,,,.;:;;,'.',:,';'',;;,'' award to «h't<'rniinc, hav«' no occasion to t'col tliat the (!eh'- •" '"I'l" i "> hrated pnblicists wiio represent tlio frien;reat arbitration ar«^ less instructed, aheady, in tiie p'lieral char- acter and history of the public! transa(!tions which are to form tlie jiround-worlc of the; arj;uin(Mit, tlian th ^ (Muinent |>nbli(! s(>rvants of the contendinji' parties, wlio arcs Joined with thetn in the composition of the tribunal. If the i»ublicity anht rele- vant to the discussion of the princii>al and coUateral issues, to whi<'h the jud}j;ment of th»' tribunal will need to be applied. In pursuinj"', therefoi'e, our immediate i)urpose of attracting the attention of the tri- bunal to the elements of the controversy arising between the two na- tions, upon the actua' events which gave it birth, iuid as it has been shaped for the investigation and devermination of tin; tril)unal by the contending parties in the treaty by which its jurisdiction is createil, we shall have occasion to consider no matters whic^h are either ol>scure or disjui able, and none which may not btj drawn with the same conlidenoe from the documents laid before the tribunal by (Ireat Britain, as from thos(^ jncsented by vhe United States. I. VVhen the great so(;ial and politi(!al intt'rests developed by the in- stitution of slavery, as it existed in the United States, (rar- ried the popular agitations beyond the bounds of obe- dience to the laws and loyalty to the Government of the United States, as set forth in Tart II of the Case of (Ireat Britain and Part ll.of the Case of the United States, it was ,;.:,„;;;;;;'. not long before a great population occupying a large terri- tory was drawn into au arnu'd insurrection, and, as a next step, pushed iuto a military rebellion against the authority of the (lovernment. The strength and nu'uace of the attempted revolt soon grew to such projtor- tions that the (lovernment had recourse, in dealing with these rebellious hostilities urged against it, to its undoubted right of superadding to its l>eaceful authoritj^ of sovereignty the exercise of belligerent powers. It met the military array of tlu; lebellion with the loyal forces of the na- tion, ami used all the means for its sui»pression winch the wealth, the courage, and the patriotism of the people placed at its disposal. Itself a great maritime power, both in naval strength and commercial pros- perity, the resources of the rebellion included neither. The Govern- ment, by prompt, adecpi ite, and successfid exhibition of its naval strength, shut ui) tlu^ wii« e sea-board of the territory in rebellion by a blockade, and was procet dug to cut it ott' from all opportunity of es- In *'npr"''''»'.iria nri u nii'd JM-urrt'. ticm till' I'rnlr.l S(al< s I'Xfri-iifd bf!li«» rent ipuwcrf", :iiid prrvcril- ed Insiuyciils lr<>i[l rryiUK on riiartt itn** I tlu'tr uwri ■^H 8 ARGIMKNT OF TIIK I'MTKI) STATKS. i.i,'(ti«'-»Ji«n.t*.l. (Mil lirtlwtti^ no p;n tiiT* Ifl-vflitliiH ..tl.i-r iti.v<' •■ M.M.tr.ihl> tablif^liin,!; I'oreiyii commerce, or niaintaiiiiii,u maritime lio.stilities, from its own resources. 11. The principles of the law of nations recojiiii/i; this necessity which the vif>()r ami magnitude of rebel hostilities may imjjose upon tlie government of a. nation, and attiibute to a resort to its biiligerent powers, in suclicase, no conscjpienccs affect- ing the attitude toward each other of the i)arties to these liostilities. Other nations are, manifestly, no parties to the confliet, and cannot be- come such parties, unless by choice, whicli is inferrention, or by the en- largement of the theater of hostilities, or their actual course, forcing upon their notice such questions as specilically arise for solution. The effect of inienrntion is unetpiivocal. If attempted in aid of the belligerent sovereign, but without his request, it isofTicions, and may be unwelcome. If in aid of the rebels, against the so\ereign,it is an espousal of Iheircause, and an act of war against the belligerent sovereign. In such a case, no situation of ncntml- it II arises. lint, if a nation abstains fiom intervention in tlu'coidlict between a 1, ,.an,.nir„.i„. sovcicigu uatiou and its rebels, it is inaccurate to treat this 'h,,rl-'bti.'!ii^'.' '" ' ohxiiiunce as neutmlit!/. It is sim]>ly an uid)roken mainte- nance of the international relations which subsisted between the two l)0\vi'is before the domestic peace of one of them suffered disturbance. It wctuld sluK k the moral sense of civilization to speak of the United {States as standing natiyiil between (ireat IJritain and tiie Sepoy rebel- lion in India, or of (ireat Ibitain as stamling neutral between tlie com- mune of I'aris and the govermnent of France. lUit, when the actual hostilities in which a government is engaged, in the sup])r»'ssion of a rebellion, encroach upon the estab- lished relations between it and friendly powers, the latter have presented to them tlie(piestion whether they w '11, each for itself, ac(|uiesce in the exercise of belligerent ])owers, as '""" sought to be made effective against the rebels, at the cost of intefeieiu'e with the peact'ful rights of commerce and intercourso which subsisted before the nation was bi'ought into this stress by its domestic rebellion. Ibit this (juestion, under the rules governing the subject inthenmdern law ol' nations, <'an have but oueanswei'. The nation which has sui)eradded belligerent rights to those of sovereignty, is entitleil so to do, and resistance by other nations to the fair couse- (lueiu'es of such rights n]»on their interests, is a violation <»f the law of mitions, and an unjust inti'rvention in the domestic coullict. In regard to the hostilities ju'osecuted against the sovereign by the lebel. if they shoTdower thus attected w ill determine for itself bow it Avill treat this new disturber of its i^eace- fid rights and interests. It has no antvailcnt obligations of friendship, of treaty, or of recognition, even, which compel it to acainst the rebels or esponsiny its cause, but simply in maintenance of its own rij^hts and interests. rndoubtedly, it is competent f<>r other nations upon whose notice the hostilities of rebellion, revolution, or revolt may obtrude themselves, to yield such assent and submission to their exercise, to the disturbance of their own lijihts and to the disi»araf«enient of their own interests, as. under sentiments of justice, fair play, or humanity, they nniy lind an adtMpiate motive for. This couise tends to, and imturally results in. a tacit toler.ition of this violence as in the nature of belli'i'erent power, because it is practiced in that sense and umler that Justification by •' ' .m'''H't'm those who exert it. Thuicd, then, between the contending; "-u"!''. ".ir/C'iivv parties in the attitude of obligatory submission to the bel- i''rul'-" '>"i!','i''' "'.-. ligerent rioht of the sovereiijfn, and of voluntary t )lerance k.i'"v.'i'i«n>',n„ii.'v of the belligerent practices of the rebels, other )iatii)ns fall uv '.''',, 'nVh.r',i i,.V. .gradually into an eipiality and inii)a; fiality in dealin;; with the rightful belligerent i>ower and the dc J'acto l)elligerent force, which assimilates itself to the sfatKs which, betwei'U two rightful belligerent powers, is called, in the law of nations, neutniJitif. This i)rincii>le of jmblic law, which we here insist nixni, that is to say, the yif/ht of i\ sovereign engaged in the suppression of rebel- timsi.,,,,,!,.!,. >.-, lion, to sui)eradd belligerent ])Owers to its resources of >r,T'.'''''.r'7,r''m"' l)eacefid authority m d(»aling with the hostilities urged " " against it, and to exjject from other nations an accei>tance of the situa- tion, as towiird the sovereign so engaged, with the same consecpuMices to themselves as if the sanu', belligerent i)owers wei'e ])ut forth in sol- emn war, had been delinitely held by the Suprenu' ('ourt (»f the rnired States in a celebrated judgment i)ronounc( . by Chief dustice .Alarshall in the ease of Kose r. Ilinn^ly, in tln^ year ISO,"'. The case arose upon the exercise of belligerent ])Owers by I-'rance in attempting to reduce the revolt of the ishunl of San J)omingo, and is reported in I ('ranch, iSnp. Ct. ]{ej).. p. L'41.) It was only necessary, therefore, for the infe- I'ior <'ourts of the ITnited States, and for the Supreme C'oui't on tinal ap])eal, in establishing this in'inci[)le of public law in its o])eration upon other natio'is, when the I'liited St;res were exercising 1>e!ligerent l>o",vers ill supi)ression of their domestic rebellion, to follow the reason and authority which had been accepted, as a ruh^ of the law of nations, in this early case. \\\' i-efer to the Judgment in tiie ''prize causes." rejjoiled in 1' I'dack's Sup. Ct. liep., p. (».'>."). III. The only notal)le instances, before the rebellion in the United States. peih,ii>s the oiili/ iiistances, in which friendly nations r,.M..,., ..-im,,.- have been placed by this obligatoiy recognition of belliger- """"'"• cut rights in the sovereign, and voluntary tolerance of belligerent powers in rebels, in an attirude assimilated to neutrality, have been where the c(»ntiict was of subject states seeking to recover their free- dom, or between revolted colonies ami llni mother country, where in- dt'pendence in position, in bounchiries, in inten'sts, in population, and in destiny, already existing, in fact the only tie which rennuned to bo Slavered was that of political sovereignty, and the severance^ of that tie was the ordy motive, object, operation, and expected result of the re- volt. In sjudi cases, the tendency on the part of othcrnations to adopt a practical neutrality is greatly prompted and facilitated by the polit- ical nature of tlie contlict, and the further consideration that the inter- vening seas, the common possession of all nations, are, necessarily, 10 ARGUMENT OF TJIE I'MTED STATES. liiinatK't. incliuk'd in the tlieater of tlie uar, and iimst l>('<'<>nie, nioio or less, tlio tbeator of actual hostilitios. I'loni sucli <'onHicts, every IVatniiMtf do- mestic or intestine lebellion is ;ublic judj>- ment of other nations, and, scarcely later, to the contending parties, and thus, by the }>rogress of the conflict, a habit of i)ractical neutrality is easily establishe- inconsistent with n..iia.M,„.n„w.r- the princii)les we liave insisted upon. The allowance by I'ml^.'" Mfh'": tliVh'.- other nations of bellij^enMit methods to the sovereign, is "'"''■'"""""" obligatory, systematic, and as his right. The allowance of them to the rebels is voluntary, pro re iialtl always, and ot sutferance. IV. In the lirst moments of the contlicit, and when its conliiieinent, as a domestic rebellion, within the territoiy of the United ^niTlirtiH ..."'.l!; States, was successfully engaging the attention and the liniim, w,i. !;V,M"-r- uaval strength of the (Jovernment, tJreat Britain inter- vened, and assumed, by an a(;t of sovereignty, exercised by the royal i)rerogative of the Crown as the re])resentative of the nation in its foreign relations, to exalt the rebel hostilities to the same level with the l)elligerent rights of the United States in their sup))ression, ami to place itself in the same attitude in reference to the conllict, as if it were a i)ublic war wage«l by two nations in their sovereign right, towards whom, under (he law of nations, (Ireat IJiitain was under equal obligations, independent of any choice, to respect their belligerent operations and nuiintain neutrality. The circumstances undei' which this celebrated jn'oclamation of tin-! . Our i)resi'iit purpose in reli'rring to it is, merely, as being the lirst ste)) taken byCreut I'ritain in its relations to the conflict in tlie C lited States, which, as th. y showed themselves throughout its <;ourse, and have formed the subj«'ct of di[»lom;;tic cor- respondence between the two governments, and, finally, of the first eleven articles of th«> treaty of Washington, have given rise to the contentions between (Ireat Hritain and the United States which are submitti'd to this tribunal. It is r.;;!y in its bearings upon these issues that we now comment ui)on its (character ami e(»nse([uences, interpreted by the law of nations, as exhibited in the actual events that fol- lowed it. (a.) This proclannition, issued in London on tlie UJth of ^lay, 1riiieiples of llie law ol' nations, ai»plicable to the new situation, which we have already insisted upon. {('.) It had ii<» Justilieatioii in the public acts by which nations an- ,, nounce to their people and to the world their sovereign purpose to take i)art in, or to hohl aloof from^ a public war ll:i.l nil J tHill. t'ss, tlie V. oi (lo- dissiiii- Tors of c ju(lj>- parties, iitiiility 'nt with nice by •oij^n, is auee of IV'iance. iieiiieiit, IJiiitetl 111(1 the in iiitei- I'ised by e nation me level nvssion, iet, as if ;ii riji'lit, s niulei" Ilij»('ient )U of tin": t nation «X within ami the 11 of the e of Her ins to it vlations uiselves i'.tic cor- the hist ^ to the lieh are e issues •ipreted hat fol- ;iy, l.SC.l, ■»'(»f any liostili- ■ »li;^nity »iu'rty or itioiis of lixcd by iieral as iplieable Itions an- lovi'iei^n liblie war CONTR(3VER8Y SI BMITTED TO AKBITRATION. 11 Ami .h:.Mt!.Ml tht v.-.ii (.r.-at llritaii ikI lilt- inxtirKentf. l!H.n.,t upni, til. int nl rartvirifi ou war itii the lii^h .-^fUN. waj^ed between sovereign powers, and thus enable their subjects tocon- lorin their conduct to tlie purpose, thus i)roclaiined,of their {government. The existence of a civil war within the territory of a nation, certainly does not call for a proclamation from other powers that they do not espouxe the vtauseof either party to this domestic strife. ((/.) The intervention of this public a(!t of (Ireat Britain produced certain important changes in the moral and in the legal relations in which its subjects, its commerce, its wealth, all its manifohl resources, if aroused to aetiv<' interference in aid of the rebellion, would stand, in the public opinion of the world, in the municipal jiirisprudence of the realm, and in the doctrines of the law of nations. So long as the rebellion in the United States remained unaccredited with belligerent rights, all maritime warfare in its name would have borne the legal chara(!ter of piratical violence and robbei'y. It would have been justiciable as such every- Avliere, and punisiiable according to the jurisdiction to which it was made amenable. " With ])rofessed pirates here is no state of peace. Tiiey are the enemies of every country, and at all times ; and, therefore, are universally subject to the extreme rights of war."' (Ld. Stowell, in case of the Le Louis, ii Dods. Adm. Kep., 244, 124(1.) "As every man, by tliti usage of our European nations, is justiciable in the place where the crime is committed, so are pirates, being reputed out of tin protec- tion of all laws and pri\'ileges, to be tried in what parts soever they are taken." " They are outlawed, as I may say, by the laws of all nations, that is, out of the protection of all i)rinces and of all laws whatsoever. Everybody is commissioned, and is to be armed against them, as against rebels and traitors, to subdue and to root them out." "That which is called robbing upon the highway, the same being done upon the water is liiracy." " When this is done upon the sea, without a lawful commission of war or reprisals, it is downright piracy.'' (Sir Lionel Jenkins, as cited in 1 I'hill. Int. Law, §§ 3r)(;, ;{5S.) The interposition of the (^.ueen's I)roelamatioii relieved from the terrible ])roscription, pursuit, and pun- ishment thus denounced, all who should take the seas in aid of the rebellion against the United States, and exposed them, at the worst, to the municipal penalties of the foreign-enlistment act, or the late of l>risoners of war. So, too, all commercial contracts, including the raising of money by loan, the building or tittiug of vessels, the .sale of arms or munitions or other supplies in aid of insurrection or domes nm.r'.Vi >Tn". tic rebellion in a foreign state, are absolutely condemned as immoral in the law of England, and are jiroscribed by the courts of justice. {'.') riiill. Int. Law, § LII ; Forsyth Cons. Law, ]»p. L'.'id-T.) The effect of tlie (Queen's proclamation was to relieve all such <;ontracts in aid of the resources of the rebellion from this pioscription for immo rality, which, otherwise, the law of lOngland a|)pli<'(l to them. V. This public act of the government of (ireat lUitain, of such [)ro- found import in its bearing upon tlie contlict which the United States were addressing tiiemselves to, ojiened to the minds of the Uritish i)eoi)le entirely new relations, moral, political, and legal, with the ])eiiding hostiliti«'s, and was Ibllowed by an active, constant, and systematic contribution IVom tln'ir inexhaustible linancial and commercial resources, in supply of the deliciencies of the rebels, and in reduction of the disparity of streng h between them and their Clovernment. The methods and the results, in their iiatiiie and magnitude, of this participation of the people of (ireat Uritain in the II iv.sliilliiwi-il liv l-VrlltllH( ir Mllllnltll- llKII-* Ml illil Ut" ttlh- I1IHUIK'-Ilt>. ' "■ ■^^ 12 ARGJ'MKNT OF THK rNITEl) STATES. tlomo.stit' contlict \vlii(;h rn^ed in the IJniti'd Stat«'S, are inesented to the notice «)f the trihinial in the Case of the United States, are attempted to be qualitied or jnstitied in the Case aiMl Connter Case of Iler IJritannii* Majesty, and are disphiyed in the vohinies of evidence submitted in support of the opposite contentions of the parties !)efore the arbitrators. They were the sul>Jects of contemporaneous correspondence between the two govern niejits, in detail, at every sU\<^v of their occurrence, and, since tlie suppression of the rebellion, the adverse views of the govern- nients concernin<;" them, by the fortunate lesult of a lon<>, a ilillicult, and an hoiU)rablc and amicable course of nei^otiation, have been put in the way to a final settlement by the Judi^iutMit and award of this tribu- nal. It only remains for us, under this division of the ar.uinnent, to diree. the attention of the arbitrators to the situation in which the }?ov- eriiinents of Clreat JJritain an«l the United States stood toward each other, and to the subjects of ditl'erence between them, at the close of the domestic hostilities in connection with which they liad arisen, and to the disposition of those «Iitlerences souj^ht to be accomplished by the treaty of Washington and the fri<'ndly deliberations of the arbitrators. VI. The United States, uotwithstaiiding the ineompetency of the re- sources of the rebellion in these regards, and the adequate <.,i!w.^i"'Vr."''„' iM>wer ami success (►t the (iovernment in suppressing any such ettbits, suffered during the contlict, in a very gi'cat «le- gree, the injuries which can oidy be iuHicted by hostile connnerec! and niaritinu' warfare. \u the three forms which make up the struggles of liiaritime war, foreign trade in contraband, violation of blockade, and ])ri/.e capture, the United States were seriously vexed throughout their <'oiiiliet. although they were engaged with an adversary whi(^h had no cninmerce. could build, eipiij), arm, or man no ships, kei)t c;ien rio ports, CDiild furnish no convoy, olfer or meet no naval battle. l»ring no prize i)[t';(i prti.si'lid or undei- Judicial condemnatictn. J>y these maritime hos- tilities, their immense inival force was kept constantly ocnipied for four years, and Their commercial marine was ]»luiulered, burnt, and driven from the seas. Their carrying trade in the commerce of othei' nations was swept away from them, ami, in their own commerce, placed at a disadvantage in lates of insurance and tVeiglit. in a word, without a maritinu' enemy or a naval war. the United States sullV'red the stress, tlie injuries, and the losses which only imval belligerency could inflict. \'li. Jn looking fur the agencMes and opeiations which had wrought \v!,„i, r.-.uii-.i these disasters, the i)ubli(; history of the hostilities, and luit ?"'" Z'.,rm"r '; li'^!^ the detinite and comprehensive proofs laid before this """■'''""■•'"'•■" tiibnnal, exhibit them as worked out by seluMues and en- ti'rprisesof IJritish (uigin, maintained by Ibitish resources, and ]>laceos- 'pots ol' for the ariiietl hoatili- the an- N:niin' of tlu" iiini'silidict'-aou llilli'il St, It. -I. thors of the wide-reacliin<;' disasters which the nuiritinic propert^y of the United States \vas subjected to. Vlir. A further examination shows, npon definite and une^piivocal evidence, that these powerful and ett'ective contributions of Jiritish aid to the pressing occasions of the rebel war, did ./;:.i!%''-.'u-3Kvi'i! ^ not si)rinf>' from the spontaneous and casual, e of private liKsses and public expenditures, capable of somewhat accurate ascertain- juent and computation. They were also f/encral, (1,) in the burdens upon the commerce of the United States produced by this naval warfare, and of which the enhanced premiums of insurance furnish sonui measure, and (1*,) in the retluction of the meniantile marine of the United States, and the tausfer of its tratle to the liritisli liag, which the public rec(U'ds of its tonnage will disclose. Besides injuries in these forms, the influ- ence of these maritime hostilities upon the conduct, severity, length, and burdens of the war forced upon the Government of the United States, in maintenance of its authority and in suppression of tl"^ rebellion, con- stitute another head of injuries suffered by the United States from the prosecution of these maritime hostilities. In the aggregate, then, these injuries nuike up the body of the grievance w hich the United States have suflered from the incorimration into the rebel strength and war of the aforesaid agencies and operations, contiibuted thereto from the in- terests, the sympathies, and the resources of the people of Great J hi tain. X. Upon a survey of the whole fiehl of the international relations which had been maintained toward it by other friendly ])owers during the severe trials through which it had passed, .i-tn.tm.lt'i ',"""!' the Governmentof the United States found no occasion to oc- cupy itself with any grievance or to lauu>nt any disasters which it had suffered from foreign aid to the strength and persistence of the rebel- lion from any other source than from the action and agency of the piople of Great Britain. If other great powers had followed, at greater or less intervals, the precedent of the governmental act of (Jreat Britain in its proclamation, and issued fornuil declarations in the same sense, these governments had, essentially, kept the action of their sub- jects within the obligations of abstinence from the contest in obedience 14 AROl'MKNT OK THK IMTKl) STATKS. to tlio ro(|uiroiiu'iits of tlic law of iiiitions. Tlic lliiitod StatcM, there- foiT, had 110 duty to tlitMusclvos tiiid their (iitizcus, and noiii', to their position ainoiift' tho nations of tho \voild,and in niaintenancc of Justice ami friendship in the I'uture, which called ii]»on them to assert any rijjjlits or redress any \vron<»s ^•ro\vin.i>' out of tlie conduct toward them of any other j)ower than (Jreat Jiritain. XI. The course of the i)ul>lic corresi)ondenc'' nween the j>()vern- inent« of Oreat Jiritain and the United States, whether coii- MMt'..! Ii,,'"':m'i,,7m. temporaneous with or subsequent to the events to which it related, dis(;losed so wi' redress from (Jreat ISritain, as to jnoduce a situation of the jireatest gravity and dillicnlty. Althouffh it may be con- fidently lioi)ed that the more i^eneral acceptance of the obliresses it, "a nation ])rosecutes its right by force,'' yet nnapiicast'd complaints of tho maf;nitude and severity of those preferred by the United States a,i>ainst Great Jbitain do not easily pass into oblivion witiiout some form of adjudication. Whether or not the resources of international Justice shall ever furnish to nations a compulsory tribunal of reason that will supersede what Lord Bacon calls '-the hij^hest trials of ri,i;ht, when i)rinces and states that acknowl- edfjfe no superior upon earth shall put themsehes ui)oii the Justice of (lod for the decidinjij; of their controversies by such suc(?ess as it shall please llim to fjive on either side," it lias ])roved to be within the com- pass of the public reason and Justice of tin; two i>owerful, enli<;htened, and kindred nations, ])arties to this great controversy, to subtract it from the adjudication of "war, the terrible litis'ation of states." ]>y amicable negotiations which have i)rodu(;ed the treaty of AVashington, the high contracting parties have reduced their dilfereiujes to a formal and detinite expression and description of the claims for satisfaction and indemnity by (ireat Britain wliieh the United Staves insist ui)on, and that nation contests, and have submitted to the award of Ihi; august tribunal the linal determination of the same. The Case of the Uniteil States sets forth the text of tliosi^ articles ol Tiw prov,-„„H .1 tl'c tieaty of Washington which provide for tin* constitu- M''«tm?resV.'ItiM^^^^^^^^^^^ tion of the tribunal of arbitration, and aseert'iin and state M,i.itrai.on. iim subject-matter for its Jurisdietioii, the measure of its powers, and the form and effect of its authorized award. In the full light of the negotiations which led to and attended this consummation, and which are laid before the tribunal, in the Cases and iiroofs of the t)vei"ii- I'tluTcon- > which it tos which tisfiurtion 1, and for |)ro«luce a !jy be coii- • iitions of • two such if>" to the its right everity of not easily or or not nations a rd Jiacon t aeknowl- Jnstice of s it shall L the coni- |ij;litene(l, ibtract it tes." By shinston, a formal tioii and )on, and ^ august rticles ot constitu- md state ue of its n the full iniuatiou, ts of the Tllixin}>' to ^\i of the treaty. I by these [ces that \d States jjrowing en rise ?he only ["ovisions pect that liers aud CONTIJOVKKSV SIHMITTKI) TO ARP.ITIJATIOX. 15 Th" nil.M Ml' tl,i lrr;il.v. 'I'll.' p)n\i-ii)||- i.(" Am. I.- VII. plenipotentiaries to express in a friendly spirit the reiiret lelt by Ifer ^lajesty's jnoveiinnent for the eseapi', uiidci' whatever eircunistauiies, of the Alaltania and otiier vessels fr(>»>' I.ritish ports, and for the depreda- tions coniniitted by these xcssels." Ulton these premises thus recited, and '' in orde* to icMuove and adjust ail comi)Iaints and claims on tiie i)art of the United States, and to i)ro- vide tor the speedy settlement of such (daims," the ()i)erative arranjje- ment to that end jtroeeeds in the arties as rules to ln^ taken as applicable to the case, and l)y such jjrinciples of international law, not inconsistent therewith, as tlie arbitrators shall determine to have been ai)plicable to the case." The article tiien pro- ceeds to give the text of the rules, which it is not n* 'ssary here to re])eat. The only further instruction in regard to the disposition of the mat- ters submitted to arbitration, uiuler the lules prescribed for their determination, is to be found in the seventh article of the treaty, in ils i)r<)vision that '• the said tribunal shall ilrst ;">inted, as a full, ]U'rfect, and final settlement of all the claims herein nefore referred to; ami further engage that every such claim, whether the same nuiy or may iH)t have been presenttd to the notice of, made, preferred, or laid before the tribunal or board, shall, from and after the conclusion of the proceedings of the tribunal or board, be con- KiV''it 111' M\ a\Miid. 16 AitGI'MKNT OF TlIK I'MTKl) STATKS. T^ riif rii(ti»f that ill the hserve, lie law f othi'f isot' vv- iisistA'd thistii- ts com- ic 'Ala- is a na- s<> coni- <;ross," inent of between s tailing line may ule, pre- jniisdic- > contro- lulnct of will lind forever <;e. III.-GEXERAL DISCUSSION OF QUKSTIOXS OF LAW. Ill" liihir.' of (iri'itt. itnt;uit t'> uiatiitaiti iie-ilriilitV' We arrive, now, in secinence of the forejioiiiiL!: exposition of the origin, history, and natnre of the pending controversy between the United States and Great ]jritain,to statement of the reclamations of the Amer- ican (lovernment against the British, comprised in the Treaty of Wash- ington, and explanation of the gronnds of jMiblic law on which those reclamations are founded, and in view of which the United States aslc the judgment of this High Tribunal. The principle of these reclamations is fully set forth in the Case and ( "oiinter Case submitted by the United States. But a summary restatement thereof is necessary here in order to give completeness to the present Argument, so that it shall constitute a con- nected and logical resume of the whole controversy between the two Governments. I. The United States maintain, as matter of fact, that the British Government was guilty of want of due diligence, that is, of culpable negligence, in permitting, or in not preventing, the i .. 't"'! "11;;.;^',','' ' construction, equipment, manning, or arming, of confederate men-of-war or cruisers, in the ports of Great Britain or of the British colonies; that such acts of commission or omission, on the jiart of the British Government, constituted violation of the interna- tional obligations of Great Britain toward the United States, whether she be regarded in the light of the treaty friend of the United States, while the latter were engaged in the suppression of domestic rebellion, or whether in the light of a neutral in relation to two belligerents ; that such absence of due diligence on the part of the British Government led to acts of commission or omission, injurious to the United States, on the part of subordinates, as well as of the ministers themselves ; and tliat thus and therefore Great Britain became responsible to the United States for injuries done to them by the operation of such cruisers of the Confederates. That is to say, to adopt in substance the language of the treaty of Washington, the United States maintain as fact — First, that the British Government did not use due diligence to pre- vent the fitting out, arming, or equipping within its jurisdiction of every vessel which it had reasonable ground to believe was intended to cruise or carry on war against the United States, and also did not use like diligence to prevent the departure from its jurisdiction of every vessel intended to cruise or carry on war as above, such vessel having l»een specially adapted, in whole or in part, within such jurisdiction, to warlike use. Secondly, that the British Government did permit or suffer the Con- federates to make use of its ports or waters as the base of naval opera- tions against the United States, or for the renewal or augmentation of military supi)lies or arms, or the recruitment of men, for the purpose of w^ar against the United States. Thirdly, that the British Government did not exercise due diligence in its own ports and waters, and, as to all i)ersons within its jurisdic- tion, to prevent any violation of its aforesaid obligations and duties as respects the United States. 2 c 18 ARGUMKNT OF THK rNITKl.) STATES. II. The United States furtlier niaintiiin that, it appeariii}; ais fact that Great Britain did fail to fulfill all her duties as afore- .Mitr,r'7r'.'m''M,''h said toward the United States, (Article VII,) thereupon and thereby, in virtue of the Treaty of Washington, and of the express compacts therein contained, (rreat Hritain is bound by reason of her liability arising from such failure (Article X) to pay to the United States a sum, in gross or on assessment, for all the reclamations leferred *o this Tribunal, or such amount or amounts on account of said liability according to the extent thereof as decided by the Tribunal. III. The United States lind, on inspection of the Treaty of Washing- s,«,e of th. M,h. ton, that (ireat Britain has submitted to this Tribunal "all im-^ioii. ^^Q gj^jji claims "of the United States "growing out of tJie acts "of the confederate cruisers aforesaid, (Article I,) without limita- tion, qualification, or restriction; and that, in pursuance of such general submission, this Tribunal is to examine and decide, by the express com- pact of the treaty, "all (piestions" which shall be laid before it on the part of the Government of the United States, as well as that of Great Britain. (Article II.) IV. The United States further find as fact on inspection of the nego- tiations which preceded the treaty of Washington, that the „J^^"-''m'^'\^Z Secretary of State of ie United States declared that the !I',Z'Mhe'.'n.'«r'.'.'" Amcrlcau Government, in rejecting a previous convention, " abandons neither its own claims, nor those of its citi- zens ;'" that the claims thus referred to were specifically set forth in a subsequent dispatch of the same minister, as follows : The President is not yet prepared to pronounce on the (juestion of the indcninities which he thinks due by (Ireat Hritain to individual citizens of the United States for the destruction of their property by rebel cruisers fitted out in the ports of Great Britain. Nor is he now prepared to speak of the reparation which be thinks due by the British (Jovernnient for the larger account of the vast nationnl injuries it has inllicted on the United States. Nor does he attempt now to nieasme tlie relative etit'ct of the various causes of in- Jury, Avhether by untimely recoffnition of belliffcrency, by sutt'eriufj the littin^' out of rebel cruisers, or by the supply of ships, arms, aiul munitions of w.ir to the Confederates, or otherwise, in whatever nuinner.-' V. The United States farther find as fsict that the President, in his annual message to Congress immediately i)recediug the conclusion of the Treaty of Washington, and which indeed constituted the inducement thereto, spoke as follows : I regret to say that no conclusion has been reached ft>r the adjustment of the claims .against Great Britain, growing out of the courses adopted by that Government during the rebellion. Thecabinet of Loudon, so far as its views have been expressed, does not appear to be willing to concede that Her Majesty'sGovernmentwasguilty of any negli- gence, or did or permitted any act during the war by which the United States has Just cause of complaint. Our firm and unalterable convictions are directly the reverse. I therefore reconunend to Congress to authori/.« the ai»pointment of a commission to take ])roof of the amounts and the ownership of these several claims on notice to the repre- sentative of Her Mnjesty .at Washington, and that authority be given for the settle- ment of tlieae claims by the United States, so that the Government shall have the own- ership of the private claims, as well as the responsible control of all the demands against Great Britain. It cannot bo necessary to add that, whenever Her Mjijesty's Government shall entertain a desire for a full and fri< adly adjustment of these claims, the United Stiites will enter upon their consideration with an earnest desire for a con- clusion consistent with the honor and dignity of both nations.^ * Mr. Fish to Mr. Motley, May 15, 1809. Documents annexed to Case of the United States, vol. vj, p. 1. ■^ Mr. Fish to Mr. Motley, September "25, 18()9, Documents as above, vol. vi, p. 11?. (Sec the commentary on these nation.al or (so called) indirect damages by Mr. Abbott, in Lord Clarendon's dispatch, in Appendix to the British Case, N. A., No. 1, 1870, p. 19.) ' Papers relating to foreign relations of the United States, December 5, 1870, p. 9. GENERAL DISCUSSION OK QIKSTIONS OF LAW. 19 as fact IS afore- pon and (I of the y reason c United leferved liability A'ashinfi- unal " all at of tlie it limita- li general iress corn- it on the of Great the nego- , that the . that the niveution, f its citi- tbrtli in a iiulenniities hI States for Its of Great L' the British icted on the ausesof in- ittiiij? «»"it of 'oiifedoratos, ■nt, in his siou of the iducenient ,f the chiims uieiit duriti}^ sed, (Iocs not ofanj'uesH- ates has just reverse. I ission to take 10 the repre- the settle- ave the own- ;ho demands ler Majesty's these claims, ire for a coii- the United i, p. i:?. (See r. Abbott, in 870, p. 19.) 870, p. 9. irtJitrrifut. VI. We, the connsel of the United States, insist, therefore, that siieh, n their magnitude, nature, and scope, are the claims subuiittod to the Tribnn.al by the express tenor, the spirit as well as the language, of the treaty of Washington, as particularly set forth in tUe'Case and Counter Case of the United States. To these reclamations the liritlsh Government, in its ,i,',';;'"„;,|.;;,',"' " Case and Counter Case, responds : First, taking issue with the United States on the ([uestion of imputed negligence, or disregard, in other respects, of the rides of public law laid down in the treaty of Washington. Secondly, alleging as leg.al theory, that, in the incidents brought under review, the liritish Government acted in conformity with, and in obedi- ence to, the provisions of a certain act of Parliament, commonly known as the foreign-enlistment act, and that, by the law of nations, or the public law of Great Britain, the obligations of the British government toward the United States are to be measured in e.vcvution by that {ict of Parliament. Thirdly, the British Government, in justification or extenuation of its own imputed delinqueiu'ies in the premises, adduces certain incidental considerations, derived from the history and jurisprudence of sundry foreign governments, including the Government of the United States. VI. As to the first of these points, the counsel of the United States propose to exhibit to the Tribunal a complete and authentic analysis of the great body of pertinent proofs contained in the documents annexed by the two governments to their respective Case^ and Counter Cases; ami to argue thereon that such documents con- clusively establish the main fact of the violation by the British Govern- ment of the rules of duty stipulated by the treaty' of \Vashington. VII. As to the second and third of said points, the counsel of the United States will in the sefpiel submit considerations which, as they conceive, conclusively establish the legal rights of the United States in the premises, notwithstanding such defensive arguments as are adduced by the British Government. VIII. Preparatory to which, we submit to the wisdom of the Tribunal the following general considerations of law applicable to the defense set up by the British Government. 1. We maintain, and undertake to prove, that, even if the provisions of the foreign-enlistment act were the measure and limit of oreatHnt,,, pm the international duties of the British Government in the ;>"i "ii-ihi.„.Bi premises, stUl, on the facts, there was culpable negligence on the part of Great Britain. The British Government did not do, by way of prevention, or repression, or punishment, all which that act permitted and required. 2. But the international duties of Great Britain are wholly independ- ent of her own municipal law, and the provisions of the above-cited act of Parliament do not rise to the height of t ,''m'i"-pVml;',,t';!i the requirements, either of thelawof nations or of the rules of the Treaty of Washington. That act makes no adequate provision, either of prevention or punishment ; and it contains no provision what- ever of executive prevention, without which no gcvernment can discharge its international obligations, or preserve its own international peace. 3. If, as a question of local administration, that act was deficient in powers, it was the international duty of Great Britain, as a government, to pass a new act conferring on its ministers the reijuisite powers. Gf-iiiTfil CO atmns ut law. (((■niH cvHii whfii mens in- my its lintiiv* tiy thtj lor«*ign-enli-*l- iiient a<;t. DflHcts ot Itir^'ipn- ii'ii^tni*-iil aet. 20 ARGl'Ml.NT OF Till: IMTKI) STATK.S. i|i.l'.*t 11)11 ily. I.I lit' 4. In tlic (loinestic iiistitiitioiis of (heat Ijiitaiii, no (M)nstitiitioiial ob- Thiy »uM i.iv stac'h's ('.\ist«'rofessed neutral between her treaty ally, the United States, and the rebels of the United States. But we place ourselves, at juesent and in this lelation, on the i)reinises of the defensive argument of the IJritisli Government. And, standing on those technical premises, the counsel of the United States maintain that the neutrality of a government, as respects two belligerents, is a ques- tion of international, not municipal, resort. Its legal relations are in- volved In the question of the rights of peace and war. Hence, to depend upon punitive municipal laws for the maintenance of international neutrality, is itself neglect of neutral duty, whicli duty deumnds preventive interposition on the part of the executive power of the State. G. Great Britain, therefore, on the narrow and inadmissible premises of her ow n defense, was legally responsible to the United siiirnlpoMlihiH Z States for the acts of the cruisers in question, whether as tor non-execution of her then existing act of Parliament, which was want of due diligence, or for undertaking to dej)end on that act, which not only involved want of due diligence, l»ut implied refusal to perform the duties of a neutral. IX. The counsel of the United States will have occasion to refer to some of these points in the sequel, when they come to present, in full and athrmatively, their own views of the international obligations of Great Britain, and of her delinquency in the premises as respects her special obligations toward the United States. Meanwhile, in vindication of the suggestions in this behalf now made by us, we submit to the consideration of the Tribunal ap])ropriate ex- tracts from the great work on " International Law," by Sir Robert Philli- more, of whom it is little to say that, apart from his eminence as a judge and as a statesman, he is facile princeps among the authorities of this class in Great Britain. We cite as follows : Tliorc roiimiiis oiu- iiin'stioii of the j^tu w.,' imi)oi'taiicc, naiiu'ly the responsihUity of a state for the acts of Iwv citi/oiis, iiivohlii;; liieduty of a iioutial to pievoiit aiinaineuts and sliips of war isHuinj^ JVoni her sliores for the service of a helliyereiit, thouyh Hiich armaments were fiirnislied and ships were eiiuipped, built, and sent without the knowl- edge and contrary to the orders of her government. The (piestion to wliat extent the state is responsible for the private acts of its sub- jects (ciritaxiif (Id'aitivrit an cirexj') is one of the most imiiortant and interesting parts of the law which governs the relations of independent states. It is a maxim of general law that, so far as foreign states are concerned, the will of the subject uuist be considered as bound n\t in that of his sovereign. It is also a maxim that each state has a right to expect from another the observauce of international ol)ligations, without regard to what may be the municipal means which it i)ossesses for enforcing this observance. The act of an individual citizen, or of a small number of citizens, is not to bo imjiutcd without clear proof to the government of which they are subjects. Sir It. I'hiihli authority nlt'ii. (iKNKKAL DISCrSiMON (tl' l^UEHTIUNS oF I. AW, 21 ,V iU!t of l)HtiH'U'S ib.sist iu nt, sucli II of the tiOllH SIS LU'b ; we rtd lijibt ;e(^n Uer tos. But Miiises of lulinp; on tain that s a qiu»s- is are in- ntenaiice iiich duty power of promises le United lietber as ilianient, d on tbat d refusal refer to come to kvs of tbe juency in IB United low made u'iate ex- [ert rbilli- [s a judge 'S of tbis hihilUij of n [iivinaineuts lliough such the know 1- , of its aiih- liug parts of the will of lohscrvaiicc leans which be imputed A K"^'*'''"""'"' limy hy ^»l»l(•^'f^/' tiiiil siifr< ninrt', n^ \\{'U us by (lir<'''t inrinhsion, hi'- coine rfs|M>iisil(lti lor tln' act«t of siilijcct-t whom it diii's not incvfiit from thr cuiiimi"*- sioM of ail injury to ii f(p|ii;;ii stutr. A j{ovt'riimt'iit is pn'siimfil tu he alilc to rt'straiii tlic suliicct witliiii its tfiritory from coutravi'iiiiig tho ohlinalions ot' ih'ih mlity t" w liiili the sfal'- is hoiiinl.' The govermni'iir of thiM)wiici' <>!' the raptmcil piopi-rty may iiidri'd call tlie iiciitral to iiccoiiiit for itcnnittiiiu; a fraudiilcMif, mnvnrthy, or iiiiiiccfssaiy violation of its Juiis- diction, and such iiermissioii nuiy, aicurdiiij; to thi' (■ircMiiistaiiccs, convert tiie Ufiitra! into a helUnereiit.- Iii fact, tlm maxim adverted to in a former volume of this work is sound, viz, that a state is, yi»ily designated by the Latin cxiiression in Inllit mrdiiix. It is of the essiMiei' of his character that he so retain this central jiosition as tf) incline to neither btdligertMit. lie has iio/ic* />(7//c»//( himstdf ; but he is eiititletl to the con- tinuance of his ordinary, /'(/s ptn'is, with, as will presently be seen, certain curtailments ami moditlcations, which llow from the altered st.'iti- of the general relations of all countiies in time of war. He must do nothing by which the condition of either bel- ligerent may be bettered (U' strcgthened. //((<> nilididr fiat. It ib for him perpetually to I'ecollect, and pi'actically to act upon, the maxim. " IIdh- tnn (.S.St! (jnifac'ittt vereign. Now, among the persons who eipiipped, manned, and armed the cruisers of the confederates in (juestion, were ?/er/«m'revent from committing injury to a foreign State. This proposition is not presented by Sir liobert Phillimore as based on any express treaty stipulation, but as being the doctrine of the law of nations. As such it serves to construe the " due diligence'' of the Treaty of Washington. 4. In expounding the pioposition of the impartiality requisite in the character of a hona-fide neutral, he declares that such neutralitj- is vio- lated by any act which betters or strengthens one of the belligerents, or by any act which gratijics one of the belligerents. It needs only to consider the analysis of the facts hereinafter pre- sented, to see how much the British Government did to strengthen and to gratify the rebels of the United States. 5. Finally, he attirnis that if a government, professing neutrality, ])ermits a fraudulent, unworthy, or unnecessary violation of its Jurisdic- tion, such ]>ermission nmy, according to the circumstanc* s, convert the neutral into n belligerent. That is the position of the counsel of the I'nited States on this point ; and it may be shown by signal examples in the previous history of Great Britain, that she herself has acted on this principle with respect to governments which, i)rofessing neutrality, did acts to strengthen or favor belligerent enemies of hers. X. We now proceetl to develop more distinctly the nature and basis of the legal theory of the United States in regard to the questions at issue between the two governments. We commence by laying down a series of ])ropositious, which are, as we conceive, axioms or postulates of the public law of Europe and America. 1. The right to engage in war, and so to become a bellig- ereut, is inherent in the quality ot sovereignty.' 2. We assume, also, that the right to maintain peace and to stand neutral whilst other sovereigns are belligerent, is inherent in the qual itv of sovereigutv. o. Ah tbe riglit of war and peace is inherent in sover- eignty, so is the right to give cause of war to another sov- l.-'a:il lli-.nvoftlie Vniti'd StMti-' rf- !ositiou s treaty Is such lington. e in the y is vio- euts, or ter pre- heu aud utrality, jurisdic nvert the is point ; of Great spect to rjtheu or le nature u regard ents. ■k are, as rope and a bellig- to stand the «iual lu sover- ther sov- irfare, as uction of the cap- )s of war. )rolessed lier, 8uoh ling the ther sov- ieudship )S()Uitely IS in pro- it, is dis- combats iitjvessels Droit mar li, 1>. VM. It is not material to this point that certain of the States of Europe have agreed to abstain from the issue of letters of mar([ue. Even those powers continue to maintain the belligerent right to captive private merchant-vessels and their cargoes, by the agency of men-of-war. The United States have refused to enter into any such agreement, in the conception that it is only adapted to governments which >:ee fit to incur the expense of maintaining a large military marine. The U i?ited States have been content to agree with other powers in accoiding immunity from any capture to private property on the sea : but tliey insist, as they think rightfully, that, if private i)roperty is to remain subject to capture, it should be subject to capture by letter of marque as well as by the regular naval forces of the belligerent, letters of marque having the same relation to regular forces in war on the sea, as vohinteer levies have to the regular forces in war on land.' 8. The law of nations, as now practiced, i ermits the sale of arms by private merchants of the neutral sovereign, and their ex- s.i., ,.c «,«„ i l)ortation and transpcu'tation for the use of the l)elHgerent, '->""^'|"""|»'»'' subject to cai)ture as contraband of war,- although the tendency of modern opinion is to contend that such acts of sale are contrary' to the true principles of neutrality. Many of the modern regulations of different governujents on the sub- ject of neutrality, contained in the doouments annexed to the American Counter Case, sustain this view. (See the dispatch of Lord Granville to the Trussian minister of October 21, ISTO, on the subject, defending the right of such sales, j But it is admitted universally, in theory as well as in i)ractice, that international law does not permit the equipment of men-of-war, or let- ters of marque, or their rearmament, or the enlistment of men for the military marine of the belligerent, in the ports of the neutral. t). The pretended neutral, who, as a government, expedites vessels, or with culpable negligence permits the expedition of ves- p,,,,,,,!, or:.rm..i sels from his ports, to cruise against one of the belligerents, ■' becomes thereby belligerent in fact, and responsible as such to the injured belligerent. 10. In questions of international peace or war, and in all which re- gards foreign States, the will of the subject (or of connno- rant aliens) is merged in that of the local sovereign; that sovereign is responsible if he permits or knowingly suffers his subjects (or commorant aliens) to perpetrate injury to a foreign State ; and, apart from other and direct proofs of permission, or knowl- edge and sufferance, th'' resi)onsibility for any itijury is fixed on such sovereign,if he depenlead constitutional dif- ficulties in such an emergency ; to do which implies surren- der of the rights, as well as abnegation of the power, of a sovereign, and confers on the injured i)ower the right to occupy by force the territory of the incompetent power, and |i|f i,l)r ti» :i ' M iini' ul *ui'h \ tci lati >n. \ See Cnucliy, Droit maritimr, tome ii, pp. ;?74 iiiul 4H respect de la pio- ■Il.viikershoek, (JHcstioHcx .hiri'< I'iil)liii, 1. i. c. I'lie '■Siintissima Triiiiihid." Wlicat- on'rt Heports. vol. vii. p. :Mtl. riiilliiiuire, \ol. iii, ]). :!J1. IMstoye et Duverdy, Trailr thu prixis maritimrs, t. i, ji. '.UM. 'Docmiieuts with the message of l^residcut ol' (lie United States, December, 1870. V j s J 24 ARGUMENT OF THE UNITED STATES. i^ to impose upon his subjects that preservation of order which he pro- fessp'^ constitutional inability to pieserve. " Cnlp<( vani^qnl svit, scd prohiherc mm potest"' is indeed one of the rules of private right; "but,"' says Sir IJobert Pliilllmore, "such an avowal, actual or constructive, on the part of the unintentionally in- juring State, justifies the injured State in exercising, if it can, that juris- diction by foreign force, which ought to be, but cannot be, exercised by domestic law."' 12. But no independent State exists, either in Europe or^'imerica, en cumbered with constitutional incapacity in this respect. Violations of neutrality are issues of war and peace. Whatever power in a state declares war, or makes peace, has jurisdiction of the issues of peace and war, including, of course, all violations of neutrality. In point of fact, such authority is not a (piality of despotic govern- ment oniy : it belongs equally to the most constitutional government, as appears, for instance, in the political institutions of constitutional republics, like Switzerland and the United States, and in constitutional monarchies, like Italy and l>r:^.7.il.- The counsel of the United States submit these propositions as unde- niable and elementary truths. Yet the Case and Counter Case of the British Government assume and I)ersistently argue that the sole instrument possessed by the British Government to enforce the performance of neutral obligations at tiv time of the occurrences in (juestion, was a ])articular act of the Bi.t. V rarliainent. Every government in Europe or America, except Cireat Ib'itain, ass(nis and exercises authority to iireveiit its liege subjects (and a foyfiori coiu- morant aliens) from doing acts which tend to involve it in a war with any other government. IJut the Britisii Government maintains that tin* sovereign State ot Great Britain and Ireland, tlie ini)»erial mistress of the Indies, the proud- est in fame, the richest in resources, and (including her transmarine possessions) the most populous of the great States of Europe, does not possess constitutional power to prevent mercenary law-breakers among her own subjects, or b;iiids of desperate foreign rebels, commorant on her soil, from dragging h" into acts of tlagraut violation of neutrality, and thus attbrding, or tending to atl'ord, just cause of war to other for- eign States. And such is the defense of Great Britain in answer to the reclama- tions of the United States. l.'J. It would be ditlicult to tind any other example of a great State vi„,p,i ron.t.t,- defending itself against charges of wrong by setting ui) the fl'r'i^t Bnil'r?.l! p'^''^ <>t' Jts coust i t utiou al incomitetency and incapacity to """"'■"'• discharge the mo.-'t commonplace duties of a sovereign State. Groat Britain is not in that condition of constitutional disability which her ministers pretend. We tind, on the most cursory ol)>iervation of the constitution of Great Britain, that the declaration of war, the conclusion of {)eace, the conduct of foreign affairs — that all tluse things are in (rreat Britain elements of the prerogative of the Crown. We cannot believe and do not concede that in all these greater pre- rogative i>owers there is not included the lesser one of prcceiitinfi unau- thorized pri pri '<• ' Pliilliniore's Iiiteniational Law, vol. iii, p. 'Jig. ^See Appendix to tbo Auierican Counter Case, cited or couauentod wii l;<'(rofter. GENERAL DISCUSSION OF QUESTIONS OF LAW. 25 he pro- e of the 'such an n.illy in- latjiu'is- .'cised by erica, en er power issues of ; govern- ernment, titutional titutioual , as unde- sume and e liritisli is at th'^ le \>i.'.. V in, asserts fiori coin- war with I 8tate 01 he proud- iisuiariiie (h»es not s auiony; loraiit on leutrality, tther for- rechiina- leat State lifjf up the ]pacity to ower, in this relation, has been granted to the President of the United States by their Con- gress 'i 14. But there is no such deficiency of power in the I5ritish ministers ; their own conduct in pertinent cases i.rovesconclnsively that they have the jiower, and can exercise it, when they choose, without atl'ordiiig oc- (jasion of any serious doubt or denial of the constitutionality of their acts. Be it remembered that the excuse of the British Government, tor omitting to detain the Alabama and other confederate cruisers, was the alleged want v»f power to act outside of the foreign-en'istment act. And yet, subse(iueiitly to the escape (>f the Alabaniii from the iK)rt of Liverpool, on occasion of the construction in the ixnts of Great Briti>in of certain other vessels for the C(^»n federates, commonly spoken of as the Laird rams, the British Government .seized them ui)oii its own responsi- bility in virtue of the i)rerogativ(^ power of the Crown, and so prevented their departure to make war against the United States. And what the Ministers did on this occasion was fully Ju'*titied in the f icd-e of Commois by *^ir lioundell rainier, the then attorney-general .)t' < • -.It Britain, in the following words : J u < mit liositiit*^ to sa> boldly, and in tho faeo of tlio country, that tlu> fiovcrnmi'iit on I ir h'.fii rcxpoiiKihilitti dctaiiu'd tlicin. They wei'c, jtrosccMitlny; iiH|iiirifs wliicli, *'■..;■;• 1 ii jit'rft!('t,l('ft oil tlio iiiiiid of the f^ovcrmnent st 'oiifj; rcuHoiis lor ItdiiiviiiKtliat . ' b 1 .IT, iiii;!;lit jirovo to be that these, .sliijis were iiiteiK.ed for an illeossible means to ascertain the truth, and to prevent the escape of vessels of this kind to be used against a friendly power. It was their duty to make inquiries, ami to act if there was a good ground for seizure, taking care only to adopt that procedure which was justified by the circumstances.' Aud well might Sir lliigb Cairns say, on that occasion, to the British minister: '" Either our Government must contend that wliat they did in September (that is, iu the matter ot the Laird rams) was unconsti- tutional, or they ( i J'X ^o have done the same with regard co the Ala- bama, and are liahLi But in truth the.se raordinarj' i)rofessions of impotency, on the part of the British Government, are but additional proofs of the negli- gent spirit of that government in permitting or not i)reventing the ex- pedition of the Alabama and other vessels, and the perilous conse- quences of which they had come to appreciate and to shrink from at the time of the arrest of the Laird rams. 15. There is another pertinent example in the modern history of Great Britain of the power of her ministers to arrest such expeditions when they have the desire. We allude to the celebrated affair of the so-called Terceira expedi- tion. During the pendency of the civil war in Portugal on occasion of the disputed succession between J3onua Maria and Don Miguel, certain Por- tuguese refugees, partisans of Donna Maria, sailed from England in transports osten.sibly destined for Brazil, but, as was suspected, in- tended for Terceira, in the Azores. It was not pretended that the transports were fitted for war, and the Portuguese on board were un- armed. Nevertheless, the British ministers conceived that the expedi- tion was one in violation of the neutrality of Great Britain. Whereui)on, they dispatched a naval force to pursue these vessels, and to prevent the persons on board from lauding, either at Terceira, or at any one of the Western Islands; which was done, and the Portuguese were compelled to leave the waters of the Azores, and to take refuge iu France. It is to be noted that this act of force by Great Britain in the main- tenance of her neutrality was done^uot in the ports of Great Britain, or in her waters, but on the high seas, or. rather within the waters of the Western Lsh ids, and in the actual jurisdiction of a sovereign to whom the Portuguese in (juestion professed and owed allegiance; for Terceira then acknowledged the power of Donna Maria. No pretense existed here of action in subordination to the forms of the foreign enlistment act, or any other a(?t of Parliament. What was done, was ow- ers to the President, because, according to the tenor of our Constitution, it does not belong to tho President to declare war, nor has he final and complete jurisdiction of foreign affairs. In all that, he nuist act by the authority, or with the concurrence, as the case may be, of the Congress, or of the Senate. In Great Britain, on the contrary, it appertains to the prerogative power of the Crown to declare war and to make treaties, either of bel- ligerent alliance or of peace ; and, how much soever in practice it may be customary for ministers to communicate with Parliament on these ques- tions, it is not the less true that, constitutionally speaking, the prerog- ative power resides in the Crown. 17. The affirmative resolution of the Biitish ministers to call this pre- rogative power into action for the sole purpose of elevating the rebels of the United States into the dignity of belligerents on a level with their own sovereign, and thus converting piratical cruisers into legitinmte cruis- ers, and the negative resolution of the British ministers, in refusing to call into play the prerogative of the Crown, in order to give effect to their own professions of neutrality, injurious as even such ])rofessions were to the United States, in undertaking to pla«e them and their rebels in the same category of international rights, — these two resolutions ren- dered it possible, as it would not otherwise have been, for the confed- erates to fit out cruisers in the ports of Great Britain : whereupon ensues responsibility of Great Britain for acts of the Confederates, in which, by ialse theory of action and neaiiaence in fact combined s i to the prejudice of the United States. participt 'See the facts of the Terceira exi)edition, Pliilliniore's International Law, vol. iii, p. 2:i9. ¥ IV.-MISCELLA.\E0U8 CONSIDEltATIONS. M.'uiy IIIiltliTS l'a«i'. The 13i'itisli Case and Counter Case are lartrely oc('n{)ie(l with matters . , „, which are secondary, immaterial, not to say totally irrelevant, ■,',';,;'; in the Judgment of the counsel of the Cnited States, but which, being seriously presented by the British Govern- ment, seem to re({uire attention. I. Much is said on the subject of the British foreign-enlistment act of iH i,.at.,..nt .1 ISID, of its assumed ade(iuacy, of its value relatively to the Inii-imVl.t''' a,"t"'.".i siuiilar acts of the United States, and of the comparative "*''•• legislation, in this resi)ect, of Cheat Britain and of other European States. All such considerations would seem to be foi'eign to the subject and beneath its dignity, when it is considered that laws of this nature, how much soever they may be locally (n)nvenient, yet do not serve to deter- mine the duties of neutrality in the international relation of governments. It is quite vain for the JUitish Covernment to assert the sutUciency of the foreign-enlistment act of lSli>. Its practical inetticiency was glaringly apparent on the face of all the relative dii»lomatic correspond- ence between Great Uritain and the United States. The same insutU- ciency manifested itself in the legal proceedings in the case of the Alex- andra in such degree as to throw contempt and ridicule ni>on the whole act. (Quibbles of verbal criticism, lit only I'or insignificant things ot mere domestic concernment, perva(i. - Documents aimoxed to Aiiit'iieau Case, vol. v, p. 440. II- ise phrase- lell say of an scarce- \ersion of in that its u'eign war cb meshes mI by the ;tmeut act ge of that and of the It-i (■nni)>iiri'*nri bi'- .-ti tiK' [Ir.ti.-h.Hul fMc.in at Is Mil- iiient should make this suggestion in the ])resenee of the documents contained in the ai>pendix to the liritish Case, in which api)ears the report ef the British minister at Washington, Sir Fredeiick liruce, on tlie subject of the foreignenlistnuMit act of the United States, pointing out in detail the plain superiority of the American to the British act.' The great ditference between the two consists in the cardinal fact that the provisions of the British act are merely punitive, and to be carrie«l into eil'ect only by Judicial instrumentality; whereas the Ameri- can act is preventive, calls for executive action, ami places in the hands th entir( States of the Government, to be employed b> nim, in his discretion, for the ]uevention of foreign equipments and foreign enlistments in the United States. Thus deticient, the British act was valueless, except as, if occasion should arise, to make it serve as a pretext to cover, in diplomatic com- munication Avith other governments, indift'er»nt, unfriendly, or hostile animus on the part of some British minister. In other respects, how- ever, that is to say, in the mirrow limits of its own theory of municipal legislation, the l>ritish act is utterly inferior to the American act. Sir Frederick Bruce clearly shows the numerous traits of superiority in the American act.^ Thus, in the United States, the Government not only derives aid in the administration of the law from the oflicers of the customs, who in Great Britain are the sole dependence in this respect, but it has local officers in the princii>al ports, both administrative and executive, whose action it commands ; it may impose bomls of good behavior on the owner of suspected vessels; informers are entitled to a share of forfeitures, and tlie judicial proceedings have advantages not to be found in the British act. All these things are trivial when coiisidered in relation to the great international questions of neutrality, and of peace or war. But we are compelled to discuss such trivialities by the extraordinary i)ersistence of the British Government in basing its defense on the very defects of its act of Parliament. III. Of these ditt'erences between the American and the British acts, and of the singular dertciencies of the British act, the ex- plamition is at hand. It is to be found in what English writers themselves delicatelj' describe as the prcjudicus of Cireat Britain, or which can better be described as indisjio- sition to appreciate fully the rights of other governments. Tlie United States encountered the question of their own right of sovereignty in the matter of foreign e has related with fidelity and with all due amplitude the measures, admin- istrative and legislative, adopted by the American Government, under Tl'** Govi'r?ilntMil III tin> t^nili'ii .Sl,iti'» liri-t ill .v;(y^ iMM'ti :ill\* |.m-t in \in*^t:-*n ii>tn^ - hitivi' pownr, sutK - t:| Its lIlltli'M :(,s II ii.Mitriil. ' ApjH'iuliv to the British Case, vol. iii, p. 67. • Lord Clarendoii. says Mr. Bucliauan, in one of his (lis])atchps, roferrcd to our iicu- trality law of Ajiril "20, 1818, iu terms of high coini'.ieiidatioii, and pronouut'trd it supe- rior to their own, t'upecinlljf in riijard to primteetx. (App. Am. Case, vol. iv, p. (ii>.) f t "■f 30 AKUUMENT OV TUE I'NITED STATES. •4 the inspiration of rresident WasliinRton, to maintain the rights of non- trality, in spite of aj;:y;iession on both sides, whicii at length compelled the United States, in tlie defense of its neutrality, to encounter even war, first with France and afterward with (Jreat l»ritain.' Among these measures was the enactment of that act for the preven- tion of foreign enlistments and naval ecpiipments, which, in all the steps of the present controversy, the Uritish Governme nt itself cannot refuse to honor and applaud, and which in tiie process of time it imi- tated in its own domestic legislation. The American (lovernment, sincerely professing neutrality, spared no honorable steps to give ett'ect to its professions and to demonstrate its good faith. Of its own initiation it amended its legislation, when de- fects therein became apparent to its observation ; and it willingly ac- cepted suggestions of amenurnal citait lius foraiciit lice cosigna- hi va donner ici la noineuelature, ausHi conipli-te que possible, dps conventions cohcIuch par Ion Rtats- Unis, et dans IchiiucIh ce priiicipe a ete t'orniellonient coiiHaere. The document then refers to the American foreij^n -enlistment acts, and continues: Le fjouvernement amerieuin a deja eu ruceasioii de numtrer (ju'il »'"tait decide a retti- plir loyaleuient les (>hlij{ations internationales (jiii lui sont imjiosi^es par cette It'jjisla- tion. Kii 1H:{8, lors du hlocus des ports du Mexiquo et de la Kepubli<|ue Arjientine par uds forces navales, le niiiiistere de Franci?, a Wasliinj^ton, ayant eu lieu de craiiulre (lu'on arniat dans les ports de rnnion des corsaires iiinnis do lettres de iiiartpie des ;;ouverneinents du Mexique et de Huenos-Ayres j)oiir courir siis aux navires tranvais, avait appele sur c»;t ol)jet I'attention du cabinet am«^ricain. Lti secrc^taire d'r.tat, >L Forsyth, lui donna I'assurance (lue dt; tels arnieiut nts, s'il s'en laisait, ne seraient point toleri^s. Cest ii quoi le {(onvernnient federal ne se croirait sans doute yias nioins essentielle- nieut obliffe, w Ton tentait anjonnl'hui d'organiser, dans les ports ainericains, nii sys- tenie dc course, sous pavilion russe, contre le eoninierce de la France et dt^ l'An<;leterre. II surtisait, tout porte a le croire, de signaler de seiublables projets a sa vij^ilance. pour qu'il s'enipressat de prendre des uiesures aussi proniptes (lu'efhcaces, dans Ic but d'as- siirer la complete execution des lois en vifjueur. Le so'ivernnmet qui, eu l&-l'^, \tTO- posait a I'Angleterre et a la IJussie de conclure une convention pour dViterniiner, sur les bases les plus liberales, les droits des neutres en temps do guerre, et notamnient ]>our la suppression de la course niaritinu', acto dont la France venait de prendre I'luitiative a I'occasion de la guerre d'F]si)agne, ce gouvernement-ia, disons-nous, ne pent 0 AluaiMKNT OF THE UNITED (STATES. I..'ai-iliitii n|.,tl,.T Di^tinil I.) II I. ■•• t^^■t•lMl lirt'Xfhtlnni llll'l |)>>lllilllMt-llt. to the Unitod States in languaj^e whicli every American may read with pride, and winch is jx'rtinent to tlie j)resent line of observation on tlie partoftlie connsel of tlie American Government. And, unfortunately for the g^ood uiulerstandin;-; of (ireat ]>ritain and the Uiii'AMl States, the Jiritish (roverument is not yet fully emancipated from servitude to the traditional national prejudices which obstructed Mr. Canuinj:. For, as the Case and ('ounter Case of the IJritish Govern- ment show, it still la^s behiml the United States in a|)i)reciation of the true principles of public law, which lie at the foundation of th'? rela- tions of indei)endent sovereii»'n States. V. The Hritish Case, in strange nii.sa|)i>rehension of the fivcts, assumes that municipal laws for the preservation of neutrality ex- ist only in ihe United States and Great liritain. IVlean wliile the report of tlie English neutrality laws commission, contained in the api)endix to the ]iritish Case, exhibits in detail the legislation of this class adoi)ted by most of the governments of Euroi)e. in the British Counter Case, it is true, the foreign laws of this class are at length recognized, but with rehnements of imaginary distinction, which tend to leave some doubt in the mind whether the Counter Case does, or does not, adnnt the error of the Case. The Counter Case does uot seem, even now, to see clearly that all these laws, what ever be the diversity of form or of nomenclature among them, are pervaded by one identical idea, namely, the pre- vention as well as punishment of acts of private persons, such as the en- listment of soldiers or mariners, or the expedition of men-of-war, or of letters-of-marque, in derogation of the local sovereignty, and tending to involve the local government in war with other governments. Sir llobert Phiilimore, himself a member of the commission, expresses the identity of theory and object in this relation between the laws of the United States and Great Britain, and those of other governments, as follows: "It a])i)eared from evidence laid before the English neutrality laws commission, ai)pointed by the Queen in 1807, (the recommendations of whose repoit are mainly incorporated in the present and recent statute,) that Euroi)ean States generally were furnished by their muni- cipal law with the means of fidtilling their internatioucal obligations in this resi)ect." ' But the indirect or implied retraction in the British Counter Case does not relieve us from the necessity of examining the legislation of other governments, and their executive action in the premises, because that examination will show that the general conscience of the world re- jects the theory of the British Government, and conforms to that of the United States." («) We commence with scrutiny of the actual legislation of France, because that legislation is the model of the modern legisla- tion, in this respect, of many other governments. The provision of the French Code Penal is as follows : AitTicr-K .'^4. Qniconque aura, par ties actes non approuvt^s-par le gonvfiruement, ox- ])oso I'otiit a iiiif il(^claration ile guerre, sera puui dii baimissemeut ; et, si la guerre 8'en est isuivie, «lo la ileportation. AiMici.i". <). Quieonque aura, par des acte.s non approuvos par le gouverneinont, expos(' ties Fran(,ais a 6prou>tr ties rtiprt^sailles, sera puui du baunissemcut. The general commentaries we make on these two articles will apply to similar provisions of law of other governments. KiMIlCt' i I .1 ' International Law, vol, i, p. 467. MISCELLANEOUS CONSIDERATIONS. 33 ail with 1 on thP ain ami icipated r imagined that these provisions of the penal code are the measure ami limit of her sovcrign rights or of her sov- ereign duties. Incidentally those provisions nmy come in aid of execu- tive action. Jiut to punish individual wrong-doers does not prevent wrongdoing, save incidentally by admonition and exami)le. Funitive legislation is one thing, i)reventive another; and the oidy ellectual ))re- vention of the wrongful acts of private persons, which teiul to comi)ro- niise tlie neutrality ol a (lovernnuMit, is the summary act of forcible l)revention of sucli deeds by the sui)renu^ authority of the (jiovernment. Such is the theory of the laws of France in this behalf, as it is of the laws of the United States.' This ai)prcciation of the articles of the French Code Pi'nal is confirmed by authoritative commentaries then'on, some of which are reproduced in the documents annexed to the American Counter Case. Acconbngly, it is to be renuMubered that no cruisers sailed from the ports of France to dei)redate, under the Confederate flag, on the com- merce of the United States. At the very commencement, all Frenchmen were forbidden by sov- ereign act " to take a commission from either of the two i)arties to arm vesj«'l.s of war, or to accept letters of niarijue for a cruise, or to assist in any manner intiie ecpiipment or armament of a war- vessel, or privateer, of either of the belligerents."-' And when attempts weie made by the Confederates to cc is ruct and equip cruisers in the ports of France, on complaint being made by the minister of the United States, the construction of these vesnels was arrested ; and when a builder professed that vessels under construction, with suspicion of being intended for the Confederates, were in fact in- temled for a neutral government, the French ministers recjuired proof of such professed honest intention, and carefully watched the vessels to make sure that they should not go into the service of the Confederates. 'See ti' tlic 'limgiiii^c of tlio niiiiistor of niiiriiio, uh fol- lows : 'I'lif M'M-ii Is di" wiir ti> w liicli .vow liiiM' (ill led our ntlriition sliiill not. Icisn the port.H of I'liiiicf Miitii it ,-.i\!ill liiivc till II |iositi\rl,v dfinoiislrjilcd that, their (IcHtiiiatioii docH not iill'cct lilt' )iiiii(i|)irs (if ncntiiiiil.v, \\ liicli tliii I'rcncli ( Jo\ n nninit wislics to ri^jidly ol»H('i'\ e to\\aiil Ixitli iMlli'jjciTnts.' CoTitnist tills with flu' roiidiict of tlic IJrilish (Jovcrmm'iit in like cir- ci'.iiistiiiiccs, ascxliiliitcd in tin* iinnl.ysis of facts t'onipiiscd in the i>i('Sont Arxiinicnt, whcio it is sliown with what inci't'dibhi cnMlnlity the Mritish (lovcrnnK'iit iicccjitcd t lir fiils(» iiinl tiv«' statcnu-nts of the criminal and iiuM'cenai y ship bnildcis ongajjed in the \ iolation or evasion of the laws of (iieat JJritain. It HMpiires exei-cise of innch candor tohclieve that the JJritish ntinis- ters coidd have jierniitted themselves to be stj grossly imjiosed njion, if they desired to know the truth. Had they tlone what the J'^reneh Gov- ernment did in like circninstances — if th(\v had required the known tools of Confederates at Iviverpool, as ini;;ht well liuvc been «lone in virtue of the ])rovisions of tlie merchant shipi)in'ardin<;' the remanidn^ of Confederate cruisers in her i)orts, is in striking; contrast with the conduct of the JJritish (lovernment in referenct! to the same snbject-matter. (/>) All the observations rej;ardin<;' the legislation of France apply, in snbstance, to the l(^j;islation of Italy,- and the reftidations of the (lovernment of Italy, inclndinfjj circulars of the minis- ter of marine, and decrees of the Kin^-, all with distinct reference to the present controversy, are (lomprehensive, definite, and explicit in "J veiitinji', as they did ))ievent, any attempt of the Confederates to i t crniscrs in the ports of Italy, to abuse tiie vi<>'ht of asylum, or to therefrom aj^ainst the comnu'rco of the United States. All these measures, in lorm and effect, assumed i)reventive action by the executiv(», independently of the i)eiial provisions of the nuini(;ipal laws of Italy.' The universality of laws of this class in the vai'ious countries ol Europe is indicated by recent Italian Juridical writers.' (c) In like manner, examiiuition of the laws, re^'idations, and political action of Switzerland, in the matter of neutrality, shows their conformity in theory with that of the United States, and emphatically contradicts that of (Jreat iJritain. The Code priud jVdrrnl of Switzerland is in this respect more concise and comprehensive even than that of France, for it intiiuts ])unishment on all persons guilty in Switerland of committing anj- act contrary to the law of nations.^' Various ordinances of the Federal Council contaiu the most strinjjjeut provisions for the nuiintenance of the neutrality of the republic.'' A federal law of Switzerland regulates in the fullest manner, and with all proper restrictions, the enlistment of troops iu the territory of the ' Sec DocuiiicntH, iilii iiiq)ra, p. 912. 'Dociinuiiits as above, i». 1149. ■'See Docmnents aniicxiMl to tlio American Case, vol. iv, p. ir>0 d saj. ^ See Feiraiotti, Vommcnlario del codivf. pcnale, vol. i, pp. '2C1-2; and Castelleri, J.ciji^ hiz'mui eompnrale, p. 284. '' Doeiiment annexed to the Anierlc^an Counter Case, p. Ifl'J'i. '' Uhi mipra, ]). 110.'). NflSrKM.WKOl'S CONSIDKRATJONH. M i>^j|, IH 1 lie for I'oivij^n scrvir*', ]>r()vi(liiij; tliiit it sliiill not Ix' public.' {(I) Similar conclusions apply to the h'j'islatit>n and the administrative action of the empire of llra/il: in considering- whii^h it will be convenient also to refer to the lejjislation and administra- tive action of Portuj^al, because of the similarity ol" their laws, and the more or less of common commentary thereon by juridical writers in one country or the other, of eminence and authority. The penal code of rortuj^al in this re!j[>ect is substantially the same as that of France.- i' .tM^,! That of J»ra/il, while compreheiulin;,' the sanu' idea, is nioi'e comidete in itsdevelopnu'ut. I>y that code it is a crime on the part of any individual to " i»rovoke directly and by acts a forei};n nation to (h'clare war aj;ainst the empire," or "if in ease no declaration of war take idace, but in eonsetpuMuie of such provocation there should bo necessity for any sacrifice on the part of I>ra/il, or ])reiudice of her inteji'rity, ()th in JJra/il and Tortugal these ju'ovision^ of the penal code are but incidental only to the executive action, which prevents by sui)reme. authority any violation of their neutrality, eitlier 1>\ snltjects or by foreigners. AVe beg leave to r<'fer this high tribunal to the adiiiinistrative reguUi- lionsof the JJra/ilian ICmpire. for the enforcement of neutrality in all the ports of the lOmpire, in the amplest manner, by eflicient action on the pan of the imi)erial ministeis, and of the provincial presidents.' Jn the American ('ase, ami the docunu'Uts to which it I'efcrs, thei-e \n sullicient indi<'ation of the loyalty and elili(;iency with which the JJrit- zilian Cioviunment maintained its soven'ignty against the aggressive I eiforts of the Confederates.-' I As to Portugal, we refer to the ecu respondcnce annexed to the Ameri- can Counter Case, to show that she also inner i>retendcd that her neutral duty was conlined to the execMition of the provisions of her i)enal ctKle. Who also put forth the executive power of the Crown to prevent, repress, or repel aggressive acts of the (Confederates in violation of her liospi- tality, or in the derogation of her sovereignty. Nay, more, the (lovern- I ment of Portugal, tinding its own naval foice inade(pnite to pre\ent the ' Confederates trom abusinii- the ri-iht of i»svlum in tlie W't stern Islands. as it ion •loi'-'* to lifi'ully like eir- present a British criminal >n of the sh minis- l upon, it' uch Oov- e known done in indeed, of fy of pur- might not anning of le conduct, atter. 'A apply, i" egulations the minis- pnce to the [cit in "? to ( ^'^ to actioti by municipal xintries ol d political ity, shows ted iStates, concise and ishment on ;rary to the st stringent die." r, and witli tory of the istcilleri, /-«'f;i< expressly authorized the American (loNerniiH'ut to semi a naval fon-e therefor the pnri>ose of defending the sovereignty ami exe<-uting the law of Portuiiiil.'^ ' Vattel, Droit dv gois, oil. Praditir-l'odi'it'', tonio ii, p. 4r> I. note. '* Dociinients iumt'xiHl to tlic AniLriciiii Counter ('asc, p. ltr>H. - Ubi siipiii. i». 10 J I el xcq. *See the circnlar.s issut'd by tin- Uraziliiiu (iovirmneiit. in siippliMncntary .'etherlands minister, Mr. Van Zuylen, in reply to the in(]niries of the British chnt al)ont tlu! laws, icijnlation.s, and otiu'r means tliat tin- Ni'tln-rlands may use to prevent viola- tion «)i"ni'ntralily within her borders, has been received. In reply, the undersijiin-d informs Mr. Ward that there is no eode of laws or rogiila- tions in the Kinj^dom of th'^ >i(itherlatids, eoneerninjj the ri;^hts and dnties of ncMitral.s, nor any speeial laws or or linanei's for either party, en this very inipoitant liiatter of external public law. The jjovernment may use; articles .-^1 and S.') of the penal code : but no legislative jirovisinns have been adopted to protect the ;^o^'i'rnmeiit, and stM've a<;ainst those who attiMopt a violation of neutrality. It may be s.iid that no country lias eodilied these rejfulations and <:;iven them the force of law; and thou;;h (Jreat Hritain and the I'liiled States have their forei{.Mi- cnlistment act, its etieet is very limiteil. '1 ne Netherhinds ;(overnment has not yet thon<;ht ])roper to collect the rejiulat ions in relation to the ri<;hts and duties of neu- tr.'ility; but has always M'rujHilonsIy obscrxid tiie jtrineiples (d" the European law of nations, and lias i>nblislied notices (as Great Ibitain and Francedid in 1"^1>1) to Nethcr- land Rulijeets not to carry dispatches or articles contraband of war, nor to break an t'tl'ective idoekade, nor to en>>a>;e in j>rivatceiiu!j;, nor accept letters of mar(iue. The admission of bellijjereiit bhips of war into our |iorrs was rep. 181, 'i'M ; and I'acheeo, Cod'njn Penal Comordtido, tome ii. pp. Itl, IKi, in Documents, iihi nui)ia, pp. ll.'SH, I(i.V2. ■•See Nahrlaiitttirhr WctlnuLu, cl. I'r'tirt, p. (177, lot tht- law of tlie Netherlands. jVIISCELLANEOrS COXSIDERATIONS. 37 ifir ioifit.Mi- Ihius not yt't litu-rt of nen- ft(» break an Viiuo. ill tlio «a5)i« Tliofio notices woro more oxtonsivo and pioi iso last year. Tlio };.)vt'iimu'iit uuiler- iodk to pivvt^iit the tMiiiipiiieiit of war vt'sscls for tlio Ixlliiii'icuts in lier i>orts. A copy of tho Oflic'ial Gazette, March 'Jtl, Hiili, contaiiiiiiy those notii'os, is hereto atiiiexi'il. Artieh's 81 and ■*."> of the penal code may he used as coercive measures to prevent violations of neutrality. For example, they niijiht serve to jtrosecute those atteinptinff to e(|iiip or sell vessels of war in onr port for tho heiielit of helUj^eients. The vessels CDiild then he seized on evidence, and thtur departure he thus prevented.' Mr. Yiiu Ziiylen's lanjjnage is iimccuiute. lie obviously intended to express that tlie Netherlands have no laws known by the unmc of laws of neutrality, or codihed as such. lie .seems not to have thought that mere penal ])rovisions deserved the name, although he refers to penal provisions, whieh, as he says, are ancillary, in that .sense, to the exer- ci.se of the executive power of the government, this V,»'ing the proper, and indeed the oidy etfectual, agency for the prote. tion of its sover- eignty against invasive or evasive acts on the part of belligerents. The elliciency with which executive power is aj>i)lied to such subjects in the Xetherlands is fully manifested by the pertinent circulars of that govern ment.' {/) We tind similar laws existing in Ivussia; in Prussia, which had occasion once to ai)[>ly those laws to the acts of l>ritish ^ «";■;' "■' >'ni» agents in I'russia; in J)enmark, and in Sweden.' >.i;.,i.m""''" (;■) The documents, which exhibit the legislation and ])olitical action ofboninark in this relation, are particularly interesting, because they so clearly show how the penal or punitive laws were merely and simply sniiplenu-iital to the preventive action of the (lovernmeut. 0. i )n review, therefore, of the legislation and political action of Great lUitain, as compared with that i>f all other Ciovernments, we arrive at the lollowing conclusions: ((() Tiie institutions of Italy. Urazil, Switzerland, France, Spain, Por- tugal, the i'etherlands, and all other (Jovernments of Europe indeed, except (ire; t Ibitain, ex[»re.s-sly assume, as do the institutions of the United States, that volunteer and unauthorized military and Jiaval expe- ditions, undertaken in a n- litral country, are to be restrained, because teiuling to involve sucli country in war with the country aggrieved. Infringements of the lawaie punished mainly for that reason, including the protection of the national sovei'eignty. {b) Hence, in all those countries, except (Ireat I'ritain, the punilMVC law is a sec(uidar\" iact ; the primary fact being the preventive action of the Ciovernment. (') The I "nited States perfectly uiulerstood this, the true relation of thinjis, and whih' they indicted persons and arreste. l.')."i. • l>oennieiits annexed to the Viiieriean ("ounter Case, Supplement, p. -Mi. 'Ibid,, pi». .")-4, ,-.:?, .".I, ly. sit f1 38 ARGUMENT OF THE i:XITr:i) STATES. vent |ioiil to tlic national poaco tliroi."^' nioaiis of ]>roro;;ativo force, lodfjed, by implied or t'xjjrcss constitutiotial law, in the liaiuls of the Exociitivt'. VIH. W«' aic HOW iirc'parc'd to Jud^c wliotlier, in the incidents of the present controversy, the conduct of other p^oveiiinients was, ton. ,>...rL.. _^^ ^j^^^ r.ritish .ii'overnnient pretends in answ«'r to the recla- mations of the United States, the same as that of (Ireat IJritain, and Avhether (lieat lUitaih did all which they did in tlischar^'e of interna- tional ohliiiiitions toward the United States. It is obvious to see that, upon her premises of political action, it was impossible that (Ireat llritain should dischaij^c those duties as they were discharged by other <>'overnments. In ]»oinr of fact she did not. {(() Oti er governments not only i)revented the arman\) Other ♦,^ovcrnjne)its imposed Just limits on asylum, and punished its abuse. For exantple. I'.ra/.il, France, Si)ain, I'ortuya!. (c) Xo other n'overnmcnt allowed armed cruisers to sail fiom her ports to prey on the commerce of the United States. She alone furnished th" Alabamas and the Flori(l((s\ which, by the capture of our merchantmen, gave to the I'nited States cause of national reclamation. {(1) In no other government was the wrong committed of allowing it- self, as Lord Jfussell une((uivocally adnnts, to l)e subjected to the shame of being the established seat of the military ;:nd naval supi>lies of the Confederates. IX. Both in the Case and Counter Case of th3 IJritish government • Th.!,..r„>,t i.o there is elaborate arraignment of the government of the ImmIuhi a'liaV-'or.i.i; Unit<'d States, in res]ieet to the manner in which, at various """''"'""""^' periods of their public history, they have discharged their neutral obligations toward other governments. We dispute the right of the liritish government to discuss any such :, r.i..u....v ,1. uiatter before this Tribunal. (Jreat Britain is here accused, ' not only of violation of neutrality, but of permitting or suffering the active complicity of her subjects with the rebels of the United States. It is no answer o this ch;irge to say that, at some time past, the American (Jovernnient was, or may have been, de- linquent toward some other governmeni. Such an answer is not com- patible with reasi>n or justice, but iscontraiy to both. Nothing is, or can be, on trial before this tribunal, but the conduct of (Ireat Britain. Tiiat, .and that alone, is submitted by the treaty of Washington. To summon the United States to enter into discussion of its acts toward other gov- ernments, which is in effect now done by tin' British (Jovernnient, is to call on the Tribunal to i)ass JndgnuMit on imputed acts of the United States which are wholly outside of the questions to be sidunitted by tii<> two goveiiiments, according to tiie tenor of the Treaty. The British Case and ('ounter Case, it is true, introduce these matters professedly as bearing on the iiupiiry of what is due diligence, by ex- amination of what has been the conduct of the Uidted States undci circumstances of alleged sinularity to those involved in the ])reseiii controversy. But these matters are not tln^ less discuss d by the British Ciovernment in the maimer and s]»irit of counter accusation. And, even as to the sjiecilic ii'lation in which the subjec^t is profess«'dly introduce*! by the British (loveininenl, it is not the less utterly irrelevant, valueless as argument, and incapable in any respect of instructing the conseienci of this Tribunal. nieti I MIsCHLLAXHors CON'SIUKIiATlOXS. MD le force, Is of tl»(^ its of tho. cuts was, till' rccla- tain, and intcnia- )n, it was as tlicy ;■ cruisois, (' Notlicr- puiiislietl luM- ports lislu'd til" 'liantmen, lo^Yin<^ it- tlie slianie ios of tlio Dvern incut out of tlio. at various rfjocl their auy such e accused, mitting or rebels of y that, at been, tle- uot COUJ- <; is, or can ■ 11. That, o summon other gov- iicnt, is to he ruiteil ted by tho ■se matters ice, by cx- ites under le ])reseiit thcHritish An«l, even introduced , valueless conscience The two {governments have su'omitted tlie (|nestion of tlie conduct of Great Ibitain at a precise i)eriod of time and in a specific relation, that of tlie late domestic rebellion in the United States. That is thedclinite subject to bo investigated and judi' I'.uropc. one after the other, been forced in self-defense, in these relations, into war with Great IWitain V And yet it would be much more i»ertinent to the i)rescnt iss;.r ihns to .scnitini/.e the political conduct of (Ircat Ibitain with reference to other governments, than it is to scrntini/.e that of the United States. Now, then, while, until the year ISl!), Great Ibitain had no iiiunicii»al law for the preservation of neutrality, and while slic^ steadily disav.' vs the i)os.sihility of using any other means, thi' United States, on the con- trary, almost at the very nn)nient of entering into the family of nations, asserted, and have continued to assert, the right and the duty of every goverimiciit to act as such politically, and by cxi'rcise of supreme ex eciuivc foicc to watch over, guard, and maintain its neutrality between contending belligerents. While lOngland professes, as her view of pub- ^ lie law, that constitutional governments must of necessity a.llow them- selves to it't". 40 ARGUMENT OF THE UNITED STATES. cliulinjj esperially v^onstitutional governments, to discharge tlieir neu- tral duties in obedience to rules of right, independent of and superior to all possible acts of Parliament. In consonance with which doctrine it is that every President of the United States, from President Wash- ington to Presi» Mi|i|i!y l^'raiii't', with wliinii we were llieii eii^a^^ed in liostilities, with voH.sols ol' war. We required tliein l«i tlelain tliose vessels, ami Wasliiii.iitoii did detain tlioin, before , any r<)rei;;n-enlistnient. act was jiassed. Wasliinj^ton not only di^tainod tlio ves- sels at onr instance, liut ho ])ro]>osed and carried in Coiijj;ress the American forelgii- enlistinent act, as his eneniii's tin n saul, at our dictation. Precisely the sanio attacks which are now directed a^^ainst Her Majesty's G(»verninent in this lloust; wore then directed against AVashiii^fton in Con<;ri'ss. There were nieml)ei ot" ('onjjrc^ss whouaid that be was tnickliiifj to Enj^land ami allow in;r the Enj^lish omhassador to dictate tt) ' Aitptiidix to Iiriti>h Case, vol. iii. Supplement, p. '22. •Hansard's I'arliainciitary l)el)atcs, N. 8., vol. viii, p. li)li>. Canniiiy'rt SpocchcH, vol. v, i>. .'•!>. MISCELLANEOUS CONSIDERATIONS. 41 iir ueu- iperior octrine Wash- ue dili- jis own )y him- [ilawt'iil iuch in- ;;Ouiiter ill this need do I tlieui- LIU Gov- il to the resident foreign- of neu- s of the In 1793 eh ships I'pose of itrality. ijnt held and ssels in seized, jceasion ch ships vessels, tended )etween ,'e ouuiht t.v hi'tween ^ ill the ,■■ veniniont. ■'t > til VtlHSOltJ aiii thoin, cl tlio vos- n forcisii- —< 10 attacks wcro tlion ■i ■( w lit) said . * »lictato to s a Km.h.1,1 r 111)1.1. 1)11 ii Ml SptH'cllCK, liim ; they laniPiitcd tlio iiuniiliatioii of their country and declaiod that the uttivs an ^ atripes ha be just, anil at the same time best calculated for the intensst and welfare of his own country. He passed the foreign- ciilistment act, and a treaty was suhsiMiuently entered into, stii>ulatiiifj;, among other tliiu<;s, tor the restoration of i'r':.t!s captured by vessels that were lifted out in American ports."' The counsel of the United State.s are for themselves content with their own convictions on this point, bnt they conceive that the testi- mony of Mr. Canning', Bir Itonndell rainier, and Lord Tenterden may litly serve to satisfy tliis hijjh Trilmnal. (/»). The British Case impliedly hlaraes the United States on ncconnt of the v^xpedition of Miranda. J'laiicisco Miranda, born in the Spanish-American province of Vene- yiiola, had served in the army of France under commission of the Na- tional Convention, but was suspended from command, and banished for misconduct at the battle of Nerwinde.^ lie became besotted with the idea of beiiis' the predestined regenerator of his native country, without other capacity or resources than his own extravagant self-conceit. He by some means made himself acceptable to ]Mr. Pitt, who encouraged liiiu ill the idea of getting up an expedition for the invasion of Vene- zuela.' Tolitical considerations standing in the way of his doing thi'= in Eng- land, he went to the United States, thinking to find there a convenient ])oint of departure. lint 1 resident Adams steadily repelled his ad- vances, and rendered abortive all his attempts to get up the proposed exjiedition.* Some years afterward, still favored by (Jreat Britain,'' he again appej red in the United States with the same jiurposes. lie had much of the plausibility, and all the impudence, of that class .»f cosmopolitan exiles and adventurers. By the exhibition of deceptive letters written by himself to President Jefterson and Secretary Madison — letters, on their face, of mere courtesy — he contrived to impose on credu- lous pcr.^ons and obtain aid in Xew York ; for in this ca.se, as in all like cases, fraud and falsehood lie at the bottom of such unlawful enter- pri.ses. Thus he was enabled to organize an expedition and get to sea with- out knowledge of the tlovernment." On the way to Caracas he stojiped at the English islands of Barba- •loes and Trinidad, where he was treated with the utmost consideration by the British otiicers, civil and military, and wliero he received from Admiral Cochran, in command of the JJritish West Indies, a written Contract of iUliance and copartnership under date of dune !>, ISOO, by tlio tenor of which Great IJritain adojited the expedition of Miranda, and riiriiislied it with additional supplies and ves.sels.' Tile expedition landed at Vela de Coro, but faiU'd of success by rea- son oitiic deplora'ole incapacity of Miranda; and he, dishonored by the manifest proofs of the falsehood by which he had imposed upon the 'Hansard's Debates, vol. dxxiii, p. 9'm. -See lIi.>itory of Don Francisco de Miranda's attempt to etlect .i nvolution in South America. 'Sic Autepitra's Docmnents, Historical and Explanatory, j). l".!. ^Tlie Works of ,rolin Adams, by ('liarl(>s I-'iJincis Adams. \ol. i, jia^cs r>'>:j, 7,M; vol. viii, liases ,^()SI, r)Hl, (iOi); vol. X, p." i:u. ■■ Dodsiley Annual Kei>ister for H(I7. " History of Miranda's Expedilion. as .ibd f i 1^^ '^ 1 If- 'orv, See this extr ., P.'ii: lordinary coiitiact in Anii , la's Documents, Historical and Exphm.v \t -." ..,,«..^^;«.^r^>«, 42 AKGUMENT OF TIIK UNITED STATES. .1 adventiiiiii's, IJriti.sh and AiiuMicaii, enlisted in the expedition, disap- peared IVoin public sij;iit. We liiid him living- some time afterward; but we do not find that he ever did any actual service to the patriots of Spanish America. Some of these adventurers, on their return to the United States, were indicted ; but the jury failed to convict, ]>artly in consequence of inge- iMOUs soi»histries of their counsel, ami partly, we think, by reason of the notorious participation of the liritish naval authorities in the West Indies.' We submit that there is nothing;' in the adventures (>f this Miranda which reflects discredit on the United States or favors the ar<;ument of the JJritish (Jovernment. Whatever responsibility, if any. devolved on the United States in the premises, was lon<; a,i;o amicably settled between them and Spain. (c) Next +he Ilritis', ''asc calls attention to the jj^eneral conduct of R.voit oiHpn.i.h the United ti ites in reference to the lonj^-continued hos- A.n.Muan ,ni„,;,». tiiiti(>.^ bctwecu Spalu and her revolted Colonies in America. We confess that we are surprised that (Ireat liritain especially should, in this relation, question the acts of the United States. The Americau (Joveriiment did not hasten at the earliest moment of revolutionary political movement in those C'olonies, and before the o(;- currence of any siffnificant military event whatever, to ac(!orerents to the rebels of Spain, as Great Ibitain did to those of the United States. We waited, as discretion ami .in>iice re- quired we should do, until the civil war in Spanish America forced itself upon our attention by incidents in our own i)orts arising out of captures on the sea, as to which action became requisite on the part either of the Executive or of the courts of the United States. When that civil war had raged for years, without Spain having suc- ceeded in reducing her rebel subjects to submission, we still abstained from all political action in the premises to the prejudice of Spain, until Ave had sent informal commissioners to Spanish America to inquire and make report concerning the condition of things there. Even then, before proceeding to definite political action, we deliberated still, and, not without concurrence of opinion at least of Great liritain in this respect, at length we concluded that the revolted Colonies had reached such a condition of sure actual independence as to be fully entitled to be recognized as independent States. During all this long period, the United States steadily labored to pre- vent the equipment of vessels in their ports to the prejudice of Spain. The successive Uresidents of the Uiuted States were positive in instruc- tion to all subordinate officers, and vigilant in observation, to enforce the execution of the laws of neutrality, international as well as muni- cipal. Prosecutions were instituted in the courts; vessels unlawfully captured were restored, by judicial or administrative order; and the principals of neutrality were proclaimed and maintained in every act, whether of the courts or of the Executive. As to the courts of the United States, we have a right to say that their decisions, during that i)eriod, on this class of questions, are now received as authoritative expositions of public law not less in Great IJritain, and in other parts of Europe, than in the United States. As to the deportment of the Executive in the course of these occur- rences, we confidently appeal to themassof official acts and correspond- ence contained in the documents annexed to the American Counter Case, to prove that the American Government not only did everthing which ' See Trial of Smith aiul Oyden, 2)os».im. ■^ i MISCELLA\EOUf< CONSIDERATIONS. 43 liiw it.,,uire(l, but did every thiu}^ whidi was Immanly possible, by pre- vetitivo vifjdiuico, avS Avell as by punitive prosocntiou, to discliarge the neutral oblij;atioiis of the United States. Did the Anierlean Clovernnient, at any time, or on any occasion, either willlully or with culpabh^ nejcet of lUiUiii;; an t'lid to all tlu' dilli'MMicos Nvlii
  • French cottsnls, within the territory und.jtirisdictloti of Spain. ;5. To all churns of indemnities on iiceoiuit of tho siispLtision of the ri_i;lit of deposit ciprocally retioiince iitd conileiiiitet I 1. ^rnnteiit of Spain, iitNew Oileaith, in lH(i-i. 4. To all claims of citizens of the United States npon lin arisinjf frmti the unlaw I'til sei/.nies ;it sea, itinl in the ports iind lenitoiies of Sjiain or tilt) Spanish coltmies. Tl. To all cliiims of citizens of the Tnited States npon the Spanish fJovcrnment, stiitemiMits of whitdi, soliciting the interposition of the (iovernment of the I'nitctl States, Inive been presenteil to the Dt'itiii tment of State, or to the minister of the, IFintcd States in Si>ain, since the tlate ol' the convention of 1S(I:>, ami until the signa- ture of this treaty, j The renunciation of His Catholic Majesty txtenils — 1. 'J'o all the injuries mentioned in »'ie convention of the 11th of Au;ftist, 1SU2. 2. To tho stims which His Catholic Majestj advanceil for tlni return of Cafdain Pike frt)ni the Frovincias Internas. 3. To all injuries caused by the expedition of Miranila, that was ftttcd out and eqiiijtped at New York 4. To all claims of Spanish subjects uiion i!d Stivtes uri.siiij^ i'rom uidiiwfiil seizures at sea, or within the [lorts and territiuial jtirisdiction of the United States. Tl. Finally, to all tho claims of stibjects of His Catholic Majesty upon the (lovern- meiit t)f the Uniteil States, in which the iuterpt)sition of His Catholic Majesty's Gov- ernniciifc has been soliciteil before the diite of this treat,' , and since the date of thti convention of It^O'i, or whit'h may have been niaile ttt the tlepartment of foreign alVaira «t' Lis Majesty, or ti> his minister in the I'niteil Sttitcs.' This hi}ih Tribunal perceives that, in view of this treaty, it is vain for the Uritish Case to attem|)t to revive controversy on the subject. l»oth Si»aiii and the United States had mutual causes of reclamation, which both {governments frankly settled and ttirmimited by amictible conven- tion, to their mutual satisfa;*tion, and on conditions which cannot be ♦juestioiied by any other <:;overn men t. One thinji: nu)re in this ndation. We respectfully reipiest the Tri- bunal to observe that neither Spain nor the United States supposed that damages or injuries done by one •government to another were mere indirect damages or injuries, and so not com|)reheiuled in tho terms of a treaty, exj)ressly i)rofessing to dispose of " till claims," " all questions,"' und " all dilfercnces." The United States Statutes at Large, vol. viii, p. ^.'iS. 44 ARGUMENT OF THE UNITED STATES. tU»till .'ll]r Mivjosty'sCJovcrnnioiit nijoici^ to fiiiil that Miis coTifiili'ncoliasbi'pn I'lilly JiistiJiod by tho result, ami that tlm (iovfiinncHt (»f tlit^ I'nitod States acti'tl, when tho iiKiriKwit tVii" actiiii; caiiic, with u viyi", n [JroiiiptiicsH, mid a sincerity wliicli call toith tlio ^varnlt'8t acUnovvlod^iiiiciitH. I am, ill coiisciiiicnrc, iriMlriictcd to (>xjin'.ss to tho (inviM'iimriit oC \hi\ Unittul Stalc^H tho thanks of lli r Majesty and llcr Maji'.sty's (iovcinmcnt (or (he (Viendiy and ('ner;;etic assistance whicli they Inive atVorded in (h-Ceating the attempts to distnih the peaco of Her Majesty's possessions in North America. I have the honor to he, witli the highest consideration, ^ir. yor.r most ohedient, humble servant, FKKDKKICK \V. !'.. IJinCE. ]lon. "Wii.i.i AM II. .'^i:WAiii>, ,yc., .)'•().' AVc iTiiiaik, in pa.ssiii};, tliat in all tlio oasos rol'ornMl to by Sir Fred- erick Jiriicc and Sir Ivonndell Painter, of the conduet of tho United States in relation to Great Ilrilain, thi.s conduct has been the same at all times in relation to other jjovernments. As wa are entitled to the ascription of " a vigor, a pnxnptness, and a sincerity which call forth the warmest acknowledji'ments," in the former class of occurrences, so we are in the latter, tho JJritishCase and (Joiinter Case to tho contrary notwithstand- ing. In every instance of attemi)t to violate our neutrality, on the part whether of governments or of private persons, we have set in action all the juridical machinery of the municipal law : we have ]>ushed into vig- ilance our custom-house otlicers, which England has, and our district- attorneys and marshals, which England has not; but in addition to and beyond all that, the President of the Unite*! States acted in advance to enforce, not diligence only, but active vigilance, on all subordinate of- ficers of the (Jovernment; and when wrong-doers manifested obstinate persistence of wrong, the milicary aiul naval olHcers, of character and discretion, like General Scott, Admiral I'aulding, and (Jeneral IMeade wereemidoyed to apply to such i)er.sons the oidy method of prevention applicable to the case, namely, force, to maintain the domestic order and foreign peace of the Government. AVe regret, and have suHicient cause to regret, as the present contro- ver.sy shows, that Great Britain, who cannot blind lunself to the vigor, ])romptness, and sincerity manifested by the American Government in repressing such acts in America, has not manifested equal vigor, ])rompt- ness, and sincerity herself in rei)ressing similar acts in (5reat lUitain. (//) The counsel of the United States would gladly abstain from refer- ence to another occurrence in this class of incidents, be- .iJr,n'B'i\',^''o!m.''In causc, uuliko what has gone before, it is not of a defensive, but of an accusatory character. It singularly happens, Mhile Great Britain, in her Case and Counter Case, is so careful to recount what she assumes to be the imperfections of the United States, in the execution of our foreign-etilistment act, heaping nj) a long train of accusations against us, she forgets that the most serious of all the occasions, in which the United States have been called on to act, was the attempt of Great Britain, to the i)rejudice of Kussia, to violate, on a large scale, the neutrality of the United States. And the occasion is the more remarkable, seeing that the British min- isters themselves, with characteristic misconception of the whole subject of neutral rights and duties, procured a special act of rarliament to be passed for the single and precise object of enabling them to invade the sovereignty, and to violate the local laws, of every country in Euro[)e and America. We allude to the act of Parliament, passed at an early day during the war between Great Britain and Russia, profes-sedly and avowedly to enlist soldiers abroad of its own authority for service against Russia. ' Documenta annexed to the American Case, vol. 11., p. I'M. MISCELLANEOl'H CONSIDERATIONS. 47 •rill tli(* \ StivtoH ii»'r}j;i>tic peace of hciliriit, a;cE. r VivA- [ States U ti 11108 jriptiou fiinnost e ill the hstaiul- Lhe part utioii all iito vig- ilistiict- n to and vaiice to ill ate of- )bstiiiate cter and il ]\Ieade •evention ^rdcrand t cont ro- te vi.i;<)r, imuMit in , proMipt- ritain. oin refer- iM»ts, be- d'ensive, Counter trfections ^I'vMit act, that the [ave been hjudice of h\ States. Itish niin- le subject lent to be Ivade the \\\ Europe luring the bwcdly to Llussia. We understand how tlie Ilritish nnnislers fell into the error of thus exposing to the g:i/,e of tiie woihl, on this occasion, the diflicnlly of ob- (ainiug troops at home In loruuM' wars, as wc in tlio United States had sail exi)erience, it had been the custom of (Jreat Dritain thus to act, ata ])eriod of time when the enlistnu'ut of foreign troops was a practice all but universal in l'iiir(»pe. l)Ut what we should not ninlerstand, but for the talse theory which ])ervades the Case and ('OunterCase of (Ireat IJritaiu here, is, that the Ibitish ministers should have i?nagin«'d that tlu' ^/////^s• of (Ireat Uritain, as resi)ects all foreign governments, are detera\inai)le by an act of Par- liament. On both points Ibitish ministers apjx'ar to entertain consistent theory. The neutral obligations of (Ireat Ibitain, as lespects any tbreign gov- ernment, are but such as are set forth in an act of rarlianuMit; and rarliament is to deternune her rifilits as respects foreign governments. On both related points they actiind think as if no law of nations exist- ed, or, at least, as if an actof Parliann^nt could dictate the lawot luitions for all other governments. Tliat enlistment of troops in any (lountry, for foreign service, can only he made lawfully with the (consent of the local government, is elementary doctrine of public law.' It is e«pially well established at the ])resent time that, if sucii en- listment be allowed by a neutral to one belligerent, it must bo allowed to the adverse belligerent; and, since the publication of Sir Ivobert L'hillimore's great work on international law, i)robably no person, even in (Ireat Ib-itain, would dispute the j)roposition. It took tinn», however, for i>/'///.s7i Jurists to open their eyes to this selfevident doctiine of neutrality. AVildman seems to have little or no conception of that jioint,'- ami it needed that Manning should enter into elaborate argumentation on the subject, as if it were a wholly new (pies- tion, in order to introduce the righttul opinion into (heat IJiitniu.' And yet (Jreat Jbitnin herself had manifested, by several acts of Parliament, that she saw clearly the inconvenience and the wrongful- ness of foreign governments, or private jiersons, enlisting troops within the Jurisdiction of (Ireat Britain, without the: authorization of the gov- ernment.* There never was any doubt or hesitation upon this subject in the Unite«l States. Our statesmen, beginning witli Mr. Jetl'crson, at all times have uneciuivocally and positively maintained it; and our Jurists, such as Wheaton, Lawrence, Kent, and llalleck, are careful to state the doctrine with e.xplicitness. At the present day, in presence of the ex- tensive erudition and systematic completeness with which Sir Kobert Phillimore has expounded the principles of international law, iiu^luding this point in all its relations,-' it might seem that the truth w^ould be ac- cepted in Oreat Britain. Nevertheless the same old error still lingers there, if we may Judge from the tenor of the JUitish (Jase and Counter Case ; that '• insularity" of legal perception, of which eminent English Jurists speak, still ope- ' WoltV, Jiift fjoitium, s. 747. Viittel, Droit dcs . :{J.'>. Hautefeuille, Droits et diroirs des 7iatioHS neutrcs, toino i, 'M'i, :M:!. Ri<|ucliiie, Ihrerho publico intrrnncioiinl, torn, i, p. 144. ■International Law, vol. i, p. (54. ' Law of Nations, l>ook iii, cliap. 1. SSeo numerous acts of Parliament on th'i.s sulij tional Law, vol. 1, p. 212. Vol. iii, p. -209 et seq. Iijeet, collected in Pliillimoro's lutor/ia- if I 48 AK(;rMKNT OF THE DiNITKl) .STATKS. rates;' and, while the r>ritiHh(Joveriimeiit acted in tho niattiT of cnlist- incntH as if the act passed dniin^ the war with Jliissia was supreme over all the mvcnifin rifjhta of other jjovcrnnicnts, so it now assumes that an act of I'arliament is sui)rome over all the neutral rifj^hts of other governments. On the former occasion (Jreat Britain came in (conflict with the neu- trality laws of the United States and I'russia. In each of tluse countries, she assumed to carry into effect a domestic! act of Tarliamentof her own, without askinjjf the consent of the local jjovernment. In each of them, her agents were indi(;ted and convicted of violation of the municipal law of the land. And in the United States, where the British minister was personally compromised in these unlawful ac^ts with various IJritish con- suls, in disregard of their diplomatic or semi-diplomatic (luality, it be- came i>ainfully necessary for the American Government to withdraw the exeton.^ We trust the Tribunal, on the i)erusal of those documents, will be satisfied of the sincerity and <;ood faith with which the American Gov- ernment executed its municipal laws, and dischar^icd its neutral duties, on this, the only occasion, since the revolutionary action of France, in whi(!h any forei<«ii jiovernment has undertaken to perpetrate such acts in the United States. Qualis ah iiirrpto talis ail Jimm. With (;onsistency unwavering, and at whatever hazard of domestic or Ibrei^ii inccmveiiience, even if it were friendly powers like Franc*^ and (lr«'at Jiritain with which we were thus brought into contention, the United States have steadily adhered to the principles of international neutrality; and we may well, therefore, demand the observance of those juinciples, or reparation tor their non- observance, on the part of Great Jhitain. X. We repeat a ])revious remark, that we are not disjwsed to follow the example set us in the IJritish Case and Counter Case, as we mifiht well do, by enterinj^' into examination and arraign- ment of the course pursued by Great Jbitain at various times on the subject of neutrality in her controversies with other governments. It is uot agreeable to a friend to be compelled to say, '' All liis faults observod, Set in a iioto-luKik, Icanud and coiimd by note, To cast into my ti'ttii." This the IJritish Case does, wantonly, olfensivcly. If the United States were to scan with like evil eye every occasion in which Great Britain might seem to have ueglecteil her duty as a neutral, or to have violated the rights of neutrals, we might produce a fearful list of charges; auil such examination would be more ])ertinent to the present issue, and bring into view matters more jnegnant of instruction, than those as to whicli the conduct of the United States is called in question here by the British Government. We content ourselves, in this relation, with a brief reference to two or three great controversies of special interest to the American Govern- ment, where the British Government has manifested its views of the duties of netitrality, and of the manner of dealing with alleged breaches thereof by the neutral. 1. The celebrated orders in council, issued by the Britisli govern- ment in retaliation of the Berlin and Milan decrees of the first Napoleon, involved intense assertion of neutral obliga- * Phillimore, Ist ed., pirf., p. 11 ; Clntty'fi Practice, pref., p. 5, note. 'See the dociunente oii this subject in the Appendix to the American Counter Case. Ori'.'it llnl.iin i tilliKfrt lit t^■^^ ■eutntln, Orders in courii il. -^ MISCKLLANKors CONSIDKKATIONS. 40 f culist- issuines jf otber [ho neu- luntrieH, lierown, )f tlieiu, ;ipal Isvw stci- was tisU con- [y, it bc- draw tlio aiupto"'^ , will be can (jov- iil duties, 'lanee, in sucU acts \g, and at if it were wove thus led to the therelbre, their uoii- l to follow ,'!• Case, as id anaigu- •ious times orniueuts. Ited States tat r>ritaiu . e violated irges; and [issue, and those as to [ere by tho ice to two ui Govern Lws of the tl breaches b1i govern- rees of the [ral obligsv- lounter Case. *i(»ii ; and tlnit in tlic form ofa(;ts of force as against tlio Tnittd States, wliicli icspoinU'd lo tlicst; wrongrii! measures by an act of Congress forbidding all coiniiu'rcial intorcoursc hctworn our citi/cns and cither (iftlic l»('llig<'r«'iits.' This act, says IMiilliniorc, "ranks higli in the liis- •oiy of nations. It conveyed a just and dignified n-buke both to I''ran('t> and Hiigland, and it was worthy of the eonntry which has contributed such \aluable nialerials to tin; edifice of international law."- L'. The discussion i)et\vceu (Ireat I*ritain on theoiu^ hand, and France on the other, in the first year of the American Iievolution, ,,„„.,. ,„«„, i produced three pajiers on the subject of neutral obligation, \',;,; ,;:,,;'''' /rvu'i','" of the greatest importance in the diplomatic historyof mod- ■" era times, and which contain nmny observations i>eitinent to the present controversy, namely, the " /v'/y/o-vc di's inntifs «nr,i crnment complained that the (lovernment t>f the Cnited ■ ^' '■•''"' i-- Provinces had not exei'cised due diligence to luevent their subjects from rarnishing arms and other supidies to the Americans: and that abuse of the right of asylum in the ports of the Netherlands had been sufi'eiccl tlic advantage of the Americans and the prejudice of (Jreat lUitain. Fspccially is it interesting to see, in this controversy with thcNether- hmils, that (Jreat IJritain complained incessantly of occurrences in the Dutch colonies of Saint Eiistatius, Saint Christopher, (Juracao, and Suri- 11. mi, charged as breaches of neutrality, although acts by no means so serious as those, of a similar nature, which tln^ United States here • liarge against (Jreat IJritain, in regard to the Fiahamas, ISermuda, and other Ihitish possessions in tlie West Indies. riio CJovernm(Mit of the United Frovinces, unlike J'rance, had no thought or purpose of departing from neutrality. Jt defended the acts, inculpated as breaches of neutrality, by the same argtunents, in refer- «'nce to commerce, ami to the right of asylum, as Lord Jtussell employed in discussion with IMr. Adams. ]>ut the ]>ritish (Jovernnient regardeil all those acts as acts of neutral negligence or of belligerent complicity on the part of the United Frovinces, and as a sutlicient cause of war, and thus forced the Netherlands into an armed alliance with the United States.-* J hit the prudent and sagacious statesmen, who have administered the foreign affairs of the United States in the present controversy, have preferred a patient perseverance of itisistance in the right direct. on, so as to cause arbitration to be substituted for the more dread issue, to which, in like circumstances, men of less wisdom conducted Great Ihitairi. X. The Counsel of the United States desire to say in conclusion of this part of the Argument, that we have, by the imperative f.,.„„„i„i,i,„,„„„^ exigencies of the present controversy, been compelled to °' """""• i'oiiipare and contrast the manner in which the duties of neutrality have boon performed at ditferent epochs by the United States and byGreat Britain, and especially to insist on the delinquency of the British Gov- 'Maiminjr, Law ofNatious, vol. iii, cb. 10; Pliillimore, vol. iii, p. 412. ■ Vol. iii, p. U.'iO. 'See these (locnments at large in Martens, Causes cclchrcs, tome iii, canse 2de. ^ See the history of this controversy in Mart war and to make ])eace. All these ri<>hts are in clndeu in the simple right of initional indeiiendence and sovereignty.- JJecogni/.ing, tlien, the right of neutrality as e(iuaHy sacred with the right to make war, we insist that the duty of neuti'ality <'orresponds to the right, although to the -prejudice of one (tr the other belligerent : and ill so far as the right of neutrality (>!)structs belligerent operations, the neutral State may nevertheless stand on its neutrality, even <-onib::tively. Uut such neutral must stand there in an attitude of absolute i.npar tiality: that is of course.' And such imjiartiality implies as well impartiality of inaction as im- p.artiality of action.' Neutrality, as d- 'iied by I'vliil)^', is the condition of a neutral peojile. who, in the case ol war, lender succoi' to neither of the belligerent jiar- t ios. ' As «leti!ied by lliibiiei, neutrality consists in complete inaction ri'la tively to the v»ar, anil in exact and jieifect impartiality, manifested b\ nu'ans of acts with legard to the belligerents, in everything which has relation to tlie war, and to the means, direct and indirect, of carrying it Oil." A/.iini defines neutrality to be the i-ontinuation of the : tale of peace on the i)art of a power, which, on war arising between two or more na- tions, abstains absolutely from taking any part therein ;• and this last detinition has the apiiroval of one t>f the most con ^iiicuous of the modern juiists oi' Italy. IJiit in whatever sense neutrality is to be defined, and howsoever it originates, certain it is, that eh neutrality must be one of absolute good faith : it must not degenerate into war in disguise.' Accepting, as we do, the comiuehensive delinilion of neutrality given bv I'Moit'-. wi' need not scrnjile to cite tlie apineeiation, which tiiat intel ligent author e.\[uesses, of the historical altitude of the I'nifed States in the relation. , '"In spite," says IIok', "of the elVoits of Holland ;. id Scandinavia, the can>t' of neutrals found no real support until there arose a jiowerfu'. Siate to maintain theii comnion rights. It Avas not, in truth, before the constitution (if the potent neutral State of the rnited States of America, ■which was followed by the league of rlie armed nentrality in tiie seas ol Europe, that the right of neutrals, having solid suppOiC to stand on. began to develop itself progressively, until that right reached its assured r>':ii(ijii, \»•(>(/ iiih'i nil- ' Si'oCa.saniiva, Drl Dirillo liilfrtit\:ii»inl>; vo'. ii. : ','1. - KliilnT. Droit (Irs (ictiK, v^ 'JTl* ; lialijiiii, Dri Doctri n'l,' iV'uilU". Ih'oils el /)croirf> <(i. ■ Mar MS. l*roit i!cn (Ini.'i, ^'^\. \i-\>io, tituw V\. \>. '2'J2 i( Uotiiil, p. •J7ti ft m<}.; (';i,iii'liy, Ih'oil iiiKrithiif. ]»a.sisiM). ' MasM', I.t< Droit cammcrtiitl ilmi» ttm Udjuiortu uv ^^ '^^''■ '' /'(■ lit Sdixir (Itx Hdliiiioitx iiriilrix, tonic i, part I, ('?'..i>. ii. " Dirillo Marillimo ih.H' Kiiropn, cai). 1. art. !{. - Si'c tilt i'(iiii|)lcl<' anil i'\liaiisitisf ii, pp. I,"j0, 40;i. Sut', ai.so, (ios uer, Droit den Nvutreit siir Mer, punsiiii. lit. ^V(• us in l>e- \VS UlMtll *vt;>'i the OS.' live with Ls are in ■reijiiity.' with the ijionds to eiit : aiul ions, tlie ibr.tively. te i.npar MI'^CKLLANKOUS COXSIDRRATIONS. ■A on iis iin- iil i>eoi»U'. n-ent par- •:■ •tion rehi i tested 1)\ ^liieh luis arv.vinji' it i of peace ■ nutve na- tliis hist le modern ,vsoever it iil)Sohitr litv jiivei! tiiiit inti'l «>d states uidinavia. I iMiwert'iii M'I'ore the America. lie seas <•! stand on. ts asinu-ed ■, :•■: Hunt- )vit iiiUiihi ) i, )«■ !•'•'' .31 hrcrho inln ill.SO, (it'>-- trinmpii, in re.solviM!T, by principles ofjustice. tin- mnltit'arious (luestions wliicli had a;iitated past aj^es."' W(; need not stoj* to inquire a;4airst what powi-r it was that tliesc etl'orts for tlie (hnelopment and estal)lishracnt of neutral ri!»hts were directed liy the neutral ].<,>vv»'i'.< wiiii-ii act(>d in concert to that j^reat cikI.-' Tho Counst'l of the United States mny he permitteu. in view of the cxpr.'ss or imi)lled eharr('. jV()(MY'i» I>niil iiih ritiilioiKil jiiihlii minuil /( v Ixtohis dr la iiiili>tili. U".". ■Sec Caiicliy, I>roil MiivUimi'. titiiic i, ))ivf. ; C'iis-<.v, I'lhixix. Xf..\)i<'f. Atii(;ii;j the matters wliirli tlic lirilisli ( 'use nr Cininttr Cast' intrni'iin's toattriitiun ;iri' several wliieli ■lie tiM> insi^iiilieaiir I'nr notice in tin- lext, lint wliieli may need a word of coiiiiiiciitai'y. .loliii Laird, ex-jiartner and t'atlier ot' '• .loliii Laiid, Sons iV I'u..'" aji- .1,1 ., i.,r, ,. • pears inaki.^ statements a;;ainst tin' I'liiled Stales. >•-•,-- TIk' Lairds, it slioiild seem, would lietler hide tlieir licads. And it would scciii tliat (Irc.'ir Hritaiii, wiio, liii;;;e!y liy flicir means, has liecn involved in acts which pro- iDundly. and iii'iliaiis ))ermaiicntly, dislnrlt her rce|(ti\c st.ite- meiits in the 1 1 onse of < 'ominous with respect to the o]icrationso|" L;iird. .Suns A Co. 'J'iic time when he cniild win aiiplaiise there !ty hoastl'nl hostility to the I'liitcd ,'stalcs h;\^ passed. Xi-ithcr l-.)rns>ell, it' in the House ot'Coiii- Hions, iioiMr. (Gladstone himsell', could hsoU witli complacency to-day 0:1 the shi)>-hiiild- iiii; tiiiii wiiicli SI) zealously ser\'d thi' coiiredeiates, to the injury aliko of tJnat Dritain and ot'tln I'liileil States. \. .lolm Lainl says that a maii-ol'-\>ar was huilt in the I'nitcd States lor lkns>ia. and delivered to her dnriii;:; her late war with (ircat J'ritaiu. j'rool', a ncwsp.-ipcr state- iiieiit ill the 'I'imes. Laird and the. Times are hotli mistaken. 'I'lic case of the Maury, mciilioiieil l>y Sir Ivou.iidell I'almer, slifiws that at this jteriod Urilish olliecl•^ ill Americ.'i, while enjia.> own aeccuint, wholly without any authority t'.oiii the Secretary of till- N.nyof the I'nited States. ••Our J >;'));, r'mcni of .\uriil .[(I'aii^i," as lie imiorantly calls il. and our " MinistiM' uf the Navy," \\ hieh exDression^ .lioiie oni;ht to li.'U •■ satislied the Lairds that they weri' heitiji rir1imi:i(l liy .some iii- jifiiioiis \cw Yoilu-r. Mr. 11. al'iisiscly leferreil to the .Secretary of the N;'.vy to pro- mote his own ]iiivalc interests or those of the Lairds. John Laird, in the zeal of his sympathy with the rchellion, tuaile the samotatcmen; in the House of Ci.mmons \ou'j, ai;o, and was llatly conliadieleil hy Mr. Wi lies, the Aiiiericaa Secictarv oi" the Navv. Tl 11- snperserv I a hie Mr. H. had no com mission I'rom the American Cox en uit. 11. l>e;;aii to treat orally with the Lairds, early in L-lil, liefore the arrival ot .\!r. Adams in I'.iiniaml. No ollieer ot' the Lniteil .States apjicars to have ci>niite:ianeed .Mr. II.. Imt the Navy Itvpartment, accordiiij; tiie |"eisiin in hclialf id' .Mr. Laird. If .Mr. H, was the ancnl of aiiyliody. it was of the L;iiiil>. The IJritish (ioveriimer.t must he in desperate straits I'or det'eiise, when it coiidi ^'■eiids to resuscitate tile stale ca Iniiin ; ot' ••nil liinniiii tun," like J(diii Lainl, and to I'lit tl ii'in into its Case III this connection wo dispose of another of the smaller items of acciisntioii of tin I'nited Stat 11 is ehaijjed in the IMitish Chhc that we pnicliased arms in Knj;laiid. What tlioi Was it not lawful to do so, aeeoi(lin)r to the aecepteil law nf nations .' Tl lis eluuiie is another illiisliiilion of th<> iiijustiee of that act of tlw I h««e lit' iirlii*. Ihitish Government which a.ssiimed to ]iiit the L'nited Slates and thiir rehelsoii a foot - ui;: of international iMpiality in the markets of (Jreat Ihitain. Not thus have the riiited Status doported Ihetuaelves towanl Spain in the matter of f Cul >u. V.-VFATEMKNT OF SOME CKXKllAL IWCTS IM' liTlNKNT TO THE INOUIKV, AND Ari'LlCAIILE TO EACH CRLISER. Tlio Uniteil Statt's in their Case, wliicli was t]eli\'eit'il to the Tribunal ii„. „,e „, f,,.. of Arbitration on tlie L"»th day of Deeeniber hist, ]>resentetl '\T'kV"tZ'^ZuC evideiiee to establish the foIU)\vin>^- facts: ,ul'/.f BnT.'ih ."l'.- !• 'J^"l'i'<^ before the outbreak of the insurrection in tlie I t -r -^ 'it t'j If ._Al'_: A_? 1 \ ___ _i* • ^ 1.1 ^1 I, Jiiiv lilt y>i iin- iii.-Mii HI I n>ii in iiM' United S'.iies, Her ?klajesty\s (Jovernnient invited the Gov- ernment of the Trencli l^nipeior to act Jointly \vith tiu' iJritish (lov- crnnient in the anticipated risiiifj ol' the insurgents. 1'. That bcf(U'e an arrmd collision had taken place, llei- .Miijesty's 'lovennneut «leferniined to reco^iii/e the insmj^ents as Iiellii^t rents, whenever ihe insurrection should break out. .'». That, in accordanc. with the previous invitati<^n to the I'rench (iovernnieiit. Her Maji'sty's (buernnient announced iJs decision so to reeo;;nize the insur^^ents, ane questioned. ti. That these steps were taken clandestinely, without tlu^ knowledge of the I'nited States; and that the desired advanta<4'es were »d)tained. and the ri;,dit of the insurj^cnts to issue letters-ofmarque was reeoj; ni/.ed. 7. That these unfriendly acts. c(unmitted before or soon after the out- Itreak of the ijisurrection, were supplemented by other unfriendly acts injurious to the I'nited States and partial t(»ward the insur<;t'nts. S. That they were also supjdemented by public speeches made by various members of ller ^lajesty's (ioxcrnment, at various tinu's. throu^diout the war, showin;^- that the speakershad i»ersonal sympathies with tin' insui'.^eids, and had active d«'sires that they should succeen as illicial in- lates lU'o I', and l>i'- 'witli. till" llOUSl'S (tt ivcojini- cntitU'tl vcinnient It Ciovcrn- ort to ob- nch coui- thc insur- |no\vl»Ml, (lUtaincd. as ivooji- In- the out- ■ndly acts iits.' bv Ms udo time \U\M\ thic MirceiM lui'iit hostile motives and cvtMi iiisiiicoro neutrality, no re]>ly wli;\te\ er will lie oli'eied ill t!ii>' Cininter Case. The IJiitish Covernnieiit ili.stiiictly lei'iiscs to enter niinn the tlix- ciissiim on thewe c'har,i;es. First. Iiecniise it would iie ineonsistent with the sell-respect wliich I'Vi'ry ;4oveinn)ent is Ixtimd to fee] ; secondly, becanse the matter in dispnti' i- Mction. and not motive, ami theretore the discussion is irrelevant; thirdly, lieoanse to n ply and to enter npon a retaliatory exiiosition, mnst tend to inllame the controversy, u hii'li in the whole tone and tenor of its Case the Jhitish Covernnient has shown it > i!. •>!!(> to ai>pease : and lastly, with respect to the chary;es themselves, it' they were of liny weijiht or vidne, the Hritish (ioveriinient would still contend that the jn'oiter repl> t ) rhiiii was to ite found in the ]iroof whicdi it has siip]ilied that its pi-oecediii^s have liiioii^ihont, in idl points, been governed by a desire, not only to fnllill all clear intei- ii:ition;d duties toward the (iovernnient of the I'nited States, but likewise, wlu'ii an iipjioitnnity was ollered, even to j;'o beyond whiit could have been demanded of it as of ir^ht. in order to obviate all possiltilily of cavil ajiainsi its conduct. Her ^laje.sty'.s (iovernnicnt states, in substiinee, tliiit lor tliroo ^iven lousons no nnswor will bo made to the cliai.uos niadc by tlio Unitt'd States; and this stiitement is Ibllowcd by an averment tlnit "the i)root which Jler Majesty's Government h;is siii)plicd"' ''rebuts the eluirjies wliicli the rnite«l States cotitend to liave established.*' We luive but U.'\v remarks to imike in respect to these eoiillicting averments. To the statement tlmt to reply to tlie cliar{;es wotild be inconsistent with the se]r-resi)ect of Her ^litjesty's (lovernment, we can- H.i,„„.i.r t, .1- not presunte to interpo.se an tmswer. AVe recognize that '''"'''' '•■'■"■■ each imh'pendeiit (lovernment ntust be the ynaitlian of its own self rcs])ect, and must tlecitle I'or itself whether the atteini)t to answer or to t'Aplain such facts as were contained in the Case ot the United States is inconsistent with that self-respect. To the averment that such a reply would tend to inllame the contro viTsv, we xt'uture to submit to the iirbitrators that it is not easv to sec how a friendly explanation of ticts which, when committed, naturally tended to excite the jnescnt controversy, will assist in eontinuin';' 01 increasing' the feeling which those acts caused. To the assertion thtit a retaliatory exposition would tend to intlanu^ the coiitrover.sy, we r«'ply. denying tiiat ;uiy retaliatory exposition can be made by Her Majesty's (lovernmenl. The tribunal will observe what tlie ''exposition" of the Cnitcd States has been. It has been (.'harged and pi'oxed that Jlcr Majesty's (iovernment collectively committed acts, and that the members of that government individually made speeches, tliat revealed an active feeling of unfriendliness to the I'nited States, w liich would lead to ami acciumt for th«^ acts of which complaint is ntade liel.)i(' this Tril)tiiial. How is it i)ossible to tmike "ii retaliatory expos] tioii of" such charges.' (Ireat Jbitain is m»t here comidaining of jin\ jut l>iidy made, rather thiin insinuated. \Ve feel contident thiit no such I'i'ool can be found. The averment thitt the tli.scnssion is irrelevant has been received with MMprise. W'e had supposed it to be ;i fundamental luinci- i,„i..v„i„r m ,1,., p!c of law, in the JurisiuiKh'nce of all civilized nations, tlmt ''^'^ " "''•'""■ tlic nu)tives which prom[>t tMi act alVeet its dmracter; ami that, when it i: i} 1'^ In K ''" m 1 '- th %' ■ '»: ^ \ Ir vr 54 AIUil'MKNT OF Tin: IMTKI) STATES. I is attonipti'dto ernard acknowledg«'d it when he said, *' injnrion-^ M-.Moi.ia,.:. I!., rciuissness or injurious inattention on the part of a(Jovein *'•"'• ment is not merely something less than the greatest possible promptitude or the greatest possible care." '• It has not been usual in international (piestions to scrutinize narrowly the circnmstaiices from vhich negligence might be inferred and comphiiuts of actual iiegiigence have been urged but rarely, and with a view rather to security for the future than <"o reparation for the i>ast. These considerations are indeed plain and obvious, ;ind the (Jovernment of the United States is jjiobably not insensible to them, since it is at pains to insist that tlie neglect with which it charges tluMlovtrnment of (Ireat Iliitain was 'gross,' 'inex- cusable,' and 'extreme," HMiuivalent or approximate toexil intention.''" Karl ilnssell was of the same opinion when he said: " It ajiitears to Her ^bijesty's (Jovt'rnment that there ;ire but two(|uestioiis by which tlie claim of comi»ensation could be tested. The one is: Have the llritish (iovernment acted with «lue diligence, or in other words with good faith and honesty, in the maintenance of the neutrality they proclaimed :' The other is, have the law-ollicers of the Crown jiroperiy understood the l-'oreign-liiilistment Act, when they de • BritiHli C'ouiitiT Case, pp. 7^, 7!>. • .\in. CiiM', ji. inl. ' Xciitnility of (inat Hiitaiii dmiiifr tlic Aiiuiicaii Civil Wiii, j>p. '.\<>, '.'>f<7. fcl^rl KI109.-1I. .SOMH (.ENKIJAL FACTS rKKTINKN l' TO THE 1.\<.>IIUY, KTC. iJi) II. !• Ilrit.-li Cii" l',-.,.f j'J>initl.-.l \^ith III'' Aiit»Tl'-;iii ( ,1-'* "I III'- "v^tf ma- in- :illit I'Hi'-IJil line '■! liiiti-h Urnt'iiy by til'* iri.Hiirfflit", Willi I If kiiii«l*' it ge 111 ("■-.il Hntiiiii. iliiM'd ill Jiuif. ISdL.*, to advise the dcteiitioii and sei/.tuo oftlic Alabama, and (»ii othci'tK'casioiis when tlicy were asked tcMletain <»tliei' .ships hiiild- :iiu' or littiiiji in Ilntish ])orts." ' Ilei' INlaJesty's (ioveiiimeiit itself, wlieii it iVanied its Case, liad not .iiiived at tlie eoiielusion jait loitli in its ('(tuiiter Case. It rlieii said : A cliaijic of iiiJinio\is iii'i;li;;;»iic(' on tlio imit (it ii sovcici;;!! (iov t'niiiiciit. in tliii I'M Tcisc! of itiiy lit tlic ]i(i\V('i'.s of s(i\ crciiiiity, nrcds to l)c siistainrd on stroitu aiid suliil ^rmiiuls. Every s(>vi'ii'ij;ii (ioMTiiincnt claims tlir ii;^Iit to he iiKlcitt'iidiMit t)t' external ^iiutiiiy or iiitert'ereiiee in the exer'ise ul' these jxiwers; ami the ;;emM'al assumption 'iiat tliey are exereised \vi(h i^ood faith and iiasuiiahle care, ami that law s are fairly and iiroperly ailmiuistcrcd. ail assiim)it inn witlmut which iicaee and friendly inter- II HUM' could nut exist anuiiij;' naliims. iin;^ht to sniisist u •till il Ikik In i ii dinplih < d h;/ prtxif 'II l!ii fKiilrarij. ■ Tlie Counsel of the ITnited States will theicfon^ o'ointo the diseii.s.sioii III' the (niestions of faet as to the .sever.tl vessels witli the fact ThiMMi-,tn.,i •.» uiicontrov«'ited, that Her .Majesty's ( iovernnient and the Jll^.n'^^iLX.'i'iis individual nieniliersof it freely, icpeatedly, and puhlicly .yave '"""•'• it to he understood that it was neither expected nor desired in thcCalti- !iet at liondou, that the I'nitetl States should succeed in avertino- tin; (lestruetiou (»f their nationality: and that these ex])ectatiou.s and desires were known to all sulK)rdinates of Her Maje.sty's (loverniuent. The Cuited States also presented with their Case evidence to show :liat, at the conunencenieut of the insm-rection, the insur- gents established on I'.ritish s(»il adndnistrative bureaus for the ]>urpose of niakin.:^- Jbitisli soil and waters bases of hos- tile operations a.^ainst the Cnited States; and that from these bureaus and throiioh i>ersons actin.n' under their direc- tions, or ill co-operation witli them, the several ve.sselsof whose acts they (•oni]>lain were either dispatched tVom (Ireat llritain, or wert* su]>i>lied in iliitish ports with the means of cairyinu'on war aoainst the I'uited States. They further showed that the existence of tlie.se bureaus was iirotijiht to the knowleduc of Her .MajestN's Ciovernment and was just ifnMl l»y it. Of a portion of this evidence, whicli llei .Majesty's (lovernment sees lit to style *' a nniss of confederate papers." the lUitish < 'onnter Case says: ••of the authenticity of them, and of the manner in which they eauie into the possession of X\n\ United States, Jler llritannic .Majesty's Cioverniiient has no knowlerajes- i.v's ■iovernnieiit) knows iiothino- whate\ei'. They are per.sons with whom this (ioverniiient has n<»thinj'' to do. and whose very existence was un- known to it : anurport to beattaelie«l to them, (persons unknown to the l»ritish Cio'ernment,) worthy of credit. Jler .Majesty's (Jovernmeiit thiidvs it rij^hi to say that it attaches verj little credit to tliem."' ' llrit. Apii.. vol. iv, jiaper \ , [i. :U. - Mrit. Case, p. Kill. Itritish Counter Case. p. :J. I Hiid., K. ..(). I r 5(1 AKGUMHXT OF THE INITED .STATES. The Ai'bitrattn'sinay, thoreloio, assuino, iiotwithstaiulin^^llioaveiinoiit on pa}j;e .")(), tliat Her 3Iajest.v'.s Goveniment admits that the evideiiec vet'eired to caiiie into the ]>o.sse.s.siou of tlie United States by eaptuie at liic'hinond, and tiiat there is no serious question of the authentieity of the letters. Tliey may also assume that there will be no serious ques- Tion made as to the truth of tin; faets stated in those letters. Jt is true that Jler 31ajesty".s Government says that it attaehes little credit to tliem. It is equally true that the United States attaches full faith to tliem. The Arbitrators will judge whether it is probable or improbable that these free and conlidential letters do give correct accounts of the contemporaneous events which they describe. They Avill also judge whetlier those e\ ents are or are not relevant to the issue between tljc two (lovernments. The United States think that they are. li' they are relevant the United States are justitu'd in bringing them before the Tribunal, esi>ecially as it ai)pearstliat Uer]Ma jesty's ( lovernment was several times informed of the illegal ojierations which the writers ol these identical letters were carrying on from J>ritish soil at the time when the letters were written. We, therefore, contend that we go into the discussion of the questions •n,,-. f..i,ni.„t„ of fact, with the further general facts ])roved, that the in- ' "'^'"""" ' '■ surgents estal>iished and maintaine«l unmolested throughout the insurrection administrative bureaus on J>ritish soil, by means of which the several cruisers were dispatchearate]y. AVe beyin with the Fior- ' "" "' ida. 'i'iiis vessi'l, nncU'r the name of the' ()ret<>, was bnilt at Jiiverpool, Kii;il:iiid, and saih'd frt)m that ])laee on thi.' 2lM of ^[areh, 1S(!l', without any .ittempt at her detention by (Ireat Uritain. Slie was in constrne- tion and outfit evidently a(h»i)ted to warlike use. On the ISth of February 31r. Adams, in behalf of the Uidted States, submitted to J'^arl IJussell, for his consideration, " the eoi)y ((fan extract of a letter," addresse«l to him by the consul of his Government at Liv«'rpooI, "^oin^jj to show," as he said, " the i)r('i)a ration at that port of an armed steamer, evidently intended tor hostile <>l)erations on the oceaji." ' This communication from Mr. Adams was, on the next day, referred )»y ICarl I'ussell to the ijtutls Commissioners of the Ti'casury A,„„„nfH.rM that Iteinji' the approjiriate departnuuit of Jler Majesty's j' '^^ «■■>'•"" - (lovernnu'iit for such reference.-' Thisdejiartment at once called ui)on the Collector of Customs at laxcrpool for information, and by his direc- tion the vessel was inspected I»y a .uovernment inspector, who, on the L'lst yt\' I'ebruary, rejxutecl that she was '-a splenat(:h-boat, i>ierced for j;uns, but has not any on board, nor are there any <;un-carria;4»'s,"' The Iniildeis were NN'. C'. 3Iiller «.V: Sons, one of the firm bi'in^u' a pjvernment olliccr, •• the ('hief Surveyor ofTonnajie" at that port.^ 'I'liis lirni, on beinu ajtplied to by the collector for inforn:ation, said, "AVe ha\e Iniilt the dispatch-v*'ssi'l Oreto. * * * She is ]»icrced tor [four ^-luis. * * * She is in no way fitted for the reception of jiuns [as yet: nor do \v«' know that she is to have j;uns whilst in lOnyland." On the same day these reports of the Surveyor ami buihU'rs were ltransniitt«'d by the Colle(!torto the Commissioners ofCnstoms, with the Statement that "the vessel is correctly described" in the note of the bniltlers." On the L'lM of February, the Commissioners of Customs reported to tlu' Lends CommissioiM'rsof the Treasury that '• theOrcto is i>ier«'ed for lour guns: but she has as yet taken notiiin,i;' on board but coals and ballast. She is not. at present, fitted for the rece[>tion of j;uns, nor are the build- ers a\vai»' that slii' is to be supplied with tiuns while she remains in this countiN loners of smitted on the Miitish Case, p. ; lirit. fast'. |i. f)!. Iliiil., 11. .".">. Ilii. .M. Ihid. Ibid. Iliitl, p, ] 58 AKGIMKNT OF TlIK rXlTKl) STA IKS. Slif W)i«i thnii *-\ jfollv u iimtj-nl-v\.i 2.Stli of April .iiri\('(l at Xiissau, in tho island of Now l*i(»vi(lenc(',one of the JIahanias, aner anchorafic under th(^ JOnj^lish tiaji' ; but as there are no less than three car<;'oes of arms an, in a communication to the Governor of the llahamas, reported her as "api)arently titf ing and pre l)aring; for a vessel of wai'."'' And again, on the (Jth of .hme, in another connnunication to the same ollicer. he says, " 1 have visited the screw- steamer Oreto, and examiiu'd her. She is fitted in every >vay Ibr war purposes, maga/ines, shell-rooms, and other fittings, totally at variance with the character of a merchant vessel * * * The captain doe> not deny that she is intende»l tor a war-vessel."' And on the 8th of tliv same month, in a letter to the Colonial Secr(.'tary, hesays, "In my letter of the 17th instant [ultimo .'J I nmde His l^xcellency aware of tlie war like character of that vessel, and 1 am of opinion that she is n(»t calla- ble of taking in any cargo, having no stowage." The letter of the 17th referred to is not produced, but orts b<'ing madi^ td 'ship and unship,' port bars, breeching, side tackle, bolts, iVc. ; that slu has shell-rooms, a maga/.ine and light rooms, ami handing-scuttles foi handing powder out of the maga/ine, as fitted in the naval service, and ' Urit. Case. \\\). :>!* fit (il. • Ibid., p. (;:!. ■'• Brit. App., vol. i, p. 4I>. ^ Biit, App., Coinitfir Case, vol. v.. p. .1'. Brit. App., vol. i, p. 11. Jirit. App., vol. i, p. U). 11)1(1., p. -.'(I. Iliid. i THE I'LOKIl^A. 50 of New ristlk-tioii by Com- lal of his » lunaiuler tliive oi I losjU'Cts •' lli;it Hi) iguitl. tlif x'forc thf iitlisiiftei me (»f lior luMii were k'ft Liver- rtssan. slu- > r.iiUtloji', he, oil the I very s>is , is now at re n<> Ic^-^ o run tlio vatt'or ill ;i itioii to the «;■ aiitl pi't' in anotlu 1 the screw- ly l(»r war t variaiKo >taiii tloes 8th of the n my letter tiie war- s not capa- he Kith ot >[cKiUoi' sliip, aft«'i ernor that le i)riiKMl»l« That she guns amiil J made td ; that sill' senttU's ft'i service, aiiiiriMiscs, " ' and my coii- \ ictioii. as also tliat of my olliccrs and men that liavi' lifcn on board id' her, t liat she is liiiilt intently iov a war-Vfssd and not tor a nicrcliant slii|(, maUc it iiiciimliciit on un- ioM'i/c till' Ort'lo as a vissd tl:at can lie no moii' consiihTcd as a tVcc-t ladi r, hiit that >lic i>, oil the contrary, calciilati'd to !»■ tnnicd iiiln a I'oriiiidahh! vessel of war in tweiity- luiir liotns: ai"' that this I am eonvineed will lie the case if she is )iennitted to leave Nassau. And, therefore, in her picscut state, a \ issei under I'.i itish c(dors. sailing; from hiiice in such an e(|nii>iied slate to a professional e.xc. that, I consider it would he a i!ii\viiri;;lit iiejilect of duty on my (lart to |>eniiit her |iroceedini^ to sea, without a,.:;ain iiru'iii;^ most stromjly on your lv\ee!lency the e\|iediency ot" taking; charije ot' her. as an iiienally eiiuipiied Hritish vessid. si.s in my ]iioles>ioiial ca[>aeity, as also in the oiiiiiion ..I' my otticeis, it is im[ios-;ilde to con-ider her as any other, she Iiein;^ a li'uni Jidr vessel nt war on our royal naval jirinciide. ■ And still again on the lOth, in another comnmnication to the (io\ ciiior, he says: < )n the Oreto I have reix'ated my ])ridessioii;il oiiinion, as also that td" my oftieers, • iiid I still have to exjiress my conviction that she is a \ cssel ol' war that can he eiiiiip- jied ill twenty-four hours for hattle, ami that slie is now n'oiiij^ out of the harlioras maily ei|iiii>[)ed as a \essel of war can lie without j;uns, arms, and ammunition.' This evidence is taken, as the arbitrators will notice, exclusively trom that furnished by iler .Majesty's (loveriiiiient in its Case, Counter Case, and accompanying documents: and the United States submit, it shows, beyond any eontroversy. that on the 18tli of J'ebruary, the date n[' 3Ir. Adams's communication to I'^arl Wussell, the Oreto was a ves.sel sjiecially adapted to warlike use : that this fact was ai>parent upon an iiis[)ecti()ii of the ves.sel her.self; that she had been constructed and so ••specially adapted" within tin; Jurisdiction of Her 3Iajesty's (lovern- ment. iind tliat she still remained in that Jurisdieti(Ui. Sht» w;is intended to cruise or carry on war iigainst the Cuited States, and Her .Majesty's Ciovernment had reasonable grounds so to believe. Mr. Adams, with his eominunicati(tu to I'arl liussell on the bsth of February, submitted an extract from a letter of < ii,r„i., .,i ir , tlie Consul of the Cnited States at Liverpool, in which it is ,^;„;"' ■^•'"•-"" said : " Mr. ]\liller, who built the hull, says lie was employed by Faw- cett, I'restoii ^S: Co., and that tiiey own tiie vessel. * * Fra/.er, Treii- holm vK: Co. have made a*lvanees to Fawcett. I'resttui cS: Co., and .Miller, the buihU'r." ' And .Mr. Adams in his note to Karl Jfussell .says, " From the evidence furni.shed in the names o\' the persons stated to be concerned in her construction and outfit, I entertain little d(mbt that the intention is preci.sely that indicated in the letterof the Consul, tiie carrying on war against the United States. * * Should further evidence to "sustain the allegatioii.s respecting the Oreto be held necessary to effect the obje(;t of securing the interpo.sition of irer3Iajesty"s(iovernmeiit, I will niake an ertortto procure it in a more formal manner."' This eoinmunicatioii was not accompanied by any evidence that could ^ I: t s ' 1 I } It ' Uiit. App., vol. i. p. -j:!. ■ JJrit. App., vol. i, p. ','4. 'H»id.,p.^>tl. Urit. Case, p. ">:?. Ibid. (JO AKUl'.MKM' Ol' Tin; IMTKl) STATKS. be iiiiulc iiviuliiblr, in tlir roiirts of (Iroiit llritiiiii. It wjis what it jiui poitctl to be, ii men' " statomoiit of bcbrf." It I'iiirl IviisscU dcsiird t'lirtUrr cvitlciice to be ('iiniislM'd l)y tii(^ riiitctl States, \w was invited s(> to say in reply. He did not, but in his reply on the l!>tli contented iiiinseir with aeknowled<;in,in' tin' I'eeeijit of the eoniniunieation, and statin;;" that he had "lost no time in eoniinnnicatin,i;' with the propei (leparhnent of ller Majesty's (iovernnient on this subject."' Uii the L'ist of February the biiihU'rs reported to the Collector at liiv \,t,.,n..f.i. II,,. erpool," We have built the disj)ateli vessel for Messrs. I'aw- .:■,„,,„„.,,. vv{{^ I'n'ston »S: Co., en;4ineers of this town, who are tlii" ajjents of Messrs. Thomas IJrothers, of I'aleiino, for whose use the \essel, we umlerstand, has been built. * * Mr. Thomas, of the lirni at Palermo, frecpUMitly visited the ship while she was bein;;' built. * * AVc have hamled her over to the engineers, and have been )>aiu.m. j^^j. j^^^j^, (joi,f(>,]erate States."' There propoi r at I^iv irs. l-'aw- aro the use lilt' 1 lirni at * * AVe I lor lior. on of tli«' lastor to 1, by the istiuction 'onnnuni- til a fur lieve that OS.'"'' it will lu" stify such was built the best 10. Vaw neers and ' but no I'e, as the " under or whose linst this of arms to haw m)t have t, or, if it )orte(l to ueted the :d to the t she has •rostou iV )f Messrs. lently vis- is pierced paid, and :Messrs. 10, as the.\ hat port: iuul oiir rolle<'tor at liiverpool states that he has oveiy reason ti> l>elievo that the vessel is for tiie Italian (lovernnient. We be;;' further to a«hl, that speeial directions hav(^ been j;iv«'n to the ollicers at liiverpool to watch the movements of the vessel, and that we will not fail to lepcnt forthwith any circnmstanei! which may occur worthy of y»»ur f.ordship's to;;ni/.anee."' It will be here observed, that the report does no\ state it was only uii dt-rstood by Miller t\: Sons that the vessel was intended for the use of Thomas IJrothers, but it apiteared from the repoit that she was so in- tended. Nt'itlier does it appear that inrpiiiies had not been adtlressed to I''awe«'tt, Preston «.\: ('i>. ; Imt it did appear that "special directions" had been ^^iven to the ollicers at Ia\eri)ool to watch the movements of the vessel, and that ])rompt report woidd be made whenever circum- stances worthy of their Lordships' co^iui/ance mi;;ht occur. This report was transmitted l»y the Secretary of the Treasury to Marl K'ussi'JI on the L'lth ; - ami i»y ICarl IJussell to Mr. Adams on the iMIth of February. The statemeids of the ollicers and builders on which the report was i)redicatetl were not sent with it. JOarl Ifussell in trans- mitting' the report did not intimate any desire that 3Ir. Adams shoidtl make an ell'ort to procure further evidence.' Hut on the same day of ! its tlate he (I'.arl llussell) telegraphed to II er Majesty's .Minister at Turin f as follows: "Ascertain and report to me whether a vessel called the ' Oreto, now littinj; out at Liverpool, is intemled for the use of the Ital- ian Government." ^ On the 1st of .March the Minister at Turin I'eplied: "liicasoli tells me that he has no knowletljie whatever of tin; shij* Oreto, but will cause in<[uiry to lie made,"" No int|uiri<'s appear to have been addressed tt) tlu' rei»resentative of His ^lajesty, the Kin,^' of Italy, in London, or to hisconsid at Liverjxtol, ami no further informa- tion was receiveil from the Minister at Turin until after the vessel had sailed. On the 1st of March, the same day with the receipt of the reply fnun the ^Minister at Turin, John 11. Thomas, of Liverpool, " a natural-born Lritish subject, born at I'alermo, in the island of Sicily, of Jlritish pa- |rents," declared in writing in the i»reseiice of the Kej;istrar of Shipi>in,t: iat the ]H>rt of Liverpool (one of the ollicers of the Ciovernment specially |char<;ed with the rejjistry of vessels') that he was "entitled to be rey- |istered as owner of sixty-four shares (the whole) of said ship. To the '■best of jny knowledge and belief, no person or botly of persons other Jban such persons or bodies of jiersons as are by the ^Merchant Shipi)ing ?Act, 1854, (jualitied to be owners of Ibitish shii»s, is entitled as owner to aiiy interest whatever, either legal or benelicial,'iii the said ship." ' This declaration was made in accordance with the jirovisions of sec- tion 38of the Merchant Shipping Act, lsr)4,of (ireat liritain,'' „..,.vv ., i,. to obtain the registry of the ship as a lUitish vessel. ^Vith- ^ ' ' out it theliegistry eoidd not have been granted, for none but natural- born Uritish sidijects and persons made (hmi/.ens by letters of deniza- tion, or naturalized, could be owners of a JJritish ship. '" ' 15rit.l'asiM..r,|. ' Iltid.. II. .v.. ••JWit. App., vol. i, p. n. ■'Itrit. Aji])., vol. i, p. :{. '' Ihit. (.'iif^e. ]». iV). ' Mcichaiit Shii)]iinj; Act, 1854. >* Brit. Ca.se, ji. .">(). ■' Am. Ajtp. Counter Ca.se, p. IIIW. '"Mer. ti\nl^. Act, 18o4, sec. Ifcf ; App. Aui. Counter Case, p. 1132. 62 AUCa'MKXT (M' TIIK IMTKI) STATKS. Tpoii this (Iccliiiiitioii tlic vj'sscl wiis, on tin' Dd of ^r;ircli, iryistt'icd iis ii Uritish vrsscl, ;it: the port of Iiivi.'i[)ool, iiinlci" Mm- ii;iiii(> of tlio Oroto.' This iN-jiistry was iiiiido in one of tlio ))nl>lilli<'e ol tlip Collector of Cnstonis at hiverpool.' 'I'o be re;4idar it slionid have been si;;ned by the Collector or Coni|»troller,'' bat that formality seeni>. in this i)articnlar instance, to have Ix'en omitted.'' On the .")d and Ith iif March, shippin^i' articles, in accor«lan<'e with the form sanctioned by tin' Hoard of Trade, An;;nst, iStiO, in pnrsnanc*' of 17 and 18 \'ictoria, c. KM," were si<,nied by the master and all the crew who sailed in the vessel, e.\<'ept two who sij;ned as substitntes on the 14tli an«l loth, in jtri'senee of ,1. \V. Ilnyhes, shij>pinlaees in the Me«litor ranean Sea and the West Indies, and back to a linal port of dis(diar;>t' in the United Kinjieen rej;istered at tlie port of Liverpool, jNIarch .'!. lS(n ; and Fawcett, Trestou »-^ Co. are named as ''manafiiny owners." Shipping' articles, by the terms of the " Merchant >Shii)pin«;' Act, 18.')4." are reiied in «liiplieate in the jnesenee of the shippiiiu master, Avhose dnty it is to " cause the a^ioement to be read over and explained to each seaman, or otherwise ascertain that each seaman understands the same betbre he sij^ns it, and to attest each signature." One ])art of tlie articles, thu.s in dnplieate, must be retained by the ship ])injj master, who is an ollieer of the (lovernment, auil who has a public oflice, known as the '' shippiuf*' olliee."" All this foiinality was ftone throu;»h Avith in this case, as will be seen by a copy ot the aiticles actually sij>ned in the '-shipping- oIlitMi" and before a "shipi)ini;- master,"' found in the Appeiulix to lljellritish Case. vol. i, p. 1()1. Thus then stood the facts known to Her ^Majesty's (iovernnu'iitpu tlif 1th of IMareh, eijihteen days before the Oreto sailed. She was desifiued for war i)urposes. That was evident. Slit was for the use of some .government, though ref^isteved in the name el a IJritish subject. Slie did not belong to Jler 3LiJesty's (Jovernment, an, sec. 14vi; App. Am. Count' Case, p. IKi;?. ■' See see. I4'i alxtve. '• Hiit. Case, ]>. .")»). 'Mer. Shi)). At't, 1854, sec. ?*. MJiit. App., vol. i, p. 1(51. ■'IJrit. Apj»., vol. i, p. Kil. '"Mer. Sliip. Act, sec. 15(1; App. Am. Counter Case, p. ll.^.'S. " Ibid., sec. l'^2; App. Am. Counter Case, p. 1151. t .l:i Tin: I'l.oh'ihA. i'u\ >};istoll'il (» (»f till' Is, l»y i>;i I hiillasl. liiniaicii. iild hiivf ty st't'iii^. with the uic'c of IT ert'W who thi' 14tli K> port «>t Liverpool ) INleditev (lischarj-v ^. In the V08St'l i> , ;Miircli .">. >• owners." Vet, isrA: l' shipping II over and cli seaman «>natnre." y the ship- lis a publii ^ill be seen jtlieo" aiul itish Case. iientpn the liled. Shi' (lent. She 10 name (»i ivernmcnt. to or -Nv;!-" nsnrgents o'ainst he! lion of hoi understooil been eon trmed Eiu' Am. Count' h'lissell as early as tiie I."»jh of Anjiust. isdl, was "well knttwn to con- sist ill part of Aiiierieans ill sympatliy with the iiisnriu'eiits of the I'nited States."' ill point ol' fact, only one ol' the partners resided in Iii\ei- |)ool, and he was a native of South ('arolina, who, on the loth of .Iniie, JSi;;;, iipplled to Her .Majesty's ;>(n ('iiiueiit for a eerlifieate of nalnrali /atioii.' The other members of the I iin were at tin' time actual resi- dents (»f the Stale of Soiilli Carolina. Omt (»f them, afterward the Secretary of the Treasnry of the insur^j^t'iils, was, on the ."ith of Anjjnst, l.stil. (as a|(p<'ars by the public records in the ollice of the Ke^istrar ol Shipiniii" at Liverpool,) authorized by a '"certilicate of sale," from liei owiiei- ill Liverpool, to sell the ship Uerinuda at any i)lace out of the liiitcd Kiiiydoiii. This certilicate of sale al.so «le.scribed him as ''of Charleston, in the Stale of Sonlh Carolina,"' one of the i)orts at the time closed by the blockade of the Ciiited Stales.' It was npoii the occasion of a coiiiidaint l>y ."Mr. Adams as to this very vessel that he communi- cated to I'.arl Itns.sell the relations of this linn with the insnr;.i('iits. The liiiilders stated that l''awcett, I'reston «S: Co. e«nitra<'ted with them lor llie biiildiii;,', and the records showed that they were the "mana<;iiiji' (»wiiers," direct iiij;" tlu^ prejiarations I'or her eeial directions" literally, and ■-i"*"'-'- watched only the "movements of the vessel,'' but the United States submits that if Her ]\rajesty's (lovernment did not receive ftirtlu'r infor- mation, it was be(;an.se it failed to use the means within its power to hccome better informed. It had been put niion iiniuirv, and was neiili- .ui'iit if it did not act. NN'hat mifjht it have done .' On Hie .">d oi' ^lan.'h the vessel became a •■ rej-istered Jbitish ves.sel," an*! subject to the laws in force in the kinij- . k- 5SF" *■•■ 64 AK(;iMi:\T OF Tin: imted ^tatks. I ti iU>uf tiifriluiti*' ( Th«' Morcliant ^liippiiiu' Act, IS." I, uiuhm- which the vessel wns rcj^is uhM„n,iii„. tcrct'i, iuu\ i h-(l' tli.u '• if any iiiKiiialiticd iicrsoii * * ac ''It.VnK •i'^'''*'^^ •'•'^ 't""!!*'!'. any int«'ivst, either h'.nal or bein'tu-ial, in a shipusiuji a Uiiti.sh thii^and assuniiiiji the lljitisii cliaiacter. such interest sliall he luvleited lo Her 3IaJest\." anersi»n on liehall'ol" himself (»r any other lun'soii or hotly of pei'sons, wilfully makes a false (h'ehirat'on touciiinu the (jualilieat ion of himself or sn<'h other person or inMiy of persons to own British sjiips. or any shares tiierein. the deehinuit shall he quills of a misdemeanor, aneeii for- teited under the foreu(iin;u pro\ ision, shall, to tiie i-xtent of tin* interest therein of the person maUin.n' the (h-elaratiou, * * be forl'eited to Her >!ajesty."" The same A'i ' |>rovid< .^ that •• the lloai'd of Tiade" lone of the depurt merits (d" Mer Majesty's (iovermuen' ) ■ may, from time to timi', whenever it seem;- e\|)edient Jo them so to do, appoint any )»er.son as an inspector. To report to them upon the following; matter, ti)at is to say : * * * "!'. Wheiher ihe pio\isions of this Act or any reunlations made undci or by virtue ol" tiiis Act ha\e Ikmmi complied w ith," Ami l>v si-ction 1."). •• 'Very such inspector as afores.iid shall ha\e liie followinu; pi'wers. tlmt is to say: "^ ' " * * ".■>, lie may. by ^^nminons under his hand, reipui'' the attendance of all such pi-rsons as bethinks til ioeall before him and e\. unine for such purpo>c. and iia\ riM|uire answers ^n■ returns to a:iy ini(uiries he tliink> lit t«» make. •• I. lie nia> reipiire ami enforcv the prodnction of all books, papeis. ol dotaiaient.-. which he .'(msidcrs important foi' such purpose. *•.">. lie may adndniter oaths, nr nr,i,\. in lieu ol' recpiiriuL^ or adnnir isterin^- an oath. I'eipiii'e everv person evamimsl by him to malie and subscrilte a declaration of the truih of the s'.atements made by iiim in his exaudnaiiou." ' This was machinery in ! he hands and \inder the control ot" Ihe otlieer> t>f Her Maj;'sty"s (io\('r!iment. It cord. I n were circumslances biouiihl lo the knowled,ij;<' of the olhcers of lie'.' .Majesty sulheieut to create at least a stron;j suspicion that sonic of the iU'ovisit)iis ol' the .Merchant Shippinj«' Act had been violated, an;ht with luopriety have been apiKiinted iiiid an intjuiry instituted by him. The b'lilders, Faweett, Pieston «S: Co.. l-'ra/ei-, Trenholm »S: Co.. and Tlnnnas, if necessaix. mi>;lit ha\e been called to j;i\e InformatitUi ; and. if called I'lioleau (one ol the linn of Trazer, Trenholm vS; Co.) would Jiavo been compelled to state, as he did subsetpieiilly state umler oath, that tie contv;!:-t for the building- was made with I'av.cett, Trest**!' \ Co. by danu's J>, ItuUoek, v. .. actid in i'^n^',iand as tlu' ''a;4eni oi the 2Savy Department " of the i!unir;,:ents; and that she Mas i)aid for throu;:ii Frazer, Tr»'nholm ».V Co., who Vi<'re at tlii' time the '"linaiieial a;;. Jlarris, of t'-e tirm of II. .vd(h'r!y «.\: Co., afterwaitl on the trial before tlie \'ice-Ad'niralty Com' at Nassau) thai his linn at Liverpool consigned her, on Iter departure I Sec. l(i;t, sill., '.i, 1: Ain), Am. ('. Cas.v •'Set'.)): Aiii.C. CiiM-. A|>ii., ll'JT. 'S. I- J»;>VV('1S, l(liilH't> Ot 1' lor sncli Ik- think- S, IMptTS. or :nl!nin iiaUi' iUiil by liini in lit' otlicci-- Hintiolh'tl lli'i't' |u' ollieers liat sonic lilted, and [n im|Uiry Co.. and ion ; and. I'o.) would ilcr oatli,' IMcstoi' \ ■lit *»i tlic \y lliroil^'ii ll a;AtMits" liavc 'H't'ii ini of II. )lty ('our' IW'paitiU'' from tlia^ port, to tlic firm of II. Addcily iS: Co. at Nassau ; and in accord- ance with facts \\!dcli iiavc been sul)sc(nicntly developed, lie must have boen coinitelled to testily that, at tin' time of her rejiistry she was in fa<*t owned by the insurgent ji;-over!iment, and was about to sail trom Liver- pool for its use. Fawcett, Treston \' <'o. woidd have lieeii eomitelled to testifythat- tliev contracted witii IJnllock feison named lUdlock has com«' to Vluji- land for the pnii»ose of ]U'ocuriii;; \cssels to lie littt^l as prixateers to cruise auaiiist tiie couiinerce of tlie CmtcdStat s. ;mdtha{ he will iiiiuce Liverpoo! tlu' scene ol' his operations." • It is true, as is said in the IJritish Counter ( 'asc, that in a court of justice ill ritaiii. A builder who knew notliin,n" was imiuired of and he jLjaxe his i'' uiiderstandiu-i." A Colleetoi expressed his ••belief." and there the f" researches" ended. Ajiaiii, oil paj;e 7."> of the I'.rltish Ccuinter Case is this statement : Wliiit llicliiiN iTiiiiKnt ilidoii ri'ci'iv iiit; Mr. Ailiiiiis'src|ir('sontatiiiiisisstatnl iiitln' I>rit- i.Hli( 'iiM'. lin|iiir\ was i list, •intlyiliit'ctcd. lint no ill l'. a iikhiImt nf wliicli was i( I I: ' Hritisli^Vii]*.. vol. i, j). ITS ■Lftter (luiii .Major jjnst^ to (Joiiias, Manli 1">. l-'ti'J. Am. Ai»|i.. vol. vi. 'Am. Ai>i>.. \o!. \ ii, \ ' OH. Kill. ( '. Casi'. p. 74. O (! iW, Ai.'(irMi:Ni' <)i' Tin: i"Niri:i> siaiks. liM|uii V Wiis iiKh't'd institiitt'd on tlu' I'.Uli of l-'i'Idiuiry, Itiit it stojipi'd on tilt- LMItli, iiiid was nrvtT diivctj'd to tlu* sonn-osot" suspicion indicated l>y .Mr. Dudley. In fact, on tlu^ L'(»tli of l'\'l)ruai> ivcry otHccr of Ilcr Majesty's (lovciinncnt, that 1 lie Tnitcd States were assured wotdd he on tlie •' watcli/' ai»|»eais to iiave closed his eyes and to have left thf vessj'l and her owneis entirely to themselves. On the L'Sth of \pril the ()i«'to arrived at Nassau. She was still ;i JJritish ship, with a IJritish reyistrv, under the ISritish lljiy. A.r>.ii .T N.... 1 • II • • 1 ' ■ and Ml a ISiinsh pori. On ilii- MHh of April Coniniander McKiilop, in his report t«) the ,,„ ,..,„,,..,, .\ver- ••'""'■''"'•' nor i'layley, in his letter to ( 'oniinandei' .McKiilop, on the .'>d of .lune. says ; She •' is a re;iist«'r('d llritish vessel and carries the IJritish lla;;." and ( oniniaudei' llicklcy, on tlu' l."»th of .lune. in his letter to the ( iovernoi', relers to her as "a vessel iiiidei' Hiitish colors." As has lieeii already seen, she was then evich'iitly a vessel of wa', and specially adapted to warlike |>ni)>oses. Her .Majesl>"s ( Joveruiuent, at tlii-« time, certainly had reasonablf L-^ronnds to helicve ^he was intentlcd ti» cruise ami carry on wai' a;iainst the I'nited States. On thelMhof May Cioxcrnor llayley iudoised on a itlter to him nl that date from Mr. U'hitin;;'. the <"(Uisul of the I'nitcd States.' jln' foi htwin;; statemeiil : •• 1\m' coupling t hat fact with the description ;;iveii ine hy the Captain of II. M. ship IWdl doj.:', of the build ot the Oreto. I cannot fail to infer that she is a \ cssel of war intended to act a^iainsi the I'nitJ'd States." ' On the same day he caused a letter to the same elVect to he addressed to II. Adderly \ Co." And a;^ain riti>li ship. und«*r Uiitish «'olors .' And in the same lettci-, he says Commandci llicklcy infornu'd him •• her ical destination was openl_\ talked ttf." Ajjain. '• Her Majesty's (lovernnuMit is informed and believes that duriii;; the blockade of *he insurgent States it was a common ])ractic«' tor ships leavin;; tlu- i»ort of Nassau, with tlu' inl«'Ufion of endeavorin^i- to run tlieir carjjoes into the blockaded jiorts, to clear for St. John's, New lirunswick." ' " Karly in the month of .lune, l.S(;i.»."(al)out the 4th.) "tlif consi;,MU'es of the vessel, who were a mere mercantile firm ar Nassau. applied to the lleceivcr (leiUMal (the proper olhci'r for that purpose) for permission to load her for an outward voyaji'c to St..lohn's. New IJruns wick." " At this time she was, accordinji to the opinion ol Commandci McKiilop, "'not capable^ of takin;^; in any cai'ifo, liavinj; no .stowa;;*'- On the IMli she commenced taking in a caryo of "arms and ammuni tion, inclndin;; some boxes of shells." (not likely to i»e of much nsv at St. Joliir.s,) but, beiiifj visited byComnninder llicklcy, discharged her car;;i' and dearecl for Jlavami in ballast." At Nu.s.sau. then, the (io\ernment certainly not only had reasonahli \VM,t .., ,1... J jirounds to believe, but actually did believe, that she Wii> "■■'" intended to cruise amiiiist the. United States. ' Hiit. Ai»|i.. vol. i. )». II. ■Il.iil.. p. I-. Il.i'l.. ).. -Jl. ' Itrit. (.'a.M', |i. (il. ' Itrit. Apii. (oiiiitcr Ciisc. vol. \. p. ".">. ' 111 it. .\iip..\ol. i. p, l.'i. liiit. App.. vol. 1. p. i:{. Il>iil. Prit. Cii.M'. p. t»;i. 'Il>i(l. Iliiil.. p. tV't. THK I'LOKIMA. (m StOpJHMl idicatod of Ili'l loft thf IS still :i tish llii;:. t to tilt' (i:)V*'i- ). on tlif lilies the u*, ill lii^ oolors." ■ \Vi!'-, illlll oasoiiablf \v ;t;;ainst to him tro('('«'«i (• ( )r('to !<' ii iit'Utial a r,riti>li inmiantlt'i U.'«l of." at ilurinii for shiiis u<^ to vim >lin's, N<'\v ttli,)"tlif r Nassau, irposc) for o\v IJinus on»nian(l<'i slo\vajr«'" I ainniniii us«' at St licr cart;" icasonaltl' ^it she w;i^ 1'.}. .Ih.I,. i.I I'mltr tin; WiiU's of tin' Treaty, J ler Majesty's (iovcrnmont was bomnl to n.se "«huMliliji»'nee" to iU'tain the vessel at Nassan, as well as at M\« rpool. This was iu)t «loiU'. but she was peiinitted to clear for St. .lohn's,' when that was eqnivalent, according to the i)ractice which pre- vailiMl at that port, to a clearaiu-e for the insnr,ii('nt .States. lint it is clainn'd by Her Majesty's (iovernnuMit "that the l'lori«la was seized while at Nassan, on ehar<;e of a violation of the l-'iucijin-rjidist- nn'nt Act ; that |»roceedinj;s w«Me, by thef the xcssel were entitled to have lu i nnu'diafely reh'ased," As between the claimants of tin' vessel ami Iler Majesty's (lovern mcnt seeking to entotct'a forfeitnr«' nmlerthe provisions of the l"'oreij;n llnlistnn'nt Act. this decree may have been conclusive; bnt as between llie Cnited Slates and Her .Majesty's (lovernnn'iit, it has in)t that elfect. The duty of Her Majesty's (lovernnu'nt was to nse dm' dili;;-ence to pre vent the departnie of the vessel, becanse she had been specially adatited to warlike nse within its Jnrisdiction, and was intemled to cruise and tarry on wai' a,uain>t the I'nited States. She was proccedeil a;iainst on t he .sole <;i'onml that an attempt had liceii made to e(pii|), fninish, and tit her ont within the jnrisdi<-tion of tlie r.aliamas. This is in terms admitted by Attorney (o'lmral .\nder .son in his defense as pnblished in the Counter Case.' The JiuljiV, in .I'snonneiiiii' his opinioji, says: •• Now. to support the libel it is necessary ,!! i! prool shonld Ite ^iven, tirsi. that the aforesaid jtarties, havinj;' chi.ryc of the Oicto, while the vessel was within th«' Jiiri.sdiction of the \'ice Adnnralty Conrt of the Mahamas, attempted to «'i'> of their Ca.se, have j^one further than this, and .said: "If it had been predetermiiu'd that the Oreto shonhl be released by jioin;;- through the tbrin of a trial under the For- ei;:n-Kn!istment Act, the steps cmJd not inive Ikmui better directed for 11 11 ■I'V f w*.. .::* L'. i Mrit. A))]!., vol. i, jt. .')8. ij Uritisli ('((iiiitcr (';im', ]i, Ttl. ?. )!rit. Apii.. vol. I. ]i. (is. Uritisli Counter Case. ]>. 77. ' Mrit. Ai'p., vol. i, ]). :t!i. ♦J8 AliGlMKNT OF THE INITED .STATES. that imrposc." To this tlie Attorney (ioihtuI of the Coh)iiy has heen permitted, throiijrii the British Counter Case, to make his response tiiat, ••this ehar^e is wholly unfouiukMl. Under the cireuhir (lispat(;h of the loth November, already referred to, the res{»onsihility of initiating proceedinjis under the Foreijj;n Knlistment Aet was phieed, and properly so, on the Attorney (leneral of the Colony, and that oflic«'r had necessa- rily to be cautions in advisinj,' the institution of i)ro('eedin*»s, whicii, if ultimately unsuccessful, mij;ht eventuat<' in rendering? the seizors liable to heavy damajjesJ It will be observed the Attorney (Jeneral «h»es not deny, but on the contrary admits, that he was, durinu all the time the Oret») was at Nas- sau, the "contidi'Utial counsel of Adderly & Co.," and that in a speech made in a trial in another court, which took plac(^ after the Oreto was libelled aiul before the decree was rendered, he said that "the Union of the United States was a myth now fully exploded.'" ' He thinks he did n(»t use the words " Vaidvce fiction,'' as "the us«^ of words of the sort is not the style of lanjiuajic^ 1 am accustomed to adopt," but he ad- mits that he* may have used lan;iiia;je embodyinjn' the expn'ssion of an opinion, which 1 certainly then ent«'rtained, that tlu; I'nion which thi^ tlap: was intt'iided to represent had. as far as iclated to the Southern jxntion of North Anwrica, passed away."' Neither is it denied that Harris. 4>ne of the lirm of Adderly tK: Co., consiiiiiees «it' the vessel, was one of the lOxeciitive C«tnncil of the (Jovernnient of the t'olony,* or that A. J. Atlderh , another [>artner in the firm, was a member of the Assem bly.' ller Majesty's (lovj'rnment admits in its Case," and repeats in its Counter Case,' that •• in a procee«ling in rem ayainst a ship, to enforce a forfeiluie for an alle;;ed inl'rin^icment of a Statute, a Court, wlu-rever locally situate within the «lominions of the Crown, might lawfully re ceive and adjudicate upon evidence of sucli infringement wheiever thi^ .ict or acts constituting it might have l>een committed." The tlu'ory, then, on which the Attorney (leneral founded and conducted his ciise ln'fon' the \'ice Admiralty Court was erroneous. \ vessel speciidiv ae at Nassau in balhiNt.'' On the I'.Mh of May the Consul of the Initetl States wiote to the (iovernor of the Colony that it wa*; "• Itelieved, and so reporlt-d by many resi«lents here, that she is being pi'eparj'd and litted out a^ a con federate privateer." '-' The Covern|». Oniitcr Cini', vol. \, pp. l«»^^k - Aiiifiiinn <"asi'. |tiijif :M4. ' llti. * Aiiii-iii'iiM App.. vol. vi. |i. 'i'M . ''•■»>;<' T***, "Tostiiiiiiiiy III Hauls, liritisji App.. r Mint, r ('uh*'. vol. v. p. 4K ■'Hfiijainiii I" Mallitt, .Xiiu'rica'i App.. xul. vi. p. ">?. '" Hi'N li-^tT t<» l{antli)lpli. Aiiu'i i< an App.. vdl. vi, p. TT. " Htitisli Ap|>.. Counter Ca."!', »ul. \. p. 'X>. '■ Uritisli ('as.', p. CI. Tin: KLOKMDA. (;*) r.itti.il :i nil >i Ji •.-nHv rnmliirl <» ■V ilflllUll illilllttl < '1- till' M'oiy, S CilM' 'ciallv l('(l «ui st'd. coiiti Nassau au'nit t Nas- ■iiiji' nil Slu' ssaii ill I'Ott' to . fl In .1 con as to tlu' truth of tlicsc allcjiatioiis. and lu', on the same (lay, roportcd : " She «li(l not cntor tlio liarbor, and now lies at Coclirant-'s ancliorajio, and I have no information as to her fntnrc )>ro<;«>e«linjis,"' ' On the sanies day tho Attorney (Jcm'ral was called upon for his opinion, and he i'ei»orted as follows: " With respect totheOreto. theConsnl's allen I'.nlistnu'Ut Acthasbeen coiiiiuitti'd, all i)arties implicate*! in which are liable to be criminally proceeded ajiainst for misdemeanor, and the vessel may bo seized by any naval or revenue ollicci': but to justily pi'oceedin<>s either against the |»arties or the vessel, the matter must not rest on re|>ute or l)elief alone, but the authorities must have positive facts to j^round their pro ci'i>din<'s on, and unless the Consul can adduce such, or they can be obtained throiijuh other channels, no steps can be taken either for the arrest of the vessel or those on boai'd of her.*- On the saiiu' day the (loveriuu" cai.sed a r.ote to be sent by the Colo- nial SccH'tary to Addeiiy tS; Co.,asf(tllows:"I am directedby the(Jovernor t(> notify to you, that if you are arniin;;' or j)! ttin<>' arms on board the st earner Oret O.I lis Ivxcellency will en force the rules laid ' and pre- scrvin.:;' neutrality in the (^ueeirs poss(>ssious. Jlis lvxcellen(;y will use ills strtmiicst elforts to ]»re\»Mit either of the belliuvrent ]iowers from ariiiiiij;' or equippinji' vessels of war in this port." ' T() this, upon the next day, Adderly tS; Co. wrote in r<'ply : '■' We bej; to acUnowledjiC receipt ol' your coinmunicatiou of yestenbiy's date infonninji' us that, if we were arminji' (U' imttinj;' arms on board of the steamer Oreto, His Kxcellency would entbre the rules laid down in the (i>ne«'n's Proclamation. In reply, we bej^- to state, for the infornuition of His l-'\cellency, the (lovernor. that we have neither attempted to arm or put arms on board of the Dritish steamer Oreto, consigned to our firm, nor are we aware of then* beinj«' any intention on the part of the owners to arm that vessel."* On the trial beforethe ,Iuer, the aj^eut of the iusurj,'ents. to their Secretary of War, nmlerthe -d of May, in wliat he says; " You are aware that she is a {gunboat. * * * The Hahama is expected every moment with lier armament, and I shall hav«' it speedily transferred, thoujih the matter will ha\ e to be delicately manajit'd."" The IJahama did afterwards arrive. The United States are unable to jjivo the date of her arrival, but she first appeared at Co(!hrane's Aiichora . k ' Uritisli App., Counter ('umi-, vol. v. p. :>."). * Hrit. Ajtj).. vol. vi. p. 1(5. Hritisli App., vol. i, piigo 1.'). il.iil. Hi it. Ajtp., (ntintpr Case. vol. v. i». 4i ' Am .App., vol. vi, p. MM. 70 AKGIMKNT (»F Till: IMTKI) STATKS ciitr.v at the Custom-Ilouse oriniyi'iistoin-UoiiseOniccisoii board.' Ou flu? 2(»tli the IJorcivor (leiicral advised theColonial Secretary that lu? had " iivery reason to believe tho eoiisi<;iiees of the JJritish steamer Oreto (whieh vessel arrived from Liverpool in ballast) intend shippinfj larjre (luantities of arms, ami munition «»f war as earj^o. * * ♦ I'robably application nniy bo made to allow ear^io Irom other v«'ssels to be trans ferr«'d to the Oreto where she now lies."-' On the Uith *he Hahama entered inwarorts that one steamer, the Oreto, is apparently tittin^- ami preparinj^ for a \ «'ssel of war. Under those cir(rnmstances 1 would su}i}j:est that s\h\ should come into the harbor of Nassau t«) prexcnt any misunderstanding as to her eciuippin^' in this port contrary to the Foreij^n l*-nlistiuent Act, as a pri vateer or war- vessel." ' On the same day the (loverncu- adtlressed the Attorney Oeneral and desired "to know whether it is contrary to law to (U'der the Oreto to come down to the harbor, as the < 'ommander of tlu' IWdhloji' has reported her to have the appearance of a luivalcer armiii;;- herself."' Tlu' Attor- ney (leneral innnediati'ly replied that he was "ol opinion that an order for the rcmtnal of the Oreto from Cochrane's Anchorajic, where she now lies, to tlu' harhoi' of Nassau should not be made, as su<*h older could not be legally enforced unless it was i)iir iiKtr- was icr.'ivfil at .-i late hoiir ami I was anxious to send an iiiinu'diatc answer in mder tlial an\ aciion in the matter lel'erred ti> niii;lil 1>.' ,-;e\ ented. " Any iJiitisli in- tore i an lradin;j, vessel lias a vijilit. in canyin';' on liei- hiwl'nl (vinunereial jniisnits, to use .-is aneli()iaj;e-]»laeesany ot iIm' Inirliors, roadsteads, and anelioiaiies in the Colony, Jteyond exercisin;;; the powers eonl'eired on him l;y the trade laws, ills llxeelleney liiis no jtower to compel tlie removal of the ()reto I'rom liei' jirisenl an('hora<;e, unless >ome aet has been (ioiii> in resjiect ol' lier whieh wonid eonstitnte ;i violation (>;■ law and snhjeet her to sei/.iwe. This l>rin;;s me to the ipiestion whether there is anythinji disidosed in your oommniii- eation whieh would, in ,i court of law, Jnstil'y the t'oreihlc removal of the vessel from her jncsent jiosilion. 'I'he iuformat ion amounts totiiis: that the senior niival otlicer on the station has ollicially reported to liu' (Joveruor that this vessel is apparciUly tittiii<;' and preparing;- for a vessel of war, or, as ■•tated in your m)te of yesterday, lias tln^ aji- |iearanee of a ]iri\ateer arminji herself. Now, unless Captain McKilloj) f>r()mids the o|iinion f(>rmeorsons in char;;e of the vessel to lit her out as a vessel ol' war to l)e cmjiloyed iu the ser\ ice of a foiei<;n helli^^erent Power, the foreilde removal of tin \i-ssel from her present i»osi- tion, merely to frnar<' rt'Hponsilde for in damages, unless they could show a legal, justilication which niiiHt lie l)ased up(ui soiuetliing beyond mere suspii ion. Jle then says, while mere suspicion miijht not be sutlicient to author- ize a removal, it would justify the i»lju'in^ of " a reveuuo officer on board ot her to watch the proceedinj^h .)f the parties on board, in onler lhi,, vol. vi, p. ;i*25. Ibid,, ]).:vr. Tin: I'LOKiiiA. 71 that, if any actual coiitravoiitioii of the law took i)la('e, it mij^lit 1k^ at oiiw reported aii«l jd-oiiipt measures taken hy sei/.iue of the vessel and (ithei'wise to punish all parties iniplieated therein." Then he says: I will only niiw adil lliiil I I'l-rl that a ;;icat iiicasiirt' of the n'spitiisiliility ir>t> ii|miii iiir ill (|iirstiiins (if tliin iiatiiri'. and that it lii-hmiM'S im- tn he particularly cautions in I'iviiiji any anUe of Newcastle, on the l.'ith of Novemltei' last, in a i>art of which it is stated : •• If it should lie necessary for the ( olonial antlioritics to act ill any such case. [/. c. violation of the l'oreij;M liiilisiment Ai't,] it shonld only he done when the l.iw is icirnlmiy put in t'urce. and under tin- advice of tiic law -oltjceis of IheCi-own." On the next thiy he wrote to llie Coloniiil Secrettiry : I have the honor to acknowledge the receijit (d" \dnr letter ot' this day's dati'. and ha ve to expifss my re^irct that His llxcellency should have misapprehended the meaning of my letter of yesterilay's date, which 1 certainly never iiileniled shonld hear the coii- .•.tniclion which His Excellency ap|)e,'irs to ha\e placed on it, and which I respectl'nUy siihinil a careful perusal will show cannot he pliiced on it. Any act of arniiin;', or any attempt to arm a \cssel in contr.i\ i-ntion ol' the Imperial Statute, cominonly known as the I'oreiiiii-KnIistmenI Act. will siiliject the vessel to sei/nre. and it is ipiite iinma- tciial inwhiit manner the\iolation ot' law i.s .iscertained. or hy whose testimony it is cstahlished. the onl>' necessary rei|iiiremcnt hciny; that the fads i.'-,iiiied to shonld he such as would lie received III conn ot' law as le^al proof ot' the \iiiIatio;; '>f the statnic s(in;;hl to he cstahlished. With i.'fi>reni'e to the coiiclndiiii; part of yo.ir letter, I can only say that it is far from my w isii to dictali^ to His I'.xccllcncy the conrs.' to lie imrsned hy him. my simple diit.\ hcinj;' to ]il,ice hefore His Kxcellcncy myojiinion on the state vill In' i^nidcil liy my views or not.-' The letter of tlu^ Colonial Secretary, to which this is a reply, is not jiivei! anion;;' the documents jirodiiced in evidcm-c i>y (licat J'.ritaiii. Alter the receipt of the.se several letters from the Attorney ( leiieral, the (lovernor addres.sed a communicjition to Commiimler McKiliop, un- der date of .Iiine '_'. in which he says that the Oreto shoiihl not be al- lowed to arm herself tor l)elli.y<'rent purposes within the Jurisdictie treated as a i>irate, ii juivateer. or forei.'^ii man of war armino within our waters." He therefore retpiested thiit such stej)s shoulil be taken '' as in your lirofessional opinion seem best for the juirpose of ascertaining' the true chiiracter of the Oreto and the Uiitur,' of her eipiipment : and if, after inspeotin,i;" her fiuns, her crew, and the jn-encral disposition of the \ es.sel, you are convinced that she is in reality w man of-wtir (»r iirivuteer iirm- ing herself here, then it will become your duty, either to concert meas- ures for bringing" the Oreto down into this ))art of the Inirbor. or, what will be a safer course, to renu)ve your own ship to Coehnine's Anchor- age and there watch her proceedings from dtty to day." ' On the day of the date of this letter (duneL') the ctirgo of the Hahiinni, consigned to Adderly & Co., was " warehou.sed " iiud stored tit Nas.sati in the piddic warehouses.^ About this time, Adderly »S: Co. made iij)- plicution to the Keceivcv General for leave to ship a load of arms tind other inerehiindi.se by the steanu'r ( )reto.'' , t 'Brit. App.. vol. i, p. 17, ■ Testimony of IIuri-ii!i, Brit. App., Couuter Case, vol. v, p. 40. ■' Brit. App., vol. i, p. 18. ^ Am. App., vol. vi, pp. '.Vi^i, 'MG. 72 AKGIMKNT (H" Till; I'MTKIt STATKS. I On tlic Itli olMiiiH' tills application was consiiU'iod Ity tlir Ivvrciitivc Council, (.Mr. Harris hcin}*' a nicnilK.,) and with tlicir advice it was or- dered by tlic. (iovornor that itinju'ticahlc the Orcto should take in her caryo within the i)ort ot\Nassau.' In ac(!ordance with the advice of the( 'ouncil, the (lovernor appears to have coniuiunicated this order to Connnander .M(;lvillo|>, and lie, under date of the (Jth, reports: " 1 have visit«'d the screw steamer Oreto and t'xainined her. Hhe is titted in every way for war i)urposes, inajiazines, shellrooins, and othi-r llttiii^'s totally at variance with the character of a merchant-vessel. She has no jnuns or ammunition on board. The Captain does not deny that she is iuteiided for a war-vessel."- This re- port was referred to the Attoiiiey (leiieial, and he on the 7th jravc his oi»ini(ui as follows: ''Then^ are no I'acts set forth in the within letter which would in my opinion autIiori/,c the seizure <)f the Oreto. They constitute only circumstances of suspicion, which if couple«l with some actual overt a(;t would uv tCxrcllciicv ol' tlic i:«lli of .Imir, I liiivi' tlic Crown l.iiwvt r.->' oiiinion, :inil I iiiiJim liiin-^ llic (nets of tlic lnoadlv sn-spirious rliaiiic- lur of tint ( »i(t(> lirrmr yon, w itli llio jidilition ol' those of licr olil cit'sv liax in;; li'l't licr, :iM(l for wliy. as likrw i-c her cnlcrin^i or attcniplin;;; to tnlrr a ni'W fi>'\>-. for yonr consiilcialion and llir Law Oiliccis of tlic ( 'rtiwn : and failing' tlicir sanction to taki' cliaip' of the (Ircto. (and it is ini|>rolialilc. if not im|iossililc. that they can know a war vessel's ci|ni|inicnt as well as niyscll' and ollicers, ) I liav c (o siiuncst that I should forth- with send her to the Coniinodorc or ('oniniandi'r in Chief on my own iiidfessional rc- sponsihility : as allowiiijj such a \ esse] as the Oreto to pass to sea as a Hritish mer- chant vessel and a pcaeefnl trader woiilil comjironiisc my convictions so entirely as to lie a ne^'leel of duty as Senior \a\al ollicer here |>iesent, and ceitainl.N' not y the Law Onicers of the Crown at Nassau, and as he was tohl by His KxceUency Tliat he did not "think it consistent with law or i)ublic i>olicy that she should now be seized on the hypothesis that she is clearinj;' out f(»r the pur|)Ose of armiu}; herself as a vessel ol' war beyond the limits of the iiarbor. A\'e have done our duty in seein;«: that she does not leave the liarbor cfpiipped and prt>pared to act otfensiv<'ly against one of two bellij;erent nations, with each of whom (Ireat Uritain is at ]ieacc." On the 17th, however, nntwithstandinji" the sti'on;^' opinion ol the I, aw Oflicer of tlie Crown wlio dischariicd the duties of (^)ueen's Advocate* and Attorney Cicneral of the Colony, the Covernor yielded to the conviction of Commander Ilicklcy and his olliccrs that she was a vessel of war thai could be equii)pet her t)ii the theory of his opinions, so otten reiterated, that she could only be lield for acts ofecpiipment and tittin.u out actually occuirinji' within the iiu'isdiction of the ])ort of Nassau. The vessel had arrived at Nassau on tlie L'Stli of April, six weelcs bo lore licr linal seizure. I''rom the tiist she was an object of .. , , , suspicion and comment. Commander McKilloji icporled "'"" liei- arrival and his suspicions to the Admiialty in Lomlon. under date of the .iOth «)f Apiil. His report was icceiN cd in IjOImIou, s«> that it was coimiMinicated to the Forei;-!) Ollice. on the Jdth of .Iniu'.' Not a wor«l went from any other ollicer at the <"olony t<> th«> Home (iovernnu'Ut until the -1st of .Fune, when (iovernor Uayley rc]>orted the st'izure and all that i)receded it, including' the ojunions of the Attorney (Ieneral. Tins was communicated to tlie I'oii'ijiii Ollice at London, on the JJlst ot July. •• It was submitted to the Law Ollicers of the Crown, and they on the ll-th of Au<>;ust reported: "We think that the facts warranted the seizure, but we must add that it is very important that, on the trial, evidence should be adduced of what occurred at Liverpool, as rcj;ards the building*' and littinjf out and the alleycil ownership and ;>. AKCr.MKNI' n|' lin; IMIKK >TArr.s. l»y tln^ alluliivit of CommaiKlcr Ilickli'v on tin- L'Oth: an artulavit of cliurn was liltMl by raptain Diijiuid on tin* L'Tth : the IiIh'I was lilcU by t lie Attorney (Irncral on tlir ls( of , Inly; tlir rcs|»oiisiv»' ph-a of tlui i'lainijint on tlic L'lst;' tin* tiial (•(nnnirncccl on tlm lOMi — at least the first witness was exaniincMl then ; the last witness was examined on the L'tith ; the ar;;'nni«'nt was made on the .'{Oth, an«l the deei'ee rendered on the I'd of Anf^nst.' It will be interestin^i' to see what was bein;^- done l»y tlie a;;ents »)f the insurgents while these proeeedin;;s were ;;(»in<; on. MalVitt, who had been assii^iH'd by Connnander IJnIlock to the eonunand of the I'lorida, (then called the Manassas,) arrived in Nassau on the (»th of May,' and on the L'l'd he lu'ported to tin- insur^^ent h^eeretary of the Navy that lu^ Inul arrived at Nassau, and had personally assumed eiunnnind ''of the Manassas, which vessel I ho|>e to have ready lor service soim." ' On the iMJth of May the insur^'ent Secn'tary of the Navy made a loqui sition np(m the Tieasury for )|^r»(>,(M)(>, to be sent " to fit out and ecpiip the Confederat*' States steamer Manassas, now at Nassau," ' ami on tlu> next day (the L'Tth) a bill was oiderecl drawn for that amount, "in favor of liientenant dohn N. Mitllitt, Confederate States Navy.*"' Ileyliyer was supi'rintendin,u' the alfairs of the insur;;ents at Nassau, and shippin;;' rej;ularly his car^^oi's of articles <'ontraband of war.' Xassun was \i,sitc(l liy nmnriiuis )i:irtif>. aliiiKsi all nrwluiiii wcii' iimir or less iiitcr- I'stcd ill wiiat \va> llini cuii'-iilcrcd tin- risiiijr rorhiiD's i>l' a new nalioii. Many urtjit'iii were iH'isiiiis (if (Mliiciilinii ami ai-i]iiiii'iiiciits, wliirli ;;a\ »• tlii-iii rcaily aci'css In (lichi'st sDcifly (it' llii' jilari-. while iiiili>rtiiiiatrl,\ . (Ill the (itliiT liaiiil, v.c lia(l lnii I'l'W Ndrtliciii \ isildis." Tlic island ol New \'vit\ idciicc. of wliicli Nassau is tlic milv inw ii. is a hai rcii liiiic- stdiic nick. iM'diliiiiii;; (tiily smnc cdaisr j;rass. a I'cw stiiiit('(l iiccs. a lew iiiiicapidcs and diaiincs. and a ;;icat many saiid-cialts and liddlcrs. I'x lun^ the war it was tlic i('nd('/\ (ins dC a lew wreckers and lislieriiien. Cdninierce it liad iKine. except sncli as inijilit jii'dW out 111" the siidii;;!' trade and the shiiniieiit ol urecn turtle and enucli shells. 'I'he Anicriean war. which has lirouu'ht wde and wretchedness td sd nianydl'diir States, was the wind which lilew |irds|ierity to Nassau. It liad alrcadx put nn the air ol' a cduiinei'clal city, its tine hailinr licin;; tiirdimcd with shiitiiinn', and ils w archnuses, wharves. and (|ua.\s tilled to reiiictidii with merchandise. All was lil'c, hustle, and ac- I ivily. Shijis were ciinslaui Iv arri\ iiin and depnsit in;;- t heir cary;des. and lieht-drau;^lit >teamers. ripiilcdcrate and I'nulish, were as ennstaiiily reld.idiiit; the»' carnnes and riin- niui;' t hem iiitu l he iimts i>t' the ( 'dnl'edcratc Stales. ' 'the notdridus -^ympat hies ot' theCdldiiy and the siipiiosed syin|iat hies dt 10ii;;land witli the Siuitherii ( 'diilederacy hasc. 1 don lit nut. led the ('diisiil.aiid may lead the (Jon- eriiincnt dt' the I uited Slates, td imajiiiie that lliei>ret(i has all aldiie receivey the experience ot'aiiy vcssid wliich arrived ei|iiipped, to act on the I'ederal side, and expeetine' to lind her arinij and aniiniiuilidii here." 'I'hcy are all sdiithern syniipathizers. ' " Indeed, this seems to Ik; our principal \u>tt (irentry, and the aiuount nl' ludiiey we throw iiitd the hands of the Na.s- sauitcs ]irobably inlluences their stMitiincnts in our I'avor." On the 8th of dune Captain Semmcs arrived at the island and took room.s at the hotel. ][eyli.i>er and Lalitte, aj'ents of the Insurgent States at Nassau, gave him a dinner, at which about forty per.sons were pres- tlu ■Am. App., vol. vi, p. :U7. ^ Il)id., II. 'SMt. • Ibid., p. 2:!7. ' Krit. Ajtp., vol. i, jip. (51, (i:?. (u, and li'^. -Itr t. App., vol. i, p. ;{H; vol. V, p. ;{7. -Ibid. 'Letters lleylifjcr to Kandolpli, ibid., pp. 7(i-H7. * Attorney-General Anderson's vindication of himself, February 10, If/'J. Urit. App., Counter Case, vol. v, \t. 2.'). "Captain Sennne.s's description of Nassau in liis "Adventures Atloat,'' Am. App., vol. vi, p. 4f^7. '"Governor IJailey to tlie Duke of Newca.stle, .lune'21, lHd2, Brit. App., V(d. i, )». 14. " .Journal found on board the Flori'Hf |iritr*'i*t)iiiit« 'I ('111. TIm' siiiin' ^-I'nth'iiK'ii also <;nv(' a diiiiicr to Captain Mallilt uhilo li«' was tlinc, \\iii«*li was attentlcd ity \hv saiiu^ mimlH'i- of immsoiis.' Diiriiij; tin- i-xistiiicf of ili<> hlockiuiiMtr the Smitliciii poils cif Ainciicii, vrsscls li-iiviii^ :lii' poit ol" Nhhsjiii, Willi llic intcntiini of riiilfiivoiiii^ in nui tlu-ir <'iii';iiM's into tlir )iii)rk:i*l<'il piMls, almost iiivarialily clcartMl lor SI. .lolin's, New Kniiiswick, and iiiaiiv • il' tlifiii took ill tlirir out warti cai'irocs at tlu^ luu'liora^fs adjacent to tlio liai'l>or oi' Nassau.- Addi-ily tV Co., tlic most inllut-iitial uii'H uuliii- t'sialilisliiiiiiit in Nassau. wiTc rri'i'iviii^i tlii'ir I wo and oiic-lialf jm'T ci-nt. roiiiinissioii lor transslii|>iiit'nl ; a nio»i >'\oiliitaiit dcnianrl. luil (ui(> in uniHon with tiir iisa;;<-s of Hit' placr, and suluiiittcd to 111 ('oiisidi'rati of tlic ()i«'to was tiit'd,an«l rcsnitj'd in a d»'ci'«'ea;;ainst lIcrMaJi'sty ; and tin; rnitctl Statt's now repeat what they ' said in th«'ii('a.se: "If it had been preth'terniined that the Ii (heti> slioidd he reU'a.sed, the ste[>s ('onhl not have been Itetter directed for that pnrpo.se." Adth'riy \' Co. were at the ont.set in t'orined what tliey must refrain from (htin;;' to avoitl a eonvietion nnth'r the hiw as the Attorney (ieiieral constriK'd it, and tliey followed this a«l- \ lie, as it wotdd .seem, faithfully. The Att<»rney (leneral i'ominenced iiiid jtroseeiiti'd the ease upon hi.s ayley, that it would have been found t(i be exceed iii^-ly awkward to ller Majesty's (lovernmeiit if the reason ihleness of their suspicions had been tested at that time by the experi- iMiceof a L'nited States vessel arriving;' at that port expectiiis to lind its anus and ammunition there. As s»)oii as the release was ordered, that '"enerjuetic ol1i(!er," Captain Mallilt. and his iieiiteiiant, Striblino-, "threw them.selves" on board of rile vessel.'' On the eveiiinj;' of her reh'ase, solomon, a shippiiifj-niaster at that port, at the recpiest of Mallitt, commenced enjiaj;ini;' men for her at his shippino-ollice. \\y l-'riday morniii;;' he had .sent on board sixty- live men, but in the mean lime lht> vessel had j^one outside," nmh>r a liearance in ballast for St. .bdiiTs, New lirniiswick, obtained at the Cus- tom Ilonse." On the «»th of Anjitist Lalitte, an insnrp'iit aj^ent, pnreha.sed the schooner Prince Alfred in the name of A. .1. Atlderly, one of the linn of Adderly »S: Co." On the 7th, Adderly iS: Co. loaded her from the public warehouse, with the carf^o warohon.sed for them from the Uahama on the lid of .Tune, and with shot, shells, and st«)res warehoused lit ditlerent times from other vessels. She was eh^ared outward oil the same day tor St. John's.'" The Oreto went outside and steamed up and down the coast trying; lier machinery. JI<'r ^Majesty'sship of wai-, the Peterel, was Ar,n„„e„i o, u,.. at anchor outside the bar, and Avhilc there ii boat from the ^'^^""^■'■ Oreto, with "a man 'lo stated he was the master in command of the ' Am. App., vol. vi, pp. HT, ■\*-7. ■ Att.-Gcn. AnderHoii, Sepi, 1, 1 *71, Urit. Ai)p., vol. i, i>. .^:?. Heyli;ier to Henjiiinin, ^ -v.. ^ (ip., vol. vi, p. (ili. < Ibid. ' l^oid Kiisspll in the Hoiii.se of Commons, Febrtniry 1(1, 18()4, Am. App., vol. v, p. Am. App., vol. vi, p. 4''9. " Ain. App., vol. vi, p. " Urit. App., vol. i, p. .')^ . " Kirkpatiick to Seward, Am. App., vol. vi, p. " Am. App., vol. vi, pp. 3'2.'), :V26. .-)-2t;. :ni. ;t>7, ti '< ';,■-■ 1 ':;■ ;* ill. 5 IMAGE EVALUATION TEST TARGET (MT-3) 4^ 1.0 I.I 1.25 136 11 2.0 U lllllf.6 Photographic Sciences Corporation 33 WEST MAIN STREET WESSTER.N.Y. 14580 (716) 872-4503 i.'^I'"^ f\^ iV :\ \ % v ^% O^ > T'^ % ^^ Q- 7(; ARGUMENT OF THE UNITED STATES. Oreto," came aloiigsiile ; ''said he was very short-handed, and wanted to anchor for about two hours to adjust liis machinery, but if he ancl)- ored outside he had not sutiieient crew to weigh liis anchor, and begged I [the captain of the Peterel] would assist him by lending liim men." The men were refused, but he was told " he might hold on astern of the Peterel," and si line was given him for that purpose.' The same night about one o'clock the l*rince Alfred came out from Nassau while the Oreto Avas fastened astern of the Peterel. When she got outside of the l)ar, a light was struck on board; the Oreto let go the hawser of the Peterel, stood to the northward for a while, and then rounded to and took the Prince Alfred in tow.^ The two vessels then proceeded, the Prince Alfred being in tow, to Green Cay, about sixty miles irom Nas sau, and there the guns, ammunition, and stores were transferred from the Prince Alfred to tiie Oreto, about a week being occupied in so doing.' It is said on page 78 of the British Counter Case that Her Majesty's Government has no means either of verifying or disproving the truth of the statement in the Case of the United States as to the arming of the Florida. On page 07 of the British Case, however, it is said that Her M.njesty's Government "has been informed and believes that she was sub- se'iuently armed for war by a Captain ]\raftitt ; * * that she was then (commissioned; * * and that after keeping the sea for a few days, she l>ut in at the port of Cardenas, in Cuba, where (or at Havana) she re- mained for nearly a month. On the 4th September the vessel arrived at and entered the port of Mobile."' The precise point at which she took on her armament is not important. It is suflicient for all the pur- l)oses of the United States that she was armed within a short time after she left Nassau. It appears from the admissions in the Jiritish Case, that she entered the port of Mobile within a month after leaving Nassau ; that she rcnnained at Cardenas or Havana about a month before she went to IVIobile, and that she was armed and commissioned before she reached Cardenas. These admissions establish, therefore, the important fact of arming shortly after leaving Nassau. But the United States submit that the proof presented by them establishes the further fact that she was armed at Green Cay, in the manner and under the ciicum- stances they have alleged. This proof will be found in vol. vi of the American Appendix, pages 30G to 321. The Oreto, with her guns all mounted, at 8 a. m. of the 17th, parted from the Prince Alfred, hoisted the tiag of the insurgents, and started upon her cruise under the name of the Florida.* She proceeded to Cardenas, a port under the jurisdiction of Her Majesty the Queen of ^^ j^, ^ Spain, and there attempted to ship a crew, but " the matter ' was brought to the notice of the Government,'' and an officer sent to the commander of the Florida " with acopy of the proclamation of the Queen of Spain and a notification to him that the Florida had become liable to seizure '' The commander then " repudiatcid the trans- action, and to avoid difficulty with the Government," paid the passage of twenty men to and from Havana, and returned the men to Havana. This was upon the 3l8t of August.'' She then sailed for Mobile and ran into the i)ort through the blockade on the 4th of September " wearing the English red ensign and pennant,"" and painted like a British vessel of war. A M Mobile ' Letter of WiitHoii to Admiralty, Brit. App., Counter Cnne, vol. v, p. .M. -AtHdavits of Solomon mid Lee, Am. App., vol. vi, pp. 312, 3'2L " Brit. Couuter C'aHe, p. 78 ; Am. App., vol. vi, p. IWH. ■• Am. App., vol. vi, pp. ;U)8, H'iS. <* Ibid, voucher No. 6, p. 33L " Brit. App., vol. i, p. 74. E THE FLORIDA. i ( At Na.«H:iii..Tnnnar.v •J.j, lH«i3: rece m h ^ roJiN, Miipiilic.H, H(j<' rfrriatmi'iits. commander iu Her Majesty's Navy soon after the occurrence said, " had 1 met the Oreto at sea, armed and havinj^- a pennant, I should have taken her for one of our ships." ' She remained at Mobile until the 15tli of January, and then ran the blockade outwards. Stopping at Havana on the way for forty-eight hours, she arrived again at ^Nassau early in the morning, about day-break, of the lioth.'' She steamed in over the bar without a pilot and cast anchor without permission of the gov- ernor. On his attention being called to the proclamation which required permission before coming to anchor. Captain Mafiitt " expressed his regret for having unwittingly A'iolated the regulations of the port,*' and was taken on shore by the adjutant of the fort in the Government boat to make his explanations to the Governor.' lie called at the Government House between eight and nine o'clock, and not seeing the Governor, addressed hin» a note as follows: "As this vessel is in distress for want of coal, I very respectfully request permis- sion to anchor in the harbor for the purpose of obtaining the same.'*' Permission was given and she " took on hoard coal atul ])rovisions to last us for several months." -' Her bunkers were tilled with coal, and some placed on deck and in every jilace that could hold it. The coal was taken from wharves and vessels lying in the harbor. The money for coaling her was paid from Mr. Henry Adderly's store." She remained iu the harbor until afternoon of the 27th, and at sunset was outsi<1e of the bar, opposite the entrance of the harbor, " within a mile of the light- honse, running uj* and down under slow steam, with just steerage-way on her, apparently waiting for sometiiing."' Eleven men were obtained there and shipped. Adderly & Co. paid the account for shipiung tlie men, which was signed by Captain Matlitt.'' Siie arrived at Barbados, also within the jurisdiction of Her ^Majesty's Government, on the li4th of February, and applied, in con sequence of her having met with severe weather, to b( allowed to ship some coal and some lumber for repairs.' Her commander assured the Governor "he was bound for distant waters."-' Under these circumstances she was permitted to take in ninety tons of coal. On going into J'arbados the bark Sarah A. Nickels ran in before to avoid capture. The Consul of l.he United States, after the ar- rival of the Florida, requested that she might be detained until 5 p. m. of the L'5th, in order to give the bark her start of twenty-four hours. This was granted.'" On the Sth of IMay she arrived at l*ernambuco. A rei)resentation was made that her machinery wns out of order, and that it would not be possible to proceed with safety in less than three or four (lavs. Permission to remain and repair was granted, and she sailed at2p. m. ofthe 12th. " From there she went to IJermuda, where she arrived on the loth ot July, and where salutes were exchanged with the fort. " This is the first salute which the Hag of the Confederate States i.\VMrr/p!i',;^",',''i has ever received in a foreign port, and consequently wo '' ..' ' Am. App,, vol. vi, p. '.V.V2, -Hrit. App., vol. i, p. 7i». ' Iltld., p. 80. ' Hrit. App., vol. i, '>. 77. ■ Private Jourual, Am. App., vol. vi, )). '.Y.]'y, " Affldttvit of 'Jemeiith, ibid., p. 'XW. '- ^ Aflidavit of Jackson, ibid. *• Aliidiivit of Soloiuon, ibid., p. :Uii. " IJrit. App., vol. i, p. 1)1. "'Ibid., p. U.''). " Hrit. Cane, p. (il) ; App., vol i. j*. lOfi. Walker to Hiisf, Am. App., vol. vii, p. iu. ff 78 ARCa'MENT OF THE VNITED 8TATE8. Il At llrest : rt'ceiveA r*-i ruits itmi new lUii- rhiriery from l,i\er- Captain ]Mjirtitt "stated that he liatl been at sea seventy days, with the exception of two visits to Havana and Barbados, each of which oc- cupied less than twenty-four hours, and a visit of shorter duration to a port in the Brazils ; that he was last from the immediate neighborhood of New York, w ithin sixty miles of which he had been harassing the United States commerce ; that he was in want of repairs to tlie hull and machinery of his ship, and a small supply of coal.-' ' Applications were made for leave to purchase coal from and repair at the Government dock-yard, which were refused. She was permitted, lipwever, to remain in port until the 25th, when her repairs were com- pleted,- and she took in ''a full supply of best Cardiff coal brought here from Halifax by steamer Harriet Pinkney." ■' This vessel was one of the insurgent " trans[)orts."^ The conduct of the Governor was approved by the Government September 10. '* The Florida arrived at Brest, France, on the 23d of August. " in order that her engines and copper sheathing might be re- paired."" She renmined until the 9th of February, 1804. ■ Captain Mattitt, on the 3d of September, sent to Captain Bullock, '• Confederate States Navy, Liverpool," a list of men discharged from her with their accounts and discharges. .Many of them asked for "transportation, and others for reference to you [Bullock | or to a Confed- erate agent."" These men went to Liverpool, and were paid oif in Octo- ber, 1803.'' At Brest, Captain Mattitt left the ship and Captain Barney took com- mand. On the 22d of September, Frazer, Trenholm »S: Co. and .h 11. Armstrong wrote fron> Liverpool to the new Captain as follows : We bej? to acknowledge the receii»t of yonr fiivor of the If^th instant, the contents ot which we have noted, and will have our best attcnti<»n. We an; informed by Messrs. Fawcett, I'reston & Co., the builders of the engines of the Florida, that the spare machinery to which yon refer was sent to Jlavre some time ago, and is now lying there subject to an order for delivery, which tiiey have given to Captain liuUock. We are also informed by the same parties that they sent a blower, bnt they believe it is not the sort required, and they arc now endeavoring to procure a more suitable one. As regards the engineers, we must .iwait Captain liullock's return to know who the men are. We have requested Messrs. Fawcett, Preston & Co. to engage two or three good, steady tirenum ; and as soon as Captain Ihillock arrives (on the 24th) we will endeavor to have engiueers,liremen, and machinery sent to you, and by tlie route you suggest."'" The same parties were in frequent correspondence with the paymaster of the vessel at Brest in respect to her tinauces." A full crew was sent to her from London and Liverpool in January, and "two steel Blakely rifled-guns with steel-pointed elongated shot to lit them."'- She sailed from Brest under the command of Captain Morris. On the 2Gth of April she was at Martinique for coal and provisions. On the 13tli of jVlay she stopped at Bermuda to land a sick officer and to obtain news.'^ On the 18th of June she ap- peared at that port again, when she asked permission to take in coal and eft'ect some repairs." Permission was given her to remain five days after the 21st. She quitted the harbor on the 27th, but remained cruising about the island until the otli of July, when she was seen from the land.'^ At AI:irtiiU(iiu\ ' Gov. Ord. to Duke of Newcastle, JJrit. App., vol. i, p. 108. - Brit. Case, p. (59 ; App., vol. i, p. 111. -' Am. App., vol. vi, p. 'M7 ; Brit. Case, p. 70 ; App., vol. i, p. 108. ^ Am. App., vol. i, p. 73'2. 'Brit. App., vol. i, p. 111. " Brit. Case, p. 70. ' Ibid., p. 72. "Am. App., vol. vi, p. :t49. 9Brit. Ai»p., vol. i, pp. Uf, 122. '"Am. App., vol. " Ibid., p. ;i.')4. '-' Ibid., p. :j.j:{. ' ' Brit. App., vol. i, p. 1:52. nibid. '5 Ibid., p. 133; vi, p. 3r>2. Am. App., vol. vi, p. 350. TIIK FI.()[MI>A. 79 While tlu'iv, on the L'Tth of -huie, l.'i."* tons of coal weii' \m'h\ lor by (1. P. Bhick, who was toinpoiarilv actiug as the agent for the " Confederate States." I A draft for i;S,.")00 srerlin<>' on Captain linllock was discounted by this same agent, and money to the amonnt of more tlian C(5()0 expended for repairs and supplies. ' From J3ermuda she went to IJahia where she ended her cruise in the month of October. It will thus be seen, that the flrst port which was visited by the Flori- da after her escai)e from Xassau was under the Jurisdiction of the government of Si)aiii. At this port she escaped seizure for a violation of the sovereignty by " repudiating" the act. After leaving 3lobile she touched at Uavana, but does not appear to have taken in coal or supplies. Theji she went to Xassau, then to Bar- bados, then to Pernambuco, then to Bermuda, then to Brest, within reach of her base of supplies at Liverpool; then toMartiniiiue, then to Bermuda, and then to Bahia. After leaving Mobile, she visited once the ports of Spain, twice those of France, twice those of Brazil, and four times those of Great Britain. During her cruise she commissioned at different times three tenders, the Clarence, the Tacony, and the Archer. For their acts she is liable as for her own. She was the principal, and their acts were her acts. ' Am. Ap])., vol. \ i vol. i, p. i:i:'.. -Am. App.. vol. \ i, [). p. :>.")',): Actiiij;' tiovmiioi- Monroe to Mr. Caiclwell, IJiitish App., rl ■eq. h ' * tl ap- !oal > 'k I ft VII.-THK ALABAMA. As to this vessel, Her Majesty's Govermneiit admits, "that at the time when she sailed from England in July, 1862, she was, as .,i!,l',y,,^oya Iva"'.' regards tlie genera/ character of her constructiou, specially MiJisiut.i. adapted for warlike use; that the adaptation had been eft'ected within British Jurisdiction;'" and that "the general construc- tion of the vessel was such as to make it api)arent t!iat she was intend- ed for war and not for commerce."'- The drawings found among the archives of the insurgents signed by the Messrs. Laird, as early as the 9th October, ISUl, copies of Avhicii are part of the documents and evidence filed by the United States with their (Counter Case, show conclusively that she never was intended for anything else than a vessel of war. It is also admitted in the British Counter Case that " the question for Th ,i,u,tmni.i the arbitrators is, whether the British Clovernment had, u«.ueu. according to the fair and just sense of those words, reason- able grounds to believe that she was intended to carry on war against the United States ; and having it, failed to use such diligence as any international obligation required to prevent her departure from Great Britain, or to prevent her equipment within its Jurisdiction." ' The United States will now proceed to consider the facts necessary to a decision of that (piestion, and for that purpose will use almost ex- cusively the evidence presented to the Tribunal by Her Majesty's Gov- ernment. As has been seen, tln^ Florida sailed from Liverpool, without any attempt at her detention by the Government, ou the 22d of March, 1802. The attention of Earl Russell had been called to her by Mi*. Adams more than a month previous to her departure, and in so doing he de- clared that his opinion as to her destination for war against the United States was based upon the " evidence furnished in the names of the persons stated to be concerned in her construction and outfit.'' These persons named were Fawcett, Preston & Co., and Frazer, Trenholni & Co. As late as the 0th of May, the Foreign Office appears to have been in correspondence with the ofiicers of the Treasury in respect to her escape.^ She arrived at Nassau on the 28th of April, and her arrival at that port became known in Liverpool and was announced in the Liver- pool Journal of Commerce on the 27th of May.'' It must ]>ave been apparent, at that time, to the ofiicers of the customs at Liverpool, that she had not been intended for the Italian Government, but for the in surgents, and that any pretense of Italian destination was false. Under these circumstances, on the 23d of June, Mr. Adams, in a note to Earl Kussell, said : Some time since, it may be lecollocted by your Lordship, tliiit I felt it my duty to ' Brit. Counter Case, p. 80. •^ Hrit. Case. p. 118, ' Ikit. Counter Case, j). 80. ^ Brit. App., vol. i, p. 9. '•Dudley to Seward, Am. App., vol. vi, p. 23S. THE ALABAMA. 81 make a ropresentatioii touching tbo cfinipinei.t from tho port of Liverpool of the ^nn- hoiit Oreto, with tlie intent to make war upon tlie I nited States. „ . , Xotwitlistanuing tlie statements returned from the authorities of that r.fMrnii,ii..noi, j..n.- jilace, with which your Lonlship favored me in reply, touihin]i( a dif- -'""'^ fereiit destination of that vessel, I have the stronj^est reason for lulit viiifj that that vessel went directly to Nassau, and that she had been there enj;agod in completing her armament, provisioning, and crew for the object tirst indicated by me. lam now under the painful necessity of ap|)rising your ijordship, that anew and still more powerful war-steamer is n(>arly rt^ady for (leparturo from tl\e jiort of Liver- pool on the same errand. This vessel has Ix-en built and lannclu'd from the dock-jard of persons, one? of whom is now sitting as a member of the House of Commons, ami is iitting out for theesjiecial and manifest object of carrying on hostilities liy sea. * * " The parties engaged in the enteritrist! are persons well known at Liverpool to be agents and oClioers of the insurgents in the I'nitcd States, the natnrt^ and ext(Mit of whose labors an^ well exi)laiued in tlui eoi>y of iin intercepted letter of one of iliem, which I received from my fJovernment some days iigo, iind which 1 fiad the honor to |iliice in our Lordship's hands on Thursday lust. J now ask ])einiissio!i to transmit, tor your consideration, a letter addressed to me by th(> Consul of the I'nited States at Liverpool in conlirn\ation of the statements here submitted, and. to solicit such action us niuy tenas, " Confederate State.s Artillery, War Department."' It is said iti tlie Case presented by Her Majesty's Gov- ernment,- that the eopy of the intereepted letter referred to " was ii ])aper purporting to lie a eoi)y of a letter or rop«)rt from a Confederate otticer of artillery, addressed to some person unknown," and what i»ur- ports to be a copy of the lettei' itself is itrinted in Ibitish Ai)pendix, vol. i, p. 178, without the name of the party to whom it was addressed. The same letter is printed by the United Stat<'s in tlieir Aiipendix, vol. i, ]). ^)oS, where the name of the p(>r.son to whom it was addressed appears. It was transmitted by ^Ir. Seward to ^ir. A. 178. It bears date April 1, 18G2, at Liverpool, a few days after the vsailing of the Oreto, and does, as is stated in the British Case,^' relate " to purchases of military supplies for the Coufederate army and to vessels employed in blockade running.'' It also states that " Messrs. Eiazer, Trenholin iJc Co., of this city, placed at my disposal a fine ship, the Bahama, which 1 supiiosed would take all the batteries." This is the same vessel which, as has been seen, took out the armament of the Oreto, and which afterward took out that of the Alabama. In the letter of the consul of the United States at Liverpool, trans- ' Hritish Case, p. 8L • Page HL 'Am. App., vol. i, p. 537. Oc * Brit. Case, p. •■Page 81. 8L tV 5i ;, TT- 82 AROUMKNT OF TWK I'MTi:!) STATES. s '. 71 r aituiii iipun it. mittod l».v Mr. Adams to I^aii K'lisscll, on t\w L'.'M, it Wiissaid: "TIic evidoiie*.' J Iiavt' is (Mitiicl.v conclusive to my niiii inw KusscUto tlic La W-Ofliccrs of tlic Cro wu and to the Lords "*'•■""'"'*■ '^"'"" Commissioners of the Treasury, on the L'oth of June, of which Mr. Adams was duly advised.^ Ou the 30th flune the Law-Oflieers reported toEarlUussell that "the re] >ort of the United States Consul at Liverpool, * # * besides suggesting other grounds of reasonable susjiiciou, contains direct assertion that the foreman of ^Messrs. Laird, the builders, has stated that this vessel is intended as a privateer for the service of the government of the Southern States ; and, if the character of the vessel and of her ecpiipment be such as the same report describes them to be, it seems evident that she must be intended for some warlike pur- pose. Under these circumstances, we think that proper steps ought to be taken, under the direction of Ifer Majesty's Government, by the authorities of the customs at Liverpool, to ascertain the truth, and that, if euflicient evidence can be obtained to justify proceedings under the foreign-enlistment act, such i)roceedings should be taken as earlj- as possible. In the mean time, ^Ir. Adams ought, we thiidc, to be informed that Her ]\lajesty''s Government are i)roeeeding- to invstigate the case ; but that the course w Inch they may eventually take nuist necessarily depend ui)on the nature and suHicieucy of any evidence of a breach of the law wliich they may be enabled to obtain; and that it will be de- sirable that any evidence in the possession of the L'nited States Consul at Liverpool should be at once comuumicated to the ollicers of Her ^Majesty's customs at that port."'' The Lords Commissioners of the Treasury sent the letter of ^Mr. Adams, with that of the Consul, to the Commissioners of Customs on the I'.jth of June.* These letters were forwarded by the Commissioneis to the Col- hector of Liverpool previous to the 2Sth.^ But before that time, on the 20th, and before the letter of the Consul to Mr. Adams, or that of ]\L'. Adams to Earl Kussell, the Collector's attention had been called to the same vessel by the Consul in a letter to him," in which was detailed, with more particularity than in the letter to Mr. Adams, his knowledge of facts an. ^Lfttor fioni Mr. Arbntlmot to Mr. Hammond, July '2, l?iit. Ajip., vt)l. i, ]>. Irtl. ■'Brit. App.. vol. i, p. \ort was transmitted by the collector to the commissioners of customs on the same day (the "iSth) and by them referred to the solic- itor of customs, who, on the oOth, (the same day that the Law-Otlicers made their communication to Earl Kussell, as Just stated, his opinion tiiat " the ollicers at Liveroool have acted discreet!}' in keeping watch upon her, and should continue to do so, inuuediatel^' reporting to tlie board any circumstances that they may consider to call for direc- tions, or advisable to bring under the board's notice ; but the officers ought not to : :)ve in the matter without the clearest evidence of a dis- tinct violation of the foreign-enlistment act, nor unless at a moment of great emergency, the terms of the act being extremely technical and the requirements as to intent being very rigid. It may be that the ship, having regard to her cargo as contraband of war, might be unfjuestion- ably liable to capture and condemnation, yet not liable to detention uiuler the foreign-enlistment act, and the seizers might entail upon themselves very serious consequences.*' - On the 1st of July the commissioners of customs transmitted their own rei»ort to the Lords Commissioners of the Treasury, in which they embodied the substance of the report ot the surveyor to the collector, including his statement that the builders di*ul to submit such evidence as he possesses to the collector at that port, % , ■ U ; M ' Brit. App., vol. i, p. 163. - Ibid. 84 ARGl'MKNT OF TEIE IJXITKD STATES. Avho would tlK'ieupon take siicli iiioasiiros as tlio proviHious of the for- ci^n-onlistnH'nt act would le^iuiro. AV'itlioiit tlui production of lull and suniciciit evidence to justify their proceedings, the seizing oflicers might entail on themselves and on the Government very serious eonseciuences. Wo beg to add that the oiticers at Liverpool will keep a strict watch on the vessel, aiul that any further information that may be obtained con- cerning her will be forthwith reported.'" This report of the commissioners of customs was transn.itted by the Lords Commissioners of the Treasury to the Foreign Oftice, and received there on the 2d of ,Iuly. ^ Thus it will be seen that twenty seven days before the departure of the vessel. Her ^Alajesty's (lovernment was informed by its own otticers that the " character of the vessel and of her equipnuMit " was such as the rei)ort of the consid described them to be, and that, therefore, in the opinion of the Law-Oflicers of the Crown, "she must be intended for sonte warlike i)urpose." And the (lovernment was also, at the same time and in the same manner, iulbrmcd that in the liu^e of what had been acknowledged by the Law-Oflicers of the Crown lobe "grounds of reasonable susi)icion " of the Consul, the builders of the vessel, (a tirm, one of the ostensible members of which, at the time of theoiiginal c(m- tract for her building, was a member of the LTonse of Commons,) • on being intpiired of by one of the olbcers of the (Jovernment, iuestioii a-itk rifereiitr to the dvsti nation of the ressel after she left Liverpool. At the same time, too, one at least of the departments of the (lovern- ment was reminded by one of its otticers that the Oreto, referrerA. «5 k)4. titer erii- I f s to rTed f. -■ Ml -1 ; bis aiut f ■ ^ ;oui- levo that, ill view of f'jicts alroadv staled, tlu^ Arbitrators will fool as did the Consul wlien lie rccoivt'd notice from .Mr. Adams of what was re(|uired, and addressed the Secretary of State of his (Jovernment in the follow- inj( lanyuaye : 1 do not tliiiik tlic Uritisli (iovcrmiiciit a''t> ticiitiiii; iix iJi'njicrly in lliis inattt r. Tlicy artniot dciiliiiif with iis as one IViciiilly nation on^lit to deal with anotlnT. Wlicn I, as tilt' a;;'tMit of my ( Jovi^iinniMit, tell tlit'in from t-vidciici' siiUniil ted to nn^ tliat I liavo no donbt about hiT characttT, tlicy onylit ti> a((i'i)t tliis until tin; i»ai tit's who ai'u liuiitlin;j; hiT, anil wlio havti It in tln'ir powiT to sht)w it' ht-r ili'stination and ])nii)o»o are it'^^itiniatf ami'lioni'st, so. It is a very easy n\atti'i' to- tht; Mt'ssis. Laii'il ».V Ct). Id sliow lor whom tlu'y an; hniltliuj;; litT. ami to ;j;iv'i' suidi ii (ormation as to hi'V ])ur- jiosc as ttj l»t; satist'attory to all jiartifs. Thf hnith.m ot jirtiot oii;;lit not ti> \tv thrown iilitui us. In a hostile t;ommunity liUti this it is xt-ry iliriiciilt to ^nt iuforniatitm at any tiiui' U|ii>n thesis niatti'is. And it' namcH art' to bf, nivcn it would rt'iitlcr it almost iimiossiMf. Tlif, (ii)vt'riiiiiciit onj;ht tt» invfsti;;ato it and not call 11)1011 us for liroofJ And tliey will not be surprised tint two days after, the Consul wrote Mr. Adams asfollow.s: When tilt' I'nitetl Statt's Govornnn'iit, 11iron;;h its acknowlt'd;rfd ri'im^stintativfs, say to thi^ Mi'itish Govi'iuniont that it is satislift] that a iiartifular vt^ssi'l, which is Itcinjf Iniilt at a t'citaiii iilai;c in the Uiuj^doni by certain partitas who art; thi'ir own .subjects, is iiitcntb'tl as a piivatetM' I'tn' the icbcl (;-ovt'riiinont, it is tlio duty of that <;ovorniiient to call nj) tht^ pai'tit's who are litti:'.t only to expect l)nt tt» ret|uirt^ this inmdi of ant)ther friendly ;;overn- iiitMit, Ami if there was any disposition to do rij;ht ami act ht)ncstly, this uinch at least would be accordeil.- On the 7th of July, and at once upon the receipt of the letter of Earl Tvussell, Mr. Adams wrote the vice-consul at Liverpool, in Th-™,,,,,! .hr-d- the absence of the (Jousul, transmittinof t. copy of tiie letter ';:!,u:iJ'Zl''uJ'foi- of his lordship, and in accordance with the suggestion '""" tlierein, said : "I pray you to furnish to the collector of custonLs, so .soou as may be, any evidcuco which you can readily command iu aid of the object designated."' On the 9tli of July the consul, having returned to Liverpool, addressed a letter to the collector at that port, iu which lie detailed with great particularity the circumstances which bad come to his knowledge teuding to show that the vessel was iutended for the use of the insurgents. This letter is printed in full in the Britsb Case,* and is explicit in its statements. It certainly made a case which was worthy the attention of the Government. The Consul does indeed say- that he cannot, in all cases, state the names of his informants, "as the information in most cases is given to me by persons out of friendly" feeling to the United States, and in strict confidence;" but he adds: " What I have stated is of such a character that little inquiry will con- firm its truth;" and the names of many jier-sons, all of whom were within reach of the officers, were given to whom impiiries might have been addressed. He then says, the Messrs. Laird " say she is for the Spanish Govern- ment. This they stated on the 3d of April last, when General Bur- goyne visited their yard, and was shown over it and the various vessels being built there, by Messrs. John Laird, Jr., and Henry H. Laird, as was fully reported in the papers at the time." On this point the Consul says he caused inquiries to be made of the Spanish minister as to the truth of the statement, and thi' reply was a positive " assurance that Ho iloen so. 'Am. App.,voI. vi,p. 382. * Am. App., vol. vi, p. :38(i. ' Brit. App., vol. i, p. 242. Jf " ! ' ^ Page 81. 8G AKdlMKNr Ml' Tin: I'MTKD STATES. ii 1"! i I t'OMili I ! Ill tl collfrtor. slio was not for tlio Spanish Government." If tlio statements in the letter of the Consnl to JMr. Adams on tlie -1st of Jnne contained, as the Jiaw-OlMcers of the Crown said, " jironnds of reasonable snspicion," this letter certainly on};ht to have pnt the oflieers of the (Jovernment npon in(iniry as to the trnth of the statements made; but the arbitra- tors will fail to discover in all the evidence submitted by Her ^Injesty's (lovernment any proof tendinjj to show any attomi>t at that, or any other time before the departure of the vessel, by any ollicer of Her jMa.jesty's Clovernment, to infjuire as to the truth of any fact stated by the Consul. The only statements made by him which have not be<'n fully substan- tiated by subse(|ueut (h>velo]niU'nts are that Captain Jiullock was to command the vessel and that the Florida was then armin;;' at Nassau. Iji point of fact, it was true, however, that Ca])tain lUillocic had been, originally, assigned to the command of the Florida, and it Avas only about the l.")th of rlune that a change was nuule.' ^Vs to the arming of the Florida at Nassau, it has already been seen why that had not then been accoiuplisheil as it afterward was. This lastnanu'd error in the statement of the Consul has, however, been considered of sutlicient im- portance by Her Majesty's Ciovernmeut to be made the sul>ject of spe- cial mention on page 85 of its Case. On the 10th of July the collector acknowledged the receipt of the letter from the Consul, but accom[»anie(l his ackiu)wledg- ment with the remark, " I am respectfully of the opinion, the statement made by you is not such as could be acted upon by the ofli- eers of this revenue, nnless legally substantiated by evidence." '^ The collector, howe\er, on the same day, (the lOth) ordered the vessel again to be "inspected'' by the the surveyor, who immediately re]»orted that it had bee?; done, and that she was in the same state as regards her arumment as on the date of his former report.'' And the same day (the 10th also) the collector transmitted to the commissioners of customs the letter of the Consul and the report of the surveyor, accompanying them with a copy of his letter to the consul and the statement that "if slui is for the confederate service the builders and parties interested are not likely to commit themselves by any act which would subject them to the penal provision of the foreign-enlistment act."^ On the 11th of July the solicitor of the customs, having considered the letter of the consul, reported : There is only one pi'opor way of lookinj;' at this fiuestion. II' the collector of cus- toms Avcrc to tU'taiu the vessel in (lUestion, he would no doubt have to luaiutain the seizure by lej^al evidence in a court of law, and to pay damages and costs iu case of failure. I'lton carefully reading the statement, 1 liud the greater part, if not a'i, is hearsay and inadmissible, and as to a part the witnesses are not forthcoming or e\eii to be named. It is perfectly clear to my mind that there is nothing iu it amounting to 2>rima fach: proof snftieient to justify a seizure, mnch less to suppcu't it iu a court of law, .and the consul could not expect the collectoi- to take upon himself such a risk iii opposition to rules aud priueiiiles by which the L lown is governed iu matters of this nature. ^ Oil the loth of July, four days after the opinion of the solicitor was given, and six days after the letter of the Consul, the commissioners of customs advised the collector that " there does not anpear to be prima- facie proof sufdcient in the statement of the Consnl to justify the seiz- ure of the vessel, and you are to apprise the Consul accordingly." ^ ' Am. App., vol. vi, \t. 488. ^ Brit. Case, p. 85. 3 Ibid., p. 80. * Brit. App., vol. i, p. 184. f- Brit. Case, p. 80. '• Ibid. .ilb*S' T!Ii: AI.AIJAMA. 87 It is almost iiierodiblo that it iiovor occurred to any one of these sev- eral olUeers of the (loverniaent that there was anythiii;;' in the letter of the C'oi^sul eallinj;' upon them for inve.stijuation of the facts siibniitteil by him. And this, too, when, aecordiuiH' to the opinion of the distin- ;;iiished Law-Oflicers of the Crown j;i>enon the .'!(Hh of .lune, "the ;;roundsof reasoiudde suspieion"su<;';iested in the letter of the consul of the lilst were sufll(!ieut to make it proper that stejis should be taken to aseirtain thr tt'utho/ tht'stafoncntu then made,' and when ISfr. Adams, in his lir.st communication n[)on this subject, had asked an in(piiry by the ollicers of the (lovernment as to the actual onsibility of tlu; detention of this shii)."- On the same day (the KJth) a co])y of the letter of the Consul of the 0th was Nubmitted to Mr. Collier, afterward attorney-<;eneral and iu)w one of the inend)ers of the Judiciary eo'umittee of Jler Alajesty's Privy Council, for his oiiinion, and he prox ■)>'^1y re[>lied : " 1 think the evidence almost conclusive. * * * * <^i^ ^]^^, mjiitc)' is repre- sented to me to be urfjent, 1 advise tlnii the princii)al ollicer of the cus- toms at Liverpool be immediately ii[iplied to, under '>U (leo. J II, cai>. (10, to exercise the ])owers conferred »'»on hiia by that section to .seize the vessel, with a view to lier condeninatio'i, an indemnity being f^iveu to him, if he recpiires it. It would be ])r<>per at the same time to lay a statement of the fact betbre the Secietary of State for Foreign AlVairs, coni»led with a request that Her ]Miijesty"s (lOvernment would direct the vessel to be seized, or ratify her seizure if it has been made."' On the next day (the 17th) the commissioners of customs advised the com- missioners of the Treasury that the collector at Liverpool had been in- Ibrined by them "-that they do not consider there is, prim(( -facie proof sutlicient in the Consul's statement to Justify the seizure of that vessel, and have instructed him to npi)rise the Consul accordingly."' On the same day (the 17th) Mr. Adams wrote the Consul directing him " to employ a solicitor and get up aftidavits to lay be- fore the collector." That letter was received by the consul on the morning of the IStli and he immediately retained Mr. Squarey.'^ The great ditUculty for the solicitor and the Consul with their means of information was- " to get direct proof. There were men enough who knew about her, and who uiulerstood her character, but they were not willing to testify, and in a i)reliminary proceeding like this it was impossible to obtain process to compel them. Indeed, no one in a hostile community like Liverpool, wheie the feeling and senti- ment are against us, would be a willing witness, especially if he resided there, and was in any way dependent upon the peo[)le of that place for a livelihood."" Uut as early as tbe 21st, the Consul and his solicitor appeared before the collector and presented to him as witnesses William ^ ^ , Tassmore, John De Costa, Allen S. Clare, Fenrv Wilding, >JlinriZ\Ju7< and Mathew jNIaguire, and their aftidavits, with that of the > r. i"-t tu ».,/.. Consul, were then taken by the collector, who administered Mr. A .1 coiitiniie pr ; I in H Ml rtm-itil to u colli'.l i 1 1=1 .^' , t i ( ' I i/*i ' Hrit. Case, p. h;?. - Brit. Ann., vol. i, p. '->47. ^ Ibia. < Iliid., p. 1H7. » Ibid., i». t>44. " Ibid., p. '245. 88 ARGUMENT OF THE UNITED STATES. tire necessary oaths. Upon this testimony, under oath, tlje collector was requested to seize tiic vessel, and the portions of the Ibreign-enlist- uient act applicable to the case were read to liim.' The witnesses were all ])resent before the collector. lie Iftid full opportunity, if he desired, to examine tliem i)ersonally, and thus test the accuracy of their statements or their credibility. Tliis lie does not seem to havedv^ne, or, if he did, he has not put on record any suspicion as to the reliability of the tcstiinony.- On the same day (the -1st) the collector transmitted the aClidavits to the commissioiu'rs of customs, statinji' that he had been re(iuested to seize the vessel, and asivcd the board to instruct him " by telegrapli how I am to act, as the ship appears to be ready for sea, aiul may leave any liour she pleases.'" " The affidavits were received by the commissioners of customs on the ,f i.*i*d of rJuly,^ and at once referred to the solicitor of customs, who, Avith his assistant, immediately advised the board that the evidence submitted was not sullicient to warrant the seizure or de- tention of the vessel. The assistant solicitor said " the only justifiable grounds of seizure under section seven of the nvt would be tlie produc- tion of such evidence of the fact as would supi)ort an indictment for the misdemeanor under that section."^ On the same day (the 2lM) the board informed the collector that, as they were advised by their solic- itor, the evidence was not suflicient to justify a seizure, and he should govern himself accordingly, but they added : " The solicitor has, how- ever, stated that if there should be sufficient evidence to satisfy a court of enlistment of individuals, they would be liable to pecuniary penal- ties, for the securit}' of which, if recovered, the department might detain the ship until these penalties are satisfied or good bail given ; but there is not sufficient evidence to require the customs to prosecute. It is, however, comi)etent for the United States Consul, or any other l^erson, to do so at their own risk if they see fit.'"" No copy of the opinion of the solicitor or his assistant was sent to the Consul or Mr. Adams, but on the 2.')d of July the collector advised the Consul that the board, upon the advice of their solicitors, had con- cluded the evidence submitted was not sufficient to justify any steps being taken against the vessel, but he added: "It is, however, consid- ered to be competent for the United States Consul to act at his own risk if he should think tit." ' This last clause attracted the attention of the Consul at once, and "Sir. Squarey called upon the collector and asked its meaning. " His response was that this was copied from the letter addressed to him by the board." Mr. S(|uarey, of course, advised the Consul he had no power to stop the vessel ; that the jwwer to detain her was lodged with the collector." The collector did not intimate that the board referred in their instruc- tions to the ])rosecution of the individuals and to a possibility of detention by them in case of such a prosecution. But if he h.ad, it is not easy for the United States to discover why they should be called upon to ]uosecute iiulividu.als criminally in the courts of Great Britain for a violation of its municipal law. It was not the punishment of in- ' Amoricaii Appoiidix, vol. vi, - iSritiNli Ciih*', p. H7. 'Ibid. ^Britisli Case,]!. 00, p. 31).^). ' British Appendix, vol. i, p. 18ri. Ml.id. ' British Appendix, vol. i, p. 248. "British Appendix, vol. i, p. 240. THE ALABAMA. 89 1.1 till' t July «. :it.-.i (lividuals they soujilit. They asked the detention of the vessel and by that means the i)reveution of a crime against the law of nations. On the same day (the 22d) the aftidavits, and the action taken upon them liy the board of commissioners of customs, were, by the board, submitted to the lords commissioners of the Treasury, with the sun;gestion that, if they had any doubt, it might be advisable to take the opinion of the law-ollicers of the Crown,' and at once the Lords Commissioners of the Treasury transmitted to the Foreign Oflicc copies of the i)apers reccivetl from the commissioners of customs, with a statement that the vessc^l was " nearly ready for sea."^ On the same day (the 2i'd) Mr. Adams ti-ansmitted to Earl Kussell copies of the same affidavits "tending," as he said, "to vi..,, i„i:„ii(,m establish the character and destination of the vessel." ' '"' Ujwii the -od the i)ai)ers from the commissioners of customs were se^nt from the Foreign Ollice to the Law-Ofiicers, with a reipiest for considera- tion and an opinion at their "earliest convenience." ^ On the liSil, also, the Consul and his solicitor, having heard from the assistant solicitor of the customs that the ])revious atUdavits were not considered sullicient and that the collector had been directed not to detain the vessel, procured further allidavits from Edward Koberts and Uol>ert John Taylor.' They also ]>rocured a fur- ther opinion from Mv. Collier, predicated ui>on the eight ,,„„ , „, allidavits which had then been obtained, in which he used ' ''' this signiticant language: 1 have poriiaod tlio iibovo alHtlavits, and I i'lu of opinion that tho ODJlector of customs wouUl bojn.stiliod in dctaininj; the vcssol. Indeed, 1 siioiUd think it hi.s dnty to detain liev; and that if, after the ai>plieatioii wliieh has )>een made to him, snpixirtod by tho evidenee which has been hiipears ditricult to make out a stronger case of infringement of the foreign-enlistment act, which, if not enforced on this occasion, is little Ixftter than a dead-letter. It widl d(>serves con- sideration whether, if the vessel be allowed to escape, tlie Federal Government would not have serious grounds of remonstrance." " The additional affidavits were on the same day presented by Mr. Squarey, with theopinion of Mr. C'ollier,to the commissioners of the customs, with a letter in which he said : I learned this morning fromMr. O'Dowd that instructions were forwarded yesterday to tho collector at Liverpool not to o\orciso t\u\ powers of tin; act in this instance, it being considered that the facts disclosed in the afhdavits made before him were not siirticient to Justify the collector m seizing the vessel. Ou behalf of tho (Tovernmout of the United States, I now res])ectfully r'3([uest that this matter, which I need not ])oint out to you involves consequences of tho gravest possible description, may bo considered by the board of customs on the further evidence now adduceil. The gun- boat now lies in the Hirkenhead Docks, ready for sea in all respects, with a crow of fd'ty men on board; she may sail at any time, and I trust that the urgency of tho case will excuse tl\o course I have adopted of sending these papers direct to the board, instead of tranamittingthom through the collector at Liveri>ool, and thei'eiiuest which I now venture to make, that the matter may n^coive immediate attention.' The Board on the same day referred all the papers to their solicitor, whose assistant reported that he could not concur in the .lews of Mr. Collier, but " adverting to the high character Pr.M.Mit.vl « ntVi.i[ivits to tit.; t'irtH, July 2'.i. A. '11. b.i ira. .> I' t li t ' Hritish Case, p. 01. ' Ibid. • Ibid. t lldd. •Dudley to Seward, Hritish Appendix, vol. i, ji. '24.'. ; Squarey to Gardner, Ibid., p. IIM. "Hritish Appeiulix, vol. i, p, llXi; Hritish Case, p. '.»:?. • Hritish Appendix, vol. i, p. IIM. i: > ' M % 'I ii w^ 90 ARGUMENT OF TIIK UNITED STATES. which he bears iu his profession, I submit that the Board might act ju- diciously in recommeudiug the Lords of the Treasury to take the opinion of the Law-Officers of the Crown." ^ On the same day (the 23d) the pa- pers were sent from the Foreign Office to tlie Law-Otticers, with a request for an opinion at their earliest convenience.^ On that day also Mr. Sqnarey called at the Foreign Otlico and, ascertaining that the papers had been sent to the Law-Offlcers, but that an opinion had not up to that time been received, obtained from the Under Secretary, upon his " repre- sentation of the extreme urgency of the ca.se,'' a promise that the opin- ion should be sent for at once. ' On the 24th ^Er. Adams also transmitted to Earl Kussell copies of the same additional affidavits and the o|)inion of Mr. Collier. ' Mr. Collier was also retained by the Consul to institute pro- KurtlKT ^iiliiiiiltud Allan)!* cviiit'iic*. t'.v .Mr. ceedings for condemnation in case the seizure was made. On the 25th another affidavit was presented by 3Ir. Sfiuarey to the eustcms authorities, from whom it found its way on the 2«itb through the Foreign Office to the Law-Officers, the opinion of the solicitor of the customs being still adverse to the detention. ° On the 20th also, Mr. Sqnaroy again called the attention of tlie secretary of the customs to the matter, and said he " had hoped that, ere this, the decision of the Lords Commissioners of Her Majesty's Treasury might have been made known particularlj', as every day affords opportunities for the vessel in question to take her departure.'' To this the secretary replied that, " in the absence of instruirtions from tlioir lordships, the board are unable to give any directions in regard to the gun-boat in (piestion." " Thus, on the 2Gth, ended the labors performed by the representatives of the United States. The Consul, in making his report to the secretary of state of his Government, after detailing Avhat had been done by him and those with whom he had been associated, said, " I have done about all that I can do to stop this vessel ; much more, I think, than this Oovern- raent ought to require any friendly government to do. 3[y counsel say 1 can do no more,"'* The United States confidently believe the Arbi- trators will concur in this opinion of the Consul. The entire proof was in the possession of the Law-Ofticers of the Crown on the 2Gth. Substantially it was all there on the 23!!. The affidavit of Kedden, presented after that date, simply confirmed the already existing proof. That it Avas sufficient is shown by the opinion of the Law-Officers of the Crown, given as soon as it was examined. Even the first letter of the Consul, written on the 2Lst of June, and considered by the Law- Officers on the 30th, was sufficient to show that " grounds of reasonable suspicion "existed at that time and called for an inquiry into the truth. After that followed the letter of the Oth of July, with its more particu- lar statement of details; then the affidavits of the 2lst; then the affi- davits of the 23d, and the pointed opinion of the most eminent counsel ; then the affidavit of the 24th ; and at all times cautions by the officers of the United States against delay and representarions of the extreme urgency of the case. The vessel was in the dock. From the commence- ment, the builders Avere not disposed to reply to any (luestion with refer- ence to her destination after she left Liverpool. As early as the 24st of ' Urit. Case, p. 94. ■' Ibid. ' Hiit. Api»., V(.l. i, p. 2A>*. ' Brit. App., vol. i, p. !i4(). ■■nrit. Case, p. 94, " Hrit. Ciiso, 9.'). ' Am. Api)., vol. VI, p. 40") lUit. Apjt., vol. i, p. 24(1. THE ALABAMA. 91 ♦ y -5 pov- ('rniiu-nt iiur*'*- (i kt-'P :i watrli till III' July it was Inown to the collector she had her coal on board, and might leave any hour she pleased. ^ Ou the li3d the commissioners of customs were advised " that she was ready for sea iu all respects, with a crew of fifty men on board ; she may sail at any time."'^ Ou the 28th she was moved from the dock into the river ; the men had taken their clothes and beds on board, and received orders to hold themselves iu readiness at siny moment. She had no register or clearance, but the collector said that was not neces- sary and that she could go anywhere without." She remained at anchor in the river until 11 or 12 o'clock of the 21)tli and " was seen from the shore by thousands of persons.''^ The customs otiicers were onboard when she started, and only left her when the tug left.^ During all this time Iler Majesty's Government was under its promise to Mr. Adams, made as early as the Ith of July, that " the officers at Liverpool will keep a strict watch on the vessel, and that an;y further information that may be obtained con- cerning her will be forthwith reported."" After the vessel had sailed, but not before, the Law-Oflicers announced their opinion that, upon the evidence furnished by the United States, she should be detained.' At what hour iu ti..nk%iJ'TeVsTi the day this opinion was actually given does not appear, but it was agreed upon on the evening of the 28th, the same day that the l)aiH'rs were considertd. ^ It was said by Earl llussell to Mr. Adams at a conference on the 31st of July that a " delay iu determining upou it [the decision] had most unexpectedly been caused by the in„,„,f s.r.i.i... sadden development oi' a malady of the (i^ueeu's advocate, ""'"* Sir John D. Harding, totally incapacitating him for the trausa^ tion of business. This had made it necessary to call in other parties, whose opinion had been at last given iw the detention of the gunboat."^ And in the British Case it is said : '' One of Her Majesty's ordinary legal advisers, the Queen's Advocate, now deceased, was at that time seriously ill of a malady from which he never recovered, and this was mentioned at the time (on the 31st July, 18(t2) by Lord IJussell to Mr. Adams, as a circumstance which had occasioned some delay.'"" The United States find among the documents and evidence furnished by Her Majesty's Governmoutfor the information of the Arbitrators eight opinions, given by the Lav^-Officers of the Crow n ju'evious to the 29th of July. Of these, all before that which was given on the 30th June, upon the representation of Mr. Adams under date of the 23d, were signed by Sir Johu ]). Harding, the (Queen's advocate. Sir William Atherton, the Attorney-General, and Sir Koundell I'almer, the Solicitor-Cireneral, or by the Attorney-General alone. That of the 30th of June was signed by the Attorney-General and the Solicitor-General. From this circumstance the United States infer that the Queen's Advocate was unable to attend to his duties as early as that date, (the 30th June,) and that then the opinion of the other distinguished gentlemen who were the legal advisers of Her Majesty was considered sulticient ; find they also infer that it ' Edwiirds to Coinnira. of Cnstotns, Urit. App., vol. i, ]i. 188 - Sipiarey to Gaicluer, Hiit. Api)., vol. i, p. l'J4. :iT>M.1l..., 4^.v A,i..,..o A... *,... ....1 ,.:: .. -. H4. ■ ll>id., p. <).-). "Sir RtuiiKhU ralmrr in tlio Honso of Connnons, Aug. 4, 1H71, Am. Case, p. 'M'-l. "Adams to .Seward, lirit. Apjt., v(d. i, •24'.». '"Page 118. ' Van? i \¥ '■ \ ' ... '1- \ v._:- "W^ 92 ARGUMENT OF THE UNITED STATES. I I was not necessary on the 23(1 of .Inly to call in new parties, but only to call npon the old. The opinions i>revious to June 30tli will be found in British Appendix, vjI. ii, pages 2, 10, 32, 98, 100, 138 ; that of the 30th June, in vol. i, page 181. On the 2Sth of July the solicitor of the Consul wrote the secretary of the commissioners of customs that he had every reason to believe the vessel would sail on the 2t)th ; and on the morning' of the 20th tele- l^raphcd him she had gone. The letter reached the secretary before the telegram.* AVhen this information was recoivetl, therefore, by the commissioners K.iM" 1 th-Aia- of customs, tiie vessel could not have been far from Li ver- '""" pool, perhaps not yet out of sight of some of " the thousands of persona" who ''from the shore" had seen her '• anchored in the river." Yet no order was given for her pursuit. In another case it might, but in the present the United (States are inclined to think it u'ill not, surprise the Arbitrators to learn that the opinion of the Law-Officers of the Crown advising the detention of the vessel, delivered at the Foreign Office on the 20th, was not made known to the commissioners of customs " until 4 p. m. on the 31st of July, or two days after the Alabama had left the Mersey, .and twelve hours after she had ftnally sailed from Moelfra lloads." ■' She was accompanied as she left Liverpool by the tug Hercules, which "kept in sight other until she lay to, about a mile off the Bell Buoy, and about fourteen miles froui the Canning Dock." The tug returned to Liverpool about 7 p. m. of the 20th, bringing back from the " new gun-boat " " some of Mr. Laird's workmen aiul riggers." ' On the morning of the 30th, the Consul called in person upon the col- lector and informed him that the tug was then in port, hav- ,ah"e4ueui'[.ro,.'!r lug rctumcd froHi the Alabama the evening previous; that """ she reported the .Mabama cruising off Port Lynas, and that she (the tug) was then taking on board men and equipments to " convey down to the gun-boat." ^ The collector sent the surveyor to the tug and he reported that he found a considerable number of persons ou deck, " some of whom admit- ted to me that they were a i)ortion of the crew and were going to join the gun-boat." He also informed the cr Mector that it was said she had cruised oft' Port Lynas the night before. '•' After this the Hercules left Liverpool and went to the Alabama, find- ing her at Beaumaris Bay about 3 o'clock in the afternoon of the 30th, She remained with her until about n)iduight and then returned to Liver- pool."*^ The tug was not followed. Her movements were not watched. No telegrams were sent to the customs officers or any other representative of Her Majesty's Government at Port Lynas, Beaumaris, or any other station or district in the vicinity of where the Alabama was known to have been. She arriv^ed near Port Lynas, at INIoelfra Hoads, at 7.38 in the evening of the 20th, and remained there at anchor until 3 o'clock in the morning of the 31st.' This was ascertained by the collector at Beaumaris, and reported by him to the secretary of the customs on the 2d of August, in reply to a telegram addressed to him on the 1st. Had such telegram b?ieu sent ' Brit. Cas.', p. 9(), -' Report Conmirs. Customs. lUit. App., vol. i, p. 'iStl 'Hrit. C!is<',p.l»7. ^Brit. Case, p. IK!; Am. App., vol. vi, p. 407. ' Hrit. Case, p. 97. 5 11,^' ■ Ibid., p. 98. THE ALABAMA. 93 on the 30th, when the Consul informed the collector at Liverpool of what had been learned from the tng, the vessel might have been stopped. At least she conld not have communicated with the tug. This is apparent from what was done by the collector at Beaumaris on the 1st, when he did receive his instructions.^ Nothing was done until the 31st of «Tul,v, when there was siij-gested to the Duke of Newcastle the propriety of sending the (Jovcjior of the Bahamas a copy of the report of the Law-Ottlcers of the Crown of the L'Oth;^ and at 7.30 p. m. a telegram was sent to the customs officers at Cork to seize her if she arrived at that port. ' On the 1st of August similar orders were sent to the officers at Beau- maris and Holyhead, the instructions to send them not having bwn given the evening before until after the telegraph otlices to those places had been closed. The first telegram to Cork was sent more than tliirty hours after the collector had been advisedby the surveyor of the })t)rt, who had obtained his information from the nuister of the tug, that the Alabama had been the night before cruising ott Port Lynas, and that the tug was al)oiii to start from Liverpool to meet her. The excuse for sending to Cork was that Mr. Sqnarey on the L'Utli had advised the collector he had reason to believe she had gone to (jjueenstown f but mention is omitteil of the fact that afterward advi(;e had been received that, uj) to the time of the departure of the Hercules, on the ."»Oth, she was at sonu^ point nearer to Liverpool, at which she was to re«!eive her crew and supplies from the tug. In view of these facts, the United States believe the Arbitrators will have no difficulty in agreeing with Earl Itussell in his k,- u ,.-.!, i.nk^ opinion, as subsequently exi>ressed to Mr. Adams, and re- ""^ '- ""''i- ported by himself to Lord Lyons on the 27tli of March, 1803, that ''the cases of the Alabama and the ( )reto were a scandal, and in some degree a rei)roach to our laws."'' This ojunion he repeated on the KJth of Felv ruary, 1804, in the House of Conunons, when he said: I any that hore as I said it in that dispatch ; I .say that, haviiif? pussiul siuli a hiw in the yi'.ar 1819, it is ii scandal and a rcproacli that one ofth(! belligerents in this Ameri- can contest has been enabled, at tlie order of the confedc'rate ' made a vessel of war : that, after f^oin^; to another port in Her Majesty's (hnninions to siiip a portion of her crew, slio proceeded to a jiorr in neutral teiritory, anil thert; completed her crew and t;i|uiinneut as a vessel of war, so that sins has sinc(! been al)le to eaptnre and destroy innocent merchant-vessels belont;in<^ to the t)tiu'r belliped by an evasion of the law, 1 say it is a scandal to onr law that we should not be able to itrovent such belligerent operations." The Arbitrators will also rea«lily find that the scandal was not the fault of the laic, but of its cvccniion. As was truly said by Mr. Cobden in the House of (Jommons, on another occasion, July 23, 1803, in reference to the iron-clads: m, <,.i.,!. ,.>,.*. ^ I do not think it is very ditlicult to find out i'or what governnn'nt any vessel which is being built in this country is intended, if it be intended tor a goverununit which can legitimately come to tins country to buy a' vessel." And the same distinguished statesnsan, on the same occasion, said, and saiil truly: I perceive a fallacy which runs through Lord lius.sell's dispatches and the solicitm- ' ihit. Case, p. !»8. •' Ibid., p. m".. ' Brit. App., vol. i, p. 202. * Hrit. App., vol. i, ]>. '20:?. 'Am, App., V(d. i, p. .')8.''); Hrit. Bine Book, (North Anu'rica,) No. ], 18(14, p. 2. Ami. App., vol. v, p. .'itiS; Hansard's J'arliamentary Debates, vol. dxxiii, pp. (JIM, (YM. ' \n\. Ai>p., vol. v, p. (IIHI. "i"it" ,'t tioiis, ma,^' statlou officers on board any ship while within the limits of any port in the United Kingdom ;" and (section 14.j) tliat " before any ship shall depart in ballast from the United King- dom for parts beyond the seas, not having any goods on board except stores from the warehouse borne upon the victualling bill of such ship, nor any goods reported inward for exportation in such shi]), the col- lector or comptroller slmll clear such ship in ballast, by notifying such clearance and the date thereof on the victualling bill, and deliver the same to the master of .such ship as the clearance thereof, and the master of such ship shall answer to the collector or comptroller such questions touching her departure and destination as shall be demanded of him." And again, (section 140,) '*Any otlicers of customs may go on board any ship after clearance outward within the limits of any port in the United Kingdom, or within tour leagues of the coast thereof, and may demand the ship's clearance."'- It is true, there is no provision for a forfeiture of the shi}», and perhaps at that time there was no penalty imposed upon a master for a failure to comply with these provisions, but when ller Majesty's Government enacts that " before any sliip .shall depart" from the United Kingdom certain things .shall have been done, there will be found somewhere, the United States believe, some power by which she can lie detained until such things are done. Sub.sefpu^ntly, in the ca.se of the Laird iron-clads. the law as it stood when the Alal)ama escaped, was used and made ell'ectual. Whon the (^o^ ernment was afterward called upon in the House of Commons to an- swer for < .10 seizure of those vessels, and in<]uired of as to the authority by which it was made, an elaborate and conclusive rejdy was given by the Attorney-deneralin aspeech from which extracts have already been presented for the consideration of the Arbitrators.' IS'ow, what was done in the case of the iron-clads .' Earl Ifussell re- quested the secretary of the treasury to " move the Lords Commission- ers of the Treasury to desire that tho.se vessels may be prevented from leav- ingtheportof Liverpool until.satisfactory evidence can be given a.sto their destination; or, at all events, until the inquiri'»s which are now being pro.secuted with a view to obtain such evidence shall have been brought to a conclusion/' * In consequence of this rcipiest, one of Her ^Majesty's ships of war was 'Am. App., vol. v., p. tilKJ. -Am. App. Counter Case, IloS, 1105, ll(i(i. •'Ante, pp. 78,88. ^ Brit. App., v(d. ii, p. '^')2. On the2l)th October, 181)1?, thelaw-ot1icer.sof the Crowu, ou beinj; incpiired of as " to the course which, under the circumstances, * * should be adopted" by Her M.njesty'.strovernment in respect to these irou-clads, reidied, " We arc of opinion that it is compet'nit to them to direct those vessels to bo detained in any place which the commissioners of Her Mn.jesty's customs may think tit to order under section ;i"2;{ of l(i and 17 Vict., cap. 107, (tiie customs law consolidation act,) which is incori)orated by reference into the foreijfii-enlistment act, .VJ (ieo. Ill, cap. Gi>, sec. 7." Brit. App., vol. ii, p. 4U>. THK ALABAMA. 95 |1 re pion- ieav- Iheir -ins low 11. Idl.e |e iU'c any lii(l<'r ich is li'.. 7. ])liice(l on the watch, ami the vessels did not h'ave i>ort. Had the law been executed in the same manner with respect to the Alabama, the ]tresent Tril)uiial would never have been called upon to consider the sub- ject now under discussion. When the builders appeared not disposed to reply to any question with reference to her destination after leaving l)ort, tijere were reasonable grounds for supposing that the destination was an illegal one, and the Lords Commissioners of the Treasury could and should have been moved to prevent her leaving until satisfactory evidence was given that it was lawful. 3Iuch stress is laid in the Case presented by Her INIaJesty's (Jovern- ment upon the fact, that while the attention of Mr. Adams and the Con- sul had long been given to the vessel and she was launched as early as the 15th of May, no rei)resentation had been made to Earl Kussell in respect to her until the 23d of June, and this is considered of sufliciei '; importance to be made the subject of a second reference in the Counter Case. The 23d of June, the Arbitrators will notice, Avas more than one month before she sailed; sutticient time certainly to have enabled the Govern- ment to detain her, if it had been so inclined, upon information after that time obtained. lUit it will also be remembered that the vessel had not escaped the notice of the customs officers,' and they took no action, although it was but a few weeks before that the Oreto had been per- mitted to escape, and was then known to have arrived at Nassau, a port entirely inconsistent with an innocent destination. In fact, on the morning of the 28th of July, the day before the Alabama sailed, and before she was moved out of the dock into the river, the Journal of Commerce, one of the i>nblic prints at Liverpool, containe*! an account of the in'oceedings which were being carrieil on against the Oreto at Xiissau.- It was not time for action which the oflicers of the Government re- quired, but invliixdion. Again, it is said she was not overtaken by the Tuscarora, which had bi'eu brought to Southampton by Mr. Adams for the very purpose of intercepting her: nor by any other of the vessels of war of the Cnited K^tates until linally destroyed by the Ivearsarge. No better answer to this eau be given than in the words of fSir Thomas Baring in the House ot Commons, on the 13th of ^lay, 18<)4, when he said, that "even with onv ciiiiscrs aHoat it would not be easy to pick up an Alabama ;" ' or in those of ]Mr. Cobden, in the same debate: rriliiips iHitliiiij; i> iiioie dit'licult, not to say inqxtssiblc, tlian to tind a sliip on the e, hcciiisc you say she must have a start of twenty-four hours,'' The latter gentleman on another occasion, Jidy 23d, 18G3, also said : -Now, when still the great hulk of our coinineree is carried on hy sailinjj;-vessels, two or tlirue steamers, built especially for speed, may harass, and, in fact, may render val- iit'li'.ss, the niereantile marine of a whole nation. I have heard it said, "O, ifit were our ease, we should .soon catch those vessels." * '* I have four times crossed the Atlantic, and saile ** . Y'' / ;S^ Hi i m Hi w ' ! III i 1 ■ !f|y.l i i u • 96 ARGUMENT OF THE UNITED STATES. Especially does this difticulty exist if the laws and refjulations of neutrality are not strictly enforced. In January, 18G.'{, Commodore Wilkes, of the United States Navy, wrote to the Secretary of the Navy of his Government : Tho fact of tho Flinida liavinj; Imt, a fow days' coal, makos me anxious to Iiavo om vcsHtils otV t!io Maitiiii(|tu', wliicli is tho only island they can bo|M> to j?i!t any ooal or supplies at, tho En;;lish islands boinj; cut of!" Miuler the rules of Her Majesty for sonw sixty days yet, wliich precludes the possibility, unless by some (jhicanery or fraud, the Lopo of their j^ettinj^ coal and comfoit there; thoreforo the island of Mariini(]uc it seems to me to bo the only one to which they will attemi»t to n^sort.' The Florida did jnet coal at Barbados, an Eii<»lish island, and the plans of Commodore Wilkes failed. The Alabama havin;;- escaped, the IJritish steamshii) IJahaina cleared Ar,„am,„i ir, ,n ou tlic loth of Auj^usl. froHi Livcrpool for Nassau with her thi BHiu„t„,. armament, shii)ped by Fawcett, Preston ».V' Co.^ The Baha- ma also had on board Captain Itaphael Seuunes, who afterward (;om- manded the .Vlabama, and some otlicers and seanuMi, a- passenjLfers.' The English bark Agrippina also cleared from London in August for Demerara with a cargo ol'coal and munitions of war.' At Angra Hay, in the Azores, which " had l.u^en used and abused by corsairs and jurates during centuries,''"' on the 2lid and 2.»d of August, this ariiuiment, coal, ammunition, and stores, and these oHicers aiul sea- men, were transferred, under tiie IJritish Hag, from these vessels to tlie Alabama. Ou the -ith, Cai>tain Setrunes, with his otlicers, took jxjsses- sion of the Alabama and nuistered the crew, eighty-four in number and mostly Jlritisli subjects.'' The English eiisign was hauled down and the flag of the insurgents hoisted." Thus armed, maimed, ande<]uipped, the Alabanui sailed from the Azores as a cruiser of the insurgents. Ou the 18th of November she arrived at ^lartiuique, and anchored in the harbor of Fort de France." She went there to coal, ar- rangements having been made to nieet the bark Agrippina, (the same that had taken partofheroiittit to Augra,) whi(;h huil arrived about one week previous with a (;argo ofco.il from an English port.'' On the oth of September yiv. Adams had forwarded to Karl Kussell a let- ter from the consul at Liverpool, stating that tlu' Agri[)piua was to carry out another cargo of coal to tUe Alabama. Oa the U">th the com- missioners of customs informed tiie lords commissioners of the treasury that they had no power to interfere.'" The Agrippina left port upon tho order of Captain Semnuis to get uiuler way forthwith and proceed to a new place of rendezvous, as "it would not do for him to think of coaling in Martinique under the cir- cumstances.'" " Martini(|ue was uu. ■^ Brit. Case, p. 107. '' Brit. App., vol. i, p. 2r»7; Am. App., vol. vi, p. 4ill. '"Brit. App., vol. i, p. '2V.I "Am. App., vol. vi, p. 4i)l. '•• British Case, p. 107. TIfE ALA15AMA. 97 to tlioir concerted aiicliDiM.u'i' in l>l;iiu|ailla, '" om> of tliosii litMc coral islaiuls that skirt the South Anu'ricaii coast, not yet fully adapted to the liabitation of man."' Thej' retnained there live days, the Alabama coalinn' and making other necessary preparations lor sea, when the eoal-sliip, which had still another supply of coal on board, was dispatc'ied to another I'ejulex- vous, the Areas, little islands in the tlulf of 31exico, off the coast of Yucatan.- This new rendezvous was reached by both vessels on the L'.'ld of December.' The Alabama remained at the Aicas a week, coal- inji", repairinii', and relitrin;';. \t the end of ihai tiiae the Aj^rippina was j)ut under sailinj'' orders for Liverimol to report to Captain I'.ullock for aiu)ther carj^o of coal, to be delivered at Fernando de Noronlia, another rendezvous aj;ieed upon.' On the 11th of -lanuary Captain Semnu's eiij;a;4ed andsutdc the United States {^un-boat Ifatteras twenty-five miles southeast of (Jal- i,,.,r„ .ti,. ii,t. vcston, Texas, one of the ports of the insurgents, lu the- '"' • oiijiaffcment the Alabama received " six larjj;e shot-holes at the water- line."5 On the evenin.i>" of the 20tli she arriveil at Port l*oyal, in the island of Jamaica, and within the Jurisdiction of Her Majesty's Gov- ernment, " to repair damaj^es sustained in the action," and t,ry'2A"\^l\:Cvn'!^'r^ to land jn-isoners.'' The distance from the place of tlie en- "' ""''•'""""''• yagement to .lamaica was about Ufteen hundred miles. On arriving Captain Semmes applied to the naval olTicer in command at the station for permission to land his prisoners, repair dama<4es, and to receive coal and supplies, stating it was absolutely necessary the damages " should be rejiaired before he could proceed to sea with safety."" This was the first IJritish j)ort the vessel had visited after lier escape from Liverpool. In this connection it will be recollected by the Arbitrators that on the olsfc of July, after her escape, Earl liusscll suggested to the Duke of New- castle " the ju'opriety of a copy of the inclosed report (that of the Law-Otti- cers, of the L*l)th of duly) being sent to the (lovernor of the Uahainas."" On the IGth of September, after the receipt at London of information of the release of the Oreto at Nassau, the LawOtlicers were inquired of whether it would be " necessary to modify the instructions sent to the ( Jovernor of the liahannis" for the detention of the Alabama,'^ and on the -oth they replied that they were of "the opinion that if the vessel L'90 should put into Nassau, she ought to be there seized and proceeded against, provided that there be nothing in the condition of the vessel when at Nassau teiuling to rebut the inference which the law-oflicers drcnv from the facts laid before them with respect to the vessel wheu she lay at Birkenhead." "' This was after it was known that the Alabama had been armed and ft'piipped and had started on her cruise, as that fact was communicated oy Mr. Adams to Earl liussell on the 4th of September." After the necessary corres[»ondence between the naval officer at Jamaica and the Lieutenant-Ctovernor of the island, the i)ernussion to repair asked for by Captain Semmes on his arrival was granted.'- This was reported to the Government of Her jNlajesty, and on the 14tli of February Earl l{n.ssell informed the Duke of Newcastle that, in his 'Am. Ai-p., vol. vi, p. i'.H. ' Ihiii., p. Wl. -Ibid. Ml)i(l.,p. 'J02. •'Ilml. ll.id.,!). '211. •'Am. Ai»i>., vol. vi, pp. 4l)-2, 4'>;!. "11)1(1., p. 'il2. ■•Bill;. Ai>p., vol. i, 11. -ilit. " llii.l.. p. '2{id. '•Brit. App., vol. i. p. -'iu. '■ Ihltl.. p. 'i(i4. 7c m^ 08 ARGl'MKNT OF TlIK UNITKD STATK.S. Ik ■( t .; ?!i: ;,( ' o])iiiion, tlio i>i'o('t'<'»liiig.s of tlM' (lovcrnoi' slioiild Ito iii>|)r()vi'(l, but lie ti'ust«Ml ''tlie Aliibiiina has bciMi wained to depart as soon as the neces- sary repairs are linished."' When the Alabama arri\eh she had on boanl the ollicers and men of the Jlatteras iis prisoners, lour olllcers of Jler Majesty's ship Challenger, ibur of thci ('y;;net, and one of the (Irey- liound,\venton board of her upon visits of eonrtesy,-and the band jtlayed the tune called Dixie n Lund as a eoiuplinu'iit to her, " because it is the ordinary usafteandcustom amoni;- the navies of eivili/.e!ay complimentary tunes to each other on siu;li occasions." ' It may hav«' been done by the Junior ollicers, "entirely from thouf;litlcssness,"anlayed" was " severely re[»rimamled ;" yet it was done, and tlu? most c(»rdial re- lations were? at once establisheth. and the Alabama sailed at .S.;>() of the same eveniufi.'' She " was treated * * exactly as I [the naval commander at the stationj shall act toward any United Stattss man-of-war that may hereafter call heie." ' Why she . • >(;s. -ll)i.l. , 1>. •i()S). ■'Ibid. . t>- 270. ^Aiii. Aji) 1., vol. VI, !> . 4'.i: " Hiit. Al p.. vol 1, J.. •2(i'.» 'Ibid , I» •204. • Ibid., p. 2T(i. '~Aiii. Ap)>., vi)l. vi, p. 41):5 : Hrit. A[ip.. vol. i, J). 27'2. "IJrit. App., vol. i, p. "JT'J. '"Ibid. ' Ibid. bark h permis to be [ She vestiga but bet was nn in any from Ji proof ol ernmen nieasurt plied.'' 1! On th Cape C( tion of : Caj)tain coasting tlie(;ovt some ne( the LTnit hama in i Hngland a reply t tions, nei At two Cai)e To\ Jind liund This w consul, w Tlie (iovc hama an >Iies and tor my ere iion work 1 prop().s<» coed with icpairs."'" The ves ^^inion'.s 1 and relit, ; tiiiii Semm |) Tin: ALAHAMA. 09 the r.th. le bark Itakin,;;- tat the it.Ai>l>. Itarlv had ^oiic dircut to tliat iK)it Ity iJicconccrtod aynHMiioiit, Vi'lusod jxTiiiission decisively i() tht- ('oiiiiiiaiidt'roF tlie Ahibaiiia, who had asked to be permitted to receive the coal from on board the biirk."*' kShc ariivod at l>ahia alter the proceed iiij;s were coiumenced to in- vestiyate the facts imputed to her at Fernando i\o Noronha, ,, „, , („„„ l)nt before their conclusion. Upon their concdusion an order !';';l'i';,';" ,';;'";,„',;;' was made that "the Alabanni shall no more be admitted •"•'"> ""if"! in any i»ortof the empire. She woidd have sulfered the same exclusion from l>ahia if she had not presented ln'rself at that port even before l)roof of her culpability could be obtained, and before the Imperial (iov- ernment, suri)ri.sed by such audacity, i'ould have been enabled to take measures concerning the i)enalty which in such cases ouj-ht to be a[)- plied."-^ On the L'Oth of duly the Alabama appeared in Saldanha Hay, in the Cape Colony, and thus came once more within the jurisdic- tion of Her Majesty's (lovernment.' On the 1st of August, "^ "" Captain Semmes availed himself of " an opportunity oftered by the coastiufi: schooner Atlas to communicate with the Cai)e," and informed the (lOvernor that he luul arrived in the bay " for the purpose of elfecting; some necessary repairs."' On the 4th of the same month the Consul of the United States also iuformedithe (loveinor of the i)resen<'e of the Ala- bama in the bay, and asked that she "should beat once seized and sent to I'jiyland, from whence she clandestinely es(!ai)ed."'' The(rovernor (Rinsed a reply to be sent on the next day to the etfect that he " has no instruc- tions, neither has he any authority, to seize or detain that vessel."'' At two o'clock in the afternoon of the same day (the .")th) she appeared oft Cape Town, and, at the entrance of Table J>ay, within si<;ht of the town and hundnnls of i)ersons, ca])tured the American bark Sea liride.' This was made known to the Oovernor at once by the United States consul, who claimed that the capture was "clearly witliinlJritish waters."'' The (iovernor caused inipiiries to be made of the captain of the Ala- bama and also of the port-cai)tain and other i)ersons, and satislied him- self that "the vessels were not less than four miles distant from land."'' Jt was not denied, however, that this was in full si^ht from the town. In- deed, that was shown to be the case by the statements of all who were impured of by the (Jovernor."* After this capture on the ."itli, the Alabama came into Table liay, and Cai)tain Semmes at once announced totheCic iior thathe had come in lor " supplies and repairs," and asked leave to " land i)risoners."' On I>ein<;- inquired of by the Governor as to the " nature and extent ot suj)- plies and repairs" required, he replied: " 1 shall need some provisions tor my crew • * * * ^nd as for rei)airs, my boilers lu^ed some iron work to be done, ami my bends require calkinf;', beinj;- quite open. 1 proi)ose to take on board the necessary materials here, and to pro- ceed with all dis])atch to Simon's Bay for tlie puipose of nnUdng these repairs.'"' The vessel remained at Table l>ay three days and then went to Simon's IJay, also in Iler ^Majesty's dominions, to calk and relit, arriving there on the IHh. On the way over Cap- tain Semmes chased and captured another American vessel, but, " t)n ' Brit. App., vol. i,p. 20:?. - IJrit. App., vol. i, d. 2W. ' IJiit. Case, p. ill.' •♦liiil. App., vol. i. p. :i(lS. '- ihifi., p. -.m. •11)1.1. Ml>i.l.,p. :U'2. "Iitid., p. :!i:}. "'n>i(l.,pp. :q8, 31i). " Il)i1 "^K- : ■i % lit')} ij*!j m ' r 10(1 Aina'MKNT OF Tin: I'Mirj) STATES. my poiiitiii;;" out to liim," says licar-Admiiiil Walkrr, " that hv had done so ill neutral waters, he assiinMl iiic that it was (|iiil<' iiiiinti'iitioiiai, nii«I,b('iii;{' at a I'l-oiii the hiiiy the (Jonsnl of tlu> I'^nited States to the (lovernor, he immediately replie(l that lie did not feel wairanted in takin^isteps to remove the i»rize crew,' upon the gronml, as he afterward said, that the vessel was l)roiii;lit in thronyli " inadvertence."' * After his arrival at Cape Town on the .")tli, Captain Sommes" men- tioned to thedoveiiior " that helett outside one of his ])ri/es l)revionsly taken, the Tnscahxisa, which he had e(piipi>ed and litted as a tender, and had ordered to meet him in Simon's i>ay, as she also stood in need of supplies." •' On the Stli this vessel jirrived nt Simon's \\,\y. She was '' a bark of livc! hnndred tons, with two small ritled twelve-i>onndei' jiiins and ten men, and was captnred by the Alabama on the 21st of .Imie last, olf the coast ol' l!ra/Jl, carf>() of wool still on board.'''' She had never Ijeen condemned by a i»riz(^ court, bnt had been commissioned by Captain Semmes on the liif^h seas as a tender to his ship, one of his lieutenants liaviiifibci'ii placed in command.' The ^Vftorney-CJeiieral of the Colony was of the oi>inion that " if the vessel receiveride, and completed the sale ol her. * * The wool was taken out of the Tuscaloosa and landed, * and is now (September 1!)) on its way to market. r 11 ' liiit. App., vol. !, " Iliid., p. •.\U\. •'Il.i(l.,p. ',{17. Ml>i(l.,i.. :!:>•». f'Hiif. Caso. p. li;?. p. :}07 '■Urit. App., vol i, p. 'MO. ■IlMi(l., p. :{ll. "Hiit. Case, p. li:?. "Atn. App., vol. vi, pp. 4.")4, 4."). '"Forsyth to Walker, Urit. Aiip., vol. i, p. 3-J4 ; Walker to Atliuirulty, ibid., p. 32.''.. Tlir. AFwMlAMA. 101 \t Stiiiud ■) lliiy , Tilt' iiccoiinl ol" tlic traiLSiK-'tioii, us <4iv('ii \ty Captiiin Simuiuu.s liiinseU", is as (ollows : Tlio Tiiscali><».-ii went to si'ii at diiylinlit mi tlif I lib. ani) wi- fitllowcil ln-r in tlio Alaliaiiiii till' iii'Xt iit> of tin' iiiiiiilialiiti'd liailmis, moiih' distance to tlic iiortli- waid, and the Alaliaiiia was fo t'ollnw licr tiiiliit'i' at'ttr a cniisi' of a t't'w davs oil' thu ('a|>('. At l('n;illi, wiicti I siiiiposcd t In- 'riiscaloosa and llic Sea IJridi' had n'a<'lit'd tlirir dt'stiiiation, 1 tilled away and I'ollnwed tlieiii. ( )ii llie nioniini; ot' tlie 'J^tii of An,i<;iist: Wii siylited till' land, after lia\ inj^ lieeii delayed liy a ileiise fo;f for twenty-fonr lioiirs, and in tlio course of llie afternoon we ran into ; lie l>ay of An;;ra I'eiincna and ancliored. This was our point of reiide/vons. I found the rnscaloosa and the Sea Uritle hotii at anchor. I had at last found a |ioi't into which I cnnld take a pri/e. 1 was now, in slioil, anioii<4 the JloltentolH, no civili/eil nation clainiiiuc Jmisdiclion over the wators in which I was anchoi'eil. When at Ciijie Town an I'^ne'.ish inerchant had visited me, anil made nveilnres for the inirchase of the Sea Ihide und her carK'o. lie was willinjj to run till' risk of non-cundeninalioii liy a pri/e-conrt, and I could jnit him in posses- sion of the prize, ho said, at some inlet on the coast of Africa without the .jiirisilietioii (tlaiiy livilized jiower. 1 imiile the .sale to him. lie was to rejiair to the j^iven ren- dezvous in his own vessel, andl found him here, accoidinj^ to his a;;reement, with the stipnlated price — alioiit one-third the \alne of the ship and car^,'!) — in f;ood Eii;;lisli siivcrei;;ns, which, upon liciiiff counted, were turned over to the paymaster foi' tlio military chest. The purchaser was then pnt in possession of the ]>i'i/.e. I liail nuido an arrany;cment with othei' i>arties for the sale of the wool still reinaininjj on hoard tho Tuscaloosa. This wool was to he landed at Anj;ra J'eiinena also, the purchaser ajjroo- iny; to ship it to Ijirope, and credit tho Confederate, Stales with two-tliiids of the pro- ceeds.' Oil the l(>tli of September tlu^ Aliibiuiiii ajiaiii arrived at Simon's IJay.- Upon his arrival Caplaiii Si'innics iinint'tliatt'ly waited upon iicar-Admiral Walker and "i'raiikly expliiiiied'' to him, as the Admiral reptu'ted to the Seereta'V of the Admiralty on the 17th, his proccedinos at Anjiia reqnena.' ( »ii the l!Hh a full aeeount, its oiven l>y('iiptain Semmes to a re[)orter()n the 18tii, was published in the Cape Town Afo-n.s.' ("aj)tain Hemmes returned to the port at Simon's P.ay '' for coal, some jaoN isions, and to repair her eondeiisino' apparatus."' lie would not have eome baek there, " l>ut his condensiii<;- apparatus got out of order.'"' Tiie Alabama remained in port until '.'» p. m. of the U 1th, when, havin^y comph.'ted her repairs and taken on a supply of eoal, she .sailed for the Indian .seas. '' The otVieers of the station werci as eourteous" as before, and Captain Semmes renewed his " very pleasant intereour.se with the Admiral's family."" On the L*LM of Deeember she arrived at Singapore, also within the Jiiris- dietion of Her Majesty's Cfovernment, and was su[)plied witli eoal aiul provisions. AVhile there, .some of the crew hav- iu,!'" deserted. Captain Semiues "jtermitted half a dozen picked fellows to eome on board, to be shij»i)ed its soon as we should get out into the strait."" On the 20th of I\Iareh tlie Alabama again arrived at Simon's IJay. Captain Semmes was " permitted to receive ii sup[)ly of eoal, and complete i)rovisions," after which he put to sea on the lioth." J'rom there she pro(;eeded to Cherbourg in France, at which place she arrived on the 11th of June. On the IDth she left that port to engage the United States steamer Kearsarge, and wassuidc in the engagement, many of her ofllicer.s escaping to Great k. ;,»',«'. ''',)u'')'i!»" IJritain in an I -tglLsh yacht which came out from Cherbourg to witness the . :tion.'" ;ils ami prnvisiijllf.. 'Ain. App., vol. vi, p. 498. 2 Brit. Case, p. 11.''). •' Brit. App., vol. i, p. 32.''>. ^Aiii. App., vol. vi, p. 45:{. ■'■ Brit. App., vol. vi, p. '.125. ''Am. App., vol. vi, p. ■ 11)1(1., p. 491t. «Ibid., p. oOl. "Brit. App., vol. i, p. "J Brit. Case, p. 11(5. 4.5.5. w 102 AKGl'MKNT OF THE UNITED STATES. Thus it will be soon that in a ciniso of about two yoais, tlio Alabauiii rocoivoil all bor lopairs, pi'ovions to bor arrival at (.'borbourji', Kniiii7rrXwl>Tw'': (oxcei)t sucb as ooubl bo made in the oi>en soa or at an(!hoi'- .igos found in uninhabited i.slands,) in the ports of Great Britain. Sho was supplied with coal from Great lUitain oxolusively, except once when it was taken from one of her ]>rizes and once at Bahia. This last would not, however, have boon allowed, had the facts in rela- tion to her conduct in the waters of Jlis ^lajosty the Emperor of Brazil been known at the time. Having made "Bata Island the base of her oi)erations, for to that place she carried prizes, and from thence pro- ceeded to make others, which she ordered to bo burnt, after having kept them there some days at the anchorage place of that islaiul,'' ]Iis 3[;ij- esty the JCmporor of Brazil " ordered that the said steamer be no more received in any i)ort of the Empire."' ' The "toleration"' of such abuses was, in the opinion of His \rajosty, "equivah'ut to permitting the ports of the Kinpire to serve as bases for operations for the belligerents.*"- Tlierofore, this first "disrespect to the soveieignty'' of that Empire was followed, as soon as discovered, by a i)eremptory order of banishment. The United States ask the Arbitrators to contrast this coiuluct with that of the Government of I lor 3Injesty. This vessel was built and specially adajtted to warlike use in Great Britain, and in violation of the laws of that sovereignty. She sailed from a port in that sovereignty, unarmed, but iitted in all respects to receive her armament; she escaped after her detention by the Govern- ment had boon detorminod upon ; her armament was constructed in Great Britain; her ammunition, stores, and crew wore all i)rovided there; these were shipped by tlu' insurgents on boaid of English ves- sels in English ports, transported to the waters of anothoi' Government, under the English flag, and there transferred. After her cruise com inencod, her coal was supplied from Groat Britain in English vessels dispatched from English i)orts, with instructions to i)roceed to places of rendezvous arrangO(l by "itreconcerted agreomeut'" through agents of the insurgents, having their places of business, and carrying on the operations of their governnu'iit, upon English soil. She sailed a distance of more than tifteen hundred miles to roach an English port after an engagement with the enemy only t\\<'nty-tivo miles from cue of her own ports, in order to repair damages aiul i (tit. AVhilo cruising along the coast, going from one port to another in iSritish juris- diction, within cannon-shot of the shore, and in sight of the town in which was located the seat of the colonial govornniont of Her ^Majesty, she captured an innocent merchantman and "inadvertently" brought it within the toriitorial jurisdiction of Hor JMiijesty. AVhilo again coast- ing between other ports of Hor 3Iajesty's dominions she again chased and detained another merchantman, but upon being informed l)y one of the oflicers of Hor JNlajosty's ^Navy that this was within the jurisdiction of Her Majesty the captain again put in a plea of "inadvertence"' and released his ])rize. She brouglit an uncondomnod prize into a port of Her Majesty umlci pretense of a commission as a tender; her oflicers there made contracts for the sale to Her ^lajesty's subjects of the prize cargo of this so-called tender, and of the prize vessel and cargo taken within sight of the land ; and, in pursuance of an arrangement made in port, i;ioceeded to an iinfrequente«l island, aiul comi»leted the sale of the uncondomnod prizes ' Brit. Aiip., vol. i,ii. m'j. -Ibid., p. a'J4. THE AI.Ar.AMA. 103 by (U'livery iiinl ro('ei{»t of the imrcliaso-inoiU'V : ami af'torward, in an Eiigiish i>oit, hci'.captain " pcniiittcd" a lew i)ickcMl t'l'llows to I'oiiie on board t'oi' •' shipMioiit '" outside of the .jurisdiction. All these facts, save perhaps the last, were nuid<' known to Iler Maj- esty's Government as soon as they occurred, yet no "disrespect to the sovereignty'' of IFer .Majesty was discovered: such i)ractiees wer(i ••tolerated;" the vessel, with her officers, was at all times and on all occasions adndtted without hesitation to the hospitalities of all IJritish ports, ami "treated exactly as any United Htates man-of-war would have boeii." In short, she was permitted at all tinu'S to do, in the ports of Great Britain, what, in the opinion of llis Majesty the ]']mi)eror of Jha/il, was "eciuivalent"' to their use as the bases of belliermitted her ports to be used as a l>ase of belli oerent operations. In addition to this, having: been coi .laissioned by the Alabama, her acts are to be treated as the acts of her piiih ipal. *b'i ! IV . I w VIII -THE (JEOIIGIA. i^h'^ Tlu' ( NnIon--ty ni" ihc rnii.-'li'iHiion .'imi piii- point's tti till- eaied as ;; conununication in the sanu^ i)ai)er, addressed in the same lorm, in which this language is used : '• It is simply ineredibh^ that it (the Government) alone is not cognizant of liu-ts notorious in commercial circles, and the evidence of which is more easily accessible to its agents than to look- ers on."'' It is <|uite true that these were anonynn)us communications in a news- pai)er, but tJie iM'Wspapcr was oiie of a large circidation and important political intbu'uct^ in ivondon, and the articles professed to state facts. One of these facts was that many vessels were being built in Great Britain, intendetl for vessels of war; ai:d another, that it was pretended they weic for tlie Emperor of China. The Oreto and the Alabanui had, before that time, escaped from Eng- ' Hiit. A|>i»., vol. i. |). A-S.l '^Aiii. Aint., Vol. vi. p. r>0.t, 'll.i.l. MJrit. Aj)])., vol. i,|i. 2U>. "Am. App., vol. vi, p. oOo. "lliiil.,)t. r)Oi>. THE (JEORGIA. 105 lisli ports under luotcnse of boiug iiitoiidod lor foroi,i>ii yovoninioiits. They were then under the tlas" of the insurgents, engaged in the destruc- tion of the commerce of the United States. It now appears that Jler 3Iajesty's Government had amph^ nutans witliin its own control of determining which of the vessels referred to in these articles was and which was not intended for "the Emperor of China/' The real Ohinese Government had an "agency"' at '•(> 'kittle (teorge street, Westminster, London." As early as the lOth of {Septem- ber, 1802, ]<]arl llussell caused a letter to be aruce referred to in this letter, the United Stater, infer from the corres])onden(.'e which afterward occurred, to have been Sir F.jd- erick Jjnu;e, who was at that tiuu? the representative of /Ter 3Iajesty's Government at Pekin, and who subsequently succeeded Lord J>iyons at Washington. On the 0th of October. ]\Ir, Lay addressed a letter to the ]'(ueigu Ollice from tlie "Chinese goverinnent agency, (> liittle George street, West- minister," a copy of which is as follows : My ahsenci! from Eni;land has ])revented my rerriviiiu; hefor" yesterday your let*^er of the litth Septemlier. With referenco to l^arl IJiisstdl's desire; that 1 should ohtaiii .a written authority fi'oni the Cliinese uovernnu'nt for the steps 1 am takinjj; to )»rovide, it with naval assistance. 1 have the honcu- to state that 1 hold such wiitteu authority, dated the l.'ith March, 1 '■'(it*, from u\y locinn /ckco", Mr. Halt, to ])urchasc and eipiij) a steam fleet, in accordance with instructions from the imiierial ;j;overnmeiit. 1 have since rec<'ived rennlar remittances from the f<>reii>n ciistiims for that purjiose, by direc- tion of J'rincc! Kun;;-. 1 may add for his lordship's iuforniation, that on tli<'"J-th of.June last I received, thruui;h Mr. Hart, a dis[>atch (rom the Chinese I'orei^n Otlicc; relative. to the proposed lleet. This dispatch jtrays the insiiector-;^eiieral of cnst(nns in earnest terms to use the utmost dispati'h in iirociirin^' the vess(ds. It ii'i»eats the instrnctions issued to the ;jovernors of various provinces as to the ainoinits to he eoiUrihnted by them toward the cost (d' the llcei ; refers to the Emperor's anxiety that ud timo l)e lost ; an' for the tleet. 1 lia\'e wiitten for lueciso authority. As soon as I receive it, 1 will not fail to ajtprise Earl Kiissell of thi; fact.' Tlie sub.seqiUMit correspomh'iice i)receding the 17th I'-ebruary, ISO;?, is not given l)y Jler ^Majesty's Gownnment in the documents and evi- dence luesented for the consideration of the arbitrators ; but it is stated in the JJritish Case, ou page 47, that " in March, iSiJi!, theCliiiu'se Gov- ernnu'ut gave authority to Mr. Lay, inspector-general of Chinese cus- toms, theu on leave in J'higlaiul, to i)urchase ande(|uii) a steau) lleet for the Emperor's service, and a sum of nu)ney was phtceil at his (lis[iosal for the purpose. 3lr. Jiiiy accordingly entered into an jigreement with Captain Sheranl Osborn, an ollicerin II -^r Majesty's navy, accoiding to wiiicii the latter was to take comnunul-in-i-hief of the fleet, receiving orders from the Chinese GovenmuMit throngU Mr. Lay. Ifer Majt^sty's Government, by orders in council, gave permission to enlist otlicers and men for this service." if Ml '/ M hi 4^ . I ^1 t fi n *'n ■ H t5 ' t tupjktft* '■it ■ ' IJrit. Case, p. 47. - Brit. App., vol. ii, p. 681. Ibid., p. <)81. ■ ! lOG ARGUMENT OP THE INITKD «TAT^:S. The Unitod States cannot state with certainty that such was the fact, but they liave reason to believe that some of the vessels mentioned in the lii'st article above referred to, published in the London Daily Xews, were, in fact, beinjj built under the above-mentioned arrangement, and Avere, in fact, intended for the "JJmperor of China." Hut it is certain that all were not so intended, and i)articalarly was this the case with the Laird iron-clads, the J'ami)ero (or Canton) and the \'irresentative of the United States, at any time brought his suspicious as to the \'ir- ginia to tlie spectial attention of Earl liussell, or any otiu'r olUcer of Her Majesty's (Jovernment, before she left the Clyl, where the operations of the insurgents l)egan, and had been continued with so much activity. (Jonse([uently the LJnited States could not tluMi comply with the rules that had been already i)rescribed, and so strenu ously insisted njwn, in i)revious cases, for the guidance of the ollicors of ' Mv. Eayartl in the Ilonso <»f Comiunus, March 7, l>3,i4, Am. App., vol. iv, p. 41U>. -0'l)()\vi>eratioii ill the niaehinery by which tbi- years it had been accnstonied to cany on its police and levenne doiiartments. It needed only to i)ut this ma- chinery into operation, and suspicions coiUd l»e raised to the dignity and importance of exidence, or set aside as unfounded. This Avas never done. " Facts notorious,"' "the evidence of which was more easily accessible to the agents of the (Jovernnient than to lookers ou," were passed by without the notice of the government, and this vessel was pernutted to escape. JJut it is said that, '-when surveyed by the measurin,!;;' surveyor, she presented uothinjjf ealcidated to excite sns[)icion ; that she had the ap- pearance of being- intended for commercial puri)oses, her framework and plating being such as are ordinary in trading-vessels other class.'"' The surveyor's certificate bears date February 4. He commenced his survey on the 17th of January, seven days after her launch, and he visited her on two separate occasions afterwards for the purpose of com- l»leting his survey.- These visits must, tlierefore, liave all been made l>revious to the date of his certificate, (February 4.) She was not registered until the LM»th of ^NFarch, nor cleared un- til the 1st of April, and did not sail until the LM. The evidence pre- sented is, tlierefore, only of her appearance on the Ith of February. J ler Majesty's goverinnent does not a[>i)ear to have caused any exanjinatiou to be made after that time: or if it did, it has not seen lit to furnish the arbitrators with the result. It is true that after slie had sailed and it was known she had already been converted into a cruiser, the collector of the port did say. in a report to the connnissioners of customs then called for, that the "otUcer who performs the tide surveyor's duty afloat, and who visited her ou the eveidng of the 1st instant, to see that the stores were correct, in- forms me he saw nothing ou board which could lead him to suspect that she was intended for war purposes."' lie also said that he, himself, could "testify that she was not heavily sparred; indeed, she could not spread more canvas than an ordinary merchant steamer."' IJnt this can hardly be looked upon as having the effect of an exami- nation actually made. On the 14th of February, eight days after the certificate of the sur- veyor, the first article aI)ove referred to appeared in the Daily Xews. Three days after, on the ITtli, the next appeared. The vessel renniined in ]>ort for nearly two months after these suspicions tissuined shape and became "notorious in commercial circles." That she was si)ecially adapted to warlike use when she left port, is proven by the fact that, as soon as the armanuMit was transferred to her, off the coast of France on the !>th, she set forth as a vessel of war, complete and r(,>ady for active service. She needed, when she left Greenock, nothing but arnjs and anununition. Those were soon obtaine«l out of Her 3Ia.jesty's domiidous, and without entering any i)ort she com- menced her work of destruction. She was registered ou the 20th of .March, in the name of om^ " Tliomas liold, a merchant residing at Liverpool,"' ' as the owner. He was a rel- ative of Lieutenant ]\Ianry, her commander."' On the L*7th she com- nu'nced shipping her crew at a shipping office and btdbre a shipping ' Brit. Case, n. l->-2. -Iltid. H.itl. Mbi. -Mil. 'tit ' i ' ^. . X .1 H r ^ Uii ' K - " m 108 ARGl'MKM OF TllK INITKIJ STATES. 1 1 I master in Liverpool for a voyage " from Grconock to Sin<;;aporo and Ilong-Kong-, (with liberty to call at any ])ort or ports on tbe way, if re quired,) and after arrival there to be employed, in trading to a?id from ports in the China and Indian seas, the y< j»e to be conijdeted within two years by arrival at a tinal port of ..^charge in the United King- dom." ' Uer crew left Liverpool for CUasgow on the 3Uth March,^ and they went on board the vessel whilst lying in the Clyde, oft' the port ol Greenock. ' On the 1st April she cleared from Greenock in ballast for Ilong-Kono-. ' It is said in the Dritish Case, page 123, that " the men believed that this was the real destination of the ship." The United States will reply in the language of one of the distinguished gentlemen who now compose this honorable Tribunal, the Lord Chief Justice of England, on the trial, in 18(54, of the parties indicted for i)rocuring the enlistment of the men, and say, " Xo doubt it was possible they might have been under the delusion that the ship was engaged for a voyage to China;" •' but they think that, after a consideration of the ailidavits and correspondence, found in vol. i, pages 4lL* to 415, 430 to 439, and 443 of the ]>rit. App., the Arbitrators will conclude that such a delusion w.iHhanUy probable. One witness, Thomas ^latthews, said in his atUdavit, " I understood that the vessel was not going to China, although she would be entered out for that place;"' " and it is hardly possible to believe that many of the crew did not, when they shipped, have the same understanding. The steamer Alar cleared from the port of Newhaven on the 4th of Ainil, for Alderney and St. Malo, under circumstances which attracted the attention and excited the suspicions of the collector there. The same night, after her clearance, about thirty men, twenty of whom appeared to have been British sailors, and ten mechanics, arrived by train. Her agent admitted she had munitions ol war on board.' She took to the Jajian her armament and e<]uipment, which were transferred to her ott" the coast of France, near to jjrest. This transfer was completed on thcevening ol the 9th. On the ()th the collector at Xewhaven addressed a letter to the commissioners of customs advising them of the circumstances of susj)i('i()n attending the cleyrance of the Alar, and adding, " leaving no doubt on my mind nor on the ndnds of any iiere, that the thirty men and munitions of war are destined for transfer at se-i to some second Alabama."' On the 8th, Mr. ^Vjlams. in behalf of the United States, addressed a note io Karl Jlussell calling iiis attention to the A'irginia ini.M'M.i'ti.m'V.. "kIh [Japan] and the circumstances of her escape, as well as to the fact that the Alar, loaded with guns, shells, shot, powder. &c., intended for her e(!uipnuMit, Mas then on the way to her. This note was received at Uw/orcif/ii ojfice at 12.4.") p. m. of the day of its date." At that tinu^ it was supposed l)y Mr. Adams that the vessels would proceed to, and meet at, the island of Alderney. Instructions were immediately sent, on the request of Earl Kussell, to the otlicers of the (Jovernment at that station to take such steps in the matter as they might be advised to do by their legal advisers.'" Xo instructions were sent to the naval ofticers at IMvmouth or rortsmouth. X^o cruisers were sent out. Artiini ■:it Ml' \h' ' Hrif. Ai»i»., vol. i, p. 4'H>. - l)iip., vol. iv, .">()7 '"Aibutliiiot to Hammontl, ibid., ]>. 401. " IJiit. App., vol. i, p. 44;{. Koport of colli .!tor, Biit. Case, p. I'il!. Brit. Case, p. ViX ' lirit. App., vol. i, p. :Wl». Th( not bi whicl The h Tin: xiKOKGIA. 100 Tlie Alar was of only eighty-five tons burden. ' Of course slie eoultl not be expected to take iier carjjo a grei't distance. The place from Avhich she cleared was given by]\Ir. Adams in his letter to Earl Uussell. The letter from the collector of customs to the commissioners of customs reached that department of the Government in London on the 7th, and was at once transmitted to the lords commissioners of the treasury. ^ When the letter of the collector reached the treasury, the Alar was '' lying to," not having yet reached the Jai)an. AVhen Mr. Adams's letter reache«l the Foreign ( MUce, the tw(> vessels had but. just Joined each other and the transfer of armament had not been conunenced.' The (lovernnuMit, however, acted only on the suggestion of Mr. Adams that the vessels were to meet at the island of Alderney. It oriirinatcd no plans of its own. It did not institute any in- . i irr''>ia'i'.M.vv«,T ([uiries for itself; it did not even pay any attention to the sus])icioiis of its own oflicers. The consecpience was that the vessel escaped; and thus Great IJritain furnished the insurgents with another completed, equii)ped, and manned vessel of war ready to prey upon the commerce of the United States. The Navy of the insurgents by this ad- dition was increased to three effective and powerful vessels, only one of which had ever entered their ports, but all of which had proceeded from the ports of Great llritain, with no attemi)t on the part of Jler ^fajesty's Government to prevent their departure. i these vessf^ls, too, were freely admitted into the ports of Great JJritain as vessels of war set on foot legitimately, and without any insult to the sovereignty of Iler .Majesty. All the facts in relation to the escape of the Japan (afterwards the Georgia) were nnide known to Earl Ifussell by Mr. Adaujs on the IGth of Ai)ril, through atlidavits of two men who had left her at Brest.' After her armament she first made the jiort of Bahia, on or about the 11th of May, where she went to " meet her cofil-ship,'' the Castor, which had been ordered there from England;^ but, after taking in a part of her supply, she was " stopped by the au- thorities," and compelled to ged at a desolate island called Trinadi, where it had been arranged to meet the English bark Castor, for coal. She remained (here about a week waiting for her tender, but, it not arriving, she sailed and captured a vessel which she had sighted fiom jxtrt. The prize was a vessel laden with coal, from which a supply was taken, and the Georgia pro- ceeded on her cruise.^ Uer next port was Simon's Bay, in ('ape Colony, in Uer Majesty's dondnions, where she arrived ' Ihit. App., vol. i, p. 4Ut). * (liirdiu'i- to Hamilton, ISrit. App.. vol. i. p. 40r». ■' Stiiteinent of the iiiaHtcT of the Alar, lirit. Caso, p. 125. ■» Brit. App., vol. i, p. 412. '^Cruiso of Alabama, Am. App., vol. vi, p. 4'.t:!. "ArtidavltH, Am. App., vol. vi, p)t. .Vi:/, 'y>i, TriT, Ac. 'Am, App., vol. vi, pp. '>2[\, n-if), and .Vi:^. Al r.iihiii. At Trmriili. At Siiiioii\ Hiiy. . i tl *1i '''" ,L "f i £| # < IT no AKGIMENT OF TllK IMTKD 8TATK.S. At C'ii'')Ko'.r«. on tlio lOtli of Aiiji'iist, i'e(|uiriug' "coals, provisions, and calking."' Slic remained tlicie abont two ^^eeks, locoiving all she needed without objection on the part of the authorities,- anowersas Ji vessel of Avar, and, on her arrival, she was dismantled and oliered lor sale. Great Britain made uo olijection to the use of her ports for such a purpose. Iler Majesty's Government contented itself with a simple notice to the purchaser that he nuist purchase at his own risk. This notice may have reduced the anu)unt of the proceeds of the sale, but it kept open the ports of Great Britain to the insurgents as a base for their naval opera tions. They had no ports of their own. The right of a belligerent to make use of the ports of a neutral for the sale of its ships of war was. to say the least, doubtful. Great Britain had been accustomed to re- solve all doubts in favor of the insurgents. This new experinu'iit was therefore tried ; a sale was ellected, ami the proceeds went S:;!|. into the treasurv of the insurgents. ' JJrit. Ai>i>.. vol. i, p. W7. -Aiii. All])., vol. vi, ]). i"'^."). •'• Atlidavit (if Slumlcy, IJrit. Aji])., vol. i, ]> Qiiccii cs. (.'iiiniilu'll, Am. Ajip.. vul. i\ . p. Hi: ■ J5iit. App., vol. i, p. 441. • Ibi.l. 44-: ii!liila\it of Mattbew.*, ibid., p. 41:!; IX.-THE SHLXANDiiAll. Itt'rHM'ul r»»vi»^w of Kit Htttil I) I I M 1) I ri4 t.irit nl' il II u il 1 1 ;■ li.-iic'.-. Opou hostilities wore ('DiniiK'uced l).v the iiisui<;cMits ;ij;iiiiist the (lov- (M-niiu'iit of the UiiitjMl States on the llitli of .Vprii, l.Slil, hy an attack on Fort Sumter, in the harbor of Charleston and State of South Carolina, Trevions to that time, W. L. Yan- cey, r. A. liost, and A. J)ndley ^lann had been appointed l)y the insnr- jit'iit presiei)artiuent to send an agent abroad to purchase six steam propellers, in addition to those before authoji/ed.'" Of the sums appro]»riated by these acts and others which hadi)receded them, "six liundred thousand dollars" were placed at once in England and agents dispatched abroad lo purchase gunboats.-' On the 1st of July the insurgent secretary of war, in a letter of in- struction to a Mr. Charles Green, who had been appointed to go to Lon- don and act with Cai>tain Huse and Major Anderson in the purchase of arms, «S;c., desired him to give or cause to be given special attention to the shipments. It is then said, " in this connection it is proper to remark that Cai)tain Xorth, of tlie Confederate States Xavy, is now in I'^urope to purchase vessels for this Government, and it is probable that, being a IJritish subject, you might secure the shipments under British colors.'' '' About the same time James D. IJuUock was appointed ''head agent of the confederate navy in England."" ] le immediately went to England and established liis "headquarters" at Liverpool, in one of the rooms of the oilice of Frazer, Treuholm & Co., the " financial agents and de- positaries."" As early as the 4th of July the Consul of the United States at that port (Liverpool) informed the head constable of the city and the col- lector of customs of the port that he had reason to believe Bullock had "come to England for the purpose of procuring vessels to be fitted as ' Jiiis,si!ll to Lyons, Am. Ap)).. vol. i, p. :{T. ' Hii(l., p. :il. Am. App., vol. vi, pp. '2'J and l&i. >' Utid., p. :{i). "Testimony of Priolciiu, Am. App., vol. vi, p. 186. \m. App., vol. vi, p. 'i\). iSAs '■■> ''V '»4 h iis-d ? >' { -9 4 J' ' Ibid,, p. •M). 'll.id. rr 112 THK SIIK-XANDOAH. ])iivat<'('is to cruise ajraiiist the eoinmeree of the United States, aii«l that lie will make Liverpool the seeiie of his operations."' On the 14th of Aujjnst, the above naniccl eoniinissioners, having; on " two (lill'ereiit occasions"' before '• verbally and nnollicially informed" lOarl Hnssell of their api)oiiitMient, took occasion to address to him a foiinal communication in writin;.:', and in that communi<'ation, anion;: other thinj^s, said '* this (Jovernment [that of the insurycntsj comuMMiccil its career entirely Avitiiont a navy. * * Tiie i»i'ople of tlu' Confederate States are an a.ieople. They own but few ships. * * I5nt it is far otherwise with the peopleol' the present United States. * * They d.) a laryc part of the carrying trade of the world. Tiieir sliips ami commerce alford them the sinews of war, and kei^) their industry ali!)at. To cripple this industry ami commerce, to destroy their shii)s or cause them to be dismantled ami tied ui) to their rottin;;' wharves, are lej^itiinati! oUje!;ts and means ol warfare."' ()u the next day (the loth) .Mr. Adams addressed I*]arl lliissell as follows : From iiifonnatioii lariiislu-d from sources which iippoiir to iiio (Mititlcd to credit. I feel it iiiy duty to iipprise Jlcr M.-i.je.sty's (ioveriiiiieiit tiiat a vi(datioii of tiie act proiiili- itiii}; the tittiiiji out of vessels for warlike imrpose.-i is on the, itoiiit of heiiiy eominittcd ill one of the |iortsof (ireat IJiitain. vhtMcliy an armed steamer is belii^ved to he ahout to ho dispatched with the view of makiii;i; war aj;aiiist tlie|ieo])h) of the Kiiited StatiH. It is stated to me that a. new sorew-steamer, called tin; IWsrmiKhi, ostensihly owui'd l)y the commercial houso of Frazer, Trenludiii iV- L((vy, of Liverpool, widl known to con- sist in i)art of Americans in symiiatliy with the insni'f^ents in the Fnited Stati's, is now lyiiijH at West Ilarth^])ool. ready for sea. She is stated to carry J'hif;lish colors, hut t(i be commanded hy ti Frenchman.'' To this Earl Itussell replied on the 22d of the same month that he had been atlviscd by the Law-Otticers of the Crown " there is not sutti- cieut evideuce to warrant any interference; with the clearance or the sail- ing of the vessel.'*^ This vessel turned out to be only a "transport," and not an "armeil vessel of war;" and the United States admit that the evidence, then in the jiossession of the two Governments, might not have been sulHcient to Justify her condemnation by the courts upon the i^roper proceedings instituted for .such purpose ; but they insist that the coin plaint of Mr. Adams, following .so closely as it did upon the remarkable communication of the insurgents already (pioted, Avas Avorthy of bein;; kept in the remembrance of Her ^Majesty's Secretary of Foreign Affairs. As has been seen, IJullock contracted in Liverpool, .shortly after his arrival, for the construction of the Florida ; not long after a (contract was made for the Alabama ; and later still, others for the Alexandn' and the Laird ironclads at Liverpool, and for the Georgia and Fanipero, (or Canton,) at Glasgow. A imrchase was also made of one of Her Majesty's cast-oif gun-boats, the Victor, afterward known as the IJap- pahannock.^ The Florida, A' ibama, and Georgia (the lirst two alter having been nnuls the subje(;t of siiecial comi>laint by the United States to Her Majesty's Government) escaped from the ports of Crreat Dritain, and their ravages ni)on the commerce of the United States formed the subject of much corresiiondence between the two govern- ments. As early as the 20th November, LSG2, ]\rr. Adams called tlie attention of Earl llussell to this subject by letter, and in so doing saiil; 'Am. App., vol. vii, p. 72. - Am. Ai>p., vol. i, p. '.VM\. ^ IJrit. App., vol. ii, i». I'.V.i. ••Brit. App., vol. ii, )». V.]!-'. •Am. App., vol. vi, p. 174. TMi: SIIKNANDOAM. 11:5 •• 1 liiivc tlu! lioimr to intonii your lordslnpot" tlH^ directions wliic.li 1 have HHM'ivcd from my (lovcniiiu'iit to soliiiit r<'(h'(».ss lor tli»^ national and private in.juii«'s already thus snstaincd, as well as a more ellcctive pre- vciition of any repetition of sn<*li lawless and injurions pro«!ei'dinjis in ller Majesty's junts hereafter.'" The Alexandra was inaullock, the " heail a^'ent," issued his orders and commissioned Ins othcers from these headcpnirters. His seamen were recruited there; his oHicers congrej^ated there, waiting the i)reparation of the vessels on which they were to cruise, and when the vessels }>'ot out of port, clandestinely or otherwise, had no difliculty in tindiny the means to reach them. IJounties, advances, half pay notes, and wages were made i)ayable and paid there. ^Vhen a ship went out of ply the insurgents with the means of carrying on their operations. Sliips were purchased by the insurgents intended for and maintained as "transports."' all which were permitted to and did sail n?ider the British flag. Constant complaint of this was made by the I'nited States to Jler i\[ajesty's (Jovernment, nn«l the reply uniformly came back that interimtional obligations did iu»t nudvc it incumbent niion Jler Majesty to interfere. In the i'all of 18(54 the insurgents were again without any available Xavy. The Florida and the Alabama had been sunk ; the Sumter ami the (Jeorgia had been dismantlc #' * ^a V' ^^ i ^ Pr,} j« ''h * r " V *> ;■< <, K \ ^^ ¥' I ti ■i 1 1 ■k' 1'* t % I' T "* %? f n. ^ i: 8(; Adaius to KusscU, Nov. 20, lbl)2, Aui. App., vol. i, p. tiGG. w^ 114 AK(il MK.VT ()!•• Illi: I NI'I'KK STAI'lvS. coiniiiissioiMMl, wsis still ili'tiiiiii'tl Ity \hv lilockinlo. In tli*' tiiciui time, thi; coiimu'rcr o\' the United !Stiit«'s liiul liiryely disiippeiuu'd. Neurly two linndred vessels, with their earjioes, had been <'oinniitted to tlie thunes.' Over se\«'n linndred, with an ajiji'rej^ate of nearly half a ndllion oi' ton Ui\jH', had been transferred lor self-preservation from the Ha;;' of the United States to that of (Jreat IJritain.- All or nearly all of this had been eansed by vessels tit ted ont in the ports of the ('lyd«M)r tlui Mtuscy. They Inid ln'cn nninned and snpplied from (Jreat IJritain. Their com missioned ollieers were ehietly from the insnr;;ents ; bnt, they were coin- missioned in (Ireat Ibitain and took their orders ami departure there. IJnt there was still left in the frozen seas of the North Paciille a little fleet of vessels fr()m whieh it was snppose«l tlu' tla}>'of the United States eonhl be tloat«'d with safety. This Ih'et was largely owned, anil (iovernment on On the oth O oflice in Lorn London to lioin may be reipiire^ (M' .Japan, or the as legal freights in the United I not to exceed t^^ The Arbitrate ciua.stam^es att( eighteen months sal(f was tiled in with secition 7ti c empowered the ii Kingdom^ for no the certiti(!ate.'' coimnanded the i Margaret and .le The Sea King tidier, with a car crew as early as On the 7th of ( drawn to some sii called the liaurel, by the iiisnrg(>iits sciitation of the o scribed for the ac Mr. Ahts may oiler, until her return to a final port of dischar'doin, (or C'ontiiieut of Kurope, if reiiuired;) voya^j^e not to exceed two years."' The xVrbitrators will in all this see a striUinj;' n'semblauce to the cir- cumstances atteudiujj the puichase and sendin^i' forth of the (Jeorgia eighteen mouths befoic. On the 7th 0(!tober, at .{ p. m., a eertilicate of sale was tiled in the ollice of the registrar of shipi»ing, in accordance with section 70 of the merchant shipping act, I8r»4,' by which the owner empowered the uuister to sell the ship at any poit out of the United Kingdom,* for not h-ss than JC4'»,(K)(>, within six months from the date of the certificate.' ller master was Peter S. Corbett, who had previously commanded the insurgent transport noiighiss, afterward known as the 3iiirgaret aiul .lessie. The Sea King was cleared and sailed from London on the Sth of Oc- tober, with a cargo of coal. 8he commenced engaging her crew as early as tlu^ 2."»th September.'' Oil the 7th of October, the attention of the Consul at lii\ei'i>o()l was diiiwii to some sus]>icious circumstances connected with a screw-steaimir called tli(! Laurel, which he understood had Ixhmi recently purchased by the iiisurgeuts,' but his knowledge was not such as t«) Justify a pre- sentation of the case to Her iNfaJesty's (iovernmeiit, under the rules pre- scribed for the action of its otlicers. TluM-efore, uo report was made by Mr. Adams to l-'arl Kussell. She was cleared from laverjiool on the Sth of 0(!tober for JNIatamoros, ik.v,." As early as the I'Jth October, an article a[»peared in the Liverpool Journal of Commerce aunouncing her sailingaiid using this language : Jfcrcarfito is of siu'li a tiiixctl luitiirf lliiit no bclli^tM'eiit Sfiite \v<>;ii(l Imvc tliosli^flitost doubt as to its usi:riiliicss. » » » iJiit tln! L;iiircl iniisfc not lui supposed to bi) iut(Midi;il for a cruiser ; slic is uicrcly a t(Mid,;r, and carries out to a cer- tain latitude <;uns and auiniunition lor a new scrcw-steanter of wliicli Captain Seninies is to take connnand. '' "* " To sl\o\v tliut Captain Stsninies does not ^o unattended, we may here state that lie took with liini on board tlio Laurel eij^lit otlicers and one Iniudred men, most of whom served witli him on board the Alabama. " There were errors iu the statements cotitaiued in this article, but the very errors show that the air was at that time tilled with rumors, and that intelligent action at the pro[)er time by the Government might have traced these rumors to their source, and, iu all probability, prevented this new escape. The Laurel did, however, clear with the armament of vhe Sea King Mil il.-|iiirtiii Pr|,;,rliir.> ..(■ 111.- l.,iiM'l » I I li Im' r rirw itiitl iiriiKuni'iit. 'Am. Ax>p., vol. vi, p. 560. •Brit. App., vol. i, p. 41).'). ' Ibid., p. 41)6. < Am. App. Case, p. 1144. ' Hrit. App., vol. i, p. 41)5. " Brit. App., vol. i, p. 486. ' Am. App., vol. vi, p. 556, " Brit. App., vol. i, p. 492. 'J Am. App., vol. vi, p. 558. 116 AR(il'MENT OF THE INITKl) Sl'ATKS. jiscarpo, iiiul with all, .save one, of licr olliccrs (twciity-f'onr) ami soiiip (.seventeen) seamen a.s i)a.ssenjnei's.' Of these otlicers, five had previously served on the Alabama alone, two on both the Alabama and Sumter, one on ihe (leoryia alone, one on both the l{ai)|)ahanno('k and (v<'orj>ia, an«l two on tiie Ivappahannock alone ; and of the men, live ha«l served on the Alabama. TiLiree of tlic otli(;ers had avoided eai)ture at the time the Alabama was sunk in the i'n^ajiement with the lvearsai<;e, by eseajte upon the Knj^lish yaeht.- C)n the 17th ()»,-toberthe two vessels, the Sea Kinjr and the liaurel, met AmvHn.nt ,.t .1,. J't tiic isliUid of .Madeiia. They proceeded from thence to the island ot Desertas, where the aiiiiament, and the ofii- Mi.ni.ii.liiiili. eer.s and seamen who came as passeniicrs, were, transferred to the Sea Kinf;'. Is'o bill of sah^ was ever i^o ])ur<'hase moii(\v was ]k\U\ th-,'re. Tiie ceitbicate of smIc was nev«'r H'turned to the (.ftice of the rciiistiar in (Ireat liritain as was recpiired by section SI of ihe merchai-,tshippin^' act, IS.")!,' and tlic registered liritish character of Tiu' Se;i Jvini;' remained (lurinainst Her Majesty's (Jovernment, the llnired States eoidd not now hold Ureal IJritain lesponsible for lier orij;inal escape and armament. lUit tliis vessel was ])urcha.sed In, and armed fiom, (Ireat iJritain, three years aiul a half after the insurrection in the ITnited States hail i)ut on tlic tbrm of war. The insurgents had tbund the laws and the (lovernmeiit of Clreat IJritain favorable to their opi-ratioiis. Tliey had, under tho.sc laws and under that (lovernnuMit, availcMl themselves of tin; "ports ot llie Clyde and the Mersey," (their only i>orts,) ami made a navy. I'li der the warfare of that navy, the commerce of the I'nited States, whidi at the commencement rivalled that of (ireat Jbitain, had been trans ferred to the I'^njiiish ila,u'. Hei- Majesty's (io\ «'rnMient had never pun ished the insur,u('nts for any \iolalion of her neutrality. It had net then even riMuonstrated. On the contrary, i( had tolerated ami thus enc»>uraji'ed violations. It .^eems never to liiixc C(Mu;eived the idtii which was so siyuilicanfly piomuljiiited by His Majesty, the lOmpei 01' of Ibazil, that toleration of abuse w is '• eipuvau'Ut to [lermittinjj; tln' l>orts of the emjtii'e to ser\<' as bases I'or operations. 'I'he ne,i;li,u('nce wlii(di enaltled the Florida and the iMabama to escai'i' fastens itself upon tlu' Shenandoah. The excessive hospitality wliidi had always been extended yave the insurgents to understand, as thcv 1 iiLrhtfully nii;4ht, that the ports of Her I\IaJest.>*s donniiioUM eouhl '" ' hrit. A|>|i.. vol. i. p. 177. -'Sec 'I'ciiiplc's alliiiasit, IJrit. \\ Kiiil Uiissfll. il.i.l., :{71t. •' Am. App. Cdiiiiter Ca.sc, p. 1 1 !,'> ^ Am. Case, p. H-i. .nl. i, p. 7(11 ; iiicldsurc Xo. •-'. ill Mr. .\(laiii- ■' i>iit Apn.. vol. i. iiiif-c 'i'.'' TIIK SHEN.WDO.Mi. 117 iiiadi' till' l)as(*s of tlicir naval operations, and in conseri nonce they (»])('rat('d IVorn tlicic, and from tlicve alone. AVhen the i'oinniander of tli<' Shenandoali WW liiverpool to Join lier, lUid t;'ke eeniniand, lie Iiad in his ]t().ssession a letter {Voni l>nllock,bear- iii,:L;' date t)f Octoher, lS(il;' and when lie retnrned iii Xoveniber, 18(>."», lie addressed I'^arl Knssell as follows : I cointiii.ssioiKMl tlic sliiji in ( )i'tol)t'r, l.-'()4. midcr (iitl<'i'.> fiiiin tin- iiiiv;il (Icinti'tiiiciit of the Coiit'i'dciatc Stiitcs; iiiid. in ]tursn;nici' of t lie sjinic. cnmnu'ini'd ;ii't ivcly (M'i.isin<^ :1'':mms t til (' < iiciin s coiiimcrci' .Mv ordiMs dirci'tcd nic to visi> I'lTtiUn L'uro to Dtiicrs; olx'dirncc tlicrfli) 1 ioiiiid iiinsi'II' in Mmv. .Iiiim Mill ■;cMs ni I I .J II IV () n-olcr- f tlii.- year, in tiii' ()irazil,true to his jirinciplesof enforcing neut)'a!ity,as well as proclaim- ing it, promulgate(l an order in the oflicial gazette at Ilio tianeiro, on the L'lst of December, [uohibitiug *' tiie entrance iiito any port oi' the empire of said steanu'r, or of aiiv other vessel commaiuled bv tin' said Waddell."' On the Ur»th of Jainniiy, ISti.!, she ariived at llobson's r^a.y, near Mel- bourne, and asked leave to coal and repair. Commander ^,,,„, ,, ^,.., King, of Her Majci-^ty's ship liombay, then at that station, '" '" in reporting to Commodore Wiseman, under date of the I'tith, said : 'tlic criiw at ))r('s('nf consists of only seventy nicii. tlioiiiih liei' piojier eoniplenient is one linndied and forty, 'the men almost eiitii'ely are stated to lie either I'jielisli or Irish. ( 'a|itain \Vaddeil informed me that tlu^ Shenandoali is fast under canvas, and ^tc^iiis at the rale of ihirieeii knots; tliat sjie is tomteen months old, and was tnrned i;:i(i a iiian-of-wai' on tin an. lie also lold me tli.'il he had latelv destroved nine Anierie.in vessels. It is suspected that the Shenandoah was hitely ''ailed the Si'aKiiif;. :niil that remains of t he old let lers are still |Mree|itilde ; Init of that 1 cannot speak Ivoni personal oliservation. l-'roin the paucity of liei' clew at I'l'esint she cannot lie very ettieient for ti;;litin;; imrposes." The (Jovernor of the Colon,> also, in n'iK>rti;ig to Mr. Cardwell under Miit. App., vol. i, p. t!ti7. lliid.. p. titi*. ■ ■M., vol. i. p. 4^4. '•JManchard ti* Seward. Mrit. App il. i. !>. .■■>f'4. Hiil. App., vol. i, p. (i'.K!: .Vni. Ap|i.. vol. vi. p. i'l'W. • Ain. Ajip., vol. vi. p. Hiit. App.. vol. i. p. n Uiit, App., vol. i. )., 41i;t. Sf,';vi.-(i- ft . mi. 'i ill ':t. '■"»»!iiM( 1 i ""'- .*v lis AJUil MINT Ol' THE IMTKI) STATES. the same dato, says : "Since cl( sin<»' my «lisi>atches for the mail, a Coir lederate States steamer of war, ealU'd the Shenandoah, but sujiposed to have been formerly the Sea Kin^-, has anchored in llobson's Jiay.'' ' She had then on board four hunched tons of coal reniainin"- of lier original sujjply on ' 'avin<4' London,- which was a full cargo of eight liundred and fifty tons.' Upon his arrival on the L*r»th, Tjieutenant Waddell asked per nissioii of the (lovernor to make the necessary repairs aid sup- :;ny"'n,'tk"'\'.''i.','i','. ply hiiuself wltli coals to enable him to get to sea as soon as ]»ossible ; also to land prisoners.' lie also, as iie came into the bay, inforiMed tlu; tide-ins])ector that his object in visiting Tort Phillip was to hav<' sonu' machinery repaired, and to i)ro(!ure coals and jp'ovisions,-' Thus the oHicers of lier JMaJesty's (lovernnu'ut at .Melbourne were at once, upon the;jrrival of the vessel, informed tiiat the Sea King, whicli the Noveniber nuiil from lOurope, received a few days before, advised them had left ^JlgIan(l with the intention of being converted into a ves- sel to carry on war against the commerce of tlie I'nited States," was then in jtort short-handed, asking ])ermission to repair, inovision, and coal. The recpiest of Lieutenant Waddell was taken under con sideration by the g<»vernor, who infoi-nu'd him that it should re';civc early attention and be replied to the next day.' On the n 'vf ■' •• ihv executive couucil was specially snmmoned by tlu' (loverui)'' .^.lil ;> ni their advice the peiinission askerotested, and noti- lied his excellency that "the United States Cox'ernment will elai:n in demnity for the damages already done to its shijjping by said vessel, aiul also which may hereaftei' be committed by said vessel * * ni)on tlic shipping of the United States of AnuMica. if allowed to (h'part IVoiii this port."'' The comnuinder of the Shemuidoah having received his ix'rmission t(i I niv,..n.iiy , „„ rcjialr, provision, and coal, had leave to take his vessel intu '""'"'""""'""' the ])ubli(^ docks, which were at the time controlled by private i)arties as lessees. The vessel and her ollicers were received witli oi>en arms by the ])eople of Mell)on}iie. The (lovernor of the Colony did iu>t dine with or ])arlicipate in the |»ublic or i)iivate hospitalities t( M" ]). .^(1(1. ' JJiiti.sli Apit., vol. •■ Am. A):|»., vol, vi, :• Ibid., )). (i:i(). < Hrit. Ciisf, (I. 1 14. '■ Urit. App. ConiitiT ("ii.sc, vol, \. p. p. ,')Hf> iiiid (i.V.t. Ill it. Apii., vol. i, ]). .^>(l(l. Miit. App., vol. i, p. .')!.">; Krif. Ciisc, p. ]U ' llril. App.. vol. i. p. .V.M. J ofiicer.s ( aid.' C bore the (.f the liistory liospita la she belongin feeling \ cape, \va was hos had beei (loin itse but tl furnishei council t tlic liospi and that Tlie ve not be vo When plenient < lain Pay I and lliirt flew one niiniber t one liiind iliod on t lived at J lo the sai at JJe.sert tiiose ujM) of the cai nf these d( and befoi ollicers th Mic Jiaiirt Ml.- Sea I v:ctic()c As has iu.ival at '" got hi; 'iiiiiihei' SI loo large, atleiitioii J oe ( 1)1 ■'aiiuaiy, i 'old, cons 'iiiist hav< of V'lifyii le, se( I 'ay t! retpu's 'I'.iit. A;,, Am. App Hiil. All) IImiI., p. ( THE SHKNAXItOAH. 119 lUltl in iUUi tlic roiii on to into by witii (lid 1^ otlie' was hospitably received and courted there, as for nearly four years it liad been in the iK)rts of other Uritish Colonies, and of the Cnited Ivnig- doiii itself. IJiit the Consul of the ITnited States having faihnl, ui)on the proof t'lU'iiished by him, to induce theCJovernor of the Colony an«l his executive couiuiil to act as other nations had acted, ami refuse the Shenando;ih the hospitalities of the port, set himself about finding other testimony, and that which would be more elfeclive. Tlie vessel eanu:' into the port sh(»rthanded, and " at pivsent slictould not be very eflicient for lighting ])urposes."' When she arriNcd at Liveritool, after her career was ended, her com- lilenient of olhcers and men, acc(U'ding to the report of Cap- i,, ,,„„„„.„, „i tain Paynterof Jler .Majesty's ship Donegal, was one hundred "" " " >i' H""™ and thirty-three.' Jler ollicers numbered twenty-six, leaving for her crew one hiuidred and seven. Temjde, in his aflidavit, makes the total munber »>f enlistments on board the vessel, during her entire cruisi;, one liumlred and eleven. Of these, two di'seited at Melbourn(^ and two died on the cruise, lea\ ing the number of men on board when she ai- rived at Liver|>ot)l tlie same as stated by Cai)tain I'aynter. According to tlie sanu' aftidavit, the total crew on board, wh' n the fiauitd lett her at Desertas, including those that originally canu'. on the Sea King and those upon the Laurel, was nineteen. Twelve Joined her from the crews of the ca[»tured vessels previous to hei' arrival at Melbourne; but two of these deserted there, leaving, as the aggregate of her ere \v on her arrival, and before any lu'w recruitnu'ut only twenty-nine men, and with tlu^ ollicers then on ln)ard, IM'ty-four. The olhcers which left Liverpool on tile Jiaurel numbered twenty-four. One, lieutenant Whittle, went by 'lie Sea Kin i, am! one joined from a whaling-x'cssel captured in the V ret ic Ocean,, giving her, when she linished her cruise, twenty-six.'' As has bet'i! seen. Commander Iving, when he visited her upon her a;, ival at Melbourne, reported her as having seventy ukmi. Of course '" got his information from the olliceis, who were not likidy to gix'e tlu' inunber smaller than it actually was. It vould not do U> make it much ioo large, because "the paucity of the crew" was such as to attract the attention of the oflicer.'' Tiie Consul at INIc Iboiu'iU', in w : 't in." to Mr. Adams on thelKith of ••amiary, the day aftci hei' arrival, mentioiu'd the fact that her crew, all told, c(msisted of se\ enty-nine nu'ii.' lUit his knowledge at that time nuist have been derived from runH)rs in circulation ; he had no means of vrifying the statenu'ut himscdf. On tlu^ loth lAdjruary. Captain I'ayne, secretary of tn«' imval board at Midbourne, wlu) visited her at i)t! request of the Governor, said in his rei)ort, " tlune appear«'d to me ' Mril. A\i\)., Ctinntcr Caso, vol. \-. (i. lU. Am. App., vol. vi. II. (ill?. Itiil. A)ip.. vol, ;. )). \[\'J. I '"111., p. (iT."). ' itiit. App., vol. i, p, 701. Iliiil.. p. VM. \h "iH'.t: Uiii. Case. )>, l.'.i;. Mi *■, A ^.'H * lis r-' ' 120 AKGrMKNT OF THE IMTKD STATKS. to ho jiboiit loity to lifty niPii on boiird, sloucliy, diity, nnd niHliscipIiiicd. I ii(>ti('('e men.' This is nndouhtedly a mis take. It may have, been a cdi'rieal error in theoiiyinal dranjuht of the deposition or in transo-iltin all ni;cht workinj;' the sh'i> in the ice. 'I'lie otlicers and crew coiii- )>lained of heinjj short-jianded, and my men were uryed to Join her. Thirtv-r v> after leavin^' These made p; I'^n Mere, shipi)ed from the crews of vessels captured Diirne, and seventeen of these were from the Abigail.' f the one hundred and seven on board when the Sheii IliDntii-' iiif.'). ■''reini)le's alhtlavit, Hrit. .\|i]».. ^ol. i, p. 7ll"i. -■ ISrit. Ap]!., vol. i, i>. ."(Is. Am. App., \<)I. vi. p. .MKt. ■ Am. -Vpp.. vol. vii. ji. !•:?. 'See ])r()te;,t ('ai»tain Xiihols, liril. App., vol. i, p. .'iS!! ; alHilaxit. Ihiice. ihid.. )> .">iM : (.'olhy, iliid., ]». .V.IT ; Sihi'sier. ihid., ]>. .V.H; .tones, iliid., |i. .">!•!•: I'ord, ihid.. ]i CM: Ihiie'kett. ihid., i». lidJ: iiollJM. ihid.. p. tid:! : SMiidall. ihid,: Seott, ihid.. p. (lot Lindhor,>;', ihid. "Am. .\pii., \ol. vi. |i. .";'<»: |!iit. .\p|i.. \ cl. I, )). .'-.'i. TflK S!Ii;NAM)U.\H. 121 Olliccrs of the Crown at Mclbniii'iic, wliicli liad permitted tlie esciiix' of file. ]"'lori«lii iit Nassau. AltlioM,nli that doctrine is now repudiated by Her .Majesty's < iovern- nteiit, it was known at the l<'oreinii Olliee as early as the H»th ol' Sep- tember, lSents; but it does not app<';ar to have been considai'ti«'nlar ca.s(! or .'o Judf«e in Her Majesty's dominions should submit to bo so instructed; no community, however small, shoidd toleiate it; and no minister, however powerful, .should ever think of attem])tiiiji- it.' l>ut the United States cannot but think the Law-OHicers of the (Jrown ()ccui)y a different ])osition, and that when Her Majesty's (Iovernment sees so strikin<>' an error prevailinji" innonj'' tho.se whose duty it is to coiidiutt the judicial jnoceeclinfis, by means of which international obli nations are to be enforcecl, it is not only the right of the (Iovernment, l)iit its imperative duty, to correct the error, and see to it that such im- l)()rtai>t lights are in)t again "admitted" away, to the great injury of a nation with which Her Majesty was at i)eace. A judge who.se duty it is to decide may not be instrin-ted ; but a mere agent whose duty it is to present a case .'V,i decision may be. If such an agent fails in his duty or errs in his opinit.n, and sneii error or such failure in duty is likely to be r<»peated by the same or other agents, it is neglect in a government if it fails to atte)nj)t. at least, to ))revent the repetition, and if the repe- tition should all'ect other nations the go 'rmnent must answer for the i'0Mse(piences. Jbit iccejding this p. m. of the loth, and he made an order that it be referred to the Attorney (tcu- •Tid."-' Oji the same day Cai>tain I'ayne, who had been instructed by the 'ioveinor to rejioit upon the vessel, among other things, informed him tliiit there appeared "to be a mystery about her fore-hold, for the fore ' itrit. t'oioitcr Ca.sc, )i. 77. -'I?rit. A])]*., Cnuiitci" Ciisc. vol. v, pp. lit*, in- t%, K .^ \ ^ # I H « ■Pi— 122 AKGIMKNT OF THH CNITKI* STATES. m k ■ . ! man of vlit' patent slip, wlieii aske(»rts. in rciily t(» certain questions .sniitiiittcil to liini lor iii(iiiir.\ on tlio 11th instant : rirst. Tiiat twenty nu-n liavc bcfn (liscliaif'cil tVoui tln-SliiMianiloiili siiuf licr airiv;il at this ]iort. .Scfond. Tliat ('ai)taiii ^^';^(l^l(lll intends to sliip forty hands lieic, who are to hi) taken on hoard dniin;lishnu;n shipped hei'i; arc to assnnn' a li)reij;ii nanic. ISlclJi'ath, I'inlay, and O'lhicn. tlir<'c Mellionrne hoardin^-honsc. keepers, are said to he tMnployiMl in u;ettin>;' the i'ec|iiisile nuinher of men, wlioare to receive £(> ])er niontli \vay;es and .€f^ honnty, iVc. I'eter Kerr. ;i sliipvypijilil. li\ inj;' in l>ail\vay IMaee, Sanchidncstateil ahont a fortni>;lii afi'o, in the hearing of scvi'rai persons, that (.'aptain W'addell olicreil linn C IT pi'r month to shij) as (^arpentrr. A waterman named McLaren, now at Sandridsje. is cither .ilreadv enlist(!d or ahont to he so. The di^tcctive has been nnable. up to the prcsMit, to collect any reliahh' information as to whether ammunition, iVc. has hi^cn put on hoard the Shenandoah at this jtoi't. or whether arranerson re|»ii- si-ntcd as an assistant purser stalt;. that altont sixty men en,na,n<'d here were to Ite slii])|ieil on hoard an old sfssid, hclieved to he the Eli Whitney, to;;cthcr with a (pian- t'ly oi' ammiMiition, Ac. ahont two .\, Siiitcyiiitfuilciit.- After these reports, on the next day, there caiiie to the Attoriiey-tJeii eral of the('olony the following(;oininuiiicatioii from Jjieuteiiaut W'addell. very significant when read in connection with the invvious report from the police. '-JJe jdetised to inform me if the Crown claims the setito be JU'itish water, three miles from Tort I'hilii) Head lights, or from a strtnght line di-awn from Point Lonsdale tnid Schanck.'" ' Upon the recei>tion of this, the Attorney-deneral sent ti note declin ing to give the informiition asked for. On presentation of the note to Lieutenant W'addell, he Ininded it " back to the messenger with the simple answer tlnit it was not wluit he witnted, that it had better be taken back with his compliments."' ' On the I.'Uh of February, it warrant was issiu'd by a magistrate for n.i, iu.iii.i. „. the arrest of one of the men chargetl to htive been enlisted; ' ""'''"'"'"' and it wiis at once phtced in ilie hiiiuls of the superin...ndent of ]U)lice for service. This otiicer went the same e\(Miing on board the vessel to execute his wjtrrant. . - lirit, Apj>., Counter Case. volv. p. KIH. ■' IJrit App., v«d. i. p. (iUi. ' Ihit. Ajip., vol. i, p. (i47. ^ brit. App., vol. i, p. 5:51) TIIK SlIKNAXDOAIl. I2:i «,is iiniiblt' t<» yon my word of Inmoi- as an otlietn- iind a jjentleman that I have not any one on hoard, nor have I enj^ajied any one. nor \sill I v.hile I am here. I said 1 understood that the persons 1 wanted wen- weariu;^ llie unilbrm of th(> ('(uifedeiate State.'. :ind wer(Mvorkinard. This he distinctly denied. ]lo otVer(>d to show me the ship's articles but 1 declined, and told him that I liiid seen them l.nst eveninj^. ] then asked him to allow me to j;<» ovei' the shi[(, and -('(• it the men 1 wanted «ere on board. 'J'his he refused ti> do. I s;iid I must try to •xecute mv warrant, even if I had to use foi'c( ll( lid 1 le wo nld use force! to resist iiie, and that if he was overcome he would throw up his ship to the tjovernment heri; ;uh1 <^o home ami rei>()rt the matter to his jfovcrnnu'iit. lie said that he dai'c not allow nil! to .search his shij) : "it was niort? than h! connni'^siou was worth, and that stich a tiling would not be attenii)ted by the (io\ernment to a ship of war of another coiin- iry. lie said "it was oniv bv conrtes'', that I was allowed on board. ind that h< (insidercd "a jireat siijiht had been juit ni)on him by sendiniol»ably deserted from tlit: ship, ;ind had l>een jtiit n)! to an- iv him bv the American cmisul. Il( aid that if I took lit that he had been very liadly ti'<'ated hcie by the ])olice rcfiisiiij;- to a^sist him ill arrestinj;- his deserteis. Heforc leaving I ask-ed him again if he refused to allow me to look for the man for wlioin I had a wairanf in my hand. He replied yes. that he (lid refuse, and that he would liiilit his shin rather than .allow it. I then lett.< not' On the i\i\y of its rcccii)! tlii.s rojnut wa.s .siibinitttMl hy the (iovoi to the oxecntivc council. In ]misuiiiice of the ii(lvi(;e of the eoiineil, the seerettii'y of the coniinis.sioneis <»f tiade and eustom.s juhhes.'^ed a etter to Lieutenant Wathh'Il, apitealin.i;" "to him to ieconsi(U'r his de- tenninatioii," and infonnin.u' him That ])endiiig stich fnitlier information the i)erniission to i-epair and takt; in supplies was susj-.tMided.' The an- er to this U'ttev was dis[iatched by Lieutenant Wachh'll at (ivc min- sw iites before ten o'clock on the evenin"' of the Itth,' and in it he says I have to inform his excellency the governor that the execution ol' the warrant was licit refused, as no such person as tlu' one therein sjiei-iticd was on lioard: Init permis- sion to seaich this shi|i was refused. According to all the laws of nations, the deck of :i vessel of war is considered to rei>rcsent the majesty of tin- country whose ting she dies, and she is free from all eseciitions. exce|it for crimes act nally committed on shore, when a demand must be maib' for the delivery of such iieison. and the execu- tion of tlu^ warrant iterformed by the jiolice of the ship. Our sliiiiping articles have lii'cn shown to the Mi])erinteiident ot" jtolice. all str.'ingers have beet sent out of thfs stii]i, and two commissioned ollicers were ordeied to .search if any such had )te(Mi left on ii(iar. ni. of that «hiy, four ineji left the H'iMnah(h>iih ill a boat pulled by two watennen." They were arrested, iind one of them was identified as the luiin for who.sc arrest the warrant was issued. 'Hrit. Ca.se, ]).l."i(l. Mrit. Case,).. l.-)l. 'Hrit. App., Cminter Case, vol. v. p. 11(1. ' Mrit. App., vol. i, p. (ilT. ■ Hrit. Case, p. \:>2 ; Mrit. Counter ( 'ase. ji. Dli. 111 1 I. 1:1- llf:!^'? 124 AUGI .MI:NT of TllK INM'KI) STA IKS. On the same 1 Itli tlay of I'V'bniaiy tin' Coiisiil iorw aided fo the (Jov eriior two otliei' allidavits, in <»iie of wliicli, tliat ot Her iiuuin \Vi(;ke, the followiii"^' statement is made: Kir'li.T |.r r-CTKIIlliU tilMii- I'll- mull. .rill.-.. Tliiit llic i;ilic»iis in 1 Inlisoii's Iti y iiri' scivcd Ityllif iiiastci -;it-;iniis. ( 1 Itclifvc naiiicil lici'dj wliu niM's till' niliinis til '>iiarici-m:i''t l>av. That on Satnrdav. 1 Itli l'\'hriiaiy. |."'(i.">, when workint; and cleaninj; tiie Shenandoah, three Imys, who 4-aiiie on Itoard the ShiMiainloah since her arrival in this jiorl. assisted in painting he- tweeii decks, whereas the nnniliei' ot' men so concealed (as inentioned ahove) worked on deck: that the said ineii so concealed, in niimlti-r .-ihotit ten, reeeivi'd rations cooked in the .same cookinir apparatus and served in t he same way as the rei^nlar crew on lioard: they eat out of the ship's ]dates in the t'oreeastle, such as were iiseil liy tlie ]M-isoners while on tiic^ cruise; that they sh-ep on hoard, one part in the tore- <-astle. the other part l)etwetMi de;aiii, wore soinetime.s tin; ship's iiniforiu.-' Aml ill the othei', that of F. C. JJehtieke, the t'onowinj^- appears: That hefore I left the said steam sliip J s;iw ahont ten men concealed in s;iid Shcnan- doali, Some of said men told me they came on hoard to join. 'J'har several of the said men were at work with me on Saturday l.-ist with the knowled;;e of the, oflicers ; tliat one of tlio said men told me th at lie conld not sijin artierforms his duty in the said nniform; that said man in the };alley lias lieeii weariii;; the nniform for aiioiit eieht or ti'ii days ; that 1 heard said man in the ;;alley calletl Cliarlt-y : that all the sai(l men who <;iime on hoard since we arrived in .Melhonint! lia\e heeii rationed from the said ship .Shenan- «loah: that 1 h.-ive seen the mastei-at-arms serve out their provisions to X'ickinji-; that alter the pro\isions are cooked 1 have seen (Quartermaster X'ickinj;; take it to them from the galley wliile ( oncealed in the forecastle.- All the.se eommunieatioiis were, on the I'lth ot' Fehrtiary. submitted by the tiovernor to his executive eonneil.' From this it api»ears that on the l.")th of February the (lovernor and his eonneil knew from the statement of tin otlieer in eommaml of one of Her ^Majesty's shijts that the ship, from tlie '• paucity of her crew," was not in condition for a shi]) of war; that one witness, who Wiis still within the reach of the Judicial process of the Colony, had stated, under oath, that there were iifteen or twenty mvu concealed in dilierent parts of the shi]) who came on board to join : that an otlicer of the (ioveiinnent, wiunii the (lovernor liiid sent on boiird to e.xiimine the vessel. re]>orled that '•there appearetl to be a mystery in the fore hold" and no one had been admitted there ; that the polit-e ollieers of the (lovcniment, who had been directed to asi'ertain the facts, hatl reported that it was the inten rion of the commander to ship forty hands, and that some men had been enjia;;ed, tind turan;iements had been made tor the eno-ao-euient of »»thers; that U[>on an order beiii}*' issiu'tl upon tin- sworn testimony of a c()mplainant for the arrest of a man who had enlisteil to .serve upon this vessel, the otlicer whosediity it was to make the ari'cst reported that he hatl been prohibited by an inferior ollicer of the ship :ind by tin' ol1i(!er ill command, each actinj4' separately, from .serving the process on board the vessel, tlie principal otlicer in command (leclariuji' u|)on his honor as an otlicer and a jientleman there was no such i>erson on boanl ; that upon ;in "ai)peal'" to the coinmantler for a reconsideration of his decision ho re})lie«l that no such person was on board at the time the request for l)ermission to stave the process was made, when the fal.sehood of his statement Wiis ju'oven by the arrest of the man, who left the vessel at ' Am. Ai)j»., vol. vi, p, iVM. -Am. App.. vol. vi. )i. (W7. '■' Ilrit. App.. vol. i, p. ;VJ(>. rHK SlIKNANHOAII. 125 (ir about tlu' tiiiic the letter Avas IxMiig- written, ami wliich was mort'. than twonty-rour luuiis after tlie attempt to serve tiie i)roeess was made;' ami that, after this statement of the eommamler, the Consul of the United States jjroduced the allidavits of the other persons, who declared positively that there was a lar<;»' number of nu'u still ort," the order suspending: i)ermission to rcpiiir and take on siip]»Iies wits unconditionallv rescinded, and the ship released from the surveillance of the pi)lic(>w]io had been jdaccd aroiuid licr. No ju'omise was (•xa<'t<'(l for tiie I'liture; no ollicer was plnccil on hoard; no watch maintained, but the full and unti'amnu'lcd hospitality of the i)ort was orjintcd to a ship whose commander had not scrupled to "state upon his honor" that wliich the (iovei'iior knew t<» be talse. After tlu' release was ordered, and iiorice therlli iiiid lltli iiist.uil, ill wliii'li, iilli'i;iiitr tiiat tiii^ vcssi 1 iiiidiT vour thr CiiliiMi^ ui I IK' i>>iii aiiii iiiu iiisiiUiif 111 Willi II, aiii-i;i(i;4 iiiai i iii* \ f'^^^('I iiiiiicL \ cDiiiiiianil had hern .sci/rd, you ask whctiifr tlw si'i/.mc he known to his cxcclirncy jldvi'inor, and it' it iium'Is his ai>i>roval. I am to inlonii yon, in irply.that this (iovt'iiuiicnt has not diicctcd oranthori/cd th si'i/.nrc of the Slicnan(h)aii I'l/.nrc oi Tilt' i^ncnanooan. 'fiu! instrnctions to the police wc'c to sec tliat iioTW of Her Majesty's snhjects in tliis v'olony rendered any aid or assistance to, or peit'ornied any svorl< in iesi)eet of, yonr ves- sel, iliii'inj;' the ]>eiiod of the. siispeiision of t he |)ennission which was «;ranted to you to rciiair and take in siipjilies pendinj;' yonr re[dy to my letter of yesterday's datorte(l l»y the ]iolice that ahout ten o'clock last nijjht I'liur men, who had h(H'n in concealincnt on board the Shenandoah, left the ship, and were arrested immediately after so leaving by tht^ water police. It appears from the " * ' "" " "' "^ " ' ' w» KitiKj \>ailtlilt Ml rilll,\ II llim einf I. lieferriiii;' to that jairtion of your coinniunication of the 14tli instant in which you inform his excellency the (Jovernor, " that the exeution of tlu^ warrant was not rts- hiscd, as no such person as the one specilied therein was fin boaiil," I am in a jiositic" I" state that one of the tour men i»re\iously alluded to is ascertained to b<' the pcisi named in the warrant. m sou 1 am also to oliserve, that while at the moment of the dispatch of yonr letti'r it may he (rue that these men were not on lioaid the Shenandoah, it is bcymid qiicslion that iliey were on board at the lime it was indited, .your letter havinj; been dispatched at live minutes before ten o'clock. ' Spotich of AtcCuUouk in the colonial assembly, Am. App., vol. vi, (ititi A: . .. ;/■>■::■. ■in I lf\ t';; « -r^J r 12(1 AK(il MKXr (»F TIIK INriKl) SIAIKS. Ilritisli Milijfcts to iiiil iiiiil ii.s.-ti.st yi)U in clt'cctin^ tin' necessary icpaiis, and taking in Hn|)|iiii'M. I am to a(latcli, so as to iiisnrt'. yuur (Iciiai'tui'c by the day nann'd in your lirst Idler of yesterday, vi/., Snnday next.. ' To tlii.s tlic liciitiMiiiiit t'omniamliiijn' replied on (lie KUli, ami in so doing" took occasion to stiy : In eonelnsion sir, allow nie to inlorni yon tliat I iMinside ■ the loi,-' ol" yonr letlcr it niarUalily disresjieetinl and insnltin;;' to the (iovernnii'nl I have the homtr to re|H'eseni , and that 1 shall take an early opiioiinnity of forwarding' it to the IMehnioinl (iovein nient." But li(^ acccptc«l the piiviU'f;;('.s granted. Tlio di.sicspoct and insult cousi.stcd, as the Arbitiatois will readily perceive, in intimating some what distinctly to the couimiintler, that the (lovernor accepted st.ite ments made " upon honor," which he knew to be talse in spirit, if not ill letter. On the KJtli of February an exa»nimition was hiid of the parties ai- rested while leaving the sliip, before one of Jler ^lajesty's justices of the peace for the Colony. The witnesses, whose allidavits had been taken and presented to the (lovernor, were examined orjilly in court. Every fact stilted in the atlHdavits was i)roven, and the accu.se«l were identiiied as the i)arties who were on the ship. One of them (Charley) wiis not only on the ship, but in the uniform of the ship ju'rlbrming the dutic^s for which he had enlisted, or tit least had tigreed to enlist. Upon this testimony the persons arrested were all, on tiie I7th, committed for trial, and two were sub.se(|uently convicted.' J>ut one Avas alterwtird (lis chargeil by the Attoriiey-Ceneral on account of his youth, andiinotlicr for wiint of proof as to his nativity. The next day the ollicers of tlic ves.sel ii])i»ealed to the i)ublic through the newspa|)ers. They theic stated, " u)»ou their honor,"' to protect thein.selves, and secure the escafx' and incretised eniciency of their ship, wluit they dared not state, " under oatli," to i)rotect the igisorant men v.liom they allowed to siilfer for their own crime.' Immediiitely after the onler })ermitting the repairs and supi)lies tolu' contiinied was made known, the Consul addressed another communicii- tion to the (iovernor, which he dosed by saying : '• 1 trust, therefoiv. that upon further reflection, your excelh'iicy will reconsider your decision regarding this vessel, agitinst which I have felt constrained to prote.st so earnestly." ' This communication must hiive come into the hands of the (lovernor not long after he had received the somewhat pointed letter of the com mander of the ves.sel ; but neither the representations of the Consul, tlic result of the examintition of tin? men who had been persuaded by tho real offenders to become criminals, the insoleiuje of the contmander of the vessel, nor anything else, could induce the authorities composing ller Majesty's (rovernment at this Colony even to put the vessel under further surveillance. On the IGth of February, the consul pUutd in the hands of the Attor iiey-General ii further atlidavit of Michael Cashmore, a cili piite'i zen of Melbourne, stating that he had, on the 2d of Febru- ary, seen on the Shenandoah a man iu the uniform of tlif '' ship, who was sitting with the other sailors eating soup," and whotoM him he had joined the ship that morning ; and also an attidavit from the captain of a vessel iu the port iu which it was stated that foutteeii ''Kurlli.-r Ik I'cdilti rccriiitifif'jil ' Brit. ipp.. Counter Ca.se, vol. v. p. -Ibid., p. ii:{. •'Brit. App., vol. i, p. .V.Xi. 11-2. < Ibid., p. 54G. •'■Ibid., p. 614. rin: smknanmoaii. 127 Inlii;il inillinritif (liiys Ix'lorr lu* iiiiht and paid tor one whieli he describe*!.' Th«'se airnhivits wei*' |»roeui'ed an«l ph»('»'d in the Iiands ol' the Iia\v-( )Hieei' of tiie Crown Just after the vessel had li<>en hiuiK'hed from tiie slip. On the Kith of Febrnary, Lientenant Wadtlell inf«»rmed the "•overnoi', that e\ery dispatch was beinj;- nsed by him t(> j;et the Siu'nandoah to sea at the earliest i>ossible moment;- and (Mi the 17th, it was reported l>y the tideinspeetor that she Inul taken on coals dnrinj^; the nifjht, and was reshippiny; stores from ji lij^hter.' It mnst ha\e been apparent to ill! she woidd renniin in port but a shovt time lonyei'. At .'» o'clock in the afternoon of the 17th, the Consul rt'ceivetl othei' information to theell'ect that men were bein^' enlisted to in- crease the crew. lie went at once with his new witness, Andrew Forbes, to the Crown Solicitor, by whom he was siMit to some of the -'plenty of magistrates;" then he went to the ollice of the chief coinmission«'r of police, who was not in : then to the Attor- iiey-(ieneral, who wanted an atlidavit taken: then to the ollice of the detective police, but the chief of that ollice must have a warrant before he could act, ami advised him to no to the police justice for that pur- pose ; then to the i)olice Justice, who could m>t take the lu'sponsibility of jirantinya warrant u^ton theevidenceof one manalone,but advised him to U'oto a mafi'istrate at Williamstown, about four miles distant, who, jier- haps, mi;;ht have corntborative testimony. It was, by this time, half- past seven o'clock in the evenin.i;'. At this hour the Consul took tln^ allidavit of the witness, which he sent by piivate hand to the attorney- jicneral, and started himself for NVilliamstown. The witness, however, l)i'iii<;- afraid of personal harm, I'cfuseil to .u'o with him, and the allidavit (lid not reach the attorney general on account of the lateness of the hour.' The Consul did, however, send a messenj;'er to the water-i)oli(;e, at Williamstown, who reported to them the sliippini;' of the men, but they said they were jtowerless to interfere witln^ut directions from the head authorities at Melbourne.' In view of this state of facts tlu^ Ciiited States believe the Arbitrators will not auree with Her Miijesty's (lovernnuMit when it says, is it docs in the Counter Case, on paii'e 07, that the Consul was "certainly more Justly eharyeable with a want of due dili,!»ence than tl.osi^" to v\hom he ai)i)lied for assistance. The United States in this coi'.nection also ask tlu'i attention of the Arbitrators to the following stJiiement in the Counter Case, presented by llcr Majesty, on page OS : ^iicli. iis t'lir as is known to lirr Jliijcsty's (ioMO'iuat ;;• is all tlic iiit'i)i'iii:ition wliicli till' iuitliorititis of MclbDuiMKi were aWlo to olttaiii »■- ■<> M\o alic'>;»'(l sliipnuMit of men IVoni tli(! Colony on board the Slienaniloali. It was tii. n.slied. (or llie most l>art, to the poMco by tiie boatmen wlio liad lieeii employed in pnttin^j tiie men on boiwd, on the iniilerstanding that they should not tiiemselves sutler on aeeonnt of what had been illllle. But on the Kith, more than twenty-four hours before she left port, it was demonstrated there was evidence enough to convict four lueu who had enlisted before the vessel had sailed, and before she went to the docks. That information was not obtained from boatmen. Every- tliing transpired under the eyes of the police themselves, and the cou.- viction followed from their testimony , connected with that which had ' Brit. App., vol. i. p. Gl,''.. Ibid., p. (521. Ibid, p. :. * Lord Blauchard, Brit. App., vol. i, p. 617. ■^Atlidavit of l?obl)ins, Am. App., Counter Case, p. IIT). i rjs AKMilMKNT or TIIK I'MTKK SI'ATHS. been fiiniislicd W.v tlic ('oiisiil. It 'was wliat tliry knew Ix'l'on' llui vcss,', I«'ll port wliidi should liiivc comiH'lIcd tliciii to act, not what came to tluMii at'ttT. The I'liiliMl States liavc never asked lor the eoiivictioii oi th«' boatmen. What they wanted was the i()ceeded to sea iinniolestt d. The ";;iins were all ":::;':.:'' Zu^-^^ri '<>iided lielore the vessel w's ships in onr waters at the time, the efforts of the water-polici were necessarilv of little a\ail. Tl le same c.flicer savs, in th i- same ri jiort : "JIad the ISlienandoah be( ii alloat in t he bay at the tiin(N 1 am con\inced thiit any attem|)ts on tlu' jiart of llie jiolice to search hei', oi to execute wariants foj- the apprehension of jiersons illejially enlisted, would have been violently resisted.'' Jf this was nndeistood at the time, the I'nited KSiat«'S are at a loss to know why it was she was permitted to {ict alloat nntil her oflicers had allowed their vessel to c(»nie nndci the sniveillance of the (Joverninent, or nntil some means had been de- vised by which a fresh violation of the nentrality of the waters mijulit be prevented. Her Majest_\"s shij) l>ombay was in ])ort when the Hlieii andoah arrived, and the United States can hartlly believe she liad heeii permitted to leave the harbor entirely nnproteeted while so tronblesoiiic a visitor remained. At so imi)()rtant a station there nuist have been some vessel of Her INbiJest.N's powerful Navy th"*^ (jonhl be called upon by the ( !o\ ernor of the Colony for assistance ii' At anv rate the Sheiuin(b)ah could have been it became necessarv, u[»on the dock until a ship of war was found to watch hei' if the autnorities had been so dis posed. As soon as the Shenandoah jjot outside of the neutral wains an addi tion was found to the complement of her men. They ma;) not have been added to her crew in form, by actual enlistment, but they were recruited ; and with the men on board the enlistment was easily accoiii plished. Jn this way forty-two men were added to the crew, as will ap[»ear by the atbdavit of Temple, in w hich names are fjiven.'' Amoii;^ these mimes the Arbitrators will lind, as masterat arms, " Charles M(;Laren." His name also ajipears in the report of the chief detective at San«bid<;e, made on theb'Jth of February, where it is said : "A water- nnin named McLaien, now at Sandridyc, is either already enlisted or about lo be so."'' It also is found in the report of the same detective on the 21st, as ^TcLaren, "who stated openly a short time bacdc to ii atcrman named Sawdy and others, that he was about to ship on tli Shenandoah. They will also lind the namesof Thomas FiVans, lioboit Dunninfi', and William Creen, which also ai)pear in the aflichivit ol J'orbes,'' the witness who went with the consul on the 17th wlien he en iU'avored to obtain some action by the ofli(!ers. As soon as the vessel had escai>ed, it was easy for the authorities to satisfy themselves that lar;;e additions had been made to the ci-ew. The bSth, the day on which she. sailed, was Satunhiy. The i)apers published on ^loinlay morinn<«' all make nuMition>of the increase of her crew. The Jlerald has the following;*; notice: 1)1 if. App. CoMiitei' Case, vol. v, p. \2il ■» I5ri(. Apit. Oouuter Case, vol. v, p. 10^'. Ml. id., p. lil. ^ liiit. App., vol. i, pp. 7(tl. TO-J U.id., p. 117, ' I5iit. App., vol. i, p. fiU). ors to jrct lii THE SHKNANIJOAH. 129 Tlie CoiifiMlfintti cniiNfr Slit'iiaiiiloiili Iflt irohsKn's IJjiy at alxnit ti a. iii. on Satiinlay, and \vu« «•'»'" Hcdiooncrw Sir Isaac Ncw- tiin and Zcpliyr. She xtt'anwd n|) to tlio fornn-r and lioistt'tl an KukHhIi tMiMijrn, wliii-li on lifinn aiiMWi red witli a liUc tla^ s'lf stood otV a^^ain ; when tlio Zcjdiyr saw Iut at a later lionr of the day slie was liove to otf C-'ape Sclianek. Se\t'ral minors are atloat that tin; ShtMiandoah slii|>)>4-tl or received on lioard soniewhere alxnit eighty men jnst livior to leavinj;. We liavo since l>een informed that siie took away a laijje nnnilier, lint not iM|nul to tliiit ahove stated.' Ill the Arjiiis it was said : It is not to I>i) (1«Miied, )iow«!vor, tinit dnrin<; I'riday ni)>lit a lar^ti* nnmlier of n^eii fiiiMid tlioir way on board tlie Hhenandoali, and did not retniii on sliore attain. - Aiiotlier paper said : There is no donht tlnit she Inis tak(«n away with her several men from this Colony ; report says ei^lity, bnt that is jnoliahly an exnfjfferation. Tluj nei^leet of the Attor- ney-Oencral in not replying to Captain Waddell's (inestion as to the extent of the neu- tral limit, has apparently absolved that eonnnander from resiionsibility so far as car- rying; on hostile operations ontside Fort I'hilip Heads is oncerned, for, aeeordinj; to (lur ship])inK report, the Shenandoah steamed nji to the s<'hooin'r Sir Isaac Newton, evi- (kiitly with the intention of uverhaiilin}; her had she happened to be a Yankee vessel. ' And the Age said : The Sln'nandoah left Hobson's Hay at tl o'clock on Satnrday morninj;. It is cur- rently reported that she shipped some ei>;hty men .just jirior to leavin<;. At a late honr mi Saturday she was hove to oil' Cai»e Schanek. The p(dice on Saturday received the tollowiuK infonnation relative to an attempt nmde to enlist men for the confederate service on board the eonfedelate steamer Shenandoah. About half past 4 o'clock on Siitnrday afternoon, a man who {jave liis nanui and address as (ieory,e Kennedy, I'J') Flinders Lane, east, called at the police ottice in K'nssell street, and stated that, having -ct^n an advertisement in the Aryus, he called on the advertiser, Powell, with whom was anotln-r man whose name litMlid not know. He renuiined in their company for several hours, during which time licy sni>plied him with drink, and endeavored by every kind of persuasion to iniliice him to join the confederate service on board the Shenandoah, for which ]inr[)oso they also conducti.'d him to the wharf, and desisted from their efforts only when he openly stated his intention of repoitin;; the nnitter to th(! authorities. Kennedy further statol that when the men were usinj; their endeav- ors to . 130 ARGl'MKNT OF THE L'XirED .STATKS. ■ '] :, •! jit 1 tm tkL :it >1i-U)uuri»e, CoiititiK tlu'ii Riley aiul JMiiir bein*^ alone, pulled up from the Shenandoah, and hailed Uobbins. Kobbins did not reply.'"' Tlio report of this last statement was made on the 22d. But the United States ask the attention of the Tribunal to another fact conneeted with the troatuient of the Shenandoah at Melbourne. She was a " full-rif>*ifed ship of superior build, and with {jood winds she was a fast sailer, but with lij^ht bree/es she was only ordinary. Slu' also had steam-power auxiliary, with a propeller that eonld be used at ])leasure, and which, when not in use, eonld be hoisted uj), so as not to interfere with her sailing. During' the days before named, she sailed more than two thousand miles, and only used her steam-power twice, once in .i?oi"j;' through the straits and aji'ain in clearing Behring's Island.'*^ She only used steam-i)ower two days during the thirty pre- ceding her arrival at .Melbourne.' Steam was rarely used except in making captures. Her rei)airs were only necessary to make iier steiini-|)Ower elfective. The board ol' inspe(;tors ai>pointedby the Governor to ascer- tain what repairs were neenship;" and all the i)articnlar re pairs si)eci(ied by them, and by the firm employed by Cai)tain \Vaddeii, related to her steam-power alone. Not a word Is said of any repairs to her hull, and it does not ap|)ear that any were made except calking. As has been seen, when she arrived she had on board four hundred tons of coal.' This fact was made known to (rovernor Dar- ling by the United States Consul on the 17th of February.' But he must have been made acquainted with the same fact from other sources. Captain AVaddell asked leave to land his " surplus stores.'" On the 7th the tide inspector reported tiuit she "on Monday was light- ening, preparatory to being taken on the slip, by th, the harbor-master reported '"that the jiersons in charge of thf ])atent slip, on i)lacing the Shenamloah on the cradle yesterday, foiuul siie was drawing too much water to admit of the vessel being takeri uji with safety. The crew and men from the sliore are lightening Jier al)at't. preparatory to another tiial to get her up to-day at high watc)."'" It will be Ixniie in mind that slie wasa vessel of war without cargo, except eoal. She was lightened, iherefoie, by taking out coals and siiitniii^ oidy. On the 17th the Consul ju-otested to the CoveriKU' against her belli;; permitted to take in coals, adding, '• 1 carim>t believe Your lOxcelleiiey i- awari' of the large anu>unt(d' coal now being furnisiied said xesscl ;"" hut the (iovernor "ac«|naintepears an unlimited i)erniit was granted. She was also permitted to take on board sui)plies for her cruise. The extent of these supplies does not appear. Ou the 30th of January the Commissioner of Trade and Customs informed LicMtcnant Waddell that "it vvill be necessary that a list of the supplies required for the immediate use of your vessel # * * should be sent in for the guidance of J lis Excellency."^ On the same day Lieutenant AVaddell replied, " I have to state the iniinediate supplies re(inired for the oilicers and crew under my com- mand consist of fresii meat, vegetables, and bread daily ; and that the sea supplier recpiired will be brandy, rum, chami)agne, i)ort, sherry, beer, porter, nu)lasses, lime-juice, and some light materials for summer vear for my men, iS:c."'' It will be noticed that the (pnuitities required are not stated ; but on the next day the commander \vas notitie[)lies enumerated in ytuir oommunication under reply."' If any furthej- list was furnished, Her Majesty's Government has not seen fit to present it tor the consideration of the Arbitrators. Tin' permit for general supplies ai>pears, therefore, to have been as unlimited as that for coal. Without these additions to her steam-power, crew, and sni)plies, she Dover could have accomplished the objects of her cruise. Although "a fast sailer in a strong wind, with a ligiit bree/.e, she could iu)t have out- sailed the averageof the whalers."'' It is the lirnt opinion of Captains Nye. Hathaway, \\ inslow, Wood, and J»ai er that if she had not used liiT steam-power, she could never have • ii)tured the larger jiortion of the wlialing lleet. She waited for a caiai before attacking the whaling vessels, in order to prevent their escaping into the ice, and then imido chase under steam.' And she could not have been safely handh'd in the Arctic seas if sh<"! had not olitained the additions to her crew at Mel- homne. Fven with these additions it wiis often lU'cessary, as has been soon, to call on the juisoners to assist in working the shi[>. The United States believe that after this statenient of the' occurrences ' Hiit. App., vol. i, p. «17. •' Ihid., p. (!4(t. - Am. Ajip., vol. i, p. (iitS. >• \\v\l. App.. vol. i. p. .'if^. ' liiit. App. ComiK'r Case, vol, v. p. H,",. ; IMd., p. (Ul. ' Hi It. App., vol. i, p. r>7-t. " Am. App.. vol. vii, p. 1»7. AKidiivils follvch'd in Am. \\i\k, vol. vii, pp. [>-2 Uniti^d States, in reijorting the fa(!ts to his Govern- ment on the sanje day that the Governor reported to the Government ot Her Majest}', uses the following language: What motives may have juomptiMl the antlnnititss, with evidence in tluMr (tossessidii as to the shipment of large ninnbers of persons (»ii board said vessel, substantiated liv the eai>tur(^ and commitment of souu; esca|)ing from said ship, to allow tlie said vcsmI to continue to enjoy tlie i>riviieg(^s of neutrality ■ coaling, provisioning, and di'i);nt ing, with the atlidavits and information lodged ami not fully satistied, I am at a loss to (conceive. Was it not shown and i)roved that the neutrality was violated ? A?nl vrf she was allowetl her own way unmolestiMl, thus enabling her to renew her violationst't neutrality on a larger scale. There ure eyt^s that do not see and ears that do not lunr, and I fear that this port is endowed with such ii |)ortion of them as may be re((uiri'il to JJrit. App., vol. i, p. .M>D. •' Avi. App.. vol. I, p. (iHl. THE SHENANDOAH. 133 CiintrnsI liclwci'n til- i..iir-M CM Ilr.i7il- JMI :>M.I ol llMll'-liail llinnlii-''. suit the occasion ; for in what otln^r way can my unsiiccesHful attempt.*^ to oUtaiii tlie iissistaiice of tin; authorities on the cvtinin;; of the ITtli instant be ixithiincd ? ' The United States believe the Aibitiatois will a.oiee with the Consul in all that he has said. And here ajjain the United States must ask the Arbitrators to contrast the conduct of Her Majesty's Crovernnient with that of His .Majesty the Emperor of Brazil, who, as early as .1 une -3tl, l.S(i;}, upon much less provocation from these same belli;;er- (Mit insurgents, caused, among others, the foUowing salutary rules to be l>roinulgated for thejiuidance of the presidents «)f liis several juovinces: ti. Not to admit in thi' ports of the Empire the belligerents which may once have vio- lated neutrality. T. To cause to retire imiiu'diately from the niiiritiine territory of the Empire, with- out furnishing tiiem witli any supplies whatever, the vessels which attempt to violate neutrality. •~. Finally, to make use of force, m' in default, or by the insnfliciency of the same, to ]irotest solemnly and energetically against tiu; bcdligerent, who. being v.ariu'd and in- timated, does i.ot d.'sist tVoni violating the m.'utrality of tiie J'2mpire. - From ^Melbourne the Shenandoah made her way to the Island of As- cension, where, about the 4th of ]March, she destroyed four whaling ves- sels at anchor in the harbor. One of these vessels was from Uonolulu, luider the Honolulu Hag, and cominanded by a citizen of Honolulu. She remained at this island until about the 14th of ^March, and then cruised for nearly a month otf the coast of Japan. The latter part of May she arrived in the Ochkot.sk .sea, where, on the i'Tth of May, she captured and destroyed the whaling sliii) Abigail, Captain ^ye. She then .sailed for Cai)e Thaddeus, a place much fre(piented by whaling shii»s, and arrived there about the 2Uth of June, between that time and the L'8th she captured twenty-four whaling ves.sels with their cargoes and out lit, and destroyed all except one, the largest number having been taken on the 28th. The United States believe the Arbitrators will find from the testimony of Captain Xye, Captain Hathaway, and W. H. Temple, ' that most, if not all of these captures were matle after Lieu- tenant Waddell had received news th " the wiir had ended. It is true it is said in the liritish < • '• that the commander of th*' Shenandoah positively atlirmed that h« had, on receiving intelligent e of the downfall of the (Jovernment by whicii he vas commissioned, de- sisted instantly from further acts of war,''' ImL it must b( l)orne in mind, that the same commander had previously ma»le some " positive" statements at Melbourne which were afterwards found by Her Majesty's ullicers there not to have been in all respects true, and under thex eir- cumstances tne United States believe that, if it becomes material, the Arbitrators will give more credence to the atUdavits of tic intelligent ouptains than to the iissertions of the kite commander. Although the testimony of Temple was severely criticised by the attorney of tin* com- mander at the tinu^ it was presented, all his statements, materi i iothis question, have been fully sustained by the testimony of tli- iher wit- nesses (tbtainetl since that time. The insurrection came to an en«l iv the month of April, ISO,"). On tliC! L'Oth of .hme, Mr. Mason, one of the agents of the insurgents in ii<.i!- •lon, addressed a note to Earl IJus.sell in which he said : It lieing considered important and right, in tlie present eomlition of the Confederatti Slatev oC America, to arrest lurther hostile luoeeedings at sea in tlie war against tiio I'nited States, those having iiuthoiity to do so in Eurojte desire as speedily its prae- ticalde to communicate witli the Shenandoah, the only renniining Confetlerate ship in I oimnissidii, in order to termiiwite her ei uise. Having no nu'ans of doing this in tiie ^ -f i I I 4 Am. App., \()]. vi, ]i. .V.t'). Ibit. App.. vol. i. p. '.'*•:', Am. Apj)., vol. vii, pjt. IM, *.•;'». Mrit. t'iise, p. l.'iT. Itrit. Ajtp,, vol. i, p. <>!•!{. ■■V, ■ M I ' ■ 1 134 ARGUMENT OF THE IXITED STATES. distant ncus wlicrc, that sliip is prosiinKMl now ti) he, I vt-ntiiro to in(|niio of yonr lord shil> wlicthor it will lit^ ii^jrcciililu to the (iovcrmiicnt of Wvv Mii.ji-sty t(» iiUow this to be done thiouyli tho British consuls at ports whoio the ship may be txix-cted.' !I\Ir. Mason inclosed an '*onler" from Bullock, written at Liverpool, and addressed to Lieutenant Waddell, in which the followinjj appears: I have discussed the above circnnistauces fully with tlio Hon. J. M. ^fa,«;jM, the diplomatic representative of the Confederate States in Enjiland, and in accordance witli liis opinion and advice I hereby direct you to desist from any further destruction of United States property upon the high seas, and from all oft'ensive gperations agaiu.st the citizens of that country. ' This order of Bullock was sent through. Earl Rus.sell to the consuls of Her Majesty at the points where it was expected the Shenandoah might appear. On the Gtli of Noveniher she again arrived at Liverpool, and her SluMi a mi u a I. I-IVLTJIUOI. officers and men were landed there and discharged. m ' Brit. App., vol. i, p. Cm.\. - Ibid. X.-THE SUMTER, THE NASHVILLE, THE RETRIBUTION, THE TALLAHASSEE, AND THE CHICKAMAUGA. The attention of tbe Arbitrators has thns far been directed, in the j)rogres8 of this investigation of facts, to vessels which left Great Britaii^ to receive their armament, and which were afterward, withont having been engaged in any other service, actually armed for war. The United States claim, however, that Great Jiritain failed to fulfill its ossible, a summary of the material facts in respect to these vessels as they now appear from the evidence and allegations submitted by both the parties. Till' SiilnliT. THE SUMTEK. This vessel was originally in the merchant service of the United States, and, at the outbreak of the rebellion, was em- ]>Ioyed as a i»acket between New Orleans and Havana. Hoon after the blockade of the port of New Orleans, she was fitted and armed for a vessel of war, and, having escaped on the .'JOth of June, 18G1, tliroiigh the blockade at the mouth of the Mississippi Kiver, appeared, on tiie (Jth of July, at the port of Cienfuegos, in the island of Cuba, with six prizes which she had captured on her voyage thither.^ The prizes were detained in port upon the order of the Captain-General of tiie island, and subsequently, on the -8th of the same month, "uncon- ditionally" released "in consecjuence of investigations made by the au- thoi ities of Cienfuegos concerning their capture."^ The Sumter, during lier stay, was permitted by the local authorities at the port to take coal and wateK ' No application was made to the Governor-General for that jturpose.' She went to sea in the evening of the 7th of July,' having KMiiaiued in port about twenty-four hours. On the 17th of July she arrived at Curacao, in Dutch Guiana, where slic was permitted to supply herself with coal and i)ro- visions.'' She next appeared at Puerto Cabello, in the re- public of Venezuela, on the L*Gth of July, with a prize, but being ordered to " take her departure within fnd in her decks, but after a scientific survey scrupulously executed, it ' as found that such reparations were not necessary, and only those which were Justified by an imperious necessity have been authorized."" She was ordered away from Cadiz on the 17th." The Minister of the United States at ^Madrid, in reporting to 3Ir. Seward, said : " I ought to say, perhaps, that if it had not been for the example of what had taken place with the Xashville in an English port, 1 am confident that the Sumter would have been forced to go to sea from Cadiz as she came,"" From Cadiz she went direct to Gibraltar, at which place she arrived on the 18th of Janu- ary, 18G2. bn the 28th of August, 18()1, the United States complained to the Government of the Netherlands of the treatment of the Sumter at Cu- ra<^ao, " and on the 8th of October madesimilar complaint as to the con- duct of the colonial authorities on the occasion of her subsequent visit at Paramaribo.'" On the l.'jth of October the Minister of Foreign Attairs advised the Minister of the United States at the Hague, "that the Government ot the Netherlands, wishing to give a fresh proof of its desire [to avoid] all that tould give the slightest subject for complaint to the United States, has Just sent instructions to the colonial authorities, enjoining them not to admit, except in case of shelter from stress [rcldche forwe,) the vessels of war and privateers of the two belligerent parties, unless for twice twenty-four hours, and not to permit them, when they arc steamers, to provide themselves with a (piantity of coal more than suf- ficient for a run of twenty-foju* hours." " On the tJOth of September, 1801, Mr. Adams made complaint to I'^arl Russell of the manner in whicii the Sumter liad been received at Trinidad, but as early as the 2f)th of August the Duke of Newcastle had trans mitted to the Foreign Office a report from the Governor of the island to the Coloni.al Ollice, and which was, of course, in the possession of Earl Jiussell when he received the communication from ]\lr. Adams. In that report of the Governor this passage occurs : A {jreat doal of tradci irocs on between Trinidad and tlio nortliorn ports of North America, and Captain SeniineM, I iniajfino, lias not failed to take this opportnnity of obtainiiifj information with rcj^ard to tin,' vessels employed nnder the (lag of the L'niti'il States in this tratlic. Fears are entertained with re^^ai'd to one or two now expeetiMl. It is to be hoped that the presence ot the Snmter in these wat'/ll. " Jhit. App.. vol. vi, p. IIU. ' lltid., p. (il*. '" Ibid., p. HI. " ll)id..p. f4. '- Urit. Ai)p., vol. ii, p. I. THE srMTER. 137 Oil the 4th of OiJtober Eirl Russoll informed Mr. Adams, " the Law OlUcers of the Crown liave reported that the conduct of the (lovernor- was in conformity to Her Majesty's proclamation." ' On the 1st of November the 3Iinister of the United States at Rio .^aneiro comphiined to the (iovernment of His Majesty the Emperor of Brazil of tl»e conduct of the provincial authorities durinj^ the stay of the Sumter at ^laranhani.^ A long- correspondence ensuth, the ibrm of a sale was gone through with, but the nom- inal purchaser was i\I. G. Klingender, intimately connected with the tinn of Fra/er, Trcnholm & Co.' She afterwanl received a liritish registry, and went to Liverpool under Hritish colors, aTid from that time was used as an insurgent transport. On the 14th of October, 1803, the following signilicant letter was written by Prioleau, of the firm of Frazer, Trenholm «S: Co., at Jiivei pool, to Major lluse, which explains itself: Toiichiiijj tlio Gibraltar, forniorly Snnitor, tVu\ jc'" not ai" the {joverninont tliiit you liad taken her for tlie war (lt'i»artiiu»iit ' Tliey ilo in>t iiinli'i stand it oiittliern, and you must eoun) hort; and settle it somehow as early as you eon veniently can. 1 will adopt either of three courses wliicli you may prefer : To if^non; our ownership altn- pether, and consider her always the jiroperty of the jjoveriinieiit. 'id. To sell her to the government at a fair valuation on Iu.t leavinj; here, '.U\. To keep her .t.s our own from the time of purchase in Giltraltar, aud char<;e you the rejiular rate of freight for the voyage to Wilmington, say £()0 per ton. The tirst is tiie best jdan, I think. Cttr- tainly for the government it is. Of course you know tiuit it was luit she tiuit was sunk in this harbor. 8he was at Wilmington lately, and before she M lost or returns here, the matter ought to be arranged.^ As has been seen, the sale of the Georgia was afterward permitted in the port of Liverpool. After that, but not until the 0th of September, 1801, an order was promulgated by Her Majesty's Government, that " for the future no ship of war belonging to either of the belligerent powers of North America shall be allowed to enter, or to remain, or bo in any of Her Majesty's ports, for the purpose of being dismantled or sold.''^ "When this order was made the insurgents had no armed ship of war to be disniantled or sold. T U E N A SH V 1 L L K. This vessel, like her predecessor, the Sumter, had, previous to tlie outbreak of the rebel liou, been employed in the merchant service of the United States as a packet running between New York and Charleston. She passed the blockade at the latter port, on the night of the 20th of August^ liaviug been lightened for that pur pose," and arrived at the port of St. George, in the island of Bermudii. on the 30th, a little more than three days after leaving her homo port." Atiirmuh, She presented herself at Bermuda as a vessel of war. Governor Ord, in his report to the Duke of Newcastle, .says: "I havo ' Hrit. Ca.se, p. 18. -■ Am. Ai>p., vol. ii, p. ' Ibid., p. .'Jir). ilO. Am. App., vol. vii, p. 71. ■ Brit. App., vol. iii, p. 20. '■ IJernard's Neutrality, p. 267. ■ Brit. Case, p. 21 ». TIIK NASI I villi:. 139 the lioiior to JUMiiiaint your excelU^ncy tluit tlicse islands wore visited, on tli«' .JOtli ultimo, by tlu^ Coiife«lerat of war," and that "her comman(h'r api)li(Ml for leave to draw a sup])ly of coals," «S:c. And ill the letter of Karl llussell to Mr. Adams, replying- to the claim by Mr. A«lams, that she was not a vessel of war, found on page 21, it is said, "The un«lersigned has to state that the Nashville appears to be n Confederate vessel of war ; her commander and otlicers have commis- sions in the so-styled Confederate Navy." She was alloweposed ami reported by the Governor. Either wiis sufllicient to enable her to reach and destroy the Harvey Birch on the l!)th, within two days' run of Southani[>ton. Without this supply that capture could not have been made. Ill the British Counter Case it is .said, " No act appears to have been lies, during her 'ar«'er as a ves.srl of war, IVom the j»orts ol' (ireat Ih'itaiii. THE K ET III IJL TION. '"!i»t i -U- mmm This was a sailing vessel of about one hundred tons measurement, ' with one snudl gun on «leck,' which, earlv in the year 18(1.'., cruised for a short time about the llahanui Jlanks. Her first olticer was Vernon Locke, who either had been, or afterwards became, a clerk ibr Adderley »S: Co., at Nassau.' Jt does not appear, from the evidence furnished by either of the (Jov- ernmenta, when or where she was armed or s ought to betaken."'" The Attorney- (leneral replied, on the 10th, "that the collector of the revenue, if lu' had any cause to susi)ect the character of the vessel and cargo, should at once liave arrested both." " On the 20th of Ajuil, a Mr. Burusidc, a magistrate of Inagua, made a statenu'ut of facts, as he had ascertained them upon an inquiry instituted for that purpose.'-' This statement was ' Am. App., vol. vi, p. yiJl. ^ Biit. App., Countt-r Vnnv, vol. v, p. li).*?. :' Il»i«l., p. l!K». ^ Ibid., p. iy«i. •'' Am. App., vol. vi, p. 7'.\C>. ' Brit. Api»., C'omittT Casi-, vol. v, p. ICH. ' Ibid., p. 1()H. - Ibid., 1(!5, IHO. ■' Brit. App., Counter Ca-st", vol. v, p. '" Ibid. " Ibid., p. i<;r.. '-■ Ibid., p. 107. IDfi. THE RKTRIUUTIOX. 141 the It the Inu'Y- lif lie lould |i(U', a liiK'il It was Um. laid lu'foro ^Iv. Si'Wiinl by liOrd Lyons, and, oii the 24tli of Jmio, Mr. St'Wiird took occasion to say to his lordship, that " the information thus coiniuunicatod is acceptable, so far as it j(oes, but is not deemed alto- ;>('ther conclusive. There still remains a painful doubt on the mind ol tliis (rovernm'Mit whether the authorities ami others at LoufjCJay were, as Mv. IJurnside thinks, i;?norant that the Hanover was a prize to the Retribution. I shall b(! happy if the in(niiry shall be prosecuted so far iis Tuay be lu'cessary to show that the undoubted Just intentions of Her MiiJ«'sty's (lovernment have been obeyed."' Lord Lyons, on the IJOth of ,lune, informed Mr. Seward that he should "lose no time in communi- cating this request to Uer Majesty's (lovernment and to the j>overnor of the Bahamas."- The iuijuiry 4loes not, however, seeju to have been prosecuted, or, if it was, the llnited States have not been advised of the result. In ^Fay the Attorney (leneral caused Locke to be. arrested for the ort'ense committed by his |)ersonation of the master of the ILinover, and, upon a preliminary «'xamination of thechar^jfe before a police magistrate, iil)0ut the 20th of July, it appeared that tin; business at the customs at Lonji Cay was transacted principally by Mr. Kichard Farrinj^ton, who was the agent or consignee, and who, when examined and confronted by the defendant, "could not swear to his being the persou who repre- sented himself as * * * the master of the schooner * * * but believed him to be the person.''' The police justice, in reporting upon the case, at the request of the colonial secretary, on the 10th of March, 1S(J4, says Farrington " wouhl'' not swear to tlie identity.* After this the accused was let to bail, in the sum of £100, for his appearance at court lor trial.* He was trieili"i'i'. ami Icn nr iwolvc wreckers' liii;ils went alt)ii;;si p. in. Mr. (iiev, (lie niVicei' iii eliai';;e ol" .he liri;;. eaiiie on lioai'il llie privateer, jtinl tlie (lepiiiieiit was llieii luld lie eoiilil have his lioal to an on lioai'il the iiri^ and take what persnnal piii|>ert,\ Mr. I'liee nii;rht see lit to ^i\ e him : that he lonnd two wreekin;r-s( inioners aloni;side and alionl one hnndred men on lioaid thelu'ifr; that ha\in^ taken ihe personal ell'eet.s into the hoal he landed on Aeklin's Island, nnidi^ a tent, and passed the ni;;ht ; that the next day the w icekers were still alont;side : that, he went on hoard tin' Inie;, she hein;; then alloat, and made a t'laiiii on the wreckers Cor the Ini;; ami earyo. He was told hi' eonid not have her, and thai it' the iinchor was lilted t he prixaleer would sink her; lh:if hetln'n protested a:;aiirsi removing; any nioii' of the earjio, as the Inijf was alloal and was in liritish waters, hm the ))rotesl was disregarded : that the m-Nt day the w reekers had an interview wiili the ea|itain of the privateer, and at I p. ni. si'iil him wind that they w i-re ;;'oini; to a port of entry ami that the di'pom'nl and his crew conlil eii with them : that at '.' p. ni. the privateer, the Itri;^, and all the wreekeis started for hon;; ('ay, and .arrived thrre uhoiit 1^ p. m. Ihi! same day; that the wrecki-r, (m 1» laiil which were deponent, and his crews, wa.s .'inehored nnder the eiins of t he privateer, which ki-pt a );iiard all iii;.jhl, while Mr. (Ji'ey and .Mr. l'ri<'e, two ofliceis, went over t'> town ; that on .Monday, 'S.'ul, the depom>nt went also to town, and after making; im|niry, fonnd that lhi« capiain of the privateer wonld luit allow him to ^o on hoard the hri,'^; ; and that the deponent was told 1>y tlu^ authorities that thmi;;!) the law wonld m>t allow the ]n'ivateer to tinn'li the hrijj;, if he wished to do so they had mi means of pre\ entinfj; him ; that the deponent was not altle to olilain po.ssession of the hrie; niitil after he had Itar^^aiiicil with the wreckers to pay them .'>•> per cent, on the carj;(>, and Itlt.^ per cent, on the ves- sel, wiieii, after nnikiii;^ jililidjiv it of his Ueine; the master, he was phu-ei! in possession liy the collector and went on hoard ; that he I'onml the. hnll, spars, and ri^ro^jjicr in ^ood order, hut everything; imivahle, on and under deck, stolen ; that on the next day, "Jltli, he eomincm'ed receiving; sne;ar from tht^ wreckers, and tm the 'i.")th fonnd on hoard eijility-tl.iree hojisheads, live tierces, and four harreks, the halance ot'carffo havin<; heen taken ashore by the wreckers; that the wreckers stove hoj^sheads and harrtils, ami pas.sed the sn;;arinto their hoats, and lamled it on the heacli ; that tln^ captain of the jnivateer told him, the depmient, that- he had }j;iven the carj;'o to lh4) wreckers, a.s lie wanted the hri<;; that lie was jfoiiif*' to put his >!;nns on lioarpearance of the crew, their clothin;^. that she was likely to be an armed vessel. 1 then asked him if she was a vessel of war. 1 beiiged him to excuse my being so particular, as 1 was instructed to do so, to put such (luestious. Ho tolil me she was an armed vessel." ^ On the 3d of March, which was eij.;ht days before the comi)laint was made to the Governor on account of the capture of the Hanover, and two weeks after the transactions with the l^uiily Fisher, in which the " wrecking-schooner Emily Adderley " took so prominent a part, Ileiu.y Adderley & Co. sold, or pretended to sell, the Ketribution, in the port of Nassau, at public sale, to C. K. I'erpall & Co., for £250. On the -Utb Jirit. App., Counter Case, vol. v, ]). 190. Brit. App., Counter Case, vol. v, p. llHi. ^ .i«/c,p. 290. ■' Am. App. ,vol. vi. i». r.ie. THi: TALLAIIAMSKK. 14:j of t\\{' siitnc iiioiitli, IV'i'piill «S: <'<>. sold Ium' lor the same iiiiioiint t<» Thotiiiis Stciui, aii"s attention to the fact that " she is stated to carry Hiif^lish cohns."'' I'^roin that time nntil the eml of the rebellion, the fact that the blockade-ranniii}*', and the transportation of articles contraband of war, tor the use of the insnr{,'«'nts, was carried on, almost exclusively, nnder the in()tection of the I'hiKlish tla;j, became very frecpiently the snbject of direct coini»laint by .Mr. Adams to ICarl lUissell. The correspondence npon this snbject will be fonnd collected in vol- ninc 1 of the American Appendix, paj;es 710 to 7.S5, and it shows con- clusively that the- insurj^ent (Jovernment wasin the constant practi<:e of ])rocnrin}j a JJritish rcjjfistry, and of usinj;' the British thiff, for all or nearly all transi)orts. We also claim that it shov..s that this practice was tolerated by (In^at Ihitain. As late as the liOth of January, 1S(m, the Lientenant-dovernor of r)er- muda, in eommuiiieatin}»' with the home j^'overnment, took occasion to say: "1 would further state that the Chameleon's rej^ister is Confederate States. Ilence there is another lejj^al (piestion to which I should be glad to have an answer, viz, is a merchant-shii>, sailin;^' nnder the tlag of, and registered by, an unreeogni/ed nation, to be i>:ceive inU, i». 'ittH. " Brit. App., Counter Ca.se, vol. v, i>. 151. ' Am. App., vol. vii, p. 727. m !l I i t 144 ARGl'MKNT OF THE I'MTEI) STATES. P ■■■ ri i t«-i1 l< m W Agaiu, on the 1st of April, ho says: " The doiibU* screw is cjiUed tlio Athinta. Her sails are l)eiJt, and she appears quite ready for sea. 1 consider tlie Edith and her the finest ships of i:he \vhole batch of double screws." ' * On the 8th of Ai)ril, it was reported to the Consul that "this double screw [the Atlanta] I'^ft the docks on Sun«biy last, adjusted compasses same day, aiul sailed on the 4th of April from (lr«'e»ihithe, an, on tin- (ilh of List .Tuly, iunl sIk; was oli'Micd on tiic Uth of .Tnly for Nawsuii, witli ii rartfo of sii>«'ii liuii- tlrt'd ca«es of preserved nieatM, and lifty easks of bai^on ; she left, under liriti.sh eenifi rate of re;:;i.Htrv, and earryi'- ■ l{rili->ii nierehandise. All the retiuisites to a rej;iil;n c'leara,nt'e were fnllilled. it whe went to \Vilniiii;L!;ton, as is jtroliably the ease, notwitli- Htandinn her haviii}; eleariid for Nassau, slw would have rfaehcd that jtort about tin ir»lh or Kith of July, hetweeu wliieh dates and the 1st of Aujijust she probably took in her armament. K\ciythiuy,-, except din't t te.stimony, is aj^ainst the belief that tin Tallahassee was armed at ISerinuda.' The Tallahassee remained in commission n"til the l.'dh of l^ecembcr. 18(}4,' and crnisi'd for a short time olf the c«;..st, in tlu^ early part of Xovend.)er, under the nsime of tlie Olustee. On this cruise she made u few captures, and returned to AVilmiiigtoii.' After her arniiunenr was removed she was loaded with cotton, and, on the UTth of December, iindei- the nam«' of the Chameleon, lel't Wil mington, for lli'mioda. At that port she wa.s htiided with a return cargo for Wilmington, but, being unable to run tiie ItiMckade, pro ceeded ti> Nassau. From there she attempt<'• T-27. - ll)id, ' Am. A pp. , NOI, , > ii. I' . r-i.*-. ' Itrit. .\pp. Counte!' Case, vol. y, )i. l.'n ■ .\m. Api>., \ol. vi, p. "t'-li't. • Il.id.. p. 7;?:!. Ibit. App. I'ltuuter ( 'jise, \ol. \, p, Ul. Ibit. Ajip. Counter Case, vol. v. p Itil. Am. App. sol. v i, ]i. TitJ, THE CHICKAMAUGA. 145 The OiickutiinuRn. TRIE CHICKAMAUGA. This vessel was formerly the blockadernniier Edith. The consul of the United States at London, in writing Mr. Seward on the 11th of ]\[arch, 1804, said : " The steamer i^dith, the hist double serew coini)leted, left ou Wednesday last for Bermuda. The Edith makes the ninth double-screw steamer which has been built for the rebel service in this port." ^ She was employed as a blo(!kade-runner, and as su<;h was once or twice at Bermuda. Ilavinj? be(ni armed at WilniingtOM she ran through the blo(!kade on the 28th of October, 1804, as a cruiser, and reached Bermuda in that cai)acity on the 0th of November. Here she was supplied with coal from the bark Pleiades, and, after re- maining nine days, got under way, and returned to VV^ilmington, where she arrived on the 19th of Noveml (•»•. Her ariuament was then taken out of her, and she was reduced to her original condition as a trans- port. 10 ' Am. App., vol. vi, p. 723. • i •* - ! + 1 ii, XI.-CONSIDERATION OF THE DUTIES OF GREAT BRITAIN, AS ESTABLISHED AND RECOGNIZED BY THE TREATY, IN REGARD TO THE OFFENDING VESSELS, AND ITS FAILURE TO FULFILL THEM. AS TO EACH OF SAID VESSELS. We arc now nrepared for a deflnite application of the law and the facts, under which the determination of the Tribunal is to be made, to the question of the dutie.^' of CJreat IJritain, in the premises of the Arbitra- tion, and its performance thereof or failure therein. The ample disc ussions of pertinent questions and principles of public ,ind municipal huv, to be found in the Cases and Counter Cases of the two Governments, and subjected to comment in an earlier part of this Argument, it is not our purpose here to repeat or renew. We shall better observe the rerimary iuipiiry of fact, which simply determines that the A..iM,,i,m,„i thn JnyisiUvtion of the Tribunal embraces the vessel, is followed, ''"" '"^••- necessarily, by the further incpiiry of fact, whether or no the vessel, in its circumstances, falls within the predicament of either tite first clause or the se(!ond (tlause of the first rule. If it does, the Tribunal has further to consider whether Great Britain has used, in regard to said vessel, the "due diligence" which is insisted upon by that rule, and the failure in which inculpates Great Britain, and exposes it to the condem- nation of responsibility and reparation therefor to the United States. III. Whatever may be the scope and etticacy of the second Uule, and of the thinl Rule, in future or in general, for the purposes of .erm»Mm7t''h 'r'.i tlic prcscut Arbitratlou, the subjects to which either of them ""'" can be applied, in reference to the issue of the inculpation or exculpation of Great Britain, nnist be embraced within the limitation of the first article of the Treaty, and so, conne<;ted with s()me or one of "the several vessels which have given rise to the claims generically known as the ' Alabauni Claims.'" But in regard to any such vessel, the PROPOSITIONS OF LAW. 147 general injunctions of these two Rules furnish, in their violation, a ground for the inculpation of Great Britain, and its condemnation to responsi- bility and reparation therefor to the United States. IV. It is not at all material or valuable, in its bearinj; upon the de- liberations or award of the Tribunal, to iuijuire whether the obli{2;iitions of duty laid down in the Tlnee Rules are com- intlllii.- l!.w «™hV« inensurate with the obli<;ations imposed by the "i»rin(!iples '""""'"*■ of International Law which were in force at the time when the claims mentioned in Article I [of the Treaty J arose." These Rules constitute the LAW of this controvei'sy atid of this Tribunal in its jurisdiction of it, by force of the twofold declaration, (1) that, "in deciding- the matters sub- mitted to the Arbitrators, they shall be governed" by them, and (2) that "in deciding the questions between the two countries arising out of those claims, the Arbitrators should assume that Her Msijesty's Govern- ment had undertaken to act upon the principles set forth in these Rules." V. The true force of the subordinate provision that, besides the Rules, " such principles of Inlernational Law, not inconsistentthere- with, as the Arbitrators shall determine to have been appli- wi,','!^^i.'m'l'I"la■^ cable to the case," sliall govern them in their decision, is, necessarily, to introduce from the general doctrines of International Law whatever may corroborate or increase the vigor of the Rules, and their scope and etliciency, but to admit nothing, from such general doctrines, in reduction or disparagement of the Rules. VI. An assent to these indisputable pro[)ositions disposes of a very considerable part of the more remote argument of the Case and Counter Case of Her Majesty's (iovernment. (a) The duties in respect of which the conduct of Great Britain, in fiillilling or failing to fuUill the same, is to be judged by the ihf ohii«,tM.n ..r Tribunal, are, by the terms of the Treaty, authoritatively ;i.7v';.\h!'''r'u'i.!:\;'H assigned as duties of Great Britain towards the United "•""""'•«'■"• - States, of inter!iational obligation. Not oidy does the Treaty declare that Great Britain was '•^ bound" to the fultillment of these duties, but it further declares that " the Arbitrators should assume that Uer Majes- tjfs Government had nndertaken to act''' in obedience to that obligation. All si)eculations, therefore, of a legal or practical character, presented in the Case or Counter Case, and turning upon the question of the duties here under judgment being duties of (rreat Britain tojts own alws and its own subjects, and its accountability to the United States being only secondary and of comity, seem unprofitable to the present inquiry. (/>) The efforts of the Case and Counter (Jase to ascribe to, or appor- tion among, the various departments of national authoritv, legislative, judu;nu, and executive, principal or subordinate, «awt.;\ i.y int-rr,,i the true measure of oVdigatioii ami responsibility, and of .^'r,'i'l!'r','t,'"h'i..'!''M," fault or failure, in the premises, as among themselves, seem wholly valueless. If tlie sum of the obligations of Great Britain to the United States was not performed, the Nation is in fault, wherever, in the functions of the state or in their exercise, the failure in duty arose. (<) So, too, the particular institutions or habits of the j)eoi>le of Great Britain, or the motives or policy of its(iovernuient in respect ot commercial freedom, unrestricted activity, maxims or t. .„nrh..lMl>nltl,.■ nlethod8 of judii;ial procedure, limitations of prerogative, '"""'"'""" and similar internal arrangements of people and Government, cease to have any etticacy in determining the Judgment of this Tribunal upon the fultillment <»f, or default in, international duty. Domestic liberty, how- ever valuable to, and iu, u state, is not a warrant for iuteruutioual P > I- .1 ^f 148 ARGUMENT OF THE UNITED STATES. !•''■( ' f $' ■ ij li '.■", ■ m i : lili'iil r. rilain Soli.'ihl-'. ii|tl>rti|ni;ilf. tf' pn'^ervu itfi lu-ii- ti-.illty. license; nor can its advantages be cherished by (lovernment or i)eoi)le at the cost of Ibreiyn nations. lndeerecedin<;' obser\ations leave the allirmative statement of the (d)li}>ations ri-stinj; upon (Wvat Ikitain to secure the fultillment of this international duty to the United States, free from diHiculty. {a) These obligations recjuired that all seasonaui.e, APPUoruTAiK, and ADEi^iATE means to the accomplishment of the end projxised, shoidd be applied and kejjt in operation byCJreat liritain, from the tirst occasion for their exhibition until the Jiecessity was over. (b) As the situation calling for the discharge of these oblijjfations on w h,, h MM an. the part of (Ireat Britain was not sprun<>' upon it unawares, Sva'i'hir'!;.';,,,,.!;',''," ^'it was created by the C^ueen's I'roclamation, (a measure re.,u.re>i. ^^ }^fj|f^> at neutrality which it had been competent to create, or the need of recoarse to Parliament to impart it ; the force and value of tlu^ punitive or re l)re.s8ive legislation designed to deter the subjects from complicity in the liebel hostilities, in violation of the Government's duties to i)revent such Othir ililniiitH I he oniiMiltreil. PROPOSITIONS OF LAW 149 •tUill tlu' tlic prc- witli in- frciU iciits [>■ ill V. to atcs. iiiis- ICt'll. I live U(l;i- tomy to a vised icors ■ivico * pos oil 1)1 >r n' II till' such complicity; — all these were to be dealt with as practical elements in the demands upon the (ioverninent in fulfillinent of its duties, and were to be met by well-contrived and well-api)lied resoni'ees of competent scope and viji'or. In view, then, of all these considerations, from the issue of tiieCJneeu's PnK'lamation to the close of tli<' rebellion, the llnles of the Treaty of Washington exact from Great Uritain the preparation and the applica- tion, in prevention of the injuries of which the United States now com- plain, of xcasouahle, upitroprintv, and adequate means to accomplish that result. Tin: MKANS OF FULFILLING IN ll^K'NATIONAL Dl TY POSSFSSi:!) HY OIJEAT I'.mTAIX. I. That (Jreat Britain jjossessed all the means which belong to sover- eigntv, in their nature, and. in a measure, of energv ami elhcacy, suitable to her proud positn)n among the great .nniMt ,»,s,m-,m Powers of the world, to accomplish whatever the will of the !''.! ^"aTlX-l'l'Z . 41111 I 1 11.11 iiinr-i- 111 ili-lioii. Government should decree, has never been doubti'd by any i)therPower,lriendly or hostile. Tlu' pages oft he iiritish Case and Counter Case devoted to suggestions to the contrary, will not jtremiscs of this incpiiiy, it is attributa- ble sohdy to ilebility of purpose or administration, not to detect of power. II. The whole body of the powers suitable to the regulation and main- tenance of the relations of (Ireat Ibitain, ad extra, to other n,.. i.r,.,<,6«t.ve r nations, is lodged in the Pn'rogat've of the Crown. The in- '"""""- tercoursi^ of jx'ace, th<' declarati( n and |)rosecution of war, the ])rocla- mation and observance of neutrality, (which last is but a division of the };eiieral subject of international relations in time of war,) are all, under the l>ritish Constitution, administeicd by the Iloyal Preiogative. Whether, or to what extent, the ('omnion or the statute law of Kngland may or should punish, by fines or forfeitures, or i»ersonal inflictions, acts of the su!»jects that thwart or embarrass the conduct l>y the (.'lown of these i.ttrrnal relations of the nation, aie (pu'stions which belong to domestic policy. Foreign mititms have a right to recpiire that the relations of tireat Britain with them shall be suitably administ<'red, and defective domestic laws, or their defective execution, are ncd accepted, by the law of mitious, as an answer for violations ».f international dut,v. We refer to the debates in Parliament upon the Fon'ign KidistnuMit Dili in 1KP.>, and on tin' proposition to r<'peal the Act in IM'.'), ami to the debate upon the Foreign Fnlistment IMll of ISTO, (as cited in Note li of tlie Appentlix to this Argument.) as a (dear «'xhil)ition oi' this do<'trine of the lU'itish Constitution, in the distinction between the executive power to prerent violations of international duty by the Nation, thnmgli the i'>:i.' of individuals, ami the finnitire legislation in aid of sjich power, which needed to i)roeeed from Parliament. W <■! rei'er, also, to the a(*tnal exercise of this Kxecutive jiower by the (H)vennnen! of (Ireat Uritain, without any enabling act of I'arliament to that end, in various public acts in the c«)nrse of the transaciioiis now iu judgment before the Tribunal : escrr iiiP dnritiH the relielliuii. f 150 ARGUMENT OF THE UNITED STATES. I ' 1. The Queen's Proclamation of Neutrality, May 13, 1861.' 2. Tlie regulations issued by the Government ot Uer Britanic Majesty in refiard to the reception of cruisers and their prizes in the ports of the Empire, June 1, 1801 ; June 2, 180;V 3. The Executive orders to detain the Alal)ama at Queenstown and Nassau, Aujiust 2, 18(i2.=' 4. The Executive orders to detain the Florida at Nassau, August 2, 1802.^ 0. The Executive orders to detain the rams at Liverpool, October 7, 18(5;J.-' (». The debate and vote in Parliament .justifyinji' the detention of the rams bv the (jlovernment " on their own responsibility," February 2,!, 18()2.'' 7. The linal decision of Her Majesty's Government in regard to the Tuscaloosa, as expressed by the Duke of Newcastle to Governor Wood house, in the following words: If the result of tlit'Sf iiH|iiiii('s liiul been to prov*' that the vcssd was really an uii- (•(iiiilcmiK'd iirizc, brought into Uritinh waters in vi(i!atit)n of Her Majesty's ordeis made for the iniiposij of iiiaintaiiiiufi; hi!r neutrality, 1 consider that the nioile of iini- eeedinjj in sneli (Mrciunstaneevs most consistent with Vb^r Majesty's dij^nity, and niost lirojter for the vindieation of her territorial rijthts, would have been to ]>rohiliit the exercise of any further control over tlie Tuscaloosa by the cajitors. and to retain that vi'ssei \uider llcr Majesty's control and jurisdiction, until properly reclaimed by her oriyinul owners, — November 4, Ibtil?.' 8. The Executive order that, "for the future, no ship of war belongiiiji to either ot the belligerent powers of North America shall be allowed to enter or to remain or to be in any of Her JNIajesty's ports ibr the pur- pose of being dismantled or sold,'"' September 8, 1804. 9. The final Executive orders to retain the Shenandoah in ]>ort "by force, if necessary," and to " forcibly seize her upon the high seas,"' September and October, 1805. 10. The rejection by Parliament of the section of the new F(u-eigii EnlistnuMit IJill, which provided for the exclusion from British i»orts ul vessels which had been fitted out or dispatched in violation of the act, as rccommeiKled by the Report of the lioyal Commission. This rejection was nu)ved by the Attorney General and made by Parliament, on the mere ground that this power could be exercised by Order in Council.'" That these acts were understood by the Government of Great Britain to rest upon the I'rerogative and its proper exercise, is apparent from the responsible opinions of the Law Otticers given ui)on fitting occasions, 1. In regard to the Alabama, the Law Otlicers of the Crown wrote to Earl Kussell on July 29, 1802: We, therefore, recommend that, without loss of time, the vessel [flu! Alabama] 1»' seized by the iiroi)er autliorities ; after wliich an opportunity will be afforded to timsc interested, i)revious to condemnation, loultorthe facts, if it nuiy be, and to show an in- nocent lUistination of the ship." 2. In the case of Laird's rams, the Traw Olficers of the Crown wrote to Earl Kussell, on October 19, 1803 : We are of tlie opinii>n, with respect to the iirst question submitted to us, that tin- answer to parties who have a riff lit to make the intpiiry should be tiiat the seizure [ol the rams] has been made by the orders of Her Majesty's Govcruincut under the authority of the )»rovisions of the Forei>>n Eulistiiient Act.'- ' Ibit. App., vol. ill, p. 17. '' Am. App., vol. v, jip. 47'i-r)00. - lltid., itp. 17-2-J; ibid., vol. v, pp.l'.jr)-i;U. 'llrit. Ai)p., vol. i, p. ^27. •^ Iliid., vol. i, 1). iiOa. " Ibid., vol. iii, p. yo. ^ Ibid., ]). yU; ibid., vol. V, p. 5.'). "Ibid., vol. i, p. 657. "' Ibid., vol. ii, p. ;W4, rt, siq. '" Debate in Parliament, Note B, App. to this Aixumeiit. " Brit. App., vol. i, p.aOO. '-Ibid., p. 405. PROPOSITIONS OF LAW. If)! 3. In the House of Commons, on February 23, 1SG4, the Solicitor (Gen- eral, speaking of the seizure of the rams ami defending tiie action of the Government, said : " We have done that whicli we should expect others to do for us, and no more."' In the same debate the Attorney General, Sir Roundell Palmer, said : Tlio hoiioiiiblo K<"itlfi'>iii'i asks what right tho Gdvonimcnt hail to »U>tiiiii tho ships. [Mr. Soyiuoiir Fitzgnrahl: " Hoar, hour."] Tiiohoiioraltlo geiititMiiaucritis, ■' ili-ar ;" hut I (It) not hcsitato to say hohlly, and iu tlio fact) of thu country, that this Governuiont, oil their own responsihility, detained thciii.-' He, Sir Itoundell Palmer, saiil further : In a criminal case we know tiiat it is an ordinary conrso to go h(>fon- sibility must act, and have acted, in determining that what had taken phu^c with regard to the Alahama should not take place witli resi)ei(ion, he onglit to it'(|uest tlui permiasitni of tlu' commander of thc! ship to execute the warrant ; and that, if this request he refused, he ought not to attempt to enforce the execution ; but that, in this case, the commander should be pendix to this Arjjument. Jt was to this consideratiou that the pre vni tire vigor which constitutes so important a ditt'ereiu;e between the statute-f of tlie United States and Great Britain owes its origin. VI. The limited territory of Great Britain, its comi»lete system of magistracy, its extensive and ramified organization of coni- .,,«r!.rii.rAV,'i,"; inercial and port regulations, for the insiu'ction and control ti»- ...ri,., <,r Kx ot its immense customs revenue, shipping, anil navigation, . >u.,v. p„«..r. .^^ network of railroads and telegraphs, wliich brought every part of its narrow territory under the eye and hand ot the central admin- istration, gave to the Government the instant and universal means of executing its purposes of internaticmal duty, without chance of miscar- riage or need of delay. VII. The omnipotence of Parliament, the great juinciple of the British constitution, was always at the service of tiie Govern- ment, to supply, extend, or contirm its authiuity in the mat- er of international duty, and the means and agencies of its inompt, vigilant, and adequate exercise. Parliament was in session at the time of the (Queen's Proclamation, and took notice, at the moment, of the effects it had produced in the law of piracy as ap)»licab1e to the mari- time violence it would induce, as well as of the probable maritime instruments that the Kebel interests would press into their service. I*arliament was in session, also, when the Florida and Alabama were in course of construction, when the (iovernment was deliberating upon their detention, and when they actually escaped unimpede*). The alac- rity with which Parliament could respond with immediate and effective legislation at the call of the (iovernment, and upon the occasion of opeuiiuf /rar calling into exercise the fulfillment by Great Britain of its in- ternational duty of neutrality, is clearly shown by thedebate and action of Parliament in the passage of the new foreign enlistment a«'t of 1870. AVe refer again to Mote B of the Appendix to this Argument. Upon the whole, then, it is not to be gainsaid that the G«)v«'rnment of Great Britain had at its commnnd every means in their nature and in their energy and scope that any I'ower needs or possesses for the fullill- meiit of the obligations assigned to it within the premises of this Arbi- tral i on, by the Treaty of Washington or the law of nations. Oiiini|»iti*nre Piirlliiinent. THE DUTY OF C4REAT URITAIN IN ITS TREATMENT OF THE OFFENDIXfi VESSELS AFTER THEIR FIRST ILLEGAL OUTFIT AND ESCAPE FROM BRITISH I'ORTS. I. This subject, discussed at some length in the British Case and Counter (Jase, maj' be disposed of by a few elementary propositions ; {(() It is umloubtedly consonant with principle and usage, that a pub- lic-armed vessel of a sovereign power should be accorded r, 1 "/r.ium'i'iy' n" ccrtaiii privilcgcs in the ports and waters of other national wlir'.'.'l-.mj.Ti' ami jurisdictioiis notaccorded to private vessels. The substance of these privileges is a limited coucessiou of the character PROPOSITIONS 01 LAW. 153 ot continued territoriality of the State to wlii(!h they beloiiji', and a con- sequent exemption from the jurisdiction of the courts and prtwcss of tlio nation wliose ports or waters they visit. But the same reason wiiich (rives support to this immunity tiirows tliem uiuhu' tiie immediate polit- ical treatment of the hospitable State, as represented by its lOxeeutive head, in the(;onductof this internatijnal,if subonlinate, relation. How, under the cinnimstances of each case calling: t\»r Hxeeutiv«' action, the vessels are to be dealt with is determined, in the first instance, by the (Government having; occasion to exhibit the treatment. For its dt'cision, and the execution of it, it is responsible, polition such (!(»nsiderations. (h) When, however, the anomalous vessels of a bellijierent not recog- nized as a nation or as a sorereif/n claim a public character „ ,,„,„,,i ,„„ ,,„ in the port of hospitality, the only possible concession of ;'',;:;;',^l,,'';..;',,X",,'!a such character must, in subtracting: them from. judicial con- »» 'i"'a..ui,K,wir. tiol, subject them to immediate political re;;ulation applied to the vessels tliemseh'cs. There is behind them no sover«'iyn to be dealt with, diido- uiatically or by force. The vessels themselves ju'esent and represent at once whatever theoretical public! relation exists or has been accepted. To hold otherwise would make the vessels wholly lawless and predomi- nant over the complaisant sovereij^n, helplessly submissive to tlie mani- fold irresponsibilities the nuasi public vessels assnme to themselves. [e) The necessary conse(|uence is that when the offendiiifj;' vessels of tlie non-sovereign beUiy,erent have taken the seas only by ,,,.. ..niy r.mHy (lefrauding or forcing'" the neutrality of the nation whose hos- pitality they now seek, such nation has the rijiht, and, as toward the injured nation clemandiuL' its action upon the '^•»»i" ""»"•-'* otlendin|>' vessels, is under the obli};ation, to execute its eoersive, its re- pressive, its punitive control over the vessels themselves. It cannot excuse itself to the injure«l nation for omission or nef^lect so to do by t'xliibitinfi' its resentment apiinst, or extortin{>' redress from, any respon- sible sovereij^n behind the vessels; nor can it resort to such soverei{;'ii tor indemnity aj;ainst its own exposure to reprisals or hostilities, by the injured nation, or for the cost of averting them. II. Upon these plain principles, it was the clear duty of (Ireat Britain, ill obedience to the international oblij>atioiis insisted upon by the Treaty, and the supi>ortinf; jjiinciples of the law of nations invoked by its requirement, to arrest these offendiii}*; vessels as they fell under its i>ower, to proscribe them from all hospi- tality or asylum, and thus to cut short and redress the injury apiinst tlie United States which it had, for want of "due diligence'' in fulfilling its duty of neutrality, been involved in. The power, full and free, to take this <;ourse is admitted by the British (rovernment inits('ase and Counter Case. Whatever motives governe«l Great Britain in refusing to exercise this power, such refusal, as toward the United States, is without justilication, and for the continued injuries iuHieted by the offending vessels Great Britain is responsible, and must make imleinnity. 111. luiiii-l ^iii'h lii'lliii- i-n-in. Ill ii fiisi' like thf |iM>.-nt, irt th« rfint'tly ;tij;iiii'«t the (ii>':il Ilritajll imuht. ihiTftnri', to hiivf ■*fii'«,'d llif VfS- ■i ■■■i. \ "i.: "■:< feM i**^^ 154 ARGUMENT OF THE UNITED STATES. DU'* ililifleilP'-, Aftf'r prnof of ho-*- III'- net-* im htiilr.tl tt'rrilorv. Hit* 1 iir.l.-ii (tl [irniir \i* fu till* ri»'ii!rnl !o >liiiw ,ln»' een adopted both in the civil law and in the com nion law of England, from common speech, aud for this virtue in its PROPOSITIONS OF LAW. 155 viilgJir ineaiiin;;, which can give j)ractical force and value to the legal duty it is used to animate and inspire. So far, then, from the word boaring a techni(!al or learned sense, in its legal ajjplication either to private or national obligations, the converse is strictly true. A detini- tioii from approved authorities of the English language, common to the high contracting parties, is the best resort for ascertaining the sense intended in the text of the treaty. Webster defines " diligence" as fol- lows: " Steady application in business of any kiinl ; constant ettbrt to accomplish what is undertaken ; exertion of body or mind, without un- necessary delay or sloth; duo attention; industry; assiduity." lie gives aNo this illustrative definition: '•'•Diligence is the philosopher's stone that turns everything to gold;" and cites, as the example of its use, tl J is verse from the English Scriptures: " Brethren, give diligence to make your calling and election sure." We confidently submit that no appreciation of the sense of this car- dinal jdirase of the Treaty is at all competent or adequate which does not give full weight to the ideas of enlisted zeal, steady application, constant ettbrt, exertion of all the appropriate faculties, and without weariiu'ss «n' delay, attention, industry, and assiduity. (/>) The (pudifying epithet "due" is both highly significant and emi- nently i)ractical. It rejjuires the '' diligence," in nature n,,,- .,ni.ii«. and measure, that is Heusonuble^ appropriate, and adequate "nr,',;";,'!!;;,'.";,"' „?,",! to the exigencies which call for its exercise. It is to be, in '"'""""«" method, in duration and in force, the diligence that is suitable to, or donnmdable by, the end to be accomplished, the antecedent obligations, tlie inter* sts to be secured, the dangers to be avoided, the disasters to be averted, the rights that call for its exercise.' " rra'stat exactam di- Vgcntiam,''' a phrase of the civil law, is a just description of the under- taking •' to use due diligence." Those who incur this obligation to pre- vent an injury are excused from responsibility, if they fail only by tle- ficiency of power. " Ceux (pii, pouvant empecher un dommage (lue quol(|ne devoir les engageait de prevenir, y auront manque, pourrout en (''tre ten us suivant les circonstauces."^ (c) The British Case and Counter Case attempt to measure " due dil- isouce ' in the performance of this international duty to the ^ ^ ^ ^ ^^ ^ United States in the premises of this Arbitration by the i*h\G.V,'t'.'o,,''ur [hV degree of diligence which a nation is in the h.abit of em- l)loyii)g in the conduct of its own afiairs. It is objection enough to this test that it resorts to a standard which is in itself uncertain and tiuctu- ating, and which, after all, must find its measure in the same judgment wiiicli is to pass upon the origin.al inquiry, and to which it may better be at once and directly applied. It is quite obvious, too, that this re- sort can furnish no standard, unless the domestic "aft'airs" referred to be of the same nature, nnignitude, and urgency as the foreign obliga- tions with which they are thus to be compared. Probably, the United States might be well satisfied with the vigilance and activity, and scope and energy of means, that Great Britain would have exhibited to pre- vent the outfit and escape from port of the Alabama and her consorts, bad her men commerce been threatened by the hostilities they were about to peri)etrate, and her own ships been destined to destruction by the fires they were to light. But this is not the standard which the Arbitrators are invited to assume by this reasoning of the British Case and Counter Case. They are expected to measure the due diligence ' Sen Welistei's Dictionary in vei'bo DiK. * Doiuat, Lois civiles, liv. ii, tit. 8, $ 4, No. 8. m i*»ft f. ,V;. Ml I i- •* i i I ' Ml ■I ■ ^ 156 ARfUJMKNT OF THE UNITKI) STATEH. which (rioiit IJritaiii was to use, nndor tho r«'(|niiTments of thi'Tronty, to pivvcnt the destruction of the <;oiniiienH' and maritime property of the United States l)y the ordinary system of detection of frauds npoti tiie enstotns. Kv(>n this comparison would not exeidpate, hut would ahsohitely eonih-mn, the eondu<'t of (Jreat IJiitain in the preinis«>s; luit the standard is a fallacious application of the proposed measure of dili- yen<'e, and the measure itself, as we hav(^ seen, is wholly valiu'h'ss. 111. The maxims and authorities of the law of "dujMlili^enee" in tile ileterinination of i)rivate rights and redress of |)rivate hy lint, .iui.mi Ami. r, mjuries juav not very otteu present sutiiciently near anal- ofiies, in the circumstances to which they are applied, to the matter here under judfjment, to {jreatly aid the »lelil)»u'ations of the Trihunal. There is, however, one head of the law of private injuries, familiar tothe.iurisprudenceof these two jjreat maritime i)owers, which may furnish valuable pra(!tical illustrations of Judicial reason which they both respect, and whose j)ertincncy to certain considerations pioper to be ent«'rtained by the Arbitrators cannot be disputed. We refer to the law of res|Mmsibility and redress for collisions at sm. In the lirst place, this subject of marine collisions is rej'arded by scientiti<; writers on the law of dilifjeiu^e as fallin{»' within the rules whi«'li govern liability for ordinan/ iiefflifjtmr, the position in which the contentions of the liritish Case ami ('ounter Case seek to place in- ternational i«'spoiisibility of Great IJritain to the United States. In th(^ secHuid place, the controversy between the parties in these cases is admitted to exclude the notion of intent or willful purpose in the injury, an element so strongly insisted upon in defending (Jreat liritain here against the faults laid to her charge by the United States. In the third place, the circumstances of ditticulty, «laiiger, (d)scurity, uncontrollable and undis(roverable influences, and all possible oppor- tunitii's of iniKK'ent error or ignorance, form the staple elements of the litigati(Hi of marine collisions, as they are urged, with ingenuity and per- sistency, in defense before this Tribunal against the responsibility ot (ireat IJritain for the disasters tiaused to the United States by the means and agentties here under review. And, lastly, the eminent judges who have laid down the law for these great maritime Nations, in almost comjdete concurrence, in this depart- ment of jurisprudence, have not failed to distinguish between /a»/^ and (U'cidcnf, in a comprehensive and circumspect survey of the whole sc().■>; Notes of Cases, 41H> ; Tlie .Inliet Erskine, (5 Notes of Cases, (m ; The Mellonii, :! W. Rob., i:5 ; 11 .Jnr., 781? ; .'> Notes of Cases, 450 ; The Dnra, 5 (Irish) Jnr., (N. S.,) 'i^i.) ' In order to establish a case of inevitable accident, ho who allejjes it innst prove thiit what oecnrred was entirely the resnlt of some rin major, and that ho had neither eoii- tribnted to it bj* any previous act or omission, nor, when oxjiosed to the inlhieiioe of the force, had been wanting in any ett'ort to counteract it. (Tho Despatch, ^ L. J., (N. S.)5i20.)- ' Pritchard's Adni. Dig., 2d ed., vol. i, p. 133, ^Ibid., p. 134. PROPOSITIONS OF LAW. 167 It in iK)t II riH iiKiJin- wliifli oxciisch a iniiMtor, Mutt his vhmnoI liiul cniisctl (]aii\aK«'H to iuiotlH-r ill a I >ii|icHt nC wiiiil. \vlu>ii Im liiul wiuiiing ami siilliciciit, i>|i|)iirtiiiiity to pro- tfci hci Iniin fiiat liaziiril. ('I'lif Lntty, Olcott, Ailiii.. :i-2<.>.) i It is iKi I'xciisi' to iirj!;t' tliat iVitiiitlio iiitciiMity of the (larkiicss no vijjilaiicn, liowi'vor );i)iit, <';c tu Inivi^ ilt'sciii-d tlic iiIIut vi's- he! ill tiiiK! to aviiiil tilt! riilii>ti liavc Im'imi tlir tare aiitl vi^^ilaiiet) (.'iiipiovt'tl. (Tlie Mflloiia, 11 Jiir., :-:!; :< W. Koli., i:<; ". Nt.tes of CascM, -»■')(».)• It ix iK'i'i'ssary tliat the ineasiirfs taki'ii to avoiil a collision mIuiiiUI not only li» liijlit, lint lliiit tliey sUonlil ho takt-ii in tinio. (The Tiitleiit, 1 Spink's Eecl. and Adin. IJi-l).. -J'.'-'.) ' If tiitiiiiiHtaiiffs arise evitleiitly antl i-leaily re<|nirinK prmlential iiieaMiireM, and those iiieasiireH are not taken, and the natural resiil' of .siieh tniiission \h aeeitleiit, tliu I'liint would lit* iiiflined to litdtl the parl\' liahle, even if kiiiIi result .vere only ptiHsi- l.le. (Tlie Itiiii'iant. "i W. Koli.. '.Md; H ./iir., i:U ; H Notes of Cases '..) • The want of an ailei|iiate Itiok-oiit at the time on hoard a v ■; ei at sea is a eulpahlo neglect on her part, whieli will, prima fiirii; rentier her respiuisihle tor injuries re- cfivetl liiim her. (The Kmily, Oleott, Adiii., i:J>' ; I Hlateh. C't. Ct., M'M',; Thi'i Indiana, 1 Alih., Adm. ,:!:!!».) "■ To I'oiistitute a ydtid look-out there must he a siillkiont nunilmr of persiMis Htationed ftir the pill pose, who iiiusi know and hu uhlu to disehargo that duty. Tht^ (ieurgu, f Cases, IGl.'' IV'. Ill jis.si{j;iiiti}>' a just force to the " due diligence," ui)on the pres- ence of wliieli, in the faihire of Great Britain actually to ju'event the injuries coinplained of, its exculpation by the iii.n''i,i.''ln'»;..'u.re tribunal is to turn, ue have had no occasion to insist upon any severity or weight of obligation too burdensome for the rehition of neutrality to endure. On the contrary, both the .sentiments and the interests of the United States, their history and their future, have made, and will make, them the principal ai)lied by this tri- bunal that its enlightened and ,oi pro. United States do not them.selves undertake to become to ri,':'.'i,V'ori'i',!;rr'',«\7. other nations guarantors of the action of all per.sons within "'' their Jurisdiction, and they as.sert no such measure of resjionsibility against Great Britain. They lay no claim to perfection or infaUihility of adiiiinistratiou, or .security against imposition^ misadventure^ misvar- ridf/e, or misfortune^ nor would they seek to charge Great Britain, or any other nation, upon any such requirement or accountability. But tlie United States do maintain that the di.sposition and action comport- ing with "due tliligence,'' as reasonably interpreted, are adequate to prevent, and will prevent, but for extraonlinary obstacles or accidents, violations, by a powerful State, of its duties to other nations ; that when .such prevention fails, the proof of this di.sposition and action toward prevention, and of the obstacles and accidents that thwarted the purpo.se and the eftbrt, are demandable by the aggrie^■ed nation, and that upon that proof the judgment of exculpation or inculpation is to proceed. V. In conclusion, we conceive that the Arbitrators are unquestionably the rightful judges of what constitutes "due diligence," in Th.Arh.in.tnMth8 the sense of the Treaty, and that this secures not only to the ii'.'lt,;;,' jl",;' an,. contending parties, but to the rights, duties, and interests "'"" ' Prilcliard'a Adui. Dig., *«id ed., vol. i, p. 134, note. ' Ibid., p. 135. ^ Ibid., p. 140. ^Ibid p. 141, * Ibid., x». 134, note. « Ibid., p. 143. ,. N 5 l.¥- ■il ■ '> '-.,-.fv,- \Jt- ■/! i ?■ *'T^.. - ^ '. \. ''"'P^.,. ■mi ' V ' ■ ■ f- ' ■■«■'■ f «■ i ;l It : i i A, \ ' i^.. (■; 158 ARGUMENT OF THE UNITED STATES. cared for by the law of nations, a reasonable, a practical, and a periiiii- nent rule ativl measure of obligation, just in its Judgment of tiic past, and wise and benetieeut in its inllueuee on the future. We concur in the final considerations of the British Count<'r Case on tliis subject of duo diligence, in leaving ** the Arbitrators to judge of the i'acts presented to them by +he light of reason and Justice, aided by that knowledge ol" the general powers and duties of administration which they possess as per- sons long conversant with public atfairs m ' liiit. Couuter Case, p. l"^. ^ XII.-THF FAILURE OF GREAT BRITAIN TO FULFIL ITS DUTIES, AS iiSTARLISHEI) AND RECOGNIZED BY THE TREATY, CONSID- ERED UPOiN THE FACTS. OONSIDERATIOXS OF GENEKAL APPLICATION. It is assumed in the British Case, and argned in addition in the Coun- ter Case, that the only vessels which tall within the descrip- .. .^ ^^ tioii of the tirst Article of the Treaty as " the several vessels ..rmn/Xsl- [,"",' wliicli have given rise to the (;lainis generically known as tlie "Alabama c'linis,'" are theFlo'ihi, Alabama, C«e«)r};ia, and Shenan- doah. As to these vessels there i.s no contention in this respect, and tliey and their history and caieer are included, indisputably, within tlit» jurisdiction conferre«l upon the Tribunal by the Treaty of V'ashington. Tiie Case of the United States sets f< "th a list of certain oi.ier vessels, which they understand to be embraced within the jurisdiction of the Tribunal, and the circumstances of whose dispatch and career bring tlii'iii within the application of the Knles of the Treaty, and of the con- (lomiiation oi CreatBritain by the Tribunal for failure to fulfill the essaril.v admit its truth, and oppose the imputation of want (►f'Shu' dilifijence " on tins score, ni)()n tiie sinjple ground that tiie ohliyatioiis of tlie lect to i»rovide any systematic or licneral otlicial means of immediate action of i>nm..,i,at. ;„t,„„ IV tlic various ports or ship-yards ot the km^'dom, in arrest of the preparation or dispatch of vessels, threatened or piolt- able, until a t less ai*parent that (Ireat IJritain was without any pxisc N„niru.,,.i,,r«,,i <'ntini;' ollicers to invite or to a<^t upiui information wliicli u!Z,^w!^t\nl^'-^ mij-lit support le/^al i»roceerevent the infractions ot law ''u:-:h tended to the violation of its international duty to the LTnited tHat-. It was equally witluuit any system of executive ollicers speciallx cliarjicd with the execution of process or mandates of (u>urts or majiistrates to arrest tin* dispatch or esca|>c of suspecte;laiy, and forj^ery, and frauds, in CJreat Britain, can be thus safely left to ])rivate prosecutions, because of the common interest and inotectioii of the community securiufi; due attention to the public Justice, where all are enlisted to punish, and all feel the need of pro tection. ]>ut what analojiy is there, in this situation, to the <'ase oi international obli<>ation, where a foreign nation is the only sufierer, and interest and feeling- in the domestic community are, at the best, imiillt'i ent and remote from the crime and its conse(iuences ? The actiud lios tile disj)osition of the poimlation of the pints and eini)oriums of (Irtiit Britain at the time of these international injuri«'s to the United tttatts we need not, for the puiposeof this suggestion, insist upon. The result of all this was that the Covernment of (Ireat Britain, i" the various ways we have suggested, exhibited none of the brf"kuMh,J''i,.»l,i'^ disposition or action which we have insisted uixm as ii) "'"'"" eluded in the requirenuMitof "due diligem^eto prevent" tin occurrence of tlie injuries to the United ytat<»8 from the ottending ves FA in RE OK GRKAT BRITAIN TO FULFIL ITS DUTIES. 161 i9- *:^ st'ls of which thoy now complain. Early advised and persistently re- jiiindcd by the ^Minister of the Unite . itiou be thought worth while. Tliis theory and practi«'e of (Ireai lliitain, reiecting the interuatioiial duty ami, necessarily, omitting any spoutaut'ous, strenuous, i,,,,,!,,,,, ,„ ,„ au(l organized movements, fl.v <^ (iarmnncut, tow i\n\s or in ft';;,VV/\'h^\''„'.H tlic (lischarge of such duty, were in tliiMUselves wlioUy in- ^'"•-■^•j"' (!oasisteiit with, and couti-ary to •• observe, to detect, or prevent their dcpartui'e. Tlie Arldtratrevention. These idiapters in tli • history of the law of nations, as observed l»y the United States, need not here be reviewed. The materi- iils ill the proofs l»efore tlu' Arbitrators are ample for their ru,t".'.islV.l.'rMw''.v'i • xaiuination, if •><•» ;ision in their .. te ii.... " |;:t;; .1 -.ifj *ri ^mi^ 162 AKOr.MENT OK THK UNITED STATES. ^ ' ■ ■ i 1 , ii 'P"!! I' At.-f-nrc ♦';irr.*'-tn»'f(i on III |U't ol (»ri'iit hritani a III fTlHC tit ho^t ptaiiitd ul. ment of (Jreat liiitain. Nor has the conduct of other f^reat Powits, under a similar oblijEfation of duty, either adopted the theory or followed the methods by which (rreat Britain ^overne(l itself. That the Govern- ment, as such, should act and continue to act, and liave and use tiid means of acting, and, in default of so doing, be responsible for the coiise- (juence, is, we submit, the public; law of nations as observed by the i)riM cipal Powers, including (ireat Britain in other cases than that now in judgment before the Tribnmd. It was the fiiilure of the British (lovernment " to use due diligence" „,„ to maintain inviolate its international obligations to the United States, in form, manner, and ettect, as above stated, t',r,iy'".o,n" that gave the first warrant and license to the enlistment ol' the sympathies for the rebels and hostility to the CJovern- ment of the United States, (which animated such large and iuHuential interests in (Jreat Jiritain,) in the actual practical service of theKeliel- lion. Jt was this absence of an active atlirmative disposition of diiifumc in the Governnient, so apparent to all its subjects, to the llebel agents, and to the ^[inister and Consuls of the United States, that threw Ww whole unchecked free«loni of trade and industry, enterprise and appe tence of gain, so much insisted u|)on in the British Case and Counter Case as a necessary part of British liberty, into zealous complicity with, and earnest adhesion to, the maritime war against the commerce of tlie United States, whose disasters are under review before tin; Tribunal. In this course of practical non-administration of the duty assigned by tlic Treaty as hindimi upon (Jreat Britain, we ask the Tribunal to find a 1, the ]>rin(ripal newspaper of Liverpool (the Post) correctly des<'ribed the state of feeling in the British com niunity as follows : We have no doiiht wliiitoviT tliiif tilt' vast majority of (lie pooplc of tliis potmtn. ccrtiiinly of tlu' jwopl*! of Liverpool, arc in favor of the eansf csponscil by the Scco- Hionists. Tin.' defeat of the Federalists y;ives ninnixed ideasuie : the sueeess of the Con federates is artlcntly hoi>ed. nay, ronlidently predicted. It was an appreciatiiMi of this influence i)revailing in that comniiinit\ and aiVecting the local ollicers of the (lovcrnini'iit, that pionipti'd Hail Bussell to say : It appears to me that if the ollicers of ihe ("nstoins were- misled or hlinded by tln' {(eneial partiality to the canse of the South, known to |»revail at Liveipool, and tli;il ^rJmrt-/«ciV case of ne<;li<;ence conld he made out, (ireat ISritaiii nii^^lit t';ijrly irrmit a snin ecpiivalent to the amonnt of losses sustained by the captures of the Alai>am,i.' It needs no argunionr to show that if the (io\ •■inment of (Ireat Uril ain in 1801 and 1.S' jigeiits and that com mnnity the language employed by iliu 1 Russell in ISIm, and had ex ecuted the sentiments thus expres.M'd, tlu're would iiave been no ''Ala bania claims" to «K*eupy the attention of this TriUimal. lOarl Russell. after stating that '• he was son y to observe tli^i: tiie iinwarraiitiihlc ])ractice of building ship^ in this coiintiA. to l»n' used as vessels of war against a State withwlneh Hn AIjij«'siy is ;it ^^-aj-e, still contiiiiu's." proceeded to say : '* Xou.it is ver\ |»ossiKi?« rliat U.\ such shifts am! stratagems the petialties of the extstiii^ ^iw^ •>*' tliis coun*^ry, nay, ot any law that <'onld he en.icted. may ' le,i ; but the olfeiise thus ottered to Her Majesty's authorits an<. -h ;v bv tin' dv favto riileisot la li < I Note B of Appendix n. this Ar'roment. FAIU'RE OF (JREAT I5RITAIN TO FULFIL ITS Dl'TIKS. 1G3 ■'ii;- Failure to niirf r* Hti\f> iiii 1 MtiitUtory tli(! C4)iitetleiJite States, whom IJor Majestj- acknowleil^^es as belliger- ents, and whose agents in the United Kingd.c'»' enjoy the benetits of our hospitality in (juiet security, remains the same. It is a proceeding totally unjustifiable, and. manifestly offensive to the British Crown."' II. The next great practical failure to fulfill its duty to the United States, on the part of (Jreat IJritain, was in its omission to ascertain its resources of J'rerogative and statutory author- ity for maintaining its neutrality, and to announce to its "" sul>Jects and to the Kebel agents the possession of these i)owers and the determination to use them. If an examination had satisfied the ( lovern- nuMit that it was not endued with the re«|uisite faculties of prevo^tion, it should have put them in practice, and scattered the machinations against its peace and honor, and against the maritime interests of the friendly power to which it was so closely engaged to observe its inter- iKitional duty. If, on the other hand, such examination disclosed doubts or defects of y>rcretation of the Prerogative and of the Foreign Kidistment A(!t, that i ut at its service the HviiHonuble, appropriate^ and aow('r of the (lovernminit, it should have been granted by statute. We have searched in vain for any evi«len(!e in these re- {lards of '' due tliligtMice " on the part of th(^ (Jovernment at the oi»en- iiij; of the Rebel hostilities. We find inflammation of i)oi)ular senti- ment urging a participation in those hostilities, and instant occasion for the (JovernnuMit t(» be energetic and alert. VVe find earnest and per- sistent appeals to take su<'h a position made to the (Jovernment by the representatives of the United States, in ISTo, when the war between Frame and (lermany broke out, we find (Ireat lUitain enacting a vj<;t»rous l''oieign h'nlistment Statute, and exhibiting zeal and alacrity in tile exercise of its new |)owers, and in putting in motion all the retpii- site prerogativ*' authority by Orders in Council. Suppose, for a moment, that in May, 1. Su|»posc, in so doing, he had, speaking the purposes and motives of the Executive (lOvernment, said : 1 tliink tlic Ifousf will ii;;i('c thtit, upon tlic luciikin;^ out of this uiifxp«'ct< 1 ami most cniaiiiitoiis war, //<»■ Mdji-dii'xdDiirnmtiit ii,>iili! Iiuic hivn very minh to ('(ikh // th<)f had ikJiuji'il for a n'nujU dnii to introdHcr litis mmxnn.- Snpi>ose other members of the Clovernment had supported the Bill by ar{;nments like these : III' need uol addiit'i' arjiiiu'iMits to show liow iiiijiiNtiliahlo ami inoiistioiis it would !«' tor Hi'itish siilijccts to take jiart. in hostilitifs, whnii tin- avowvtl jiolicy of tli«' (Jov- • rinntiit wa** that of pi'ifcct neutrality. - » • A similar law «'xistfd in the United States ; wiiile on the continent, (ioverninents were aldi? to prevent their suljjects from violatiiiji; neutrality. Am. \\)\h, vol. i, i». (VM ; cittMl on p. :<09, UaHo of the United States. •Attorney tJeneral ('(dliei' in I'arliameut. Aujjnst 1 l:r*70. Note M, Appendix to this Ar|;iiiiient.' f 104 AKCJUMENT OF THE l.MTKlJ .STATES, Tlif nii'iisiiic f-jivt' jiowor to tlicSccrofiiiy of Stato to detain a sii.spocli'il ship ; as ,i1m. t(» iiical oUiiLTs at the ports, who wouhl lopoit to tho St-cretary of State, so as to ( asi on him full leMponsibility. It einbmlied all tho leiMtmiiieniiatioiis of tlie Kepoit. witli the »'Xt'(;|»tioii of that relating; to the reception of vessels into iSritish ports, and ihi. ohjicl coiilU he iitromplinlivil by (Jnlirn in Coinnil.* Suppose arjiiimoiits against its iiiterfercuce witlt freedom and sliip. buildinj;- Ijad been answered as follows: The fact that war was ra;L>inK (on the Continent ) was in> reason for not ainemlin;; our ninnicipal law in points where this was notoriously defictive. It \\nn ridicnliiiis t7, say that a Itnilih-r did not know that tlu' vessel he was buildinjj; was for war piii ])oses ; and it was a less evil that the ship-hnildiuff interest should sutfer a little, tliaii that the whole inition shoiihl he involved in diltienlties.- It would intt occur in one ease out of a thousand that the builder of a ship wi iilil have tl.e smallest dilhreveut the escajie of susjiected ships from the li;ii- bors of the kinjidom till the Secretary of State has been communicated with. 1 In clause jjave an ad hitrrim power of seizure.' The oliject was to ■;ive power to any olHcer who saw a ship about to escape to pi. vent such escape. Till- otli<'ers naine(l would be able to seize a vessel without special instructions, in m- der that such vessel mijflit not be allowed to es(;a|n!. It was a most im|»orta!it powii. The clause was co|>ied friun the >h!rchant Shippinji A»;t. which had been in force lor twenty years without any complaint.' Suppose all tliis, and we should have .seen a i^erforniauce by tin- British (lovernuient of the duty of *'ut we should have seen no Florida, or Alabama, or (ieorp;iii. or Shenandoah upon the ocean, and re«lress for injuries woidd never have needetl to be soiioht front the Justice of this Tribiuial by tin- United States. Jint we are not left to arjiiiineiit to show how wide and beneficinl would have been the practical elVects of such action by the Jiritish (lov eminent, at the opening;' of the rebel hostilities, in checking? and fnis trating the jn'oclivities of British stU)Jects to aid iind invioorato tin- maritime w-a- a<:ainst the United States, nor how readily the subordi- nate and local odicial staff could have worked out these i)rovisioiis oi t!ie law. Some extrat^ts from the correspondence of the (rerman Vau bassador and '.he Ib'tish I'oreio'ii Secretary will exhibit this intluoiict' and its results in the (-iear follows : According l.i \'.inr Ilxcellciicy's own adiiiissjon the execiiti\ e lias the power to pi"- Iiil)il the export of contraband of war. Hut you slate the prailice is to maki- use ni this ii<;ht oiil\ ill the iiiteicsf of Kimlaild, ;is ,ii .he case of sell'-defense. A letter el the Duke of \Velliii.nl.'ii to Mr. (.'amiiiiji', dated the ;tittl< of AiiKust, I— .i.">, and repiiiitcil in a London n.-wspapir immediately after the indiscretion of Count I'alikao, nt'titr^ this assumpl ion, provinj; that I'liulaiid. as a neutral, has re))eatedly ]U'ohi!Mted tlie.x |>ort of arms by an Order in ( 'oiim il. '• accord in;f to the usual lU'aclice,"' as ihe rtMiowiii'.i i >iikc says. In one part ol his letter Ihe words occur. -' 1 am .ifi aid, tliiMi, that the w.iilil \\ill not entirely aiMpiit us of at least not doinj; our utmost to in'e\eiil lliis breacli I'l neutrality of wliirli tin- Tori.' will ai-ciis.' us." Practice. c()iise.|ii.Milly, is in itself not o]>pi)>ed to the ad<)))lii)n of a measure dcsir.ii by MS for the jirohibil ion of tlie sale of aims to our enemy. Ibit flie Ijiw allows (Jov <-riimeiit a certain latitnd'of eonsidcialioii to make use of tli.'ii ,M.\\er iu'eiu'diii;,' i' circuin.stunces. Your Kxcellciicy is, howtscr, of the opinion that the present cii>t(iiii- ' Lord Ifalifax in Parliamenl, Au::nst -. \^7(). Xote R. Appendix to this Artiniiicnl -N'iscouiil i; u . in I'arliaineiil, Au^. I, I'^TO. iliid. ■■■Soli<-itor (■eiiiTal Co|eridu:e in Parliament. Auuiist. l."*7", ibid. ' Attorn- y (imeral Collier in Parliament. .\n<|ust :!, It^TO. Note 11, Appendix to tli' Ar'uiiii-iil. I'. sy^lciii wo uar. I irh I'llslolll-llOl iiiei'cial in |iortation r laxity tend no new orjr i'ii-; ""« tliat III) I r.iilislmcitt .1 were heinir i the jrrcatest 'C il apiiears !lyj,I <»lfeiidiii,o- vi tioiis aiid i Kiii;:d(uii. "IIS content tlie iiiaiiitcn other .yi-eat flic oirciidiii ^Kliary aids "I'd kc|,r tli( fiiiiicd. Tli( head is som fl'i-^: (I) a . 'I'ld (2) a de "' domestic ^\'c Ilil^■(' this Prcrooj, the resort to 'liiriiio'tlic p to sc(. any di '<'<'t interpo.s "'••III, and th '•vthe(;ovei 'hoice or disi f*^ the debatt -^Jftiimeiitj a.« KAILlRi: or (JKKAT I51UTA1N TO rCLl'IL ITS DITIKS. IC") sv^liiii wdiiltl i('i|iiirt' a railioiil rcforiii in mdcr to prcvfiit tlu' fxiioif of contrnliiiiiil of u.u. I uIjhII.v foiu'cilr that tlio lux iiH'thod of ly iiiMlcr date of 0(!t()lH!r -1, l.S7(>, Lord (irair \ illc says : Your Kxcelleney will, 1 think, admit that though Tier Majesty's (Jovermuent are not. |)ii'i)aretl to change the )»ractice of the country in regard to neutrality, they have heen \jgiiautin watching ami checking any symptoms preparations and ontlits of the (ilfeiidiiiin' vessels, iind the contrilmtory provisions of armament, muni- tions and men, which were eiiiitt«'d from Aarious i>orts of the United Kiiij:dom. ^\'o do not find in the IJritish Case or Counter Cu.se any seri- ous contention i»ut that such itoweis as pertain to the Prerojjativ(\ in the iiiaiiiteuance of international relatiwas, and are exercised as such by other ;4reat Powers, would have jn'eveiited the eseai)e of every one of tlu,' ()lfeiiiitis]i jjorts. and ])recluded the sub- sidiary aids of warlike equipment and supplies which set them forth, and kept tliem cm foot, for the maritime hostilities which they main- rained. The contention of the r>ritisli Case and Counter Case on this head is .some\\liat indelinite and uncertain, but substantially conu's to this: (1) a d'sparajicmeut of the vi^or and extent of this J'reroj;ative ; and (L!) a dei>recation of its vioorous or extensive exercise, lor reasons ol domestic int«'rest or policy. ^\'e have j^ixcn full ecmsidt'iation to the question »»f \ho posscssimi oi' this Prerofiative authority under the head (levotetl to the subject as a jiniiiosifion <>/ hiir, iwul have called the atteiilmn of the Arbitrators to the re.sort to it, from time to time, taken by Her Majesty's Covernment ilniiii of the Appendix to this Arf^nment, as beariii«>- upon this (piestion of the i'reroiuativeof the llrit- l(w; ARCJUMEXT OF THE I'N'ITEH STATE^ isli (Jrown in all matters ()f intornational o1)li;;ati<>n. Those debates arc not lel'erred to by us for the sake of thi' individual opinions or reason ing of the eminent nuMubers of various British administrations, and of the leadiu}? niembers of rarliament, that took i>art in them, l^aeh of these debates is upon an occasion of definite uctioii by J'arliament on the subjects before it, which commits the national will and authority in supjmrt of the propositions insisted upon in the dibates, an«l in the sense in which we insist upon them here. IJut, manifestly, there is but one answer that this Tribunal can accept for the omission to use the Koyal Prero*rative in rejjulation and control of the situation of lu'utrality, which had been prodiu'cd by its inter vention, either in respect of its debility or the impolicy, Ibrdonu'stic na sons, of resorting' to it. This answer is, a supply .»f the power, thus failing;' or intermitted, by other forms of accredited and safe authority that was also scasoiudtlr, uppropriafc, and (uhiiuatv. This brin<»s us to the consideration of the mode in which existinj^ .statiiiDrtf powers were Avielded, and the plenary authority of Parliament to improve or extend them, was dealt with by Her Majesty's (lovernnu'nt. IV. The insuHlciency and ineflicacy of the rorei^n Knlistment Act ot Great Britain, in force durinj;- the whole period t»f the American llebel lion, if it included the whole prcventire power jMvssessed by Jler IMiiJ esty's (M»vernment for thcfultillment of the duties prescribed by the Three Kules of the Treaty, are both undisputed antl indisputable. The absolute omission from its provisions of all Ivxecutive autliority, except in subservience to the jndicial proceedings and punitive i)nr[>oses ol the law, furnishes to our minds a strouj^ argument, if any further were needed, that, as was held in therarliamenfary«liscussion which attended its passage, its provisions were punitive and punitive only, htTitusctlw direct authority of interception and prerention was possessed by the Crown. But if, in addition to this debility of the Statute as a resort for srn- .son<(hle, appropriate, and adequate means of fullilling the international duty in question, apparent upon any construe tion of the Statute, we take the Statute, imimverishedand enuisculated, (I,) by judicial construction of its narrow reach to punish and deter; (2,) by the impossible require ment in the matter of evidence : that is to say, the require ment of voluntary evidence sufficient to eonviet, before accusation or arrest of person or vessel; and(b,) by the timidity, alike of Cabinet Miii isters and Custom ITouse Ollicers, and all intermediate Ivxecutive fune tionaries, in undcrtakimi the execution of the law, for fear they should tlitm.'Hdves be berated for their audacity, or condemned in damages as trespassers and law-breakers, fox" daring to interfere with the domestic liberty of British subjects to engage in war against American commerce, while their (rovernment was at peace with the United States — takiiij;. ■we say, the Statute, as thua construed and administered, there can he no pretension that the furnishing of a Government, as the sum of its authority, with powers so nnseasonalde, inappropriate, and inadeiiuoU\ for the fulfillment of this intermitional obligation, was compatible with that obligation as enjoined by the Three Bnles of the Treaty. !Now, the true njeasure of the force and value of a statute as an ex l^ression of the sovereign's will and purpose, is to be found in its judi cial interpretation and its practical execution. Some pains have been taken in the British Case and Counter Caso to insist upon the ecpuility with, or perhaps the superiority over, the Neutrality Act of the United States shoNva in the Foreign Enlistment Act of Great Britain. Compared 'Ilip Korfiiiu Knli-*f. in^nt \it \v,i.* all in Mitficicnt iiiean-* b>i' pertonninit intern:'- tional dnti*-", and \\-* cliicarv " .n iliuiiii jshfd by iiiilii lal i"n- !*Iriictmi( iind nllirial r*.''iuiM'int*nr'- l'AIH:i{K OF (JREAT IlKITAIN TO ITLFII, ITS DITIKS. 1G7 till- ;ii I iiikI th'f A'li Til nil KfiitMti* a* I Mii-trit 'il :iM. The inifiatio;? of Judicial procicedinjjs at early stages of illegal enterprise gave at on(!e the opportunity to coerce proof by compulsory process, and made, it the lu'cessary interest of the parties interfered with to establish the innocent, or abindon the guilty, design. 4. The American statute stimulated the zeal of direct private interest to the service of conveying information and securing evideiM!c to for- feit the otiemling vessel, by rewarding this service l)y the payment of one-half of the forfeiture to the informer. The intluencc of such a t'oatare in the risk of illegal outHts of great and ])owerful cruisers, worth hundreds of thousands of pounds, is threefohl in its operation : (1) 'I'he direct exposure of the enterprise, while in i)rogress, to betrayal and conviction, by this appeal to the interests of some or one of the hundreds of subordinates, in the conlidence of the transaction by necessity. (2) The discour igement to the offending belligerent to umlcrtake an enter- prise, thus in peril up to the moment when it might have absorbed the lull investment of its funds. (.{) The danger to the neutral ship-builder from this i)rolonged nuMiace, from the (Mipidity which might strike him wlien the blow would fall upon liis own capital, wholly uncovered b^' payments. It is not too much to say that proJe<'ts of the nmgnitude, l)oth in value and in length of time, involved in the building of a Florida or an Alabama, were little likely to risk the danger of a casual or a professional inlbrmer under such an inllannnation to his zeal. ■"). The exclusive Judicial enforcement of the American Act isconfuled to tin; Federal ('(uirts in their admiralty Jurisdiction, as courts known to and governed by the law of nations, and not to the local, domestic, and common-law tribunals of the States. The Constitution of the United States, with sagacious conii)rehension of the duty and the difti- cultyof maintaining a Jurisprudence in questions of international relation, trustworthy to and trusted by the interests of foreigners and foreign 'States, has vested the exclusive admiralty Jurisdiction in the Courts of tlie United States, and by this Jurisdiction the forfeiture of ships under the Neutrality Act is adjudicated. We refer the Tribunal for a most competent authority on this whole subject of American Jurisprudence and its methods of securing the 'M iti s. "M '* iu.i ff\'S m^ ■ ; 1G8 AK(aMi:NT or the rNiTi:i» statks. juarticiil rud in vi<'\v by cviMi jiulicial nioaiis, to tho note ni' 'Slv. I)aii;i. tlM- Icai'iu'd (■oiiiincntator on Wiicaton, m liicli is printed in full in vol. \'II ortlu' American Appcnilix, pi>. 11 — (S. Wi' quote a few passaj^fes. As to flu! i)ii'|iariii<; (if vrsxils witliiii i>iir Jurisdiction litr sulise<|iu'iit lio.stilf opt rn- tioiis, tiii^ ti-st \v)- liiivc ii|>[ilii-il lias not Iii-lmi tht! extent and cluirarter of the ]irc|iai':i^ tioiis, lint tlic intent witJi \>iii*-li tlie particnlar acts arc done. If any |ic-i No cases Inive arisen as to tlie coniliination of materials, wliieli. scparate as part nt' a plan hy which a vessel is to he sent ont with intent that she shall be employed tc. ••riiise. Observe, now, the practical operation of tlio Forei<;ii I'lnlistment Act its it wa.s worked by llei 3IaJe.sty*s (lovernnient in rullilbnent of its obli;j;a tion ''to ii.se diu' (lili}j;ence to i)revent" the iiifraction.s of neutrality piiic tieed to the i>rejudiceof the United .States. 1. .1/.' ]>reveiHive intervention, in that name aiidof tliat desio'u, wase.v eluded from the le.soiirce.s of the hiw, H was eontined to puid.shnu'nt ot vmnmittcd ollenses. Tiie personal inllietions weie not severe enou;.;li tn deter : and the i»rooeediii,<'s to forfeit ii ji'uilty vessel for a ooniinittod offense mijjht, inci('ution foi tbrfeiture mij;ht have place (ij'tii\ as well as in anticipation of, the hostile cruise. L'. It was held that armoKj Ihr nsxel itself ivithin ihe jurkdh-t'wn was essential to guilt, and that any pr(»ject for the cruiser tJiat proposed to take out her armament, her munitions, or her men by separate bottoms, like the Alar, or the Hercules, or the IJahanui, or the Latirel, or tlio Prince Alfred, was not within the penalties of the law. These supiily vessels, in turn, Avere safe under the law, as they were not intended ''to crui.se or commit hostilities against'- the United States. Indeed, under this construction of the act, there seemed to be nothing to prevent tlic intended crui.ser from taking in tow the tug which had its armament, its munitions, and it.s men, for tran.s.shipment on the high seas. For tlii."' purpose would, if pro veil, f/e;/jy«.s^/(ffe that the cruiser had not taken, Page 3.5. ^ Pasie :{7. I'Aii.riM: or (iiniAT mhitain to rrr.iMi. its im tii:s. H'S and (is(> to take, any aiinanicnt, tS:c., witliin tlu'.jtirisiliclion, and that tlic tn;>' was coining ItacU, and liad no '' intent tu cruise or iMiiindt Iiostilitics." ;t. It was constantly enjoined Iiy the (lovernnient npon all odieials, tliat they ninst he extremely raret'ui not to atU'utjtt to int<'rleie with the, Ireedoni ot" these snspeeted enterprises, unless they haiiperiors would be exposed to heavy daniaH;es lor lailnre. I. It was made very prominent that dt'inonstration of the wailike liiiild or titness of the crniser wonhl not procure :i Ibrleitnre without satisfactory proof, in adntniT of any ffrincii)al law-olVu'crs of I ler Majesty's (lovernment attempted to n-form this administration of the law, the princijUe that the fidl-blown consumnmtion of the enter- |irise. by the cruiser's takinj;' the seas under a commission, protected it tVoni any further judicial scrutiny, barred all further proc«M'dinf;;s. We olfer to the attention of the Arbitrators some extracts from ollicial papers relat''ijif to the cases of the Oreto (or Florida) and Alabama, as instances of the system of the administration of the Foreij^n lOnlistnient Act of which we are now complainin<;', and which we alsi> conceive t«) tiunish a fair illustration of tin* {general inellcittual nature of the action and result in all the attempts to enforce it. On the Kith of June, ISiL*, the qucistion beinji;- ujion the seizure of the Oreto at Nassau, (lovernorKayley wrote toCoinmander llickley, in part as follows : Tlif Ort'to. as yoii iirc awiirc, lias, in (Ict'ci't'iicc to your vonionstraiicrs anil my ordtTs- iliscliar^i'il hi'i' car^'o of siicll. shot, and annuiinition, and is ready to clear in liailast- Slie lias tlins divfsted lieiselt' of tile eliaiaeter of an aiiiied vessel li-avinj; this |i(irt fof licllijieieiit ])nriioses. I do not think it eonsisteiit with law or i>nUlic ]ioliey tiiat she ^lioiild now lie seized on the hypothesis that she is elearinj; out for the iinipost! of Mriiiiii;f herself as a vessel of war beyond tlu* limits of the harhor. Wo have done onv iliitv in seeing' that she |)osed to be freijihted with her arms, and to be ]U'ei)ared to ijooul «itli her. should not leave the harboi- within foitv-ciiiht hours alter the ( )reto has left it.l On tile -1st of dune, IStL*, (lovernor llayley, after detailinji' certain incidents which had taken place in rc}iaiiike of Newcastle: 7. Tliroughont these oceurrencivs I was averse from iiroceediim to extremilies. \ot tliiit 1 considered the conduct of the Oreto to be entirely fret^ from snsiiicion, oi' indec'd tiDiii discourtesy to a neutral from seiziu<; the vessel, ; I'.'l !i:.vinjf, after seizure, released lier in deference to my views. Captain llickley, in - I' tt 'r of Kith .Tuue, reiterated the expression of his professional opinion, not mily liia; tlie Oreto was equipped as a vessel of war, but that she could be made ready for I'iittle with the enemy in twenty-four hours; that other vessels then in the harbor could steam out with her, and help to arm her withiu a few miles oti' this port ; and 'Brit. App., vol. i, pp. '2 1, '2"). IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I ~ 2.0 1.8 1.25 1.4 1.6 « 6" 1 V] ^ c*l cr>. / "^ /A '/ Photographic Sciences Corporation V m iS' nrposes, arming Inn', and enlisting a crew, without establisliing ii Ciise of such strong testimony as would Justify her condemnation by a court of eoin- l)etent Jurisdiction ; iind although it is repugnant both to our policy and our sense ot Jiistii^e to strain the letter of tlie law, even on the side of a reasonable inference against the rigid rules of technical evidence, yet it is easy to see that a strict ad- herence to these rules may be susiiected to be tin; result, and may produce the fruits, of a deliberate collusion with the enemies of a State on terms of amity with our own country.' On the 30tli of June, 1802, the evidence in regard to the x\.Uibaiii;i beinji' under (consideration, IMr. llaiuel, Solicitor of Customs, thus re ported to the Commissioners of Customs : The officers ought not to move in the matter without the clearest evidence of a dis- tinct violation of the Foreign Enlistment Act, nor unless at a moment of great emei- geucy, the terms of the Act being extremely technical, and the reqiiirenients as to intent being very rigid. It may be that the shiji, having regard to her cargo as contrabaii'l of war, might be unquestionably liable to capture and condemnation, yet not liahli; to detention unde> the Foreign Enlistment Act, and the seizors might entail upon themselves very serious consequences. - On the 11th of July, 180.3, Consul Dudley's letter in regard to tlio Alabama being under consideration, ^rr. Ilamel, Solicitor, thus advised the customs: There is only one jiroper way of looking at this te(l fi)r war; lier iirnianiisnt rea ly to l»ii put on himrd, with a crew of Hf:' men, and oflicers of tiie Confederate States ri^ady to command lier ; sliouhl these fii' ts he insntheiont, in their opinion, to justify h'y;aily and technically the seiznre, I vet trust their Lordships will see lit to exonerate Commander Ilickley from all l>lame and consetiuent I'csponsihility.' On August L*."}, 1802, the Iloineflovcrmnent liaving thoii;;lit it desira- blo to .send some Cusstoiii ITonse Ollieers from Liverpool to Nasau, wlio could there j^ive evidence of the facts whielt had taken place at Jiiver- Dool in regard to the Florida, Collector Edwards thus closes a letter to the Commissioners of Customs : lam satisfied that she took no such [warliki^] stores on hoard, and indeed it is stated, though I know not on what authority, tiiat her armament was conveyed in another vessel to Nassau. The Hoard will, therefore, perceive that the evidence to he. ohtained from this port will all };o tuke of Newcastle: I have the honor to inform your Grace that Uw. Oreto, after her liheration hy the admiralty court, left this harhor three or four weeks ago; and that she is sui>i>osed to have since heen finally transferred to the service of the Confederate States. If that is .so, .she is entirely out of my jurisdiction, ami I could no more legally sid/.e her were ,sho to re-enter the port than I could seize any man-of-war belonging to thi' (iovern- nieiit of the irnited States.' ;j. Another marked trait of the actual administration by her ^lajesty's Government of t\\e punitive features of the ]'\>reign Enlistment Act, is their failure in the clearest cases to enforce a forfeiture. When we con- .sider that the pretensions of efliciency in this act are confessedly put ni)ou its terrors to evil-doers and the dissuasion from illegal projects to be thus accomplished, it is with the greatest surprise that we find credit claimed for the British (lovernment for the losses and sacrifices which that (irovernment sustained in its purchases of its own peace from its law-breaking subjects by ])aymenr of damages, by agreement, for the prosecution of the Alexandra, and by payment in full for the Laird lains, instead of i>ersisting in their forfeiture. Not more intelligible is the claim of credit for the cour.se of the (lovernment in the case of the Pampero, where the forfeiture was admitted by the claimants, but was never brought to an actual .sale, which would inHict the loss of its value upon the guilty projectors of its intended crui.se. Certainly, the British trovernment accomplished the detention both of the rami)ero and of the huird rams, and the United States have never omitted to express tlicir •satisfaction at this real benefit which they received from the success of ' lu-it. App., vol. i, p, ya -Ibid., p. ;J4. 'Ibi;' ^ Ibid. p. 70. -T^m 172 ARCIUMENT OF TME CNITEI* STATES. Her Miijesty's Clovernment in those instiincos. liat, tbiit the puiiitivo tt'iTors of this act should liavo lost the exiimi)le of actual forfeiture to the Kebel resources, or to the ffuilty JUitish ship-buiklers, of the jircat value invested iu them, and that the liritish (rovernment should have refunded tiie money, exhausted by the guilty enterprise of the Laird rams, in season for its new use by tiie Kebel agents and their accomplicos in the same illegal service, can never seem to the United States a valu- able contribution to the elliciency of the Foreign Enlistment Act as an instrument of punishment of these proscribed and dangerous proceed- in g-s. These various traits in the actual dealing of Jler ]\[ajesty's Govern- ment with the Foreign Enlistment Act as an instrument, and as its only instrument, for maintaining its neuiral obligations to the United States, became as well known, and were as clearly appreciated by all Her Majesty's subjects, and through all her imperial dominions, as if they bad been announced by a Queen's Proclamation. No wonder that a learned Judge of one of Her ^lajesty's superior courts declared that a whole fleet of ships of war could be driven through the statute ! That, fis matter of fact, a whole fleet of ships of war was driven through tiiat •statute, is in proof before this Tribunal. Upon the whole proofs, then, and in their api>lication to the cases of irit.-i, r.in,.. i^ll the offending- vessels, we coniidently submit to the Arbi- ;;m,"o\u [.T.'iinhu''.- trators, that the Foreign I'^nlistment Act, as construed and ii,i,„ jiiiB,,,, ■. administered, was not an adequate instrumentality for, and its actual employment by the (Joverument direventing the emission of these hostile vessels from British ports. They were a long time iii course of construction ; they were long uihUm the actual notice of the Government; its apparatus and resources for the fulfillment of the recpiired duty were deliberated upon, explored, and understood. In truth, no iwactical diflicnlties did exist. Bat, whethej' or no this plain aniiig tVoiii our si m-cs. and the ())\ly loss to tht^ country wliich would result IVoni such a i»iev(Mition, Viould bo the small aniount of profit which the individual construc^t- iiij; and eipiipiiinfj the vessel mi|i;ht derive from tlie transaction, which in almost every case is contrary to the Proclamation of the Queen. ' Xov are we able to see how Her ^Majesty's Government can eseai>e fioin the dilemma whieh, on its failure to stoj) the Florida and the Alabama, and its easy success in stopjtinpf the Laird rams, was proposed to it by Sir Hugh (now Lord) Cairns, in rarliament. What will yoti say to the American Minister now :' Do not you suppose that (he American Minister will come, to you and say, "Vou told nie last year that uidess yon liiiil a cas(; for seizure, and jiroof i)y ])roper evit'c'nce, you could not arrest a shij) at all: that you could not detain her.' Althouj;h you admitted that the facts I broujiht l)e- I'ore you created very j;reat susiiieion, you said that you could not seize the Alabauia, therefore you could not touch hei'. JJut look at what you did in .Septc.'uilier. i'\)r a whole nu>nth you diitained these steam-rams in the Mersisy, while, accordinf"; to your ()«n words, you wen; collectin^i' (evidence, and emleavorinj; to see whetlu'r your .sus- jiicions were Avt>ll founded." * ' i maintain that when the United States hold this lanj^mige, either our (iovt^rnment must contend that what they did in St!j)tember was tniconstitutional, or they ouj-ht to have done the same with regard to the Ala- haina, and are liable. - Y. ]\Lanitestly, if the Foreign Enlistment Act of Great Britain was tlins inadequate and unsuitable, as an etiicient instrument n... „ .sM.t • . ill the hands of the Government for the fulhllment of its KlIl^m.-nrArt'Ti'";'. international duty to the United States, it was a failure in -^' i'" '''i'«" the "use of due diligence to prevent" the injuries now complained of, Jiot to obtain from Farliament a suitable and ellicient act for the fuHill- nient of the duty. The demonstration of the existence of this obliga- tion, and of its being early brought to the notice of Her ^Majesty's Gov- orninent by the United States, and of the refusal of Great IJritain to meet the obligation, is comi)lete. AVe refer the Tribunal to a state- incut of the contemi)orary correspondence on this subject between the (rovernments, and a menu)randum of the action of Great Britain in the matter, after the close of the Kebellion, (tontained in Note C of the Ap- pendix to this Argument. In strong contrast with this inaction of (ireat Britain, and with its instilication by Her Majesty's Government, is the cour.se cnntn>« i«tw,...n taken by the Government of the United States in 17J)3, at ll:;;;;T;;,'I'i"t7.'. the instance of Great Britain, in 1817, at the instance of ;;;;;;;:; "l^'';",,!,;''':^'' Portugal, and again in 18;38, to meet an exigency in the in- '" "' torest of Great IJritain, for tlie maintenance of its sovereignty over the <"anadiau provinces. On the 3d of December, 17M3, President Wa.shington, in his mes.sage to Congress, after stating the means that he had u.sed to maintain a ■strict and impartial neutrality, said : It rests with tho wisdom of Congress to correct, improve, or enforce this pl.in of i)ro- ccdure, and it will ))robably be found expedient to extend tho legal code and Jurisdic- tion of the courts of tho United States to many cases whieh, though dependent upon luinciples iilready recognized, demand some further provisions. When individuals shall, within the United States, array tliemselvos in hostility iigainst: any of the powers at war, or enter upon military expeditions or (.'uterprises within the'jurisdiction of the United States, or wliero penalties on violations of the law of nations may have been indistinctly marked or are inadequate, these oH'enses • iinnot receive too early and close an attention, ami require prompt an. 4.>l{. 174 ARGUMENT OF THE UNITED STATES. Oil the 20th oC December, 181G, the diplomatic iei)i'eseTitative of Tor- tujfal thus wrote to Mr. Mouroe, then Secretary of State : What I solicit of liiin (tho I'lcisideiit) is the proposition to Coiifjress of micb pro\ is- i<»tis by Iiiw as will prevent mich iitteuipts for the future.' Six (hiys hiter, President Madison addressed a message to botli Houses of Congress in part as follows: With ii view to niaintaiu more effectually the respect due to the laws, to the char- acter, and to neutral and pacific ndations of the United States, I reconunend ttt tlit- consideration of Conj^ress the expediency of such further legislative provisions as may he re(|uisit(i for detainiiif^ vessels actually equipi)ed, or in course of ecpiipiuent, with u warlike force, within the Jurisdiction of the United States; or, as the case maybe, for obtaininj^ from tho owners or coniiiianders of such vessels adeijuate securities against the abuse of their armaments. - At the same time, Mr. INEonroe, Secirovisions necessary to m.ike tho lawsetfcet- ual ayainst (itting out armed vessels in our ports for the purpose of iiostilo cruising, seem to be : 1st. That thoy should be laid under bond not to vi(date the treaties of the United States under the law of nations, in all cases where there is reason to suspect such a purpose on foot, includiuy th" cases of vessels takinj^ on board arms and munitions ot war, applicable to the equipment and armament of such vessels snbse<[nent to their departure. 2d. To M"'est the Collectors, or other lievenue Ofticers, where there are no Collectors, with powei' to sejze ami detain vessels under circunistaiu;es indicatinarty is handed over, id'Utr trial, to the penalty denounced.-' The cir^Mimstances under which the temporary Neutrality Act of 1S38 Mas passed, are fully stated in the Case of the United States, (p. 13'),) and the act itself can be found in the documents presented therewith.^ Not less in contrast with the indifference and obstructions with which HerMnjesty's Government met the earnest applications of the Govern- ment of the United States, in the stress in wliich it was placed, for an im- provement of the Foreign Enlistment Act, are the solicitude and attention bestowed by Great Britain upon the amendment of this act after the rebellion was suppressed. The reportof the Royal Commission, appointed to consider the subject, upon the defects of the old law and the necessary amendments to give it due vigor, leaves nothing to be said in condem- nation of the persistency with which Great Britain clung to it during the whole period of the liebellion. The promptitude of Parliament in enacting the new statute upon the breaking out of the recent war be- tween l*russia and France, has already been referred to, and is exhibited in the extracts from the debate on its i)assage, set forth in Note B of the Appendix to this Argument. It is unnecessary to argue that the passage of the present Foreign En- listment Act in May, 18G1, following upon the Queen's Proclamation ot neutrality, and its reasonable enforcement, would have precluded the scandals deplored by the British Government and the injuries suffered by the United States from the emission of the Alabama and her con sorts from British ports. The text of the act carries its own argument. v^^/ ' Am. App., vol. iii, p. .")41. ■ Ibid., p. ryi'i. ■ Ibid., p. ^4'i. •• Ibid., vol. iv, p. G-2. For- 13;;.) K.'iilnri- in dm KCIli'i' .-tftiT thf t; ■itl"' >>( tll'MTlU.-'f-'r; III! FAILURE OF GRKAT BRITAJX TO FULFIL LI'S DUTIES. 175 Well might that eminent publicist, Philliniore, itn mediately after the I»as.sago of this act, "rejoice that the English Government has, by the statute of this year, strengthened the hands of the Executive, and given {jreater force and prominence to the maxim tlu.t, with respect to the external relations of the State, the will of the subject is bound up in that of his Government." ' y^^fi confidently submit that, in refusing to amend the Fcu'eign Enlist- inen' Act in aid of the fulHlluuMit of the duty prescribed by the Three Rules of the Treaty, Great Britain failed " to use due diligence to pre- vent" the injuries for which the United States demand redress from the justice of this Tribunal. VI. We pass now to an (examination of the question of " the use of due diligence to prevent" the violation of its international duty to the United States, as exhibited in the course pur- sued toward the offending vessels by (rreat Uritain, after tbeir first escape from British ports, under the circumstances and con- sequences of inculpation for such escape which have already been con- sidered. Except for the actual violence and depredations committed by llie escaped cruisers after their emission from British ports, the injuries to the maritime property of the United States and the enormous con- nected losses to the national wealth would not have been inflicted. In every view, therefore, the subse(pient career of the cruisers becomes of the highest imi)ortance to the practical determination by this tribunal of the matters in Judgment before it. 1. It is indisputable, that if, in res|)e(!t to any one of the vessels in- criminated, the escape of that vessel from the home port should have been shown by (Jreat Britain, to the satisfaction of the Tribunal, to have takeu place in spite of " the use of due diligence to prevent" it, the principlesof the Three Kules and of international law not inconsistent therewith will re(piire that the same inquisition must be applied to any subsequent escape from another port of the British Empire, home or colonial, where the Government had ail opportunity to lay hands upon and arrest her. Thus, suppose, for a moment, that the British (Jovernment was not in fault in respect of the first emission of the Florida from the port of Liverpool, her subsequent history at Nassau must then be examined. If her openly allowed departure from Nassau, "on an expedition of pil- lage, piracy, and destruction," (to (juote Governor Bayley again,) was not hi spite of the use of due diligence " to prevent the departure from itsjurisdiction"of a vessel which had "been specially adapted in whole or in part within such Jurisdiction to warlike use," such departure is^ in itself, a failure by Great Britain to fulfill the duties set forth in the Three Kules of the Treaty, and must be so pronounced by the Tribunal. As the Florida, until after she left Nassau, remained in the same plight of a British vessel as when she letl Liverpool, and did not receive a (so- called) " commission," or change her flag until afterward, there is no opportunity for cavil upon this point. li. If, on the other hand, the original escape of any of the offending vessels from the home port shall inculpate Great Britain under the Kules of the Tretity, it is obvious that the original fault and accountability of Great Britain in the supposed case only enhance the obligation which, we have seen, requires "the use of due diligence to prevent" the subse- fjuent departure from its Jurisdiction of a vessel whose original escape fi'oin the home port has not been imputed to a default in such diligence. In not dotiiiiMiiu ci|]i-ndtn»r r r u i m t; r ^ wh^u iiKuiii III Hi'it- i-*h ports, a want ul due diliRcnct*. ;■■ ■■" ■■'■ .; i- * -c .K*f Phill. Int. I aw, (ed. 1871,) p. 28, preface. 17() ARGl'MKXT OF TJIK I'MI'KI) >S'fATE8. Till- iiMimition lint tlttfriMitiftl l.v rum- nii^.tioiiiiig a iTHMi-r. 3. Tills obligiition, whcthor in tlio alte 'native of the oiifjinal oscaiM' of the ollen«lin<'' vessel being for want of, or in spite of, the "nsc of due diligence to prevent" it, must endure until it has been fiUly and sue- eessfully met by the arrest and detention of the ottending vessel, and her "expedition of pillage, i)iracy, and destruction" brought to a close. We have already considered wliether this indisputable general projx) sition needs to be qnalilied by the impediment insisted upon to its continued ai>[)lication, arising from the (so called) "commission" as a i)ublic ship of a belU'jerent not recognized as a nation or a sorcrcif/n.' AN'e have shown that, in regard to public sliips of recognized nations and sovereigns, this public char- acter by comity withdraws them only from the JuriBdictiou of courts and process, and leaves them amenable to the political and execu+ive power. We ha>e shown that, in the case of public ships having no recognized state or sovereign behind them, the political and executive power dials with them, in its own discretion, with strong hand, in administration ut every dut.y and ever3' right ])ertaining to itwself or owed to another nu tion. The grounds upon Avhich we put our inculpation of Great Britain for dealing with these Hebel cruisers, as it did, after their commission as public ships, do not involve any contention as to whether or uot Judicial control should thereafter have been asserted over them. This domestic question of comity to the Rebel cruisers on their " expeditions of i)illa<>e. pirac.v, and destruction," may be at the discretion of a (lovernment. But the pretensions that the international duty by which Great Britain was "bound" to the United States to use due diligence to prevent these oft'ending vessels of guilty origin from departing from its ])orts when it Avas master of the opportunit.v so to do, was cut short and overmastered by the Itebel " commission," ui)on the reasons already given, we entirely deny. 4. It is conspicuous ui)on the ])roofs before the Tribunal that it was quite in the ])ower of Her ^lajesty's Government, by arrest ing these ottending vessels at their first, or even later, visits to British liOvtH after their successful fraud upon the neutral obligations of Great Britain in their original " escape," to have intercepted these "expeditions of pillage, piracy', and destruction," and at oncje repaired the misfortune or the failure of tiuty which had made such "escape" possible, and struck a fatal blow at the systeniatie l)rojectand preparation of such expeditions from the home ])orts of Great Britain. There was no adequate motive for, or benefit from, these guilty enterprises if the tirst escape were to leave the vessels homeless and shelterless upon the ocean, with no asylum in British ports except such as mere humanit.y otters against stress of storm and danger of ship wreck. Such asylum, upon the very motive on which it is yielded, upon the very plea upon which it is begged, the sentiment of humanity, would have exacted the abandonment of the career of violence, meditated or commenced, and a submission to the outraged authority of Great Britain. whose peace and dignity were compromised by the original escape from its ports. It is a notable fact that not oiu^ of these ottending vessels ever re turned to a home port of Great JJritain, except the Georgia, to be dis mantled and sold, and the Shenandoah to be surrendered to the Govern ment of the United States. The Florida once, and the Alabama once, sought the commercial recruitment which the hosj»italit.y of the ports of France conceded them, on the plea of reldche foreee. They had not vio lated the neutrality of France in their original outttt, and liad no resent ' Sii2>ra. pp. N c. t, !■ X ■■ lihlii f si-apt'd r ( n j s i! i Iniiil Itnlish )i..i-: \v;is n want i)i' ili (liii«t'ni'.'. FAILURE OF GREAT BRITAIN TO IILFIL ITS DUTIES. 177 " to vcr I'l'- be (li^* Joverii a once. )orts of lot vio- resent- ments or restniints to fear in her ports. lUit why prefer France to England ? Was it on motives of market and convenience ? The snp- plies for these crnisers while in the French ports were sent to thein from England. Every interest, every inclination, every motive wonld have carried them to England, had not some overwhelming? reason deterred them from that resort. They had vicdated her neutrality ; they had l)rought scandal and reproach npon the administration of her laws. Tiiey were not lacking in courage or elfrontery; but that the govern- ment of (Ireat Britain would tolerate iheir presence in her ports to re- plenish their resources, and " their expeditions of pillage, ])iracy, and ]»lundcr," was impossible to be conceived, and thej' avoided the danger, jjut the wide jmwer of that nation " whose morning drum-beat, com- mencing with the sun and keeping company with the revolving hours, snrroniuls the whole earth with one contiinious strain of the martial airs of England," does not outrun the obligations of i)ublic justice or of in- ternational duty. What it would shock the moral sense of Englishmen to deny must have been the action of I ler INLajesty's ( irovernment at home, should have been, but was not, their action throughout their colonial possessions. On the L'Oth day of A])ril, 18(54, in the debate in the House of Lords on the dispatch of the Duke of Newcastle to (Governor Wodehouse, in- structing him that he should have detained the Tuscaloosa, Earl liussell, defending this instruction, said in part as follows : It mn.st lie recollectoil that all these aiii>lleatinn.s of priii(Mj>les of international law totJK! contest between the Federal and so-.styled Confederate States, have to be inado under very exceptional circunistances. It lias been usual for a I'ower carrvin<)j on war npon the seas to possess ports of its own in whicli vessels are built, eiinijtjjed, and titted, and from which they issue, to which they bring their prizes, and in which those prizes, wlica brought before a court, are either condemned or restored. Ihit it so happens that in this eonlliet the Confederate States have no ports, except those of the Mersey and the Clyde, from which they lit out ships to cruise against the Federals. ' In the same debate, the Attorney General, Sir IJoundcll Palmer, also defending the dispatch, in addition to the words we have quoted supra, said : By the mere fact of coming into neutral territory, in si)ite of the prohibition, a for- eign Tower places itself in the positi(m of an outlaw against the rights of nations, and it is a mere [)ort : Til liino of war no vcsm'I cniiilnynl in u military or navnl .service of iniy l)clli;;iii w, vliicli .sliall liiivi" lii'cn huiU, ('(inipiM'd, littcil ont, arnn'd, or (lis](atcli('il contrary to the enactment, slionhl be admitted into any imrt of Her Majesty's dominions.' That tlicso are not oxtrome or di.spntod i)ro|)0.sitioi).s, i.s evident I'lom the t'onenrrcnce therein of Lord Cairns, Daron Ilramwell, Sir Jiomidt'll Palmer, and ^Ir. Gregory, as well its Dr. J'hilliniore, 3Ir. Vernon llai- conrt, Mr. Thomas Daring, and yiv. Forstor. On the 1th of Angnst, 1S70, in the House of t'ominons, the atioriicv general, Sir li. 1'. Collier, having reference to tiie omission, from the Foreign Eidistment Act, of a clanse carrying out the report above cited. said : Ifo liad tocxjilain that, altliouiuli tins Uoyal Commissiom-rs nnnle a reconimendatiui to the etl'ect of this clanse, they roscription from British ports, enforced by arrest and detou tion, if the prohibition was transgres.sed. The lead thus taken by Croat Brittun would naturally, if not necessarily, have been followed by tlio other powers whose possessions afforded a casual and infrequent resort for the offending vessels. Following, at greater or less interval, as they had, the recognition of belligerency declared by Creat Britain, the.se powers would have admitted the common duty of neutrals, in the pecii liar situation of maritime hostilities presented, to accept the demiueia- tion by Great Britain of the escaped vessels as outlaws and not bellig erents, and denied them further hospitality. 5. Certainly, in the absence of such proscription, it woidd seem ne- cessary that some representations should havo been made by ller ]\[ajesty's Government to the persons with whom it was in the habit of communicating as, in some sort, accred ited by the Eebel organization for such purpose, concern ing the flagrant violations of neutrality in which Great Brit ian was involved, by the system of operations of the Rebel agents here tofore brought to the notice of the Tribunal.* The Arbitrators will search the British Case and Counter Case, ami the body of their appended proofs, in vain, for the least intimation of such representations. But we are not left to inference based upon this state of the evidence. In the American Appendix will be fouud certain correspondence between Earl Eussell and Mr, Mason, (then per manently resident in London,) which exhibits an entire unconcern in Tbe reprpspnta- tion.H to in^urufnt HBtMits respcr t. i ii d thenc crui^tTs wcrt* BO long dpiayprf and 8 o treble an to amouT'.t In want nj due diligence. ' Aui. App., vol. iv, p. b2. ^ Supra^ p. 17, sec. viii. "^ See Appendix to this Argumeut, Note B. ■* Am. App., vol. vii, p. 113. FAILIKH OF (iKKAT HRITAIN TO ITIJTL ITS DL'TIl^S. 179 tlic niiiid of lid" ^Mnjcst.v's I'oivij^n Sccii'tiuy at tlio tiiiie the oscnpo of till' Alaltiima was a fresh incident at lioine, and tlie dealing;' with the escajted Kioriihi by the colonial authorities at Nassau was under the notice of tlu^ 1 Ionic Adminis ration. Durin;; the very period of these two matters of the Flori^la and the .Vlabaina, which Karl IJussell subse- quently sti;4inatizcd in Parliament as •» a scandal and a re|)roach"to En^iland, a corresponth'nce between the Foreign Secretary aiul ]\Ir. IMasou was in progress, in which the most I'riendly tone ami toi>ics ])revailed. This correspondence l)e<'ins with .Inly 17, and terminated with a letter of I'arl I'ussell, August L', 180L*. This, it will bo noticed, runs through the time of the deliberations of the IJritish (lovernnuMit as to the arrest of the Alabama, and beyond the ct)nsuinmation of her succcs.ful evasion from Liverpool. But not a word on the subject is found in the corre- sspondence.' Again, at the end of the year ISOl, another correspondence between the same writers took ])laee, and that nothing of expostulation or resent iiient, or exaction of redress for these continuing outrages, finds place in it, jnay be well iid'erred from the manner in wliich 3Ir. Slidell feels justi- fied in commenting to ]Mr. IJenjamin, of the Confederate Cabinet, upon Earl liusseirs concluding letter : ]Iis Lorilsliip voliiiitaiity \vciit f»ut of Iiis way to say tlic iikinI: (lisatjrpcalilo tiling, possilde to tlie Northern liovcrnnnMit ; liis reffriMice to tins Truaty ol' 17^:5 will, I tliink, 1m' especially distasteful to tliein, i)lae
      e(l in n sinj^lo nationality. I should \w much surprised if this letter does not call forth a universal liowl against his J^ordship from the Northt.'rn press. - That Her Majesty's (lovernment could promptly, and without en- feebling courtesy, discharge this duty of remonstrance to a belligerent against supposed or intended violations of its neutral obligations, is demonstrated by the correspondence of Earl lluss; H with 3[r. Adams in regJird to some matters which seemed to Her Majesty's Government to ro(iuire explanations from the United States. On the 30tli of November, 1803, Earl Kussell thus wrote to Mr. Adams ill part as follows : I have the honor to call your attention to the following statements, which have coma to the knowledge of Her M.ajesty's Government, respecting the shipment of British subjects on board the United States ship of war Kearsarge, when in the port of Queens- town, for service in the Navy of tlu! I'nited States. I need not i>oint out to you the importance of these statements, as proving a delil)- eriite violation of the laws of this country, within one of its harbors, by commissioned otticers of the Navy ot the United States. Before I say more, I wait to learn what you can .lUege in extenuation of such culpa- lilo conduct on the part of the United States otticers of the Navy, and the United States Consul at Queenstowu.' On the 31st of l\raicb, 18G1, Earl llussell wrote to Mr. Adams as fol- lows : I have the honor to bring to your notice an account, taken from a newspaper, of what passed at the trial before Mr. Justice Keogh of the British subjects indicted for Iiaving taken service in the United States ship Kearsarge, at Queenstowu, in violation of the lirovisions of the Foreign Enlistment Act; and, with reference to the correspondence which has passed between us, I have the honor to request that you will inform nie whether you have any explanations to ofter on the subject.* Ou the 9th of April, 1864, Earl Russell, writing to Mr. Adams, said : I transmit to you herewith extracts from a deposition of one Daniel O'Connell, by I 1 ' 11 ' Am. App., vol. 1, pp. 416-426. 3 Ibid., vol. ii, p. 421. J Am. App., vol. i, p. 619. * Ibid., p. 442. 180 AKGIMEXT OF THK rNlTED STATES. ■\vliich yon will pcircivc tliat lie was cxaip'iifd ami kwchii Uffun'. or witli tin' kiiowl- »'(ln(! of, olllicfis (if the L'iiiti'art v, of the case of the United States. IJy that extract it appears that " the unwarrantable practice of bnildiny: ships in this country to be used as ves.sels of war a{.jainst a state with which Her Miijesty is at peace" wa.s still conUiiued, and formed a main subject of tiie remonstrance. "We ([uote from Earl lins- sell's letter : It is now my dnty to leiinest son to lirinj; to the noliee of the authorities nnder \\ honi yon a»!t, with a view to their serious eonsideiation tiiereof, th(^ jnst eomjdaints wliiili Her Majesty's (ioveiiinient have to make of the e.oiidnct of the so-called (,'onfed( rate Oovernment. The facts upon which these eoinphiints are founded tend to show tliiit iler Majesty's neutrality is not resjiei'ted hy the agents of that (Jovcrnnient, and that undue and reprehensible iittemjits have been made by tliem to involve Ht^' Majesty in a w.ir in which Her Majesty had declared her intention not to take part. 'k'on may, ;;entlemen, have tjit; means of contesting tlie accuracy of tho inforniiitioii on which my forejioin;; statements have been founded ; and I shonUl bo j^hid to tind that Her Majesty's (iovernmeiit liaM- iieen misinformed, althouj^h I have no reason to think thiit such has lieen the ccse. H", on tiie contrary, the information which Her Majesty's (Jovernment have receive*! with re;;ard to these matters cannot bo gainsaid, I trust that yon will feel yoniselvs authorized topromise, on behalf of tho Confederate Governnu'iit, that jiractii.'es so otl'ensive and nn warrantable shall cease, and slni'll be entirely abandoned for th • future. I .shall, therefore, await anxiously your reply, aftoi referring to the authoriti's of the Confederate States.- AYe find, too, tlrt in ^larch, 180."», liardly thirty days before the sur- render of llichniond, the Colonial CJovernor at Nassau advised the home Clovernment of the means that had, at la.st, been found to make the eva- sion of another Florida impossible. The (Jovernor writes to Mr. Card- mq\], a member of the ^Ministry, as follows : I take this opportunity of mentioning that for some weeks past I have bad a report made to me of every steam-vessel arriving in the harbor, witli sjiecial notice of any- thing in the ecm.struetion or eiiuijunent of any Avhich ditfer from the ordin.ary blockaile- runners, and the otlicers of customs are on the alert to detect and report any attempts to violate the provisions of the Foreign Enlistnu^nt Act.' It is unnecessary to point to the conclusion which the Arbitrators must have anticipated, that the.se ])owers of remonstrance and these re- sources of vigilance, if resorted to in February and March, 18G2, woultl Lave foreclosed the controversy now in judgment before the Tribunal. It is easy to see how these manifold failures of Great Britain to fulfill its international duty to the United States led to the enormous injuries, as their necessary consequences, which have constituted the sum of the grievance which, at the close of the Eebellion, the United States had suffered from this friendly power. By confining attention and efforts to questions of legal conviction for municipal offenses, and becoming helpless in the meshes of law-ers and courts, Her jVIajesty's Government saw the Florida and Alabama emitted ' Aui. App., vol. ii, p. 448, sBrit. App., vol. ii, p. 589. - Am. App., vol. i, pp. 630, 631. FAILrrRE OF GREAT URITAIX TO PUr.FII. ITS DrTTES. 181 report iiiiy- [•kaile- tciiiiits; iitors so re- .oiilcl uial. fulfill iirios, )f the s bad I )i'' Unt i-«li f*oiir->t» in tliiMf r.'-tiMM t. .H vitluiiUry. IVoiii IJritisli ports, while they wore " wiitchcd " by (lovtMnnuint oIlllcerH and «lobated about by oininoiit lawyors, and inadf them but tbrciuuiiers ot'liUo oftondor.s. The doinosfic law ]»r(»to(!ted their vvdsloii aud para- lyzed Llie f^oviivwmouVA prcroition, and the international obligation had no place or authority at that staye of the transaeLion. lUit the nu)nient tlicy were out they were protected in their "expeditions of pillage, pi- racy, anddestru(;tion" by thelawof nations, which, it was said, compelled (Jrcat lUitain to hold her hands, by reason of the respect which inter- uational comity ins[>ires for the '• commission " of even such cruisers. Ir was true that this (lebility of municipal law, and this homage to comity, were wholly voluntary on the i)art of (Ircat IJritain. Tlieone was curable by Parliament, and the other lay at the (liscretion of the Crown. iJut Jler ^lajesty's (Jovernment, while the events were in progress, did not lind aderiuate reiisons for any action, notwithstanding the wide siuead depredations which these olfend- ing vessels were committing. There was one measure of restriction upon these depredations which ITcr Majesty's (rovernment adojtted ami )>erse\ered in, we Kxii,.,,r,„ or mean the exclusion of prizes of either belligerent from l>rit- f;:,',M\,o'b",,,'lu''u ish ports. This ordinance was consonant with sound |)rin- "'"«'>''*"'«"'• ci[)les, ami adopted and enlbrced in sincere good "aith. IJut to this measure we can trace no real benelit in actually .r;'vessing the maritime hostilities. On the contrary, its most atllietive tea) ure, the destruction of ships and their cargoes at sea, flowed from the circumstance that the rebels had no ports of their own which the upval i)ower of the United States had not closed, and that their prizes - re excluded from neutral ports. This was well ])ointed out by Earl llussell in parliaiuent, in a passagi !,ir 'ady referred to. It was for this reason that the well-meant exclusion of prizes from ii^.itral i)orts gave to the rebel cruisers enlarged capacity for terror and for mischief, and shocked the civilized world with this spectacle of destructive violence. But the ai)peal that this consequence was a demonstration that maritime belligerency should never have been granted, and that the true remedy was to withdraw the concession, was uot successful. Under these two measures of homage to the rebel '•commission,'' though it covered a Florida or an Alabama, and of acquiescence in the destruction of enemy's maritime property without adjudication, Anier- can commerce was ground to powder, as between the upper and the nether millstone. Meanwhile no retaliation of prize capture or destruction as enemy's property was possible. The law of contraband and breach of bloclcode was the only weapon at the command of the United 8tates against the fleet of blockade runners owned and navigated by the Kebel organiz- ation, but protected as neutral property by the British flag. This retaliation was, necessarily, submissive to the prize jurisdiction and to condemnation only upon sf^cial proofs. It was thus that the whole rebel naval warfare was prosecuted by cruisers of unlawful British outfit, protected by British recognition of the Eebel tlag, while the whole Eebel commercial marine was protected by the cover of the Brit- ish flag. So, too, no opportunity to shut up, or to capture, or to destroy, auy vessel in port, was open to the Navy of the Uniteti States ; every port accessible to such vessel was a neutral port, which the United States could neither blockade nor invade with Lheir hostilities. AVe have exposed these peculiar features of intolerable hardship to + \Ai f^ ii:. TliH rfs[iMi>-iiiiliiy of sels, any evidence .'ending to show the use of due diligence pointed at the fulfillment of fne international duty exacted by the Treaty. In- deed, the fact that the Florida and Alabama cscnpcd, when, as Lord Granville justly observed in the debate on the Treaty of Washing- ton, "nothing is so easy as to prevent a vessel of the Alabama class escaping from our shores," is conclusive evidence in the absence of countervailing proof tiiat he due diligence of the Treaty was no^ exhib- ited to prevent the escape. In vain shall we look for evidence of inev- itable accident, of imposition, or of misfortune, supervening to thwart or surprise Her Majesty's Government and accomplish the oftense, notwith- standing the emidoyment of due diligence to prevent it. ! v f ■ h- t I. '^h Brit. App., vol. i, p. liO. Ibid., p. 30. 7^ mm 184 ARGUMENT OF THE UNITED STATES. ■i.:,(A- It lias been more or less argued, or intimated, that in tbe escape of the Alabama from Liverpool, some element of accident or casus mixed itself with the transaction, and is to affect the judgment of the Tribunal in inculpating or exculpating Great Britain for her escape. We will briefly examine this question of supposed accident or Cfl-s-v, The Alabama was the subject of attention to Her Majesty's Govern- ment, more actively and immediately, from the 23d day of June. The Law Officers on the 30th of that month state that it seemed "evident she must be intended for some warlike purpose," and refer to a state- ment of Lairds' foreman that the vessel was " intended as a privateer for the service of the Government of the Southern States," and advise that ste[>s be taken by Her Majesty's Government " to ascertain the truth." On the same day the surveyor at Li\erpool reports her warlike build, &c., and states the current report that she is built for a foreijjii Government, and that this is not denied by the Lairds, with whom he has comiuunicated on the subject, but that they decline to answer questions as to her destination. On the 9th of July, the Collector was informed that the Lairds had said the vessel was for the Spanish Government, but that the Spanish Minister gave a positive assurance that this was not true. On the 21.st of July the Collector sent to London the affidavits in the case, with in- formation that he had been requested to seize the vessel, and asked for instructions by telegraph how he was to act, " as the ship appeared to be ready for sea, and may have any hour she pleases ^^ Upon the 23d of July, the " extreme urgency" of the case was repre- sented to the Government, and that " the gun-boiit now lies in the Birk enhead docks ready for sea in all respects, with a crew of fifty men on board." On the 20th, the decision of the Government was urged, partio- ularlj' as every day afforded opportunities for the vessel in question to take her departure." On the 28th, '' she was moved from the dock into the river ; the men had their clothes on board, and received orders to hold themselves ready at any moment." She remained in the river "until 11 or 12 o'clock of the 2Dth, and was seen from the shore by thousands of persons. The customs officers were on board when she left, and only left her when the tug left." As early as July 4 Her Majesty's Government had promised Mr. Adams that " the officers at Liverpool would keep a strict watch upon the vessel." After she loft, Her Majesty's government gave orders to seize and detain her. Here was a vessel under inquiry as to probable seizure for forfeiture, carrying the consequence of intercei)ting her illegal enterprise. She was ready to sail " at any hour," six days before she did sail ; the Gov- ernnitnt made no inquiry, demanded no pledge, took no precautious, placed no impediments affecting her entire freedom. The Government was fully informed of the situation, and was entreated to take fictiou. The Alabama had her enterprise before her, and the Government had its duty to defeat it. These objects and interests were repugnant. The Alabama, being wholly unimpeded by the Government, sailed before the arrest was ordered. The Government, knowing all about the situation, did not attempt to interfere with the vessel's movements. AVe are not here arguing as to diligence or duty, only as to accident or Cfl"?^9. It is said that some fortuitous circumstance retarded the decision of the Government. JUit the Government were all the while aware that the Alabama could sail when she pleased, and that she was uiuler the most powerful motives to anticipate the adverse action of the Govern- ment by sailing. Sail she did ; and this may be put to the account of FAILURE OF GREAT BRITAIN TO FULFIL ITS DUTIES. 185 cams, wben pursuing au expected course, under adequate motives, and at the necessary time, is properly described as accidental. Equally frivolous seems the only instance that is pretended of any- thing' like impositionhiixing been practised on Her IMajesty's Government in the course of these transactions. The so-called imposition consists in second-hand statements, that the Florida — which was the counterpart of one of Her Majesty's gunboats, had no storage, and was by no pos- sibility " ancijntis iisus " — was not for the Confederate war service, but belonged to a firm of Thomas Brothers, of Palermo, in Sicily. Now, as this firm of IJritish merchants established in Sicilj^ had no recognition of sovereignty, or even of belligerency, it was very plain that this ownership of a war ship was as much a cover as John Lairds & Sons', or William C. Miller & Co.'s, would have been. Accordingly, inquiries were addressed for the purpose of learning whether a Government, also suggested as a possible owner of this war vessel, had reallj' any interest ia her, and they were answered in the negative. The worthlessness, as hearsay, of this evidence is as apparent as its falsehood in respect to the fact, and we only recur to the matter as being the single instance of imposition which is claimed to have occurred in the long history of " the several vessels which have given rise to the claims generically known as the 'Alabama Claims.''' In the deliberations of the Arbitrators, which are to guide them to their actual award, they will have occasion to consider the application of the second and third liules of the Treaty, no less than of the first llule, to all the situations and propositions of fact and of law that arise for de- cision. It is not necessary to distinguish in detail the special cases to v;\\Wh one or the other liule may be exclusively or pre-eminently appli- cable. The only further consideration which we need to present, under this division of the argument, has relation to the vessels which properly come within the jurisdiction of the Tri- ^ bunal. Observations on this subject in the Case and Counter Case of the United States have been intended to show that the whole list of vessels, for injuries from whose acts claims are presented to the Tribunal, is in- cluded within the jurisdiction conferred in and by the first article of the Treaty. Wo wish simplv to add a reference to a passage in the protocol to the Treaty, of IMay 4,' 1871. A statement is there made which seems to possess much authority in ascertaining the intent of the Treaty on this point. It is found on page 10 of the Case, and reads as follows : At tlioconfi!i'cuce held on tlicStlt of March, the American Commissioners stiitcd * * that the history of the Ahihiuiiii and other cruisers, which had been fitted out, or Jiniicd, or e([uippcd, or which haorts or waters of Gre.itBitaiii as the base of military operations against the United States, or for the purpose of renewal or augmentation of military sui)plies or arms, or the recruitment of men for naval warfare. {(1) The British Government did not use due diligence in its own ports and waters, and as to all persons within its jurisdiction, to i)revent any violation of the stipulated rules, (Article VI.) (f) Finally, the British Government has failed to fulfill certain duties, recognized by the principles of international law, not inconsistent with the foregoing "Rules." 3. We think we have shown that the British Government is respousi ble under these Rules for all, or at any rate for certain, ot the cruisers in question. If the Arbitrators come to the same conclusion, then they are to award a sum in gross for the claims referred to them, to be paid by Great Britain to the United States ; or, after deciding the failure of the British Government to fulfill its duties as aforesaid, they may remit the question of amount to asses- Grc:»t TUitaiii n ■ FlHtiiMtili* liT Ihe aits of tht' ci uiM-rH. NATURE AND AMOUNT OF DAMAGES. 187 sors to determine what claims are valid, and what amount shall be paid ou account of the liability arising from such failure, as to each vessel, according to the extent of such liability, as decided by the arbitrators, (Article X.) Thus it appears that the Treaty i)rovides, by various forms of expres- siou, that the liability of Great Britain to pay follows on the conviction of (ireat Britain of failure to perform her duty in the premises, in coii- lormity with the law of nations and the contract " Rules." 4. What is the measure of this liability ? Such is the question vliich remains to be discussed. m,.,,,,,^,. „r ,,„. The Counsel of the United States respond to this question '"'"> """ '"• ^ in general terms as follows : The acts of commission or omission charged to the British Government ia the premises constituted due cause of war ; in abstaining from war, and consenting to substitute indemnity by arbitration for the wrongs ) euces of the negotiations to the American Case. (b) In the public discussions which have si'.ce arisen, the terms have apparently been received in a ditterent sense from that in which they were employed by the negotiators, and accepted .'.';!'„. "t'lul'li""!," by the two Governments. It has been assumed by many persons, who were but partially ac- (juaiiited with the history of the negotiations, that the United States ;iic contending before this Tribunal to be indemnified for several inde- pendent series of injuries ; whereas they do, in fact, ask reparation but for one series of injuries, namely, those which they, as a Nation, either directly or through their citizens, and the persons enjoying the protection of their flag, have suffered, by reason of the acts committed by the several vessels referred to in their case, which are generically known as the Alabama claims. When the Treaty was signed, both parties evi- dently contemplated a discussion before the Arbitrators of all the dara- ajies which conld be shown or contended to have resulted from the injuries for which the United States were seeking reparation. (c) In order to bring any claim for indemnity within the jurisdiction of the Tribunal, the United States understand that it is necessary for them to establish: 1st, that is a claim ; 2d, that at the date of the correspondence between Sir Edward Thornton and ]\[r. Fish, which led to the Treaty, it was generically known as an Alabama claim ; and, od, that it grows out of the act of some one of the vessels referred to in their Case. They also understand that the Tribunal of Arbitration has full jurisdiction over all claims of the United States which can be shown to possess these three attributes. A review of the history of the negotiations between the two Govern- meuts prior to the correspondence between Sir Edward Thornton and Mr. Fish, will shoM' the Tribunal what was intended by these words, '■^ {lenerkaJhj liiown as the Alabama (?«/«i.v," used on each side in that correspondence. (d) The correspondence between the two Governments was opened by Mr. Adams on the 20th of November, 18G2, (less than four months after the escape of the Alabama,) in a note to Earl \\'ti:it cliiiini rirff .iliiii lilt' j'lri^iiM-- m or tilt! TriljuiKiU R.-stiint- tl;i!itiiii AI:tb:UIl!l < of lir'Cn- i-pt'tilig :Mr-. Atiiiint". Nti- VfUiltiT, M;-.'. ri-k.t llussell, written under instructions from the Government of r.,iT|'nau.m'a'''?,ihi'.' the United States. In this note Mr. Adams submitted •lence of the acts of the Alabama, and stated : " I evi- Alabama, and stated : " I have the honor to inform your Lordslii]> of the directions which I have received from my (rovernment to solicit redress for the national and private injuries thus sustained."! ' Thus the Government of the United States in the outset notified Her Majesty's Government that it would expect indemnification from Great Britain for both the national and the individual losses, and Ti„„imy,i..„,.ji,y I J^ord Ku ssell met this notice on the 19th of December, 1802, ''■™" ""'"" ' Aiuorictiu Appendix, vol. iii, pp. 7)1, 73. 1 'r • I i 190 ARGUMENT OF THE UNITED STATES. i growing' out of the act.s ol lUAH If> rfl|M<|llli4ll Many <■ I ,i i iti •* lMe.l (litniiK tli)> w:ir, hnl (lihi'iisrtiuu tielerred. by a denial of any liability for any injuries tlio Alabama.^ When this decision Mas couuuunicated to the Government of the United States, jMr. Seward informed Mr. Adams that that (rovernment did "not think itself bound in justice toielin. quisli its claims for redress for the injuries which have re suited from the fitting out and dispatch of the Alabama in a lUitish port." This statement could have referred only to the claims for na tional and for indi\ idual redress which had been thus preferred and re- fused. As new losses from time to time were suffered by individuals diniiij.' the war, they were brought to the notice of Jler INIaje sty's Government, and were lodged with the national and iiuli vidual claims already preferred ; but argumentative discus sion on the issues involved was by common consent deferred.^ In the course of these incidents, Mr. Adams had an interview witii Earl Itussell, (described in a letter from Lord Eussell to Lord Lyons. dated March 27, 1SG3,) in which, referring to the well-known and per initted conspiracy organized in Great Britain to carry on war against the United States through a naval marine created in British waters. and to the means ostentatiously taken to raise money in London for tliat purpose, he said, that there was " a manifest conspiracy in this country [Great Britain] to produce a state of exasperation in America, and thus bring on a war with Great Britain, tvith a view to aid the Coufederatt causc.^^ And on the 23d of October in the same year, (1SG3,) IMr. Adams proposed to Earl Bussell for the settlement of these claims " some fair and conventional form of arbitrament or reference." ^ It does not appear that during the war the exact phrase " Alabama claims," was used in the correspondence between the two Governments. But it does appear that, in the note in whicli the claims of the United States for the injuries growing out of the acts of the Alabama itself were first preferred, the Uuit-xl States presented the claims of their citizens for the losses in the destruction ot the Ocmulgee, and some other vessels, by the Alabama, and also their owii claim for national injuries caused by the acts of the same vessel : and that liability for all such injuries being denied by Great Britain. and re-asserted by the United States, the discussion was reserved for a more convenient time by common consent. When, as already stated, new injuries were received from the acts of other vessels, as well as from acts of the Alabama, claims therefor were added to the list to be all taken up together when the time should ar rive. The fact that the first claim preferred grew out of the acts of tlie Alabama explains how it was that all the claims growing out of the acts of all the vessels came to be " generically known as the Alabama j claims." On the 7th of April, 18G5, the war being virtually over, Mr. Adams renewed the discussion. Ue transmitted to Earl Eussell an official report showing the number and tonnage of Aiueri can veSii^els transferred to the British flag during the war, He said, " The United States commerce is rapidly vanishing from the face of the ocean, and that of Great Britain is multiplying in nearly the same ratio." "This process is going on by reason of the action of Brit ish subjects in co-operation with emissaries of the insurgents, who have j ' American Appendix, vol. iii, p. 83. -Mr. Adams to Earl Russell, Am, App., vol. ii, p. 641, 3 Am, App., vol. ii, p. 182. Vl'-».tsniiH for r;((linfi ;)ll 111.' i-liinin "Ala- ij.iniii flHiln-." In April. ISCi.'i, ljnilei\ Sl;iU'3 rertcw '-l:9<.-tifl#iori. sap])lie such a; fective Britain ^ NATL'RE AND AMOUNT OF DAMAGES. 191 fir.vit lint. nil f r.r ii .ir i,i',.i.tv supplied from the ports of Iler ^Majesty's Kingdom all the materials, sucli as vessels, armament, supplies, ami men, imlispeiisable to the ef- fective prosecution of this result on the ocean.'' lie asserted that " Great Britain, as a national Power, was fast acrpiiring the entire maritime coinnierce of the United States by reason of the acts of a portion of UerM.njesty's subjects, engaged in carrying on war against them on the ocean during a time of peace between the two countries ;" and he stated that he was "nnder the painful necessity of announcing that his Gorernment cannot avoid cntailinp upon the Gorcrn- molt of Great Britain the rcsponsihiUti/ for thin damaffv."' ' Lord liussell evidently regarded this as an unequivocal statement of a determination to hold Great Britain responsible for at least *a portion of the national injuries growing out of the acts of the cruisers. lie said, in rejdy, " I can never admit that the duties of Great Britain toward the United States are to be measured by the losses which the trade and commerce of the United States have sus- tained." - Mr. Adams, in his reply on the 20th of jMay, repeated the demand. He referred to the destruction of individual vessels and car- „„ Hr,.,, .1 ,. goes, and said that, " in addition to this direct injury, the ',;'V'i'iim!.'',;: '■"h action of these British built, manned, and armed vessels ;:,;;.'. "„':', ,,i;'|;„i has had the indirect eftect of driving from the sea a large '-"'"''"' f^^ '"• portion of the commercial marine of the United States, and to a corre- sponding extent enlarging that of Great Britain." He declared that " the very fact of the admitted rise in the rate of insurance on Ameri- can ships only brings us once more back to look fit the original cause of the trouble ;" and he again said, that " the injuries thus received are of so grave a nature as in reason and Justice to constitute a valid claim for rep- ((ration and indemnification.-'' ^ It will be observed that the attention of Her IMajesty's Government is thus called in terms to a distinction, which has siii'-e become the subject of some controversy, between what were styled " direct" and what were styled " indirect" injuries, and that it was made clear beyond a question that the United States intended to claim remuneration for all. Lord Russel so understood it, and said in reply : It socins to Ilor Majer^ty's Government that, if the liability of neutral nations were stittched thus far, this pretention, new to the law of nations, would ^^.^^ nT^um .i,- Ix' most bnrdensome, and indeed most dangerous. A maritime Nation, nn-'/iViliiiiitv "" imi^ whose people occupy themselves in constructing ships and cannon and \ZLu!nx 'I'.'r'di'rwt arms, miglit he made responsible for the whole damages of a war in lVmux*. •wbich that Nation had taken no part.^ Referring to the offer of arbitration, made on the 2Gth day of October, 1863, Lord Russell, in the same no te, said : Her M.ijesty's Government must decline either to make reparation and compensation for the captures made by the Alabama, or to refer the ((uestion to any foreign State."' (c) This terminated the first stage of the negotiations between the two Governments. They commenced with the demand on the part of the United States for remuneration for national and for individual losses growing out of the acts of the Alabama, and a denial of the liability on the other side. This was followed up by similar demands for injuries growing out of the acts of other vessels, and by a proposal to submit the claims to arbitration. The negotiations were closed by the repudiation of any possible lia- ' Am. App., vol. i, p. 290; vol. ill, p. 522. 'Ibid., vol. i, p. fAG. •Am. App., vol. iii, p. 553. * Ibid., p. 361. ■• Ibid., p. 562. 192 ARGUMENT OF THE UNITED STATES. niilliiir <» lutili. I,r;n ".11 jJi 111 I r. bility of (treat Britain for national injuries, as being a doctrine " most dangerous" to neutrals, and by the refusal to arbitrtite the question ot the captures of vessels and cargoes of individuals made by the Alabama. It V, ill be observed that Lord Kussell here uses the word " Alabama" in a generic sense. The note of Mr. Adams to which he was replying complained of "the burning and destroying on the ocean a large number of merchant-vessels and a very large amount of property belonging to the people of the United States by a nuuibev of British vessels.'" The Parliamentary paper from which this extract is cited is styled "Correspondence respecting the Shenandoah."' 3Ir. Adams's note refers to the acts of the Shenandoah, the Florida,' and the Alabama.' Lord KusscU's note also refers to the Oreto' and the Shen.tiidoah.'' It is evident therefore that when he denies liability and refuses the arbitration as to the acts of the Alabama, he uses the word "Alabama'' in a generic sense. The conclusion is irresistible either that the Alabama then stood as the generic representative of all the vessels, or, on the other hand, that Lord IJussell first endowed the word Alabama with a generic sense. {(l) Tiie evidence before the Tribunal does not show the use of the ex- act exin-ession "Alabama claims" before October 4, ISOG. It then appeared in a leader in the London Times, in the course of whicli, after referring to the "so-called Alaltama claims," it is said: "The loss occasioned by American commerce in consequence may be daniiunn sine iujiouu, and therefore no ground of a legal action, and yet it may be a wise act of courtesy to waive the benefit of this i)lea." It follows from this, that at that early day the phrase "Alabama claims" had become so well known as to be styled " so-called." Great Britain having thus possessed herself of a large part of tlie American comnu^jcial marine, through the acts of the cruisers disi)atclied from her ports to carry on war against the United States, and having refused not only to make iu- demnity therefor, but also to submit the (juestion of her liability to ar- bitration, Lord Enssell next propose*!, with Avhat makes approach at least to audacity, " the appointment of a commission to which shall be referred all claims arising during the late civil war, which the two Powers shall agree to refer," excluding of course the Alabama claims ; in other words, that the extravagant claims of British subjects upon the United States should be recognized, while the grave injuries to the United States and their citizens should be ignored. Great Britain also proposed to guard against a possible retrausfer of the commercial marine to the United States under the same circumstances, when VA\g- land should be a beUigerent and the United States should be neutral, by letting "by-gonesbeby-gones," "forgetting the past," and, "as each had become aware of defects that existed in international law," "attemptiu? the improvements in that code which had been proved to be necessary.'" Mr. Seward in reply said : Tberc is uot one moniber of this Government, and, so far as I know, not one citizen initf.i stntr-i.ie- °^ ^^^ Uuitcd Statcs, who expects that this country will waive, in any .111,.'. lonniM uny'oi casc, tlic dcuiands tliat we Lave heretofore made ujwn the Briti>sb Gov- ihrjr clonus. emuient for redress of wrongs committed iu violation of interuatiounl law. I think that the country would he etjually unanimous in declining every Ibriuot negotiation that should have iu view merely prospective regulations of national inter- course, so long as the justice of our existing claims for indemnity is denied l>y Ihi ' Brit. App., vol. iv, paper v, p. 10. ■•Ihid., p. 22. -Ibid., p. 11. f^Ibid., p. 3. 'Ibid.,p. la. *> Lord Clarendon to Sir F. Bruce, Brit. App., vol. iv, paper 5, p. 1C4. T.nril l!u"i II r. l.Iiw^ ll> ll'l 1) -tl.l; tie i'V-^oiit'S. NATFRi: AM) AMolNT OF DAMAOKS. lO.'i ■ S' 11,1. > .1.. IMIXt'lltlOII, .\|;iii>t>'s (Joscrmiiiiit, iiiul Mhvsc diiiiiis arc ri'luHcd Id lie iiiiulr tlic siilijcct ol iViriKllv liiii iiiipai'tial I'Xiiiiiiimlioii." ' (M 111 tlic siimiiuT of ISIjO a cliaii;:!' of Ministry took pliuo in lOiiyhuiil, and Lord Stanley Ix'ciiine S«'«'i('tary of State for l''orei<>ii AH'iiir.s in the place of Lonl Clarendon. lie took an early opportunity to yive an intimation in the House of Coninions tliat should till' rejected elainis be rtnived, tlu' new Cabinet was not prepared to say wliiit answer inij^ht be ••iven them ; in other words, t!;at, should an op- portunity be offered, Li>rd Jtussell's refusal ini;;ht possibly lt<' reeonsid- .Mr. Si'wartl met these oyertnres by instriKitinj'' ^[r. .Vdanis, on the '.'Ttii of Au;j[ust, 1ht that Her Majesty's (Joy«'rnment could not reasonaVdy obJe(!t to acknowledge the claiins.- liord Stanley met this oyerture by a communication to Sir Frederick ihiice, in which he d(Miied the liability of (Innit Uritaiii, and assented to ii reference, "proyided that a lifting Arbitrator can be found, and that an a<>reement can be <'oine to as to the points to which the arl)itra- tioii shall apply.' A loiij"' ne, in the Treaty known as the »Jo^-i- soii-Ularendou convention. (//) Tiiis latter convention provided for the organization of a mixed coinini.ssion with, jurisdiction over "all claims on the part of citizt^ns ol" the I'liited States upon the CTOvernment of Her Jiritannic Majesty. including the so-called Alabama claims, and .all claims on the i)art of subjects of Her Britannic ^Majesty upon the Government of the United States which may have been presented to either Government for its interposition with the other since the -Gth July, 18.k), and which yet loiuain unsettled." ^ Lord Granville subsequently said, in the House of Lords, of these two conventions, "the former convention provided (Article IV) tliat the Commissioners shall have the power to adjudicate >\p. GiW-G:?*). 13 c ^i - 3 'N u ^ Am. App. vol. iii, pp. 752, 75:'.. 104 AR(il'Mi:N'T OF TIIK I'M IKI) STATKS. MP' •'laims. TJie latter (AitlcU^ 1) i)rovi«l('«l that all (jlaiins on tlio jiart of subjects of Ui'V liritaiinic Ma,j*^sty upon tlu^ (lovtMiiiinMit of tlu^ riiilcd States, aii«l all claiiiiH on the )>art ot tlio citi/uns of tlie United Statts upon the (iov(>rnnient of Her Jiritannic ^^aie8t,v, including' the .so called Alabama claims, shall be referred to commissioners, «S:c. llotli eonvcn- tions purposely avoided detininj; what (constituted the Alal)ama (daiins, and admitted abnost uidimited ar;riiiiu>ntas to what the Alabama elaiins were. IJoth eonventions were also open to the objeetion (at that time unavoidable) that there was no cheek on the award of the tlinU Arbitni tor, who mijiht have fjiven damages to any anu)unt."' It is clear, therefore, that up to the conclusion of the .lolinson Clarendon treaty in .Fanuary, 18<»!>, there was no doubt in l^njiland tlmt the term "Alabama claims" was understood as incliulinj«' the claims loi the natioiml injuries. (/) It was supposed in Anu'rica that it was not stated in sullicieiitly unequivocal terms in the .lohnson-Clarendon Tieatv tliat tln' rill' cniivi'iil inn licit . , ,. , III •! 11 .1 4i'ii "•"I'tuM- tn the natuuial claims should be; considered by the Arbitrat(»is; and there were many sij^ns that the Treaty, in (;onse(|iu'iiee of that belief, would not receive the assent of the Senate. Mr. lies crdv .lohnson, heariu};' of this, wrote an elaborate defense of himself, whicii has been seized ui)on by Her ^Majesty's (Jovernment as luoof that tli( LTnited States had at no time claimed to receive indemnity for tlie national injuries which they have siilfered. Hut the foreft«>inji' n'suuK of correspomlence between the two (lovernments shows that, if .Mr, Johnson made such a statenuuit, he did it uiuler a misapprehension. The error was never communicated to Iler Majesty's (iovcni ment. On the contrary, only a few days later he wrote te Lord Clarendon in exactly the o[>posite sense. He said. referrinj;: to a claims convention between the two(Joveiii nients in 18o3, "At that time neither (lovernment, as such, made ;i tlemand upon the other; but that, as my proi)osition assumes, is not tlie case now. The Government of the United States believes that it has in its own right a claim upon the Government of Great Britain."^ (./) ller Majesty's Government also received the same intelliyeiRc about that time from other sources. Its Minister at Washington, on the 2d of February, 1800, cominuiii cated to it the action of the Senate Committee on Foreign Kelatioiis. " Mr. Sumner," lie said, " brought forward the above-mentioned coiivon tion, and after making a short comment upon its contents, and statinj; that it covered none of the principles for which the United Stat(^s had always contended, recommended that the committee should advi.se the Senate to refuse their sanction to its ratitication. Mr. Sumner ^va^ authdtized to report in that sense to the Senate."-' On the l!>th oi Sir K.i«„r,i Thorn April Mr. Thomtoii also advised Lord Clarendon of the iv n"r.'i'r';i„'t ",Ve jection of the Treaty. " Your Lordship perceives," he saiil ;?rb'''r"s;r ,7 ",', " that the sum of i\Ir. Sumner's assertion is that England ^"'''"iHmie'.ile t'lT- * * * Is respoiisiblc for the property destroyed by tlie r.,t daim». Alabama and other Confederate cruisers, and even for tin remote damage to American ship[)ing interests, including the increase in the rate of insurance ; that the Confederates were so much assisted h\ being able to get arms and ammunition from England, and so iiiiuli encouraged by the (Queen's Proclamation, that the war lasted uuhI! longer than it would otherwise have done, and that we ought therotbre to i)ay imaginary additional expenses impo.sed upon the United Static by the prolongation of the war."^ ^Ir. .Tnlm-'nii i n - loriiiit {.(It'll rlirt'ii- ntion, in the itpinion of Jiord (iranville, admitted unlimited ar<{nm«>nt as to what the Alabama t'laims were. Tin? Treaty was rejected by tin- Senate of the I'liited Stat«'s, because, althouj^h it nuule jirovision for the pait of the Alaiiaina claims which consist4'd of claims for individual losses, the provision for the nuire extensiv<' national losses w;'s not satisfiu't(ny to the S«Miate. It is clear that, by this tinu', if not before, the pliiase ••Alabaiiui claims" was understo«>d on both sides as repr«'sentin;^' all the rliiimsuj>ainst (Jreat Britain, "j;rowinj;' out of" its conduct towai'd the I'liited States during the insurrection. A j)ortion of these, claims had !u'eii,throuj;hoiit the discussions by Mr. St' ward and ."Mr. Adams, j>ier, I,'.'t i.iMl.'i'.u'il.' .Mr. Motley was instructed by M orijil rliiiru-'. An.l thn) ll.i' .(oliii- ii-('l:iri'iiil(j)i niii- ll.lliot»ll.i>.l Fish in a dispiitch, of which a copy was to be given to Lord Clarendon, to say that the I'resi- (lent concurred with the Senate in disa])proving the convention which had been rejec^ted ; that " he thought the provisions of that ronvention were iimdetpuite to i>rovi«le rej).. j'Uoii for the L'liited States, in the nuiniuT and to the degree to which lie ^umV.-ntn'^'i^^^^^^^^ considered the United States were entitled to redress;" but """'"*' '""'"" that " lie was not prepared to pronounce on the t' his recent dispatches, that " There teas not a word in any letter pre- n-iVuHj the Treaty*') snfiyest any indirect or constructi re claims ; and the "nJy intimation the British Gorernment had had was from the speech of Mr. >^umncr.''-^ It seems to us that these incidents are decisive of the whole contro- versy. (/) In the following December the President thus alluded to the sub- net in his annual message to Congress : Am. App., vol. vi, p. 1. AppeiuUx to Liitisli Case, v< , iv, No. 1, p. ID. - Ibid., p. 13. i u 196 AKOIMKXT OF TlIK I'XITKD 8TATi:S. In .liimiirv. H7I. llif wortis Al;tl>;tn(ii rl;imi:* WHri' illiilt'i- >lui. and other obstruct ions to domestic industry and ]iroduction ; in its etfects njion tin- foreif^n coniinerce of the country ; in tlie decn^ase of tins transfer to Great IJritaiii nt oiir coniiiRrcial niaiiiu; ; in t)ie ]>r()h>nj;ati()ii of the war; and the increased c()st(hotli in treasure and lives) of its siipiiression ; could not be adjusted and satislied as ordi- nary coniniercial claims which contiiinally arise bi^t ween commercial nations. And yet the eonventicui ticated them simjily as such ordinary claims, tVom which they dilVer iiiort- widely in the f;ra\ity ol" their cliaracter than in tin; ma!4nituically rei)resented by the Alabama — whetlici those losses were cansed by the destrnction of vessels and their car goes; by the prolongation of the war; by the transfer of the commerce of the United States to the Ib-itish Hag; by the increased rates of insur- ance during the war : by the expense of the i>nrsnit of the cruisers ; oi by any other of the causes einimerated in tiie President's message to Congress in 18()!>. Xor can it be donbted that they intended to reserve the right to maintain the justice of all these claims when opi)ortaiiity should offer, nor that they regarded all these several classes of losses as eml>raced within the terms of the general generic phrase "Alabama claims." It is also equally clear that the claims for coini)ensatioii founded upon the (Queen's rroclamation were abandoned by rresideiii (irant. {m) At that tinie, the condition of l'Uir(»i)e induced Her Majesty "s. Aliii- N.„„.i. 11. ..IS „,.,.„ isters to consider the (H)ndition of the foreign relations ol t,i It w i,-ii..,«.M,. ^]^^, Einpiro. They found that their relations with the Unitcil States were n()t such as they woidd desire to have them; and they in- dni'cd a gentleman, who enjoyed the confidence of botli Cabinets, to visit AVashingtoii for the ])urpose, in a conliouvcrucmcnt anglais, c'etait la craini,.) iie vnii rAnn^rique indiucr contro nous et pretcr a uos ennoniis le eouconrs do ses hardis \<'- ' Jh/p, p. Id. -Statcmcut by Lord Granville, Hansard, vol. ccVi, p. 184'i. NATURE AND AMOUNT OF DAMAGES. 197 lontaires. La population maritime des f!tat8-Uiiis, leiir maiino entreprenanto, pou- vaieiit foniiiir a la Kiissio los dlomonts (I'liiie tlotto do corsaires, qui, attachos a son service par ilos lottre.s dt; marqne, et couvrant lea mers comnie d'un rcsean, LarcMt;- ijiit'iit et poursnivraitnit notro couiMierce jn,s igner un traiti^ iraiiiitie, de navigation et do eommeree, (/fi i! a insert' uno st'»rio d'arvicles destines a iiliiiiiifr avec unir antorite uouvelle les prineipes (|u'il a tonjonrs sontenus et qui no (lilVii'ent pas des nulres. Le priiieiiial scei't-taire d'eti.t de sa Ma.jestt' britauui<\ue coni- iiit'iidra f|Uenous n'aurionsaneun nioycii do lie i)asi't'pt)ii(lre lavoralilemeuta rouvcrturo .;ni nous est faite, si la France et rAiijileterre, bieu que stf trouvant engagees dans uno iiiriiic eutrc]irise, atlieliaicut ]iublii|UenH'nt des doctrines oi)i)osoes. (^ue les deux :;iiuvtM'neineuts, an eoutraire, s'eutendcnt sur les ti riues d'uiio declaration cDuinmni', et :;iiiis ]iouvons alius ajouriu'r rcxanien des projiosit'cuis des Ktats-Unis. I! uii.' parait .lifliiilc (|ue ecs considt'raticms lu' f'ra]>peut p;is I'esprit d(.' Lord Clarendon. - Tliese and like representations on the part of M. Dronyn de Lluiys. iiuluced (ireat Uritain to come to an arranj^ement with J'rance. (<)) Not insensible to such motives, Lord Granville, pendino' the late war betwe<'n France and (Jermany, dispatched a contidential agent to Aiiiciica to re-open negotiations with the L'nited States. Tiiis gentlenum arrived in Washington early in January, 1S71. and found the Government of the United States so d" posed to moot the advances of Her ^Majesty's government that, b'ifore ■^,\''\n"i^''n,!^I^Z'- the end of the month, Sir Fdward Thorton was able to i)ro- posc to ]\Ir. Fish " tlie appointment of a Joint High Commission" to "troat of and discuss the mode of settling the dilVcrent questions which have arisen out of the Hsheries,"' »S:c. ' ^Ir. Fish replied, accepting the proposition upon condition that •' the ilitVerences which prose during the Kebellion in the United ,„,„,,„ States, and which have existed since then, growing out of ' "' ""~ """ the acts committed by the several vessels wliich have ;:iven rise to the claims generically known as the 'Alabama claims,' "' should also be "treated of by the i)ropose(l Joint High Commissi>>n."^ Sir Fdward Thornton, on the Lst of February, answered that " it Would give Her ]M.iJesty's Government great satisfaction if the claims weic subnntted to the consideration of tite sami^ High Commission."' The I'lesident of the United States, undel' the provisions of the Con- i^titution, nominated to the Senate for its approval hve t'onimissioners to serve in the Joint High Commission on the part of the United States, and transniitte«l to the Senate the corresi)ondence between i\Ir. Fish and Sir Edward Thornton, to explain the proposed duties of the nominees, t'xplaiiation the Senate gave its assent to the several appointmcTits ; and thereupon the appointees each received ii commission authorizing him " to treat and discuss the mode of settlement of the ditferent ques- riiiliMlSt:it.-r..iii- itii.l ((nitin 1 ')ii till- .•,.rii-i>..N.Ion this 'brouyn de LIiuvs, Les ncutres pettdani In (/iit/vc d'Orkiit, p. 14. ' Iliid., p. 2S. Hrit. App., vol. iv, paper ii, p. I. * I\>id. ■Ibid., p. :t. f" 4,_ 198 ARGUMENT OF THE UNITED STATES. V i *i: tioiis which shttll come before the said Joint High Coumiission."' The British Comniissioiiers received a broader power, which was stated to 1 it- conferred npon them "for the purpose of discussing in a friendly spirit" "the various dittcrences whicli have arisen" between Great Britain and the United States, "and of treating for an agreement as to the mode ui their amicaWe setthMueut." Taking these powers and the correspondence between ]\rr. Fish uiid Sir Edward Thornton together, it is evident that each Government con temphited that all the differences between the two Governments within tlie jange of the correspondence were to be discussed with a view to reaching a mode of settlement. Among the Commissioners named on the i)art of the United Stato was ^Ir. Fish, the Secretary of State, one of the j)arties to the preliini nary correspondence which led to the Treaty; and among those on the part of Great Britain was Sir Edward Thornton, the other i)arty to that corresi>ondence. [p) The subject of the Alabama claims was opened at the fourth con ference by an elaborate statement from the American commissioners.- They stated that "in conse(|uem;e of the course and conduct ot Great Britain during the Kebellion" the United States had sustained a great wrong, and had also suffered " great losses Til ' AiJiprirau mm- niisPi.-iu'' r H H t ;t t » ''''■'t),p'''m.''m;Ml;'''''i and injuries upon their material interests." Thus, in the ti a,. outset, they drew a distinction between certain political dit ferences which had been the subject of some correspondence between the two Governments, and the material losses and injuries whicli could be estimated and indemnified by i)ecuuiary compensation. They then went on to state their views more in detail as to such losses and injuries. 1-11 order to bring them within the letterof the correspondence, and tc define their understanding of the meaning of the language there used by Mr. Fish and by Sir Edward Thornton, they began by tracing thesf losses and injuries to the Alabama and the other err ^ers. They said thai "the history of the Alabama and other cruisers which had been fitted out, or armed, or ecpiipped, or which had received augmentation of font in Great Britain, or in her 'colonies,' showed the losses and injuries toi which they are claiming indemnification." They then said that the damage which they had suffered from these injuries was two-fold : 1st. That which had proximately resulted from the acts of the cruisers, " the cajiture and destruction of a large munhei of vessels with their eargoes," and " the heavy ex])enditures in tlit pursuit 01 the cruisers ;" .md 2d, other injuries resulting less directlv , though not less certainly — namely, "the transfer of a large part of tin Ameri(;an <;ominercial marirte to the British flag," " the enhanced pay ments of insurance," "the prolongation of the war," "and the addition of a large sum to the cost of the war, and the sni>pression of thi rebellion." Thus J\Ir. Fish, one of the parties to the jneiiminary correspondcnn'. and ills colleagues, exi)lained to Sir Edward Thornton, the other party to the corresi)oiHlence, and to his colleagues, that the history of tin cruisers showed all these losses and injuries; in other words, that the) all grew out of the acts of those cruisers. The American Commissioners next expressed their conviction tlnit the history of the cruisers showed " that Great liritain, by reason ni failure in the proper performance of her duties as a neutral, had bocoim justly liable for the acts of those cruisers and of their tenders." ' Brit. App., vol. iv, \n\i)vv xii, p. (i. -' Ibid., p. *• NATURE AND AMOUNT OF DAMAGES. loy iticMh* (it' iiM'i'rtitiiiitu till' iiiimnut i)t llif (liiin.'ifjt't. Tlioy tli(Mi turnod to tho consideration of the damage which the riiiteroi)osing that the desired amicable settlement should be made witiiiu the walls of the room in which the conference was held, by means of an ttPnui'^h^MlVa'T- ajjreement 'Mipon a sum which should be i)aid by (Ireat Britain to the United States in satisfaction of all the claims and int» i- est thereon.'' Such an arrangement, in connection with the other provisions of the Treaty, would iiuieed have constituted a settlement, and an amicable ime. It would have been a settlement, because, ^. "'!n. ""',"■ ihi.^. lieiiig a discharge of the obligation, it would have ended all controversy. It is not an amicable settlement, it is not in any sense a settlement, to engage in a protracted lawsuit, as the two (lovern- iiients have been constrained to do, in consequence of the liritish (iovernment refusing to enter into the amicable arrangement j)roposed by the United States. It has been asserted that this proposal was a " waiver" of the claims classed as " indirect." So far from that being the case, the luoposal contemidated that the iiayment of a gross sum was to be made and accepted as a ^'- satisfaction of all the cl((im.sy Such a payment and such an application of the payment are utterly incon- sistent with the idea of a waiver of any of the claims. The attitude of Mr. Fish on this occasion, and of the other American Commissioners, was in perfect actcord with the constant previous atti- tude of the American (Iovernment, as explained by Mr. Seward in his dis|);itch to Mr. Adams of January lo, 18(J8.i Lord Htiuiloy seems to have icsolved tliat the so-called Aliihaiiiii claims shall be tn iitL'd so exclusively as a pecuniary commercial claim as to insist on alto;fetIiroceeUm\ that a violation of neutrality by tiic (Queen's iiroclanuiti()n, ami kindred proceed- ings of the Ibitish j{">^ciiinient, is rej^arded as a national wrong and injury to tiie liiited States. The British commissioners without delay declined the n,„ ,„,„„„„| ,,. American jtroposal for an anncable settlement. '' ' Sir Edward Thornton, the other party to the preliminary correspond- cMce, ami his colleagues, listened witln)Ut objection to ^Iv. Fish's definition of tlie sense in which the i>hrase "Alabama claims" had been used in that c()rres[»ondence ; nor did tliey at any time take exception to it, or i)ropose to limit it. On the contrary, they expressly declined to reply in detail to the statement of tilt! Ameiican Commissioners. lint nn \vai\t'r nl any rl.1fcs )»!' elann- WitllOtit excpptiini to the deliiiltioi) III lilt' tiTiii •■Alubaiiri clainis. " ' Aiu. App., vol. iii, p. 688. r"^ 200 ARGUMENT OF THE INITEU STATES. After rejecting the "amicable settlement," proposed by the American Commissioners, the British Commissioners next suggestod , .Vhy"i".Lr. irni'-' the substitution of a litigious "mode of settlement" in its place, viz, a lawsuit or arbitration, 'tvlierein all liability to the United States for the injuries complained of should be denied and contested. The American Commissioners regarded this as a very ditt'erent adjust- ment from the one which they had proposed. They uuwjl- rrpi?"'i..v'i'i'."L-..it".i lingly, and under conditions, accepted the British surovi(le for an ami(!able settlement of all causes of dil'lei- ence between the two countries, have for that purpose appointed tlieir respective plen!j)otentiaries." This statement is re(;itative and historical, and must be taken to !)i.' strictly true in the sense in which it was written. It therefore does not lie in the mouth of either party to tlu^ Tieaty to deny that each (lovernment, in apiwintiiig its Cominissionei\s, desiivd to provide for an amicable settlement of the San Juan water boundary, of the navigation of the Saint Lawienci*, of the (.'anadian fisheries, of the navigation of Lake [Michigan, of the use of the navigable rivers in Alaska, and of tln^ claims of British subjects for losses arising out of acts committed against their persons or tiieir properti' s, as well iis of the Alabama claims. But when it is attempted to conline the wcn-ds of this preamble to ;i single one of the subjects grouped in the Treaty, and to transfer tlic operation of its language froin the (lovernments of whom the aniriiiu- tions are made to subjects disposed of in the treaty, it is an evident perversion of the purpose which the parties Inul in view. For the Tieaty itself immediately makes it clear thit the parties did not understand that the arragement as to the Alabama claims was an " aniiealiK settlen)ent."' It is declared that the agreements in thi-s res])ect are made in order " ^0 proridc for the .sjwedij setflcmt'iit of' such chtlnis.'''' If an "amieabk' settlement" of these claims had just been made, it is not to be supposed that the i)arties would enter into a formal agreement for their " speedy settlement" in the future. The means for reaching this speedy settlenuMit form the subject of tlie ri,„>n,r..rr.iw cuai^tiug clausc (d" the Treaty. It is there provided "that '■"""""■'"*'" all the said claims growing out of the acts of the aforesaid vessels, and generically known as the 'Alabama claims,' shall he re ferred to a Tribunal of Arbitration." This langiuige is nearly identical with the language of the correspond- „i,„i, ence between Mr. Fish and Sir Eclward Thornton : by re- ferring to what has i)receded the Arbitrators will see that the change is one of taste, not of sense ; of form, not of sub- stance. We look in vain in it for a waiver of any of the demands made by Mr. N, «ai -r ui ini, I'^ish at thc fourtli conference. If the parties, after snch ...I dan,,.. specific notice, had intended to withdraw from the scope of tlie Arbitration any of those demands, or to provide that any of the injuries Tl,.' • wt re lU'.iT, tj"ii l',-rl,,i,iri!,i'y rorr I'limifDCf. NATURE AND AMOUNT OF DAMAGES. 201 li.lHI \ ;.n.- 1,1 M,-, ruu.i. to the United States growing out of the acts of the cruisers wore no ; to be considered by the Arbitrators, the limitation would undoubtedly have found a place in this part of the Treaty. It is clear, therefore, that there was no such purpose. Having provided a manner for giving the Tribunal jurisdiction over the subject of the reference, the Treaty next detines tlie extent of that jurisdiction. The Arbitrators are to determine, 1st, whether the United States liave suttered any of the specilied injuries, that is, any inju- ,.,„.,.,,„, „„. i,,. lies growing out of the acts committed by the cruisers ; I'd, '"""'■ wliether Clreat Britain is liable to indemnify the United States for any ftt'tliose injuries, and if so, for which ones; and, 3d, it is provided that, iiionsethe Tribunal linds that Great liritain has failed to fulfill any duty 01' duties as aforesai only siMH'ilic claims, such ;is liiul int'vionsly Ixn-oiiie kiiowii to botli (jo\(niniH'iils niidcr tlu' iiainc 111' till- " Alahaiiia claims,'" for losses iiiul ilamajjcs caused by tlit? acts of rdtiiiu vessels, of which th(3 Alabama was the tyjiieal instance ; furtliiT, rlit! losses luiist be such as can be fairly as('rii)e(l to some failure of duty on the ])ait of Kn<;;land ill respect of these vessels; and in makiuf^an award each vessel is to \h' taken -I'piu'ately. Jlnl, hciioiid Ihin, Ihc Tirnt)! dovx not (kjiiif, hi/ crju'ifis irnnh of limitation, lltr iiulmr of the losxcs on u'TOiinl of which romiicnsalion mai/ tw on'nvthd, nhontd thv Avttitrutovs iJimk that any compenmlion in dnv. On thin tinijtc point a (liKai/inincnt h((x arisen Iwltcriii ih' two Gorernmcnl!^.^ , That is true; the Treaty does not contain any express words of limi- tation. Nor does it contain any words to imply or suggest limitation. On the contrary the words are unequivocally and explicitly general, not to say universal, as comjn-ehending r^/i claims of the "si)ecitic" class: tliat is, ''Alabama claims." The assumption that there is such limita- tion is a contradiction of the express language and the plain meaning of the Treaty. Jt appears from all this that the Arljitrators received by tl '^ Treaty full Jurisdiction over all the claims presented and defined by the An)eri(!an Coiuniissioners at the opening of the fourth conference. This conclusion receives a signillcnnt support from the twelfth article <>f the tv,ii,i, .ri,. i Treaty. That article provides for the creation of another and "" " '■ 111! iiidepenilent Tribunal, which is also to have juridical jtowers for liiuliiig injuries and awarding damages. The claims to be submitted to ■^ueh Tribunal are defined a) be "claims on the part of corporations, 'onipanies, or private individuals, citizens of the United States, i'i)on tlie (lovernment of Her Britannic Majesty,'' and "claims on the part t>f corporations, companies, or private individuals, subjects of Uer iiiitannic Majesty, upon the Government of the United States.'' Great tare is thus taken to limit the jurisdiction of the tribunal created by Article XII to the consideration of injuries suffered by individuals, (onipanies, or corporations. But the Tribunal of Arbitration at Geneva ii^ iuvested by the terms of Article I with the jurisdiction over " (ill the ilnima on the part of the United l^tates growing out of the acts" committed '•y the cruisers. The limitation to individual claims which is found in the twelfth article, is not found in the first article. On the contrary ■Lecture on the Washington Treaty, May 28tli, 1872, London Times, 29th May, IS'i'i. ■ M ' > ■w^ 202 AHfil'MEXT OF THE rXlTED STATES. tbo lan;'iia<»'o, widens out with the evidout purpose of enabliiii^' the court to become posse8se•) Four of the Uve British Commissioners have made public stale lueiits refjardiuf-- these negotiations. No two of them agree. Sir Stafford Northcote for instance has said, that " the Commissioners s,rs.„i„r.iN„rii,. wcrc (listiuctly rcspousible for havi represented to tiie Crovernment that they understood -. juomise to be given that these claims were not to be put forward, and were iu)t to be submitted to Arbitration.'" lUit Lord Itipon says: II Her Majesty's CoiniiiissioiierH liiul hoeii iiidiued liy any such nnder.staiiilinjf to cni- ploy liinjruiijit' wliicli in tlu-ir Jiid^inient admitted these claims, tlii',\ '""' ' '' wonld be liable to just and stjveio 1)lame.- And yet Mr. ]\[ontag-ue IJernard says, as if in apology for the laii ' guage of tlie Treaty: It is often necessary for tlie sake of a^^reiiment to accent a less finished or (^ven h•^^ accurate expression instead of a mon; finished or mon^ accurate one, and which must ln' c(mstrued lilfcrally and rcasonaldy, accordinj^ to wiiat appears to be the true intentii>!i of the contractiiiff parties.' All reasoning from recollections and understandings ought to dis KvKi.n., I n.miro appcariu readiugtlie protocol of the second conference of "■'"' " the Joint High Commission, where it is stated that " at tlie commencement of the conference the United States High Commissioners called attention to the provision in the Constitution of the United States. by which the advice and consent of the Senate is reciuired for the ratili cation of any Treaty which may be signed under the authority of tlio President." It ought not to be credited that Her ^Majesty's High Commissioners, after such a notice, would have been content to rely upon any promise ot the American Commissioners to protect (Jreat Britain against a class of claims which, without such promise, were ai)parently included in the operative words of the Treaty sent to the Senate for its constitutional action. This conclusion is stiengthened by the fact that Lord lii])oii. Sir Stafford Northcote, and Mv. Montague In^rnard left the United States before the Senate had acted upon the Treaty, and had no oppor tunity to know what art'ected the action of that body. They proceeded to England. Soon after their arrival there the Treaty oecanie the subjectof discussion in each House of Barlia ilclial.' ill I'liiliiiiinMil. , I " ment.^ Earl (Iranville, in the Hou.se of Lords, madeasi)eech,iii which he used expressions which have since been much commented u])oii. He said that " the pretensions'' adv:uiced by jNIr. Fish "ou ' I.ondoii Times May "i^^, 1H72. Sir Stati'ord Xortheote ex[»lains his meanini; in a iiDtr read by Lord Derby in the House of Lords, and printed in the London journals of tli< '.•th ofJune, 1H7'2 : "It has been supposed, and you seem to have sujiposed, that I said that an uiuli'i- standinj;- existed between tlie liritish and the American ne<^ittiators that the claims I'ni indirect losses should not be Itroujfht forward, ami it bus Iteen inferred from this that we, relyiiifj; upon tiiat understanding, were less caretul in framing the Treaty than ^^■' should otherwise ha\'e been. "That is incorrect. What I said was that we had rei»resented to our GovernnnMU that we understood a promise to have been given that no (daims for indirect losst> should be brought forward. In so saying I reterred to the statement voluntiirily sni'l formally made by the American Commissioners at the oi»eningof the conference on tlii r'th March, whicdi I tor one understood to amount to an engagement that the claiuii* ii; •jneation should not l»e put forward in the event of a Treaty being agreed on." - Jiondon Times, June .'>, 1H72. 'London Time , «^ «Hy>n(. ^ House iif Lords, Hansard, N. S., vol. 20G. MUSdl XATIRE AND AMOUNT OF DAMAGKS. 203 tiivly disappear uikUt tho liinited iH'fereiutMvliich incliule.s meroly coni- plaint.s arisiiij? out ol' the escape of the Alalxinta.'" Could an.vtliiii<>' lia\e lii'on more inaccurate than this briei". i \t>ii bald, expression ;' Wt' shall soon notice this speech further. At i)resent it is si".lUcient to say that Lord (rranville himself probably would not now ontend that it was in any sense a correct statement of the etfect of tin* operative (jlause of tin- lirst article of the treaty. Lord Cairns immediately challenyed it. Jle said : I i|nit(.' ('(mcnr in tlio opinion tliat, inidcr tlic Ai'l)ifriitiiin proitoscd by my nolile Iriiiid. tlif lute Foi'i'ijrn Secretary, iintl Lord (-'laivndoii, it wasiiuite pos- mIiIi; for tlic L'nitfd fStatoH to liavf madt- cxtravajiant claini.s. IJiit what ,,pI,',;;i!,,liTm,"'m is there in the jiresent Ti'eaty to prevent the same tliinj^:' I cannot tind ciu.u.i uui..' Hvnv (iiic sinjile wold in tiiese jtrotocolHorin these Jinle.s whieli wonld prevent >U(h claims hein;; i»iit in and takinj;- their chance, and nn(U'rthe Treaty proposed l>y my uiMv frii'nd they conhl do more. Then? is this ditVeience in a controversy of this kind liitween leavini? all unestions optMi to an Arbitrator or Arbitrators in whom yon have (oiilidence, ami in referrini;- these questions to these arbitrators with certain ent and (liitii ])ropositious nnfavorable to yonr views of the case. Snpjtose I charj^e a man witii bnrnin<; my honse, and tell him that I hold him answerable tor all the damages tliiit ensue ; and he said, " Von have no jjower whatever. I happened to be ])as8in<{ at ilie time, and 1 saw a ersons were setting lire to my liiiiise, and did not stop them, is answerable for all tlie civil eouse(i"eiices of the honse iui|iroperly being destroyed. Of course, if a man is so foolish as joiiseut to such an iiiiaiigenient, he must not be surprised when he is made responsible for all the dani- These remarks of Lord Cairns were tlie only ones made during that debate which can aspire to be regarded as a criticism upon the operative part of the first section of the Treaty. They were full, precise, learned, and no^ open to doubt. Lord Jtipon, who liad negotiated the Treaty, was present at that debate. Lord Granville, who had from day to day, through the Atlantic cable, instructed Lord llipon and his colleagues in the course of the negotiations, was also Iti'o.sent. The Duke of Argyll, the Lord Chancellor, and Lord Kimber- ley. all Cabinet Ministers, were there. Did any or either of them dissent tioiii Jjord Cairns's opinions? If they did, tlie official records of the debates do not show it, although all of them spoke in the debate. 80 far as the views of Lord Kipon can be gathered from a speech made by him in the same debate, they were in accord with those of the United States. He said : Hi;* cnnfttriictioii T.or.l Kill. Now, so far fnun our conduct being a constant course of concession, theri^ wen;, as my noble friend behind me (Karl (iianville) has said, numerous occasions on which it "as our duty to say that the proposals made to us wei'c such as it was impossil)le for lis to think of entertaining. Nothing can be, more easy than to take the course adopted liy my noble friend opposite, (the Earl of Derby,) and to say that all the demands we iisistcd wfie so jueposterous that it wonld have been absurd to entertain them, while tlidse iqion which concession was imnh' were the only ones really in disjmte. My noble tiiti il says that no Arbitrator would have entertained a claim for what the; Americans tiriii our premature recognition of belligt.'reiit rights and the consequent prolongation lit tile war. That may b»^ true; but in the convention to which my nol)le friend ap- luiiilfd his name, it w ould have been open to the Americans to adduce arguments on tliat point. Is 'f not the fair, i.^ it not the only conclusion to be derived from this liiii};uage, that, while in the Treaty the United States abandoned their ''claims for the premuture recognition of helUgerent rights, and the conse- 'lucitt prolongation of the war," they adhered to all the claims growing out of the acts of the crni.sers as they had been defined in the protocol ? t'qiresKto unhis, crclusio alterhiN. M 'm,. ;*Jb.'H8 i ^ Hut 7^ 204 ARGUMENT OF THE UNITED STATES. ") i I Ju tlie debate in the Hoiiao of Commons, on the 4th of August, Sir «,, s,„ii<,,.i v It:, Stattord Noithcote spoke. His speech was reported in ihe "'"■ Times of tlie next day. lie said, regarding the previous conventions : Tlicy [tlio riiitcd States] iiiiirlit liavt; nii.stid ((lusMtions with ri'^fiml to wlwit tlicy callt'd Eii^lan secret tiieir discnsNioiis, and that, thonj^h accounts nt tliem would be coinmnnicated to tli<'ir respective (Jovernments, yet they wert! to b(^ ronsideied as conlidential. and not to he itnl)lis]ied. I may add. that I iiave not tln' liji'litest doiiht of tlie wisdom of the conise inirsned hy the British and Anuiric.'iiiC'diii- iiiissioners. They had thirty-seven lonj;- sittin<;s; and 1 will venture to say that if cvciy one of the ten C'omniissioneis — not to mention the t wo abl"s<'eretaries — had thoimhr it incMnihcnt iiiion them to show their patriotism and jiowcr of debate for the admiration 'reat zeal, ability, ])atieuee, teiupiM', and an honest desire to come to some comjncnnise, even thou' it was immediately accepted. This, however, was by no means the case. The fact is, that the Americans, in perfect j;ood faith, laid down a jijrOat many conditions which the British Commissioners at once declined to accede to, and even refused to refer for consideration to the (tovernment at home. Many other propositions that were nuuh; were referred back to fler Majesty's Government, the coin- missionei's thinking it their duty to inform Her Majesty's Government that upon tlioir answer in the aihrmative or neyativo the continuance of the negotiations uiight depeiul. In considering several of those ((uestions Her M.ajesty's Govenuneut felt that there would be a great responsibility iu breaking otf the negotiations, aud that iu such an eveut ridicule almost would be brought up<- the Commissioners aud ourselves. Never- theless, we at once declined to yield in every ca.se where we deemed it our duty not to yield. With regard, however, to other points, such as those relating to forms of ex- pression, and which did not conflict with the real objects of the Treaty, wo williufjl.V either acciuiesced in the proposal or else made counter proposals, which were nut iu the same spirit of fairness by the American Commissioners. NATIiiE AXl) AMOrXT 01' DA.MAGKS. 20') Wlioii Ijonl Ciiinis licanl tliis stjitcmcnt lie said, tliis is "a Treaty upon wliicli the (lovermnent did not nieiely K'^e a final aj)- proval, but foi- tlie ' that siu'h masters of the Kufiiish laii- miaji'e as Mr. (lladstone, Lord Granville, the Lord Cinineellor, the Duke i)f Argyll, and other members of the; JJritish Cabinet, nnist have bei'ii aware of the extent of the operative words of the lirst artiele of the Treaty, and must have seen that it contained no waiver of the imlireet cliiiins, or limitation of the powers of the arbitrators. Th<\y «lid not ob- ject to it, and it must have been because they felt that they had pro- tH'ted Great ISritain by the condition which they had imi)osed upon the I'nited States, obi i«;in<;' them to trace all their comidaints of injury to tlioacts of the cruisers as the ori,<>inatin<; cause of the dainajie. (s) The si;>nature of this Treaty terminated the third stage of the ne- gotiations between the two Govei-ninents. It left the Parties solemnly bmuul to invite other Powers to join them in creating; a Tribunal to take jurisdiction of ^'oll the said claims f^rowin;;' out of acts committed by the afoi'csaid vessels, and jjenerically known as thf 'Alabama clainjs.'"' To briuji' a comjilaint "within that definition, it must be a vlalm; that is, an injury for which the Cnited States demand j)ecuniary compensa- tion. The evidence is overwhelminj;' that from the commencement they iiiive demanded com])ensation for their national injuries, as well as Ibi' tilt' injuriest(> their citizens, <;rt/wing' out of the a<;ts of the vessels. It must also have been jienerically known as an Alabama claim. The evidence is equally con(;lusivc that tlu' Anerican Commissioners under- stood that the national and ]uivate injuries set forth in the American sratement at the iburth conference were so jienerically known, and that ilcr ^Majesty's Commissioners, to say the least, ought to have known it. Tlie claim must also grow out of the acts of the (;ruisers. That is a tact which the United States will be held bound to establish in these proceedings to the satisfaction of the Arbitrators. [i) The United States, without susi)icion that this palpable sense of tbo Treaty Avoidd be called into question, prepared ami pre- sented their Case to the Tribunal in J)ecember, on that r:,-,'-' -t,i"t',".'i"t'i'.' theory. >. After stating in that document in detail the ])rincii)al reasons which induced them to think that Great Britain is Justly liable to them for the injuries growing out of the acts of the cruisers, they presented the statement of those injuries in the precise language and t'oriu in which their Commissioners had stated them to the P>ritisli high Comniissioners, introducing nothing new, and varying in no respect tiom what had already been introduced and agreed upon. They ottered evidence which might enable the Arbitrators to determine the amount of the injuries which they had suffered by reason of the loss and capture of the vessels and cargoes belonging to their citizens, or by reason of the increase in the rates of insurance, or bv reason of the ex- pense to which they had been i^ut in the pursuit and capture of the vessels. As to the transfer of their commercial marine to the British flag, they offered no evidence ; but they said that they " asked the Tribunal to es- timate the amount which ought to be paid to them " for that transfer. Neither did they ofter evidence of the damages to them from the pro- longation of the war. They said " it is impossible for the United States to •letermine; it is, perhaps, impossible for anyone to estimate with accuracy the vast injury which these cruisers caused in prolonging the war." The\ the Iith- i.r Ihi. ii.iiit Dtiiiiiiv.tiiin'*'^. rj3f? up ■ t 206 AR«i;.\rKNT OF THE INITKI) STATES. I.cni! iI.Im.v (•ri'iit llritiiir nil. contented themselves, tlieiefore, with statinf? reasons why (shonhl tli. Tribnnal hohl that Great Britain is liable to make compensation totht'in for this class of injuries) the month of .Inly, ISO.'J, should be taken to be the time from whi reinaininjjf silent as to the justice of their conclusions. Jn a siinilar case between i)rivate ]>arties, it niiyht well be assumed that so loiiu a delay in comniunicatin (rovernmeut was, after full ! lowh^l^ic of the views of the other party. would be deenu'd to be a w.uver of the right to object. (r) Jt has been said that the Treaty of Washington involved several coiKtessions on the i)art of (Jieat Britain, which svere tin- 1 supposed i)rice paid for the abandonment of the national claims of the United States. 1. It has been assumed that the declaration of certain principles to fjovern the Tribunal was a concession to the United States. ViUt, nn fortunately for this theory, it is stated in the Jiritisii Case that these principles are "in substantial accord with the principles " of the general system of international law ; and further, Lord Bipon. the chief of the British High Commissioners, has said that "Great Britain accomplished a signal beneflt in binding the American Government In rules" from whicli "no country on the face of the earth is likely to de rive so much benettt as England." 2. It is said that the expression of regret for the escape of the cruisers was a concession ; but it cannot be supposed that in the MI|i|Ki'»-iI rnlircs IK.!- \t, till' I'mli SIi(I»-in thf Iri'iity ■rill- nili's. K.\iire(».>i()n I'l' rt' trM. FflllHUS. friendly expression of regret for the escajjc of the cruiser? Her Majesty's Government &^o' was not embraced in the correspondence on which the Joint High Com mission was founded, and therefore could not be considered, although in presenting it Her Majesty's Government recognized the propriety et presenting claims for national as distinguished from claims for private injuries. In fact, Fenian claims for national injuries were presented by the lUit ish Commissioners. They are thus delined in the instructions to the British Joint High Commissioners : In connection Avitli the claims of Biiti.sh snlijects, tlnn-e is a, claim on tlio part of tin tloniinion of Canada for los.ses in life and property, and vxjwiiditiiren occasioned by tin tilibustcrins raids on the Canadian frontier, carried on from the territory of the Initui States in the years 1H()H .and 1870.' ' Brit. App., vol. IV. NATUKK AND AMOUNT OF DAMAGES. 207 The prestMitiition of theso claims to tlie Joint Hi^li ('oinmissioiiors of tlie United States is recorded in the followinj^ words in the i)rotocol : At the coiifenMico on the Ith of March, * * tiie Hiitinh Ccnimis.sioin'i.s propo.sfd tliiit the Joint HiKl> ConiniiHHion shoiihl eonHider the (ditinis tor injuries whii h tiie )ieo- plc of Canathi him sntfered from what wert^ known an the Fenian raids. At the tonfereiiee on the 'idth of April, tiie Hritiwh t'oiiiniiMNioners a^ain hronj^lit III tore tlie Joint Ilijrji ('oniiniMHion the elainis of the ]ieo)de of Canada for injuries siif- tcred from tlie Fenian raids. 'J'liey said they were insfrnctnl to primnl them: vhumx, and to state that they were ie;iet that the Anierieaii Commissioii- ,rs were without aiitlKuity to (U'al with tlie (luestion of the Fenian raids, and they iM(|uired whether that was still the cast-. The Amciican Commissioners rei»lied that they could see no reason to vary the reply lonnerly j^iveii to this projiosal. The Itritish Hiyli Conimissioners said that, under these circumstances, they would not iir';e further that the settlement of these claims should be included in the present treaty. And that they had the less dilticnlty in doiny this us u pintioii of the chiims irvrc of a roiixtriictivc and hifirnilial I'liaravlcr. No argument, therefore, can be drawn from any sn])]>osedcoiices«ions by (heat JJritain, to Justify th; t power in denying- the jurisdiction of this Tribunal over the national claims which were presented, and i)er- sisted in, by the United States. Is'or can it be assumed that Her JMiij- esty's Government objected on principle to a class of claims which, in a parallel case, Commissioners were ^(resenting and urging upon the Tnited States. (/<') Whatever doubt, if any, may ever have existed, or have been set up on the part of Great Britain, as to the true tenor of tlie written Treaty, no such doubt can reasonably exist at the pie.sent time. While Mr. Gladstone, in the House of Commons, was tjsserting in such positive terms that the so called indirect claims are excluded by the mie(|uivocal and positive language of the Treaty, and denying that the Treaty could possibly receive any other construction, Lord Derby, in the other house, admitted that the Treaty was susceptible of the construc- tion placed upon it by the United States ; and in a later debate both Lord Derby and Lord Cairns in unequivocal language supported the same views. All delusion on that point is now dispelled. No statesman in Great lUitain would probably now make the assertion made by Mr. Gladstone, in February, in the House of Commons. The Treaty speaks for itself. It is universally conceded that its natu- ral construction is that put upon it in the American Case. Discussion of the subject has advanced so far at least towards dispelling misappre- hension. (r) Neither the hypothesis of Mr. Bernard, nor that of Sir Stafford Xorthcote, is produced in the celebrated debate in the House of Lords, which has already been alluded to, and which has been adduced by the •!>ir Edward Thornton, in his note of the 25th of January, proposed a .settlement of tlie ([iiestions " with reference to the fisheries on the coast of llor Majesty's possessions ill North America, and as to any oth(;r questions between them which afi'ect the rehi- tioiis of the United States towards those possessions." f'lniclii-^idns. h'\ >,#■ 208 AKGIMKNT OF TIIK INITKI) STATKH. I'rltisli fiovrnmiciit iis notict' to \\\o Kiiitod Sfiitos, 1h'('!MIS(> of tlic iill«';i'<'i«'.s('ii»'(' of .Mr. Sclioiick, th«! Ain('ri(!iiM Minister. Ill the first pliicf. tlic cxpn'ssioiis of Lord (IriiiiN ilh^ on tiiat orci sioii 4liii of tlic l.nr-t (iniiiv itif'- so eiilN'd iinlii'cct cliiiins. He siiid : 'I'lii' iinhli" I'.iiil Hiiiil tliiit till' I'liift'd Stiitcs liiis ininlc no coiwrsHions ; hi;! in flic \ 1 1 \ lii'^iiiiiiin;; of the iirotoculs, .Mr. |''isli, ninrwin;; I In- |ii'(i|ii)sirii>ii lir. Iiiid niiiili! Ix-I'imv In iiiiicli liii';;)'!' iiiiliitnal rlainis. nuIiI : •• 'I'lic liistoiy III' till' Aliiliiiniii and dtln'i' cruisci'H wliicli had Iti't-n lilted ont, or aimed, cii' ei|iii|i|ied, or wliieli Inid reeeised an^inentation of force in (ircat ISritain or in lin I'olonies, and of tlie opi'i'ations of tlione sessids, showed extensivt^ direct Ioshcs in iIh. caiilnie and deslrnction of a hir;;'e nniniter of vessels with their I'.'ir^ioes. and in lln heavy inilional ex)iendilnreHi n the |nirsnit of tlu; crniser.s; ainl indirect injnry in tlic transfer of a lar^jc |iarl of liie .\iiieriean (loimnercial marine to tlu) Ih'itisii thiy;. in tin' enhanced )ia\ nu'iitsof insurance, in thlon;rati(ni of tlu; war, and in the addition ot a larv,e sum to llie cost of the nar and the, siipiiression of thi^ |{eliellion: and mNm -showed that (ireat IJritain, h\ re ison of failure in the proper (dw^'rvanee of In i diilies as a iiiMitral, had heeonie jii^lly lialde for the acts of those cruisers anil of llieii lenders; that the claims for the loss iind destruction id'private property which Imd rhns far iiecn |)iesented anionnted to ahont sj I.immi.ikmi without interest ; wliiili amount was liahle to lie j;reatly increased hy idainis whicli had not heen jiresented." ' Thest! were pretensions wiiich miy;ht have Iteen carried out under the former Arlii- tration ; hut they entirely disappear under the limited lel'erciiee which iiududes nicreU romphiints ai isinj; out of the csea|ie of the Alaliama. ■ Now there an; some tliiiif;'S(|iiit<' reiiiarkahle in tliis part of Lortl (Iriiii- \ ille's speeeli — tlie only part \vlii(;li rel'ers to the siibjet!t. Ill eitiii;^' the stateiiieiiD made by tiie American Commissioners, (not .Alt. I'isli.) wliieii appears in tlie ])rotoeol of .May 1, 1S71, he stops at tlic wind ''presented,'' noted with a period, as if it were tlie coiiclnsioii ot tlie statement of tlu^ Aineriean Commissioners; while in the text there is a semieoloii after the wonl "j)resented :" and the .sentence concludes with the followiiio' words: That the cost to which the (ioNcrnnient had lieen jiiit in the ]Mirsuit of the eniisci- <'ould easily he ascertained hy cert ilicatcs of (Mivernnieiil aei'oiintinH; oflicers; that in I he liojieof an aiiiicalde settlement, no estimate was made of tlu; indirect losses, wilii- (Hit pit'judice. !iowe\-er, to theri^ht to indenmilicatioii on their account in the event ol 110 si!(di settlement heinj;' made. Xow the concliidino- woids of the sentence, thus omitted by Lord (iraiiville, contradict the intention which i.s a.scribed to the American (^ommi.ssioners, tnid thus annihilate the foundation for the sub.setpiont remarks that tlie.se ''inctensions entirely disai)pear under the liiiiitod reference which iuchides mere complaints arising out of the escape of the Alabama/' Lord (Iranville entirely unfounded ; for the Treaty submits "all the said claims, grow ing out of acts committed by the aforesaid ves.sels, and generically known as the 'Alabama claims;'" whicli is a very different thing from tlu' iccital in Lord Granville's speech. Indeed, taking that speech as a whole, it is by no means clear that Lord Granville intended to set up any other limitation in the Treaty than such as would exclude claims on account of premature recognition of tlu* ■;ii >Pail. Paper, No. 3, (1871,) p. 8. Ilaiisavd, vol. ccvi, p. 1851. NATCKK AND AMOrNT (>F DAMA<;KS. 2()0 lR'lli};i'ri'iic(? ol" tln^ (Joiit'iMh'iatea by (Iroat Jiritiiin. This liyputlio^is would expluin his ivfcrciice to chiiins coiiiicctcd with th«'<'niisers. Wo have sullicioiitl.v demonstrated, we think, that neither this phrase, nor any otiier eontain^'d in tlie Treaty, jastiliestiu'eonstriietion put upon it hy Lord (Iranville. In eonii>arinj^ what was sniate in the House of Lords by Lord (Jranviik^ and Lord Cairns, with wliat is said hy Sir ^,,,| , ,,.. Htatlbrd Northeote in his speech, and Mr. ISernanl, in ids "■-""'•"•" « lecture, we think we see the explanation of all luiseoiuu'ptions respeetinj; tlie seope of the tn-aty itrevailiuf;' in (Ireat Iliitain. Tlu^ .I(>hnson-l'larendon Treaty did not exclude fronieonsideraticui, at least by words of expi'ess exclusion, claims of the L'nit«'i. •(c) When two Nations have agreed by Treaty to submit to arbitration Ari.it'Mion i„i.,v. a question of national wronj"- between them, such agreement th«i.i«.eniw,.r. takes thc placc of war. If therefore it could by ingenious reasoning be made to appear (which we deny) that tlie British con- struction of this Treaty might i>ossibly be maintained as pUiusible, yet we conceive that this Tribunal will, in the general interest of peace, feel itself not only authorized, but required, to so construe the Treaty as to take to itself the decision of every question per tinent to the issues, which, left unsettled, could lead to war. {a a) Pradier Fodere, in one of his notes to Vattel, nuikcs the following observations : The Tril>iiiml tht ptiufr.-. ri-a.lj.-i Ki.,li-i. L' aibitia<^i', tri's-nsito dans le nioyon-Age, ot«' j>re.sc|iie onticreinciit ui^'gliyo dans Ic. temps luoderiies ; Ics exomples d'arbitragcs oft'eits et ai'ceptt's sont dcncniis de \}\ns en plus raves, par I'experionce des inconveiiieiits qui seiuhleiit etre presqnc iiiseiieralilt > de ce iiioyeu, ordinairenieiit; iusuflisant par le ili'laut d"un jtourvoir wanctiouateur. Los (jue h's ,._,, que rarbitraj-e piive eu niatiere eivile on eomineiiiiale. 11 en ditlerc i ^ ee qni' eehii-ei esf siiseeptilile d'lionutlojfation i)av nn tribunal unl: I'Mire. qu'll est jibsdlnment ob!i<;at()ii'e et (pie rexei-ution en jient etre toujonrs snivi' Itar les \oies de droit eounnnn. Knires h's •■tats, le ]irineipi' de son\ erainet»' et (riiitji ■ pendaiiee H'cipr<)<|ue n'adniet en eelle inatii'i'ts qn'nn<' obli;;ation morale de s'ineliiii: devaut les resnltats de raibitrai;(' sidlieiU': aiissi, avant de reeoniii' a ee nioilf d solution et i»our niienx assurer ie Itut dt'linitil' i[ne I'on i>ouisui(, est-il (Tusaj^e (pK' 1. - parties en jui'-senee si^nent ee (|u'en lanii'aiie de droit on ajiixdle un (■oiiiprdiiii'i, e'cst-a- dire, nne eonvention sju'eiabi qui prreise in'tteineiit la (luestiiui a dt'battre, expoM I'eusendde des ]ioints de I'ait on de droit qui s'y rattaelient, traee b-s liniites (hi inlr dt^volu a Tarbitre t't, saiif les eas d'ericnr inaterielle oil d"in.jiistii;(! tlai>rante, iuipliMM' reni;agemeut de se souiuettre do bonne tbi a la (b-eisioii (pii poiiira intei'venir.- Xeither ]>arty loses anytliin.u' Ity such good faith. The iintiire of [\u contract of international tubitratiun alVords perfect remedy to citlu i party, in the contingencies in which either is wronged, namely : I". Si la sentence a ('t<^ ]U()none('e sans (|ne les arbitres'v aieiit <''li' snl'lisannneiil nmn- rist'S, on lors(iu'elle a statin'' en didiois on au-dela des t(}rnies (\n conqu'oinis : 2". Lorsijiu' ceux (pa out rendu la sentence se tronvaieiit dans nne situation (I'iin-i jiaeitt! l(';nal(! on morale, absolne on relati\e, jtar exeniple. s'ils (taieut li*'s jtar des cii ;;aj>einents nntt'iieurs on avaient dans K.s einielnsions Ibnniilt'es nu iut('iet diivi' iguon'' des ]>artios (pii les a\aicnt elioises ; ;{". ]jors(p(e les arbitres on I'liiu^ des |iarties adverses n'ont- pas a;;i de bonne tbi ; ■l". Jjorsquo Tun ou I'autre de t-tats iut('resses dans la *, ('-d. 1'. I'odi'rt'. toin. ii, <;bai». xviii, sec. IV.'S*, note. -' Calvo, Droit international, ('d. (V., l-^7(t, toiii. i, )». 7i>l. '('alvo, ibid., p. 7(>(l. ('(unpare lielt'ier. Droit international. li\ . ii.s. liii»i; HIiihImIi ■ Code (J d) Indeed, if we may regard the pertiiu^nt explanations of ]\Ir. Iler- :i;u'd. there is general reason for submitting the construe- „,, „,„„„.,„„, lion of treaties to the Judgment of arbiters, and special '■"""' ivason in re^^.ird to the i)resent Treaty, lie says of treaties generally: 1 may lie i)onnitto(l to oliscrvo. in passinj;-, bolbie taking loavc of this jiait of tliosiih- ict. tliat a tivaty is an iiislrinncnt which yon cannot send to ho. settled in a convtiy- iiinr's chaniber.-s, nor coniniit (o a knot t)f \vian^lin<;- attorneys; no, not even to the I itnily solicitor. It is an instrument in the framing; of which the sensitive and i)unc- tilious self-respect of j^overnnients and nations has to l)t^ consulted, and discussion must nev 'r be snlVered to degenera<^^ into altercation ; in which it is often lu'cessary. lor the sake of a;;r»^onient, to accept a. less tinisheil or more accurate one ; and which miwt lie construed liberally and reasonably, according; to what ajipears to he the true iitcution of contracting parties. In all this, there is no excuse for eipiivocal expres- -iiiii. and no delense ot such ambiguities can in' founded on it ; but of ajtparent fanlt> I expression it has often been, and often will be, tins unavoidable cause. - Tlie.se expressions seem to be introduced as an apology for some iiiteiitioiml ob.scurity of hmguage in the present Treaty. We do not sn regard the matter. The history of the negotiations in this case abiuidantly shows that every word of the Treaty wjis well weighed by tlu' liritish Mini-sters before it was signed by their Commis.sioner.s. However this may be, if, as Mr. Bernard says, in order ^o conform to tio delicacies of diplomatic intercourse and of international negotia ini!. it was necessary to employ in the Treaty iinfinislwd language, inav Hmtf language, " faults of expression," to say nothing of ctiiiivocal lan- ^"iige, then there is all the more reason why the United States shoidd Mellii. Institutiones Juris civilis Lusitani. lib. i, tit. 4, sec. 21. l.icture on tlie Treaty of Washington. May '2H. lH7'.i, riOi;...rn.y tn „. guished froTi> ix contract, severity is to be shown toward tlir 'ilrr\'n ! bmlVi^im.Mb wroug-docr, and the losses whi(!h th<^ injured parry lias ..loinort.. suft'ered are to be appreciated with liberality for the [hu liose of indepinification. Infractions of contractt are to be anticipated, in view of the too pro valent carelessness of men in this respect, tlu^ possibility of which will, theretore, have been foreseen and taken into consideration by the other party. But when there is violent wrong, it is a fact beyo?id prevision. which of course occasions more perturbation anect, as understood in Great Britain and the United States, is stated by an American author .as lollows: to tlio jury, tlaut cin LiUaLauois >f (iijgravn- vion whi .111(1 80 it that in c; I'lnictioii!- sioii of (i 'ln fact," says Mayne, "if any other rule existed, a man of large t'oitune might, by a certain outlay, purchase the right of being a public tormentor, lie might coi»y the examjde of the young Roman noble mentioned by Gibbon, who used to run along the Forum, striking every one he met upon the cheek, while a slav(! followed with a i)urse, making .1 legal tender of the statutory shilling.''' ;(•) Distinctions arise in regard to the relation of the loss or damage and the act of injury, by reason of which reparation is de- !iiiiii(led, which require attention, especially in view of the < iiiostion of whether direct or indirect damages, which tig- iiivs in the present ca.se. This distinction is raise. 97 ; Sedgwick on Damages, ch.xviii. Mayne on Dannige.s, }», 14. ' Ibid., p I."). *s 214 AKGL'MENT OF THE UNITED STATES. mS w selves new causes, and all of them the natural, not to say necessai \ , consequences of the one defunte act of wrong. (/) As a given event may be, and often is, produced by a plurality ct causes working together, so may a wrong be the effect of the actioii ot two or more persons. In such case, the injured party has right of u-- dress against all and each of the wiong-doers, although neither of tlu'in may be morally accountable for all the injury, and some one of thciii may have contributed to the injury in a comparatively small degrot'. IJut it is no defense for any of the wrong-doers to say, " i di«l but (cooperate with others, and that in a coini)aratively small degree, tn inflict the injuries."' Whether the ettect complaiiu'd of be or not directly connected wirii the cause, whether it be proximate or remote, whetlier the reputed in jury be or not the natural and logical consequence of the alleged act oi wrong, all these are in part ut the destruction of the buildings and cattU' has interrni)ted ciil tivation and. deprived the ])roprietor of his expected crop. Hball tli!>. too, be included in the indemnity .' And the interruption of (;ulture and the losses incidental tlien re embarriiss the ]»roprictor, so that, in tiie course of the expenditure to which he is subjected in the purchase of materials of construction and cattle and horses, he becomes indebted : the failure of Ins crop de]irivt's him of the expected means of payment ; his creditors come upon him and seize and sell whatever he ii.as, and thus he beconu^s ruined aud reduced to absolute destitution. All these disasters are the manifest consequence and efl'ect of tin- acts of the incendiary. Is J.e incendiary responsible for them all i <'i is he oidy responsible for the value of the things consumed '? Are tlie subsequent losses, which are confessedly the natural consequences of the act of wrong, so remote or indirect as to relieve the incendiary ot responsility therefor? The law does not require chat the damage recoverable shall be tbe necessary effect of the cause, — that is, an effect impossible to prevent : it does not require that the damage recoverable shall be the first effect ol' the cause, — but only that the damage shall have efficient cause in the act of wrong. And the party injured is not to be deprived of redress, if he failed to employ extraordinary means to arrest the progress of his losses ami diminish tl 'ir amount, provided he took the ordinary steps of prudenw to that end.' All these, we repeat, are considerations of fact, which the competent tribunal Judges according to the circumstances and which do not admit of absolute legal conclusions of law. {h) Damages, reparation, indemnity, all these are terms to descritf* Souidat, De la Respousubiliti^, toi?i. i, p. t)6. NATIUK AM) AMOUNT Ol" DAMAGES. 215 run. IV \|.Ml V- 1- n 1''*. rhe same tliiiif'. Tndeninity includes both lucrum cesstoin ;iii(l (lamuum onn-f/ens. It includes also mora! as well as iiuiteiial damage.' And it involves injury to persons as well as things. But, in all cases, the question of the amount of damage and its equiv- alent in pecuniary reparation becomes one of fact for the wi.thr ... n„t consideration and the equitable determination of tluM-om- > i" •"'"•' "" petent tribunal, as illustrated by the numerous cases, especially at com- mon hiw, in which revision of sentence is called for on account of erro- neous verdicts of damage. 1'. We proceed to ai)])ly these considerations to the several heads of injury to tlie United States growing out of the acts of the ('onfederate cruisers siih life, and tlu> M>nse(iuent damages line by Great lU-itain, discussing these i)oints in the order in wliich rliey appear in the American Cas(s (<{) Tlie United States claim indemnity for actual pro/trrli/ of the (iovernnient in vessels destroyed, and for iMmediate /xr- sinuil injur Ic.'i to the otVicers and crews, cau.sed by the Uon- it'derate cruisers, the responsibility for whose acts we have in i>revi(ms (tiscassion attached to (Ireat IJritain. In our enunu'ratiou of the i)articnlar facts, we have considered the case of each <-ruiser in respe(;t of which we (-hiim ; we have j)roeeede cruisers with the Ibitish (lovernjiient,so as, in .iiu' opinion, to establish its failure to tnltill the Kules t»f the Treaty in lejictrd to the several cruisers; and we have treated fully the (luestion nf diligence as to each of these eruiseis, as requiicd l)v the Trt-aty liiiles.' [b) The i)roperty destroyed consisted, lirst, of vessels apparel, ecpiipment, aiul armament, Ix'longing to the (lov- crniaent of the Uniteil States. Statements in detail of tiie U)s?ies of this class, otlicially certitied either by the Secretarx i.i the Treasury or the Secn'taiy of the Navy, according as the vessels appertained to one oi- the other branch of the iniblic service, api)ear in the appendix to tlu^ Anuuican Case. There is no «pu^stion here of iiulirecf onlirect damages, notwithstand- iiifl some vague suggestions to that effect in the 'Jritish Counter Case. If a ship destroyed at sea is not a case of direct loss, then there is no sense in language and no reason in law. What amount of damage is due in such a case '! Surely the value of the thing destroyed is the minimum of such amount, even throwing out of question the element of wrong and looking at it as one of simple negligence. Uow shall the value of the thing destroyed be ascertained ' W<' present ofliicial certificates of the value, and mc confidently submit, as between governments, that such otlicial statements are to be received as fact. The British Counter Case undertakes to contradict such otticial certificates by njeans of opinions of the British Admiralty. We reject all such opinions. We refuse to recognize them as available in any sense to detrtict from the authentic proof contained in tiie authoritative tlocunients ottered by the American Government. (o) The United States claim indemnity in like manner for vessels and other actual property of private citizens of the Uuitey nniny ordinary wars. It is estimated that the h)ss sustained hy file ciiptnre and Itornin-j; of American vessels lias been about !Siir),O((0,l)0O, or n«!arly ♦.■;V""*.WO sterlinjf. IJut that is a small part of the injury which has been intlicted on till' American marin(\."' That was in 1804. Several years afterward, when there had been time tor reflection, Lord Stanley said: I hare never concailcd mi/ opinion that llii Amerieiiu elaimniifx, or xome of them at leasl. <'' iUr tli( referenee proposed hij »«, ^rere reri/ lihelii to make out their eauv and f/et their money. r«i lis the money jiart of the alfair is iiiapinecialily small, esi>eeiiilly as we have on our >i(l(' ciiiiiiter claims, which, if only a small ]iortioii of them hold water, — and you can iievrr tell belbrehand how these matters will turn ortant set-otf to the claims jireferred aj^aiiist us. liiit, I think, if iiiiitteis were fairly adjusted, even if the decision went aj^aiiist ns. vvf should not lie disjioscd to •:;rud;;e tlic^ piiymciit. Thi i.rpenxe ironld lie ar- atiou. It stipulates that — In ciise the Tribunal tind that Great Britain has failed to lullill any duty or duties as iitoresaid, it may, if it, thinks proper, proceed to award a sum iu ; App. to American Case, vol. v, p. t)0\.K Hansard, vol. cxc, p. ll.'JO ; App. to American Case, vol. v, p. 708. 218 AlfCilMKNT OF TMK IN'ITKD STATKS. '(■ W The captures, it is said, were made by eitizeiis of the United Stiit( <-. Of what avail here is that fact ? Does the British (rovermneiit intend to be understood as niaintaining tliat all violations of neutrality <)ti behaltdt Rebels are taken out of the ftiasp of the law of nations ? Is that to be lield as the deliberate thons'htof (Ireat IJritain, the mistress of so niaiix millions of discontented inliabitants of conquered States ? Next, it is said that the United States have <;ondoned till- M. nt'i'y'th"'",™^^ wrongs done to them by their Itebels, and '' that they Iiavc been re-acbnitted to their former full participation in tlic rights and privileges of the Federal Constitution.'" lEow does (Jrc'it JJritain know that, what right has slie to know it. in a matter of Treaty obligations between the two (loverninents ! If tlir consideration is of anj- force whatever, it strikes at the (luestion whetlici Great Jiritain is responsible to the llnit«'d States in case she did. oi omitted to do, any of the actions forbidden or commanded by the lliilcs of the Treaty of Washington. The Treaty d(»'S not provide by way of exception that if sncii iicrs iloue or committed in violation of neutral duty are done or omittcil on behalf of Kebels, they shall involve no responsibility to the le.:L;iti- nmte sovereign, or that such responsibihty shall be measured by tlic more or less severity with which that sovereign shall see tit to trt-iiT his Kebels. On the contrary, tlie llulesare absolute in their t«M'ms. and adoi>ted with specific reference to the (juestions of neutrality violatcii to tlu) advantage of Itebels and the disadvantage of their sovereign. (heat IJritain can set u[> no such defense. It involves c(»nsidcrations which she ought to have reH(H'ted on when she hastened to raise tlic Confederates into the status of international belligerents. In so doiiiu she gave to them the means of doing injury to their sovi'reign, it is true, but for which that sovereign could ami did take redress against them, when he saw tit, by exercise: of the rights of war as well as tlx- rights of sovereignty. But (Ireat Britain, by the course of i^olicy she a(loi>ted, chose a con- dition, iu which, whatever wrongs she or her subjects might siitUi at the hands of the Confederates, she had no jiossible recours«'. eitlu i against them or their sovereign; but in which she herself was respon- sible to that soveriMgn for whatever she might do in aid of such rebels. in violation of the law of nations or of Treaty. Great Britain placed herself in that condition of her own free eltf tion, and against the will of the United States. She must tak<' tlii' consequences. Her acts of actual or constructive complicity with the Confederates gave to the United States the same right of war against her as in situ liar circumstances she asserted against the Netherlands. We, the United States, holding those rights of war, have rclin n,.. ari.itrution qulshcd thcm to accept instead the arbitration of this Tri- MuhiX'-orrHm^^ banal. And the Arbitration substitutes correlative lesriil Htionhj war. damages in the place of the right of war. This proposition is unequivocally admitted in the Counter Case as follows : Her Majesty's Goverunient readily admits the general principle that, where an injury hus been done by one nation to anotlier, a chiiiu for some appropriate iJthK^tHiivh'couI" redress arises, and that it is on a)l accounts desir- to the ajjjreed ]{ules. If it were otherwise, then no res[)onsibility could ever «levoIve on any Movernment for breaches of neutrality produced by its nejjlect ; for the ilovernment is iu)t /» /7.v oini pevson the actual cruiser which siidvs and hums; it is, however, the construiftive cai»tor by the spirit and the lotter of the Treaty. The British Counter Case arjjues that Great llritain ou<;hl not to be held responsible for all the acts of the cruisers during- the entire voyage of tacli, becanse they enjoyt'd hospitality in ports of other countries. lJnf(u- tiuiately for the argument, (Ireat ]iritain never did anythiu^ to stop the muisers, as she did in the affair of Terceira ; she ( ontinuera/il did. To i)unish the lesser act of abusing the hospitality of the Knii)ire. JJut the neglect of duty on the part of Great IJritain continned as to most, if not all, the cruisers of the Confederates to the very end. Tiie Counter Case argues that losses and specillc (captures, actually xuffered by the United States, are not to be imlemnilied, because the liability of Great llritain disappears "among the multitude of causes, liositive or negative, direct or indirect, distant or obscure, which com- bine to give success to one belligejent or the other.'' If this argument were adduced to the question of the responsibility of Great IJritain to the United States for the prolongation of the Rebellion, we coidd com- I»reliend its meaning without admitting its application or force. ]>ut as iiltplied to actual cai)tures, and the loss thereby produced, the argument seems to be destitnte of reason. On such premises no belligerent could be held to restitution of a wrongful capture, and no neutral could ever be held responsible toward either belligerent; for a "multitude" of secondary facts always enter into every discussion of responsibility for wrong, anil especially for wrongs in time of war. The common sense of inanknul oversteps all such immaterial incidents, and goes direct to the prime nnthor of the wrong; the Government which wrongfully did, or wrongfully permitted, the act impugned, the expedition from her ports of the "tloating fortress," aa the Counter Case properly calls the wrong- doing instrument of the guilty Government. Claims like the present, says the Counter Case, have rarely been made, and, as the British Government thinks, never conceded or recognized. It might suffice to reply that no such case, on so large a scale, has ever occurred, except in the controversy between Great Britain and France in 1776, and then Great Britain declared war. But the precise •luestiou arose and was duly adjusted between the United States and Spain. And the relations of Governments do not depend on mere pre- cedent, but still more on right. The Counter Case deprecatingly doubts whether "the greatness of the loss is to be regarded as furnishing the just measure of reparation without regard to the venial character of the default." I K''^- my. 1-7^ : . ■ 'j|ri,il;& '■>; 'f'''^t' .!«,.. |;| -/^•- ^E'^Tti wi'i^ ..;; ■ ■Jii'^ ■m- ^ ,j^ •220 AKUUMKNT OF THE rMTEJ) STATES. We ilcuy that tliore is luno any actual «|uestion of (lefault of " venial character." Tlie defaults charged, and, as we think, the defaidts proved, are j^rave, serious, capital. And we deny that there is any pitxsiblc ui.r tho Hieut of dauiagc between the United States and Great .i„y,m.tj, Britain, under the Jay Treaty, awards interest, and says: To re-iniburso to claim.iiits the orijjiual cost of theii' property, ami all the expenses they have actually incurred, togrther with interest on the whole amount, would, I think, bo a just and adeijuate coinpeusation. This, I believe, is the measure of couipcnsivtioii usually made by all belligerent nations for losses, costs, and damages occasioned by illegal captures.-' ( AMOUNT OF DAMAGES. 221 uttadjes according to tlie lliilcs of the Treaty, tlien the Coiiiisel of tlie Cnitcd States respectfully snlmiit that it may be the duty of the Tribunal, after diuliiig the fact of the fault of (Ireat lUitain in the premises, to refer flic assessment of the damages to the Assessors provided for by Article \ of the Treaty, with such instructions as to the extent of the liability as the Tribunal shall see tit to give to such Assessors. We cannot admit that (Ireat liritain shall appoint cv-imrtv Assessors to control the statements and jiroofs of the United Wtates. That she in ctVcct undertakes to do in the aibitrary estimates of otVicials or i)rivate juMsoiis containetl in her Counter Case, as in the naturi^ of i)roofs <'()n- tradictory of the otlicial statements and ])rivate attidavits or other juoofs presented by the United States. If thes«* formal statements on the part of the ["nite.) We come now to the class of claims, some private, some general, which in lecent discussions between the two (lovernments are (ilijccted to by (ireat JJritain as being "indirect." These are : (1) The enhanced rates of insurance in the United States, occasioned l>y the Confederate cruisers in question, involving great Km,,,...!,,!..,,, Itocuniary loss to the citizens of the United States. '"-"" • Certain it is, this injury was actual, and a loss "growing out of the acts" of the Confederate cruisers by necessary relation of (viuse and ef- loi't, and it followed immediately on the appearance of those cruisers. (li.) Tiansferofthemaritinu' commerce of the United States to (beat liritain. 1 This was a national loss "growing out of the acts" of St;ili-4 riillinicrif t llr r-h iliiB. \\w cruisers, and having theln for its distinct and sole cause. It was a loss to the United States constituting gain to Great IJritain. We do not say that she was culiiably negligent of the obligations of neutrality in (O'dcr that she might thus gain thereby, but we r(>xiiiuiti> or direct and daiiia^t's reinotc or indirect, admitting the I' and the validity of the distinction. But we took care to Htate at the same time tliat the distinction is al wi,.ii,.r ..„, r. together unttertain, not to say, in many (iasea, shadowy; r"rt./'i'V,u"rr,',',l,,' that the dividing line vmu no more be drawn in the abstract •""""" than the line between the contiguous colors of the spec- trum ; and that in private controversies the attempt to make the dis crimination generally results in a 4|uestion (»f fact for the determination of the (competent tribunal. The idea is well expressed by Mr. Pradier Fod«'r«'', as follows: MiiiH I't'lcvation «I«'s priiiicH •rassiirain-o tiint'iioc jtar h-s <1rpr<'-i>rHair<>s, iiiais la |ir(il(Hi: HU('('r> di' *Mt\ do s(due, c'est qu'on no jiout «M|uitaldt'nHMit ct raisoiiuidjlf incur iinposcr la i'cs|)onsabilit(> dcs dninuia^^cH indireets. >lais I'tant d,.i. . any such subtleties to show that the acts of the Confederat( "" cruisers inflicted an injury on the United States in cotitrib uting to the prolongation of the war, ami that such injury was a direct injury of Government to Government. Nor would it be any answer ti' say that this injury was but a contributing fact among other and even greater causes of the damage. Nor would it suffice to reply that the exact amount of the daina,i;o i> dilUcult to fix. When a traveler is injured by reason of want of due diligence on the part of the managers of a railroad, it is no defense to say that it is difficult to fix the true value of his arm or his leg, or the money compensation of a loi;g tit of sickiu'ss. That is a problem, like others of the same naturi>, v^•iucll finds its solution every daj' in the ordiiian courts of Justice of all countries. One nation invades pnotlier, and inflicts losses by acts of war on land. If they choose to nnike.i)eace on the condition of the invader indeinni tying the losses of the invaded, the sum which ought to be paid isde batable: but certainly- it can be determined. So if two cooperating; nations invade another, the sum of injury dtme by one of them as di^ ' I'radicr Fudcre, l.a qxexiion AMUlNT OK DAMACJKS. Ml .|. SM tiiij;iusliO(l I'lom tin; oMkt i.s (hiteriniiiubhs if not with i* iipproxiiiiatoly, like most other uiili«|iii(hite(l (laniiip;es ; to say notliiu^ of tht! question of extMuphiry (hinuiKes in the cases of tort, whieh run tojj«^thei' in the discretion and couscionco of the competent tribunal. 15ut there is war on sea as well as on land. A war maybe exclusively iiiiuitime, like that between France and the United States. Such a war consists in the combat or capture of ships. Yet su(;h a war inHicts uational injuries and losses independent of the value of vessels destroyed, iiiul if terminated by the payment of indemnities for the cost of the war. either by one or by several parties belli;;erent, the sum of the rep- iiration can be calculated and determined. Such is the relative predicament of (Ireat Britain and the United States. We liave been injured as a nation by acts of ji maritime war lia|)p»Miin}>', as the Counsel think they have proved, by the culpable ami losponsible ne;;ligence of the British ( Jovernment. The wronj;' is direct iis Itetweeii the two luitions. We think wc have distinct \\<>;\i{ of substantial indemnitv in this be- iiiiir. Wlicii a nation inflicts a wron^' on a nation, is it due r<>paration to ]>ay iln' pri«(' of t'ertain ships destroyed .' Surely not. any more than the liiic paid by the wi'altliy Konian to repaii- the insults he inllicted on cvciy person \n' met in the tbruni. Milt considjM'ations of laviiv. impint in the sphere of international re- Lilioiis, of which tln^ (Jovernnu'ut of the United Slates is !lii' liuhtfnl judjic, forbid theirConnsel to picss for extreme (laiiia^cs on account of the nati(mal injury thus snilered by rlic nation itself, thi'onjiii the n('<;li]nence of (ii'cat iJritain. Xeverthe- Itss. lioldinji' that in view, we Iuinc maintained in this Ai'^^unu'nt the '.ili'iititnde of the jnrisdiclion of the 'i libnnal, because, in the jndjiinent oi' the I'nited vStates, such is the l('n(M' an«l intent of the frcaty of Washington; and ln'canse they dcsii(> tin; judj;- ti„ .'iM.T.M/VHm.'J' iiicnt of the Tribnind on this particular question, for their '"' ' I'wn j;iiidance in their future relations with (iieat JJritain. Tliey contend that the qnoKtion of dannij;'es, as whether direct or in- ilircct, is a Juridical one, not one of the Treaty. Tlie United States did not insist on the absolute jnenerality of scope vliicli distinguishes the Treaty, with unreasonable e\i)e<;tations of hav- iiiii; extravagant danmges awarded by the Tribunal. Their object was a iiigher one, and one more impintant to them, and, as they conceived. II) (ireat Jbitain. It is not ior their interest to exaggerate the responsibilities of neu- trals i but only, in the sense of their action in this n-spect throughout their whole naticnnd life-time, to restrain the fiehl of arms and enlarge tliiit of peace, by establishing the rights and the duties of neutrality on a liasis of truth and justice, beneficial in the long run to all nations. If, as a jnridi(ral question uiuler this Treaty, the Tribunal shall con- <:liule that Great IJritain is not bound to UKike reparation to the United States for general national injuries occasioiunl by the negligence of the lU'itish (lovernmcnt to fulttll neutral obligations in the nnitter of Con- t'^ilorate cruisers, it will say so ; and, in like manner, if, as a juridical 'I'U'stion, under the Treaty, the Tribunal shall conclude to the contrary 111(1 award danniges in the premises, the United States will accept the 'lecision as a litial determination of the fact and the public law^ of the 'luestions arising under the Treaty. The United States desired that the Treaty shoidd be a full and final II B' 224 AKGUMENT OF THE UNITED STATES. wiihoui an ,uin settlement of all differences between the two nations, vliicji jiirat'ioy , p " m"' '.'t it would not have been it' thelargrer national claims, so loiiic !u'iuHHl-m"°t..f''aii and so steadily insisted on bj' us, had been excluded from tlu- scope of the Treaty, anti so left to be a recurring subject oi jrrief aT^d offense in the minds of the people of the United States. They desired also that great principles of neutral obligations and neutral duty should issue ironi this High International Tribunal, representing: five great Constitutional Nations, to serve as instruction and examjd** to all nations, in the large interests of civilization, of humanity, and ot peace. We, the Counsel of the Uiiited States, have acted accordingly, in tin advocacy of tlie rights of the United States; earnestly and positively maintaining tlie ])rinciples involved in this Arbitration, but regarding the mere (piostion of the amount of national danniges to be awarded a> secondary to tlie higher consideration of the welfare and the honor i>t the United iStntes. We now bring to a close this Argument on behalf of the United Stati'>. "sliowing the i)oints and referring to the evidence"' wliich we think should h'ad to an award by the Tribunal of rc]- aration and iuh', so full of promise of peace and justice among nation-, now rests witli the Tribunal. In the wi.se admini.>tration of this elevated and benign trust, for tli( welfare of the world c )ntided to this august Tribunal, tlie Arbitrator- will fiuil no surer guide or support than a coiisichMation of the ill con seqneni'es which would follow from a disappointment of the liigii liopi'- whicn, on all sides, attend this great experiment. So far as tlie parties to this itontniversy are concerned, they are equallv interested that the award should re<*eivc the moral acceptance of tin people of both nations, as an adequate and plenary settlement of tin matter of difference between them. The people of the United States have definitely forn>ed their oi)inioii- as to wliat the action of Her Majesty's Government, now under judgment, was, as matter of fact, and as to tlie magnitude and permanence of tlu injuries which they, their |»roperty, and their pros|>erity, have snlVereil therefrom. They naturally look, therefore, with chief interest to tin award of this Tribunal as a decision upon the cpiestion of the ri(fhtJ'iiJn imitation by the United States or other Powers. This principal l rbitvati'i> jgiiugi'- NOTE A. BRITISH CRITICISMS ON U. S. CASE. II.-AMEKICAN NEUTRALITY IN 179:{-'94, 227 It is said on pajje 10 of tlio British Counter Case that " it is pleaded that in 1793, iliirinj; (ieueral Washiiij^ton's Adiiiinistiiitioii, the ie(»re.seiitativo of (iieatlhitaiu in the United Stiites iiointetl out to Mr. Jen'er.son, who was (/."'VririM!'"™'" then Secretary of State, acts '«>/i/(7i tverv deemed hj Her Britannic MnjcKty's llovcniineiit to he hreavhen of neutrality done in contravention of the President's Procla- mation of Neutrality,' and he invited the United States to take stt^ps for the r(!pression ,it' sucli acts, and for the restoration of the captured prizes," and that " it appears that tln> United States coinplieil with tliese re«|uests." It will be seen that the representa- tions then made on the jtart of this countrj- to the United States wi;re founded on the 1 iiaraiter of the acts theiiisolves, which were deemed hy thi; British Government to he linailies of neutrality, and not upon the fact that they wi-re prohibited by the Presi- (liiit's Proclamation.'' The letter from Mr. TIainmond to Jlr. Jefferson, which wih ho found on ])a};es "210-41 Xo. ti) of the fifth volume of the British Appendix is the best reply to this averment. Tiie MiiHster of Her Britannic Majesty says to the American Secretary of State that lu'-'tloi's not deem it necessary to enter into any reasonin;^ upon these facts, ashecon- roivcs them to be breaches of tiiat neutrality which tin* Unite. i States profess to ob- serve, and direct Cdntrarcniioim of the procldnuttion which the I'rcnidcnt initned on the'-i2d of !(ist month.'' The United Statrs submit that this letter is a complete ,justilicatie;i of iliis aliej;ation in tiieir case wlii,h is contested by Her Majesty's (iovernmeut. Ai'ain, on pa>ie tiO of the iJiitisb Counter Case, referriiiLj to the commission appointed ;inili'r the seventh article of "'.lay's Treaty," toasce-rtain tiio amount to be paid to(Jreat I'liitain by tin; United States, it is said: •"'fluee h^adiufi decisions iironoiineed by theni will be found in tlie Apjiendix to this ( (innter Case. By these dceisions it was rulfd : •• 1. That according to the true construction oC Articlf VII of theTreaty, con^dcd with l/f. .A //'( T'"'"'?! letter, no claim could be made on account of a capture made before the Mlior'.luue, 179:?. "Hence, coini)ensation was refused in the case of a British vl^s^el which ha«I heen aiitiucd on the •■"'til of May, by the Saiis-Culottes, a privatiMjr litted out in Charleston, iiiil liad been openly brought by her captors into tjic port of Philadelphia. ■"2. Tiiat no compensation would be made by vessels illegally litted out within the uiisilictiou of the IJuited States, unless tlie prizes luul been subseiiueiitly brought into 111 Aucrican port. The owners, therefore, ot a vessel which the captors had destroyed ill sea were entitled to no compensation. •:!. That where the prize has heen brought in, no comiiensation could be claimed, if ;lie I'laiiiiant had not taken proceedings in a Distriet Court of Admiralty, and juoved his case there by sullicieut testimony, or if there had been any ne-li^eiiiM' or any delay .11 instituting or carrying on such proceedings, or in enforcing ilie judgiuent if ob- iaineil. "Auil it is said, on page ;U, n^ferring to what had bi'en I by the United States in ilsisi'ase concerning this precedent : '.Her Majesty's (Jovi >! deems itself entitled In iisk whether tiiese are correct representations of the laei- .-fluted in the foregoing !ia;;es,' " Till' lirst point i-eferred to in the Counter Case of Her Majesty's (M>wrnnieiit is, it will lie perceived, an adjudication by the tribunal as to the extent of its ,; "lisdiction, (.. tl.atit did not extend to cases arising before tin; oth day of June, 1791!. The I'liited States did not suppose that this point would be i|Uestioiied by Her Majesty's iMivpriniieut. They are at a loss to nnderstaud exactly what is intended by Her Majesty's (Joverumeut in its remarks in respeet to tiiis ]»oint. The IJuited States, in :hiirCase, (on page 1"29,) say that Mr. Hammond was informed on the r)th of .Tune, 179:5, iliat "((.s to renlorin(j the ]iri:e» it could not be don**;" and on page i;{il, it is said that lie I'liitPil States Cioverninent also determined at that time as to the littiug (uit of priva- tiers, that " it was its duty to repress them in fntnre,"' and " to restore prizes that might i'leiiptiired," Ac., "or if unable to restore them, to make compensation for them." riie reasons for this distinction tlrawn Itetween acts committed before, and those iimmitted after, .Tune .">, 179:?, were fully and fairly stated by Lord Tentttrden in iii- iii'iiiorandum which is to be found in liie third volume of the British Appendix, and ;lie Ijiited States had sui>posed that no historical fact was better settled than that tho llritisli ({overnment at that time and ever since had acii.iiesced in the propriety and 'lie justice of the distinction drawn by (Jeneral W'ashingtmi. Wiieii the United States made their statement now challenged, altlnnigh they took tile ineeaution to imlicate that it referred to captures made after .lune o, I79.'l, they uiijjlit have assumed that it would have been so construed without that precaution. The second proposition, on the twenty-ninth jiage of the British Counter Case, is to tip taken in connection with tlu! other eoutrolling and limiting remarks in the statemtuit 'Jl'the coinndssioner who ren«lered the decision. I «> ¥:■ ■jll't J, 1 'i" '» '"w fc- ''■% ,■« ^ 228 ARGl'MENT OF THE l.'NITED STATES. Thcri! Wiis ill tlio Casf no allegation of peiinission or iiegloct by the GovcrnnuMit of the United Stat sh as to tin; aiiniuff of the French eruiser. The commi.ssioner said : " Tlie Counsel for the elainiant seemed to suppose that the obligation to compensate arose from tlie circunistance of the privateer having been originally armed in the L'uitfd States. Ihtt as tliere is not the smallest evidence to induce a belief that in this or in any other case the ( jovernmeut permitted, or iu any degree connived at, such arming, or failed to use all tin; means iu their po^ver to prevent such eijuipment, tlitirc is no ground to support a charge on the fact that the armament originated in tlieii ports." In view of the fact that this very material rpialification of the doctrines laid dow.i in the ease of the Jamaica is excluded from the British Counter Case, the United States think they are justilied in repeating as to the stattunents in the British Counter Case, the question there propounded bylli-r Majesty's Government, whether these are cor- i"ect repi.'sentations of the facts. As to the third i)roposition, on the twenty-ninth page of the British Counter Case, the United States refer to the opinion in the case of the Elizabeth, (British AppeiuUx. volume V, jip. ;51!>-32"',) upon which it is said to be founded, which in the opinion of the I'nited States forms no ailequate or just ft ludation for the assertion that it was there decidetl that no coni))cnsation could be claimed "if there had been an}/ ncglbunu or any dtlaij in instituting or carrying on proceedings in a district court of .admiralty," or if Ihc rlaimaiit " had not proved his case there by sutticient testimony," or if there liad betMi "delay in enforcing a judgment if olitained." The Tribunal will alsojiidife whether this is a correct representation of the facts. III.— THE UNITED STATES AND I'OliTUGAL. Ou pages ;?2 and ',V.i of the British Countci Case will bo found an extract from n letter from Mr. da Sena, Portuguese Minister at Wasliiugto... u> rhe See- porlugl ■'"'"" '■""' retary of State of the Unittid States, dated November '2:\, 1819 ; a.m, coiii- iiientiug upon this extract, it i^ said on page 1515 that — " Tn the Case of the United States, the Mini.ster who writes thus earnestly and vehe- niently is represented as attaching little or no importance to the matter. The reason given is that he has chosen the moment to make a visit to Brazil. But in the 8enteiife> Avhich i)recedo and follow, and of which no notice is tak'jn in the Case of the Uniteil States, Ik; has exi)lained why he chose to leave his post at that ])articular time, namely, that until, by aiiiendiuent of the law or otherwise, the proper means should Im; found for putting an end to this ' iiioiistrous eonspiraey,' he fcjund by experience that com- ]ilaints were useless, and sluj^ild refrain from coutinuiiig to juesent them without posi- tive order." The statement in the Case of the United States which is thus commenied upon \va> the following : "On the y.5(l of November, 1^11), the Minister again comidained. He says: 'One City alone on this coast has armed twenty-six ships whi(!h prey ui»on our vitals, and ;i week ago, three armed sliijjs of this nature were in that jiort waiting for a favoralilf occasion of sailing lor a cruise.' But he furnishes no facts, and he gives neither ])i( f nor fact iud'_^.!tii'.g the eity or the district which he suspected, ami nothing to ali'mil the fiovernment any light for iii(|uiiy or investigation. Ou the contrary, he says : '/ xlinll not tire iioii nilli the nnmcronn inntancrx of these farts ; ' and ho adds, as if attaehin^' little omoi'eal importance to the matter, 'relying confidently' on the successful efforts of this Uoverniueut, 1 choose this niomi;nt to pay a visit to Brazil." (American Case. p. 14:5.) The first fact that will strike the Tribunal is that iu this statement a.s,sailing tln' fairness of tht; auiilysis of this letter whirli is given by the United States, the extract at the close of the United States analysi; i not to be found. In fact, tiie British Coun- ter Ca.se omits the following paiagrapli- "i Mr. da Sena's letter, which, in the jud);- uieut of the Uiiit(;d States, are the paragiaplis tiie, most «'ssential in this controversy: "The Executive, having liniioralily cxerte'd tin; powers with which your Constitution invests him, and the evil he wished to stoj) being found too re'fiactory, it would he men' ami I'ruitless iiniMntunity if I continued with individual complaints except by jxisitivc orders. This Government is the only ))roper judge of what constitutional depositions or arrangements may l»e established for the enforeemeiit of the laws, and he alone hi\> the means of olttaining them, which are eoustitiitionaliy shut to any foreign niiiiisfei. 1 trust iu the wi.s(l(»m and justiceof this Government that he will find the proper means <)f jtutting an end to this monstrous in tidel conspiracy, so heterogeneous to the very nature of the United States. " Before such convenient means are established, the t Torts of a rortugue.se Minister on this subji;ct (the only one of importance at jtreseiit between the two nations) are of little jiiotit to the interests of liis Sovereign. Kelyiiig confidently on the sueee.ssf'n! «>H'orts of the (iovernmeiit to bring forth such a desiialile order of things, I choose this iiMUiient to pay a visit to Brazil, where I am authorized by His Majesty to go. Myil^''' NOTE A. — BRITISH CRITICISMS ON U. 8. CASE. 229 and my private affaivx .lo not allow nmch delay in niakinleted by adding; the ])assage omitted in the IJritish Connter Case, jnstilies the stiitenient nnide in their Case, I. It refers to representation made " dnrln;ives a reason for this which is omitted in the Jhitish Connter Case, iiaincly, that while he is sick of receiviii};' conimnnications of I'ortnjjuese i)roperty stolen, he recoj^nizes that the Government what he complained of, and has exerted itself as much as it could to iliat end. 4. 'ihe llnited .States cannot bo said to have represented 7Ir. da Serra as attachinff jittlt! or no importance to the nnitter. "What they actually said was," he adds, as */ attaching littl(> or no importance to the matter, " reiyinj;' conhdently on the successful eftorts oi this (Jovernnn-nt, I choose this nn)nient to pay a visitto l?razil,"'and they sub- mit that he certainly did not do what it said in the IJritish Case that he did do, " Explain why h(i chose to leave his postat that particular time, namely, that until, by the amend- iiieiit of the law or ortherwise, the inojier means should be found for puttinj? anend to tills • monstrous conspirjiccy,' he found by «'xy)erience that complaints were useless, and should refrain from coutinuinj)er nii'aiis o the vfiy Miaistov itions) arr HUl'I't'S**!"' hoosc tliii* IV.- NASSAU IN DECEMBER, IHC.I, AND JANUARY, 1SG'.>. On page 02 of the British Counter Case, it is snid : " It may, however, be conv(>nient, sinc(; the (iovernnient of the United States has diari>ed Earl Russell with havinj^' nej^lected to make in(|uiry ant' con- tented himself with announcinj'' ' a condition of atVairsat Nassau ' which Nassun. was' inuffiiniry,' to state what was actually done by Earl Russell upon the receipt of Mr, Adams's representation, what had been previously done, and what were the facts existinfjf at the time," The alleitation that " the United States have eharj^ed Earl Russell with having neg- lected to make inciuiry, iind contented himself with announcing a condition of atfairs at Nassau which was imaginary," is itself an inuigination. The United States did not deny that Earl Jifussell made an in(|uiry. They said that had Earl Russell sirioiisly in- (|uirc(l into the conii)laints of Mr. Adams, a state of facts would have been disclosed entirely at variance with the rejuut which Earl Russell, on the 8th tlay of January, l>d"i. sent to Mr. Adams as a cornTt statement of what was taking place at Nassau, and that that statement was imagimiry. The facts which are shown prove this, Mr, Adams, on the Sth day of October, IHfil, transmittcMl to Earl Russell a letter showing tliat " a (|nan!ity of arm^■ andi)owdtu','' for the use of the Insurgents, was " to be shipped t(t Nassau," (■onsigned to Henry Adderley. Earl Russell answered this complaint oa tlie t^th day of .January, IHi'i, by saying that the Lieutemint (Joveinor of tln^ Bahamas had received a letter from Mr. Adderley th October. (British Appendix, v(d. v, p. 20.) file iii'iuiry of Aihh'rley was made on the Kith November, and tho answer comnuini- eatcd to Lontlon on the *j(>th November. On the 'Jth day of December the (Jladiator arrived, with jtalpable jnniof that the answer of the 2lith November hail misinformt'd Ihr Majesty's Government, Between that day and the nth .Jamiary, the date of Earl Kiisscll's note to Mr, Adams, there was identy of time to have given Her Majesty's Oov- •■niiiii'nt correct information, which v imt " imagimiry," That was either nl,st June, l-^l'l. (8ee Han- sard's Parliamentarv Dehatos, first series, vol. xl, pp. iJ()i-374, pp. !567- 'jifi», pp. 1084-1117, pp. 11 la-ua.'-), pp. i'<>:vi-i28,',.) JnlZ\'J July 3,' In the Honse of Lords, 'iHth June, 181'J. (8ee ihid., jtp. 1317-1410.) ''^''• On May 13, 1811), the Attorney General moved for leave to bring mi a bill to prevent enlistments and equipments of vessels for foreign service. Ho said : "He wished merely to give this country the right which every legitimate country slionld have, to pr. vent its subjects from breaking the neutrality existing toward ac- knowledged states, .aid those assuming the power of any states. It was in the power of any state to prevent its subjects from breaking the neutrality professed by the Gov- ernment, and thcv were not to judge whether iheir so enlisting would bo a breach of neutrality or not." (I'p. 3G2, 303.) He said further : "The second i)rovi8ion of this bill was rendered n'icessary by the consideration, that iissistance might be rendered to foreign states tlirmgh the means of the subjects of this country, not only by their enlisting in warfare, but also by their fitting out ships for the purpose of war. It was extremely import.ant for the preservation of neutrality, that the subjects of this country should be prevented fr'^ni fitting out any equipments, not only in the ports of Great Britain and Ireland, but also in the other ports of the British dominions, to be employed in foreign service. The priaciple in this case was the same as in the other, because by fitting out armed vessels, or by 8U)>plying the ves- sels of other countries witli warlike stores, as etVectual assistance might be rendered to a foreign power as by enlisting in their service." (P. 3(i4.) .Sir James Mackintosh, opposing the bringing in of the Hill, said : "It was impossible to deny that the sovereign jtower of every state could interfere to prevtMit its subjects from engaging in tlie wars of other states, by which its own l)oace might be endangered, or its own interests affected. His Majesty could command his own subjects to abstain from acts by which tlui itiiationw of tln^ state with other states might be disturbed, and could comnel the observation of peace with them." (P. :«)(•).) Lord Castlereagh, favoring the bringing in of the Bill, said : "It now became us to adojtt a measure by which we might enforce the common law against those whose conduct wouhl involve us in a war, and to sliow that we were not conniving, as we were supposed, witli one of tlie parties."' (P. 3li'J.) Leave was given to bring in the Bill. (P. 374.) On June 3, 1819, the Attorney moved the second reading of this Bill, and said : "Such an enactment was required by «!very juinci le of justice, ; for when the state says, 'We will have nothing to do with the war waged between two separate powers,' and the subjects in opposition to it say, ' We will, howeviM-, interfere in it,' surely the house would see the necessity of enacting some penal statutes to iirevcnt them from doing so; unless, indeed, it was to lie contended that the state and the subjects who composed that state might take distinct and ojqtosite sides in the (pnirrel. He should now allude to the ])etitions which had that evening been presented to the house against the bill ; and here he could not but observe that they had either totally mis- understood or else totally misreprt;sented its intended objetit. They had stated that it was ealeulated to check the commercial transactions and to injure the commercial in- terests of the country. If by the woids ' c(uniuer«!ial inteiests and commercial trans- actions' were meant 'warlike adventures,' he allow«'d that it would ; but if it were in- tended to argue that it wouhl diminish a fair and legal and i»acilic commerce, he must enter his jtrotest against any sucli doctrines. Now, he maintained, tliat as war was actually carried on against Spain by what the petitioners called commercial transac- tions, it was the duty of the house to check and injure them as speedilv as possible." (P. H7.-,.) Mr. Deunnm, opposing the bill, said : "He was perfectly at a loss to conjecturo by what ingenuity the honorable and learned gentleman could torture this argument into a denial of the power of the sov- ereign and the legislature." ( P. 877.) « 232 AKQUMEXT OF THE UNITED STATES. 'ill- On June 10, IHl'J, tho Attornoy Goncnil moved the order of flu; day for goiiij; iiitit conunittee on this bill. Sir Jiimes Mackintosh, opposing tlio l)ill, said : "The riyht honorable ;ft'ntlcniau inul observed that such a measure as the i)n's('iit had been intnxluced by tho Ciovernment of tho United States and aeceded to by Com press. Tiie United States, said the rijjht honorable f^entlennin. (unichnhsd a treaty witli Spain, and Congress jtassed an aet to carry that treaty into (effect. And why did tlicy dt> so ? Jiecause, thou'jh tho connnon law in Enjjland was snilicient for the reijiiiicil pur]iose, in America it was not. TIk^ power of making war and peace was not vested in the I'residcnit of America as it was in the Kinjjj of JCnf;lan;l. In America, thcrcl'oic, a le<;islative act wiis necessary. ]5ut as His Majesty's i)roclamation of l^'l? was still in force, how could any le^jjislative moasui'o be necessary in this country ?" (I'. l(i'J4,) ^Ir. Canninj;-, sui)p()rtin;r tho bill, Nai to those ik)w under ('(uisidfiii- tion) connnitted on the jiart of subjects of the United States of Anu-rica. What was the conduct of that nation in con8e(|m'nce ? Did it resent the complaint as an infrin^re- ment of its indepondenco .' Did it refuse to take such steps as would insure the iiiniii,'- diate observance of neutrality ? Neither. In 179,'), immediately after the application from tho British government, the legislature of th."> was coulirnu'd in even respect, again prohibiting tho engagement of their citizens in the servict; of any forcinii power; and pointing distinctlv to tho serviceof Spain, or the South Americivn i)ro\ iiRcs,' ^r. 110;-).) He said further: " If a foreigner should chance to comi' info any of our i)orts ami see all this mijility armament ee, ' They are not levied by government ; nor is it known tor what service they are intended; but, be tho service what it nniy, governnu-nt cannot interfere.' Would not all that give such a foreigner a high idea of tho excellence of' the English constitution .' Would it not suggest to him that for all the ordinary itin- poses of a state there was no governmont in England / Did the honorable and h-aniiMl gentlenum not think that tin; allowing of arnuunonts to be fitted out in this countiy against a foreign power was a Just cause of war ?" (!'. 110(5.) He said further: " It was the doctrine laid down by the English govennnont itself that was now on its trial. This country was now calh'd upon to say whether it would act on its owna.s- sorted principles. Those acts, which the bill under the c«msideration of I'arlianicnt tended to repress, were acts whicii in tho docunn^it i)nt forth by England forty years ago were termed a 'nninifest broach of tho law of nations.'" (V. 1107.) On .Fune 11, l^lit. Lord Castlereagh, in answer to an in((niry made in the debate on the bill, said : "That His Majesty's government had issued a prohibition against the exportation of arms or warlike stores to Cuba, or any of our West India islands, for tho jturposo of being sent to the service either of the provinces in insurrection, or of those continuing within the allegiance of Spain. They had taken precautions to guiinl against our own islands being nnido the means of thwarting tho views of tho parent state." (U. Il-:i4.) On June !il, lr:W.) 1I«' said fuitluu-: "Tiiei't' could b»( no .solccisni more injuriinis in itstdf, or more niisdiicvons in its con- st'(|iii'U<'«'s, than to arjfnt^ that tin' Niiiijciit.s of a Mtati^ had a rij^ht to act aini deterniimi whether they would eontiune neutral or assume a helligeriMit attitiulo — that tht^y had the i)ower of jueventiiij;' their sul»ie('ts Iroiii liecoininj' Itelli^erent, if they phrased to exert it. In the next jjlju'e, it was fully admitted that the j^overmnent of this country possessed that rij;lit, which was essen- tial to its safety and soverei^fuly." (!'. \.'2'.V,\ ) Mr. Robert (irant, supitortin;^ the Hill, said: "Why, Sir, what sort of neutrality is this, which, while it operattis only as a moro siilitle sword of annoyance a<^ainst tht^ passive party, throws an impi-netrable ie;{is liver the assailant ? A neutrality which comi)letely proti.'cts the aj^yrressions of the power who has stii)ulated to observe it, while it leaves the power to whom the stipu- lation has been jjiven, only tenfold more exposed anddefiMiseless. Let the matter next lie tried on a somewhat broader ed, and it was of the hif^hest iiiiltortance to the peace of uiitious that j^overument should be so considered. Nations aiinouneed tlmir intentions to each other through the nuidium of their rulers. Hence every state knew where to look to expressions of the will of foreij^n nations, where to learn whether war or peace was inteu.'>( ).) When the House divided, there appeared, ayes, IDt); noes, I'ii). On June 'iS, HIH. upon his motion to connnit the bill, Earl Bathnrst, supporting the hill, said : "The snpplyinj;' bellifieit-nts with warlike st(n('s, and e(iuippin<; vessels for warlike purposes, Avere also ]»roliil»ited. With respect to this part of the bill, he had heard no olijeetiou from any wt!rs than this, that its subj(!cts made; war at iileasure upon states with whom their j;(>vernment was at j^'ace, and without any interruption from that ffovernmeut to their jiursnits. And yet such had lieen for some tinu' the actual situation of this country." (I'. V.\f*0.) He said further: "What would the British merchants, wlio jtetitioned a;;ainst this bill, say if they saw expeditions sailing from French i)orts to attsick tln^ sources of our comnu'rco iu every (piarter of the world .' He was afraid we should not be much benelited by its liein;; left to the option of French olhcers to engage on either side, according to their individual opinions." ( 1*. VM.i. ) I'tnd Holland, opposing the bill, said : "As an argument in favor of the present bill, thc^ nidde lord has said, that if it was not passed we couhl not jneserve our neutrality. Now, he (Lord Hollaml) would, on the eontrary, uuiintain, tliat the existing laws were suttieient for that i>urpose. He I- •■-fa ir- 234 AKOl'MEXT OF THE UNITEIJ 8TATES. 'Bii- would ovi'ii niii till' liiizard of stantliiijj up for the iireiojjiitivo in this case agaiiinf tlic iioltlo hml." (!'. i:{l»l.) )lo Hiiid fiirth«T : ''A MovoriM;;ii iiiij^ht hv calli'd upon l>y out- hcllif^crcnt pinty, vith whom lie was jn alliance, to jirovcnt his suhji'cts from tMitcrinj; into thf sitn ire of its enemy, so as in li, employed u^{ainst it. The soveieiy;n mi;i;ht issm^ his ]»ro(lamation jnohiliitin;; lii« HiilijectH from enlistinj;; and if they did so after that proclamation, they would In guilty of a hi^h misdemeanor and mi;;lit Im juniished accordinijly. Hut this was all tlftit a belliifcrent state could ask. It could not demand from the siiverei};n a cliaiii;. in the municipal laws of his dominions, or a modilication of them, to suit its commii- ieueo. The noble earl had said: 'Look to the United States, and see what they Jiavr done ;' but lus had not adverted to the dilfenuice between the power of the executive in this country and the ■ .Mcrican I'nion. Tlu! President of the rniled States had imt the j)ower, like the sovereiy;n of Enis, where tht< prerov;ative siheady pos.se.H.scd tin ri^ht which a particidar law was tiuMe requisite to confer." (1*. HUU.) The bill on this day went through the committee. II.— LOKI) ALTHORl'S MOTION FOR THE IJEPE.VL OF THi: FOK'EKJX ENLIST MENT ACT. Mnliiili to rt il -unit Ai't."" ' " Debate in the House of Commons, on the itith day of April, l^'iH. (S(( Hansard's Parliamentary Debates, second series, vol. viii, pp. lUID-Ki.Vt, Mr. Canning;, opjiosinii the motion, said : "Sir, the a<'t is diviarts; tht^ one pr(diibitinn Ihit- isli sjibjocts from enterinjjinto the military service of bellij^ercnt states; theotiicr t'm- bi'> ) lie Haid further : "If I wished for a f^'ii'lc i" ^ system of neutrality, I should take that laid down by America in the days of the presidency of Washin^tcm and the secretarysliij) m Jefferson. In 179^ complaints were made to the American GovernnuMit thai French ships were allowed to (It out and arm in American ]iorts for the puriins. of attacking ISritish vessels in direct op])osition to the laws of neutrality. Immediately upon this representation the American Government held that such a tittiii<: out was contrary to the laws of neutrality; and orders were issued itrohibitinj; the arming of any French vessel in American pmts. At New York, a French vessel lit tin;' out was seized, delivered over to the tribunals, and condoinned. Upon that occasimi the American Government held that such fitting out of French ships in American poits. for the i)urpose of cruising against English vessels, was incompatible with the sover- eignty of the United States, and tended to interrupt the peace and good understanding; which subsisted between that country and Great Hritain. Here, sir, I contend, is the princijilo of neutrality uj)on which wo ought to act. It was upon this principle that the bill in ([uestion waa enacted." (P. 1050.) lie said further : " Wliile wo declare ourselves neutral, let us avoid passing the strict line of demai- kation. When war comes, if come it nni.st, let us enter into it with all the spirit ami energy which becomes us as a great ami indtipendeiit state. That period, however. I do imt wish to anticipate, and much less desire to hasten. If a war must come, let ii come in the shape of satisfaction to be (h'lnanded for injuries — of rights to Ix; iis- sorted — of interests to be protecte7.) When the House divided there appeared for the motion, 110 ; against the niotiou, '.21'' III.— THE AFFAIR AT TERCEIRA. Debate in the House of Commons on the '2Hth of April, lH:i(». (See Hansard's Parlia- mentarv Debates. New Series, noI. xxiv. iip. 1'2()-*214.) The resolutions ln'fore the house wen^ as follows : " That luior to the 12th of December, \'*IS, Her Majesty the (^neen, Donna Maria II. had been recognized by His Majesty, and the other great powersof Europe, to be lejiiti- mate Queen of Portugal ; ami that at the period above named the said Queen wa* NOTK n. PAUMAMKNTARY DliMATEH. 235 •v.: ' ifsiiliii;: ill Miis country Jiiid liad licon received by His Mnjrsty witli tlic .iicustoined liiUHH'* ol' ln'i' loyiil niiik. "'i'liiit on till' siiid I'Jtli of J>fi('nil»er tlio inlaiid of Terceiiii, imrt of tli(5 doininionsof thi^ (/nceii of rortii^al, was j;overned l>y autlioriticM, civil antt l<';i;;al, in alle^fiaiico ti» 11,..- Majesty. "That on the said I'itli of December instrnetions were n'^'"! ''.v tlie I^ords foniniis- sioners of the Admiralty, statin;^ that a considerable iiiiml>er of J'oifnunese soldiers 1111(1 other foreigners were almiit to sail in transports from Plymouth to l"alinouth, and It is siijuiosed they intend makinfjf an attack on Terceira or other of the West- I'lii Isles ; and Jlis iMaJi sty having been pleasetl^to coniinand that a naval force should Ik; iiMme«liately disj)at(hed to interrui»t any such attempt, yon are hereby reiiiiirod anil directed to take ship and sloop named in the nmr^in under your command and to in'oieed with all ]na(tical exi»editioii to Terceira ; and havin;j: ascertained that you liavi'sncceeded in reaohin;; that Island before the transi»orts alluded to, you will re- iniiiii yourself at (►n^ra or I'raia, or cruisini^ close to the island in the most ailvisable liiisitioii for intercept in;^ any vessels arriving; otf it, and you will detach the other ships as VDU shall deem best for preventing the aforesaid force from reachinjj auy of the other islands. " I'hat on the airival of the naval force sent to Terceira, in ]iiirsuance of these instructions, the commandinj; othcer found that island in iiossession of, and {governed h\, the authorities altove mentioned. ''That in the be;;inninear to have embarked and sailed in unarmed merchant- >liilis, to have lieeii niiacconij>anied liy any naval force, and themselves without any ai'insiir ammunition of war. "That these nnarnied merchant-shi|>s and i)asseu<;ers were prevent(>d by His MaJ- isty's naval forces, sent for the jjui'iiose, from enterin;^ the harbor of Porto I'raia ; and tliat after they had been liri'd into and blood had been spilled they were comiielled, miller threat of the further use of force, aijain to jiroceed to sea, and warned to quit till' iii'i>;hb(uhood of Terceira and the rest of the Azores, but that they might inocoed wiiiTcver else they nnght think proper. "That the use of force in intercept inj;' tliese unarmed vessels, and preventing them aiicliDring and landing their passengers in the liarbor of Porto I'raia, was a violation iif the sovereignty of the state to which the Island of Terceira belonged ; aiid that the further interferenc(> to comi)el those merchant-ships or transports to ijuit the neigh- limhimd of the Azores was an assumption of Jurisdiction upon the high seas neitlier jnstitied bv the necessities of the case uor sanctioned by the geueral law of nations." il'p. l-.'ti, I '27). During the debate Mr. Secretary Peel, s]ieaking against the resolutions, said : "The next question for consideration was the character of the expedition, and his lijilit honorable friend contended th.at, going unarmed from our shores, the refugees wire not to be considered as a military body, and that their conduct was no breach of iiiir neutrality. Was it then to be contended that no expedition was a military ex])e- ilitiou except the troops hanti'st with aiiotluT )io\vcr on iu-tHiiuitof tlio biviich of our iitiilnility (•(Hiiiiiiltcd liy tlu'Mf in'oph'." (I'. "Jdd.) I If sjiitl riii'tlicr: "Nt'iitralN siiiill not MiitVt'r tlifinsdvcs or tlicir possrsHioiw to In- mail)' iiiHtniiiniitai in (loiiij; injury to otlmr nations. Tiicru is no law of natiirr or of nations — no ol»iij;i|. tion of Jiisticc— which coiKicinn iis to he tiiii (Iii|h's ol tliosc wlio woiihl 1( ail lis into siii'ii wroiijj;. That was tin'. thictriiK' iio would ai)ply to lln- pifsfiit case — wc were ikii to be inad*^ th(f dupes of t.liese people, to coniniit wroiiij aj^ainst another jiower. Itiii the (•(MlseiineiK'es, he helie\ cd, of sllell proceedili;is, did we permit tlielil, would lie fM|;il to ourselves. If we siijiported or allowed fraud we should have no remedy hiil to submit to it w hen oiirow n ri^ihts were in <| nest ion. !f we allowed one hostile expedition to be pie])ared within our territory, ten years would not elapse, to use the remarUaMc words of Mr. ('aniiin^ in the deliate on the Alien ISill, ' liefore this country will lir made the work-shop of intrione, and the arsenal (d'ev.-ry malcontent faction in I'.niopc. IMaced, as this country is, on the <'onfines iii;. such facilities in lu.'r maniifaetnres and in her natural advanta;;es, and abov(> all, in her free institutions, for the juirposes of hostility, it be(M)mes her to watch with tin' narrowest scrutiny that the facilities she alfords are not abused to lier own injiii v." (l'.'.2(ll.) Jle said further: "He remembered that when he was sittinj; by the sidi' of ilr. Canninjj, as his cnl- k'a<;ue in olllice, that it was stated Ity that ri;;lit honorable (ieiitleman, shortly bcfmr the Alien Act was brouoht forwaid, and when Ministers weie c(msideiinif of the pio- ])ricty of abandoning; it altogether, that inforniation had been obtained, and he knew it to be correct, that the Spanish eonstitiitionalists — the martyrs to liberty, as the lion orable baronet called them — had resolveOJ-l.")i;}, pp. l.'Md-io.jl!, p. ir>>>».) In the House of Coinnums, 8th Aujxiist, l.>:*7(». (Seo ibid., pp. 1()7G-1C8(I.) On 1st Aiif^iist, 1870, on the order for the socotid reading of the bill, The Attorney General, Sir K. F. Collier, said : "I think, however, the house will aifiee that, upon the breakiu^ out of this luiex- pected and most calamitous war. Her Majesty's Government would have been very much to blame if they had delayed for a single day to introduce this measure." (!'• i;«!7.) He said furtlier : " I now come to deal with the question of the equipment and littiug out of vessels, NOTK II. rARI.IAMKNTAUY DKUATKS. 2;57 itUIKltl'. V latli'ii. )iir iiiilc- I'V. to llSl' Mtl'il. (IV llO llllUSI' il whiili ;lVt' SOlll'' •onil'liiiut ic laws ol iiiai«>vitv. li, ami ."itli ■ rii's, voi. :.lii.s luiex- l)ocu very are.-' (!'• )f vessels. Tsitli rt^siHict to wliicli tluMti Iuih ln'tly not niorcly to tlin arniiii;; and t>i|uip|iin;;, hut to tlic Itnililin^ ot'a hIiJ)). J'liiit I't'coinint'intlation was niaiU) by all tin; C'oniiniHNJoncrs, witii lln* rxcnption of my lidiioraltli" and l«-arntul Fricndtlio M»'ml«)r for Oxford, (Mr. Vormiu llarcoiirt,) forwliosc aiitliority I liuvo Mid ^n^atttNt rrs|M>(;t,(iltlioii;;h I tliink that lix, in tli)> prfNcnt inHtancc. WHS wrtinjj, and that tho majority of tlic (,'oiiMnis,Hioni'r.s wcrt' rlf;ht. If sncii a jtrovi.s- loii were contained in tli«icxiNtiii;;act, the Alahanniconld not liavecscapcd iinil tint Alcx- iindra mnst have been condcnnicd. It ohvioiinly i.s very nnsati?tfactory fora (jiovernment to lie aware that a veswl in heini; hnilt fora hellijferent, to know her destination, to have to wait day aftt^' day till she is eouiph'ted, and tlienone tineniornin;; to lind that sh<> is irone. Now, that has more than onee occurred, and it is desirable that it shonid not iiccin' a^ain. Then! is also a )»rovisioii in this sectioir which touches the case of the iiii>i'elied to tliat bellij{crent and nsei, t ir warlike jtnrposes, that shall Im held to be fnima-fiiiif evi- iltiice tliat she was bnilt for the warlike service of the bel]i;;erent, nidess the innocent (loHtination of the vessel can be established. In a provision of that kind there is, 1 ap- \ireliend, no hardshi))." (1*. l:i(W.) lie said further: " 1 have now to call att(^ntion to a very important power which we ))ro]ios»i to jjive by the bill. It is the power which it confers on the St(cn;tary of .State, on his bein;; satis- lii'd tliat a ves.sel is bein^ built orei|uipped for the service of a foreiirn belli^rerent, and is about to bti dispatched, to issue his Warrant (trderinj^ lier to be seized and detaiin'd, wliich Warrant is to be laid on tli« Table of the House. It is further provided that the (iwiier of a vi'Hsel may a)>i>ly to the Court of Admiralty for her ndease, which he may iilitaiu if he satisties the Court that her destination was lawful, undnot only nuiy be ob- tain her release but damages for lit^r retention. In order to prevent any hardship, there is, moreover, a provision that tiie Adndralty .shall release the v»'s.sel on a bond beinjr ^iven that she is not to be employed on any illejjal adventure. There is auotlmr pro- vision in re.sjtect to wliich the Bill, I admit, <;o*'m beyond the recommendation of the C'oiniuissioners. It >;ives powt-r to tlie hx^al authorities named in it to seize a vessel if tiicy have reason to suppose slu; is about to escape, but then they will havt> to report iniiiuMliately the seizure to the secretary of state, who will ))0 onii»oweiod at once to re- lease her shoidd he bo of opinion that there were not suflici«'nt grounds for the seizure, and assuuun<>' the vessel to have been seized without n-asonable cause, and reh;a.sed liy the Secretary of State, the owner will be entitled to claim damajjes for the detention. Tliese are the provision.s by whieii we jiropose to attain the object which we have iu vii'W. and to render extremely ditlicnit, if not ahuost impracticable, the escape of any >ii(li ves.sel as the Alexandra or the Alaliama in future." (1*. I'M'A).) Mr. Stavcly Hill, 8ui)portiii<; the bill, said: " It w as very necessary to pnivent tins recurrence of what haj>pened duriuj; the Ameri- lan War, when this coinitry was made a starting point for a ship of war which, as had i)i(ii ajttly remarked, was an exiiedition in itself." (T. l:?7'.i.) Mr. Vernon Ifarconrt, sni)p(n'tinlied, and that the strength of the Bill had not lieen thrown into tlie preventive clauses." (P. 1375.) He said further : "The Attorney General had stated that it was his intention to strike out clause 11, which was iu tended to prevent the hospitality of their ports being extended to vessels Hiat had illegally left that country, on the ground that ho thought its object would be '•;'tter carried out by means of a regulation to be enforced by the Executive. He (Mr. ^ernon Harcourt) entirely agreed with the necessity that existed for the enforcemeut "f some such regulation, because he believed that had the Alabama been excluded froiu mv ports after she had escaped from this country the ditliculties that had arisen T '!| ,'i- •/«!&-., 288 ARGUMENT OF THE UNITED STATES. 'JjjSMl! Itetween this coimtry and America, in reference to that vessel, would have been avoided." (P. i:J78.) Mr. Uathliono, snpportinf; the bill, said : " In the name of tlie mercantile ctmimiuiify, he thanked tl\e Government for introdnc- infj this Bill, wliieh only carried out the ])olicy which tin ship-owners of Liverixiol pressed on the Government of the day very s^ton after the escape of thts Alaliaiiui." (P i:?t;U.) Visconnt Ihiry said : " He could not aj;rce with ihc honorable >[ember (Mr. IJourke) in rofjarding this as au ino[»portune moment for brinj^irifj f- '...ulib'r o." a shi() would have tlu' small'.'st dillieulty in proviu;;- what his contract was and under what cininn- stances it was undertaken." (P. l.'tHi.) He said further: ••'I'he object of th<( danx was to prevenr the esca{fe of suspected ships I'nuii tlic harbors of the kinj;doni till the secretary of state had been comninuicated with. The clause K'lve a. d hiUrim power of seizure. "' (P. VtV2.) 'J"he Attor'K-y General, Sir l{. P. t'ollier, said: " The object w:is to j^ivi^ power to any otticev who saw a ship about to escape to pre- vent sucii c.scai>e.' (P. l.'iPi.) The Attorney General said further: " Th;< ohicers name(l would be able to seize a vess<'l without s|>ecial instruction'-, in (udcr rhat such vessel minht not be allowed to escape. Ii was a most ini|M»itiiiit power but it was only to Ite used in case of enter;;ency, and if any wion<; was done lij the seizure there would be com[)ensation."' (\'. l.'PJ.) Mr. Whalley said: '■ He ^^■ished to ask, was such stringent lejfislation in oraetice in anv country of tin' world.'"' The Attoriu'y General said: •' The clause svas copied from the merchant-ship)i'n|f ar-.t, which had been in (oivc for twenty years without any eompliiint." (!'. b")r.i. ) On the 4tli of Aufj;ust, J "70, tiie bill hein^ xiiider consideration, the Attorney (Jcnerii! Sir K. P. Collier, said: " Ho would inopose to (Unit ' \iuse II. This clause provided in etfect that no war vessel employ«!d in the milittiry or naval .service of any bellJjrtM-ent which should li;i\f been built, ei(uip[ied, lit ted out, ai'med. ordispatclied contrary to this cna<:tmeutslioiiM be admitted into any poit of Her Majesty's tlominions.'' (Sivi the Keport of the Coiii- missiou, documents with the I'nited States Case, vol. iv, p. f*'2.) Mr. Dickinsmi said : •• He hoped this would not be don(>, otherwi.se vt^ssels corrcspondiu!; with the .\la- biinia conhl be snccore:! in our colonial ports.'' The attorney-f^eiieral said : '■ He liinl to explain that, althomih the royal commissioners made a reeommeudat','ni to the ellect of this clause, they did not intend that it ;:!;ou!d be emitodied in an ait ol I'arlianieiit, but that it should )»e caiiic-d out under the (Queen's refjulatii>ns. The <;o\ ■ ei nor of a colony would, under this ( iausc. have to determine whether n ship cnteiiii;; Ids ports was illejially fitted out or not: and this was enoii!;h to show the object tlii' comiiii.ssioners had in view could not be carried out by an aci- of Parliament. It wii> inttMidt.'d, instead, to iidvise colonial governors of the escape of any ilhj^a'iy-titted ves- sel." Clause struck out. (P. 1.").m.) Mr. Caudlish said : " He wished to call attention to clan «. "il. 'f provided that any custom-house otlii t r niiyht detain a susj»ected shij), so thati the power would be vesteil in a tidewaiter who received, jierhaps, Irt.^. a week. This was an extraordinary power to vest in such hands, and he would propose that the power should he only ext^rcised by the chief ollici r oi customs in any port of the United Kingdom." The honorable meu)ber coucluilcd hy movinji; his amendment. (P. l.'irtrt, ) Amendment propo.se leave out the word ' any,' and insert IIk' words ' the chief,"' (Mr. Candlish) instead thereof. (1'. l.'n')*;.) Mr. Alderman Lusk .said : " He questioned the propriety of (rivin>? so much power to custom-house otticersct the lower claBs, a? was pro)»<)8ed by this bill to confer on them." The attc •' 'I'hose iKiwcr was (•(instable ;iii(;d to th 'i( fiiicrjjei r.'siilt. Tl ill all the i> rhat could 'intaiit th ileparture i ••(iMicsti( iiii'iit iicgai (In the -^ (iiitit Hali ■■ lie had Ithe liill ( mild lie ex :v)iculed th ■IlKVill to b( I lown, (Vol MaJcstN wa iiltlc and L lii- avowee :u'stion no ijjii coinitr ■ xisted in t ■ cut their s ■" IHidiibit ''fllii.'cvcnt II-. iHiriiij :iii!Ii(l t(( be wiv till' ord lllIM. icjich ' si/iiciit at I li'Mi ; and ■nliinials re; •'•1. They \ ilili'i't wo'.ih iiiissiiiii prc.s iiifii." (Pp. Hi; said fn "'I'la' inea :Nii 'II local ' i>i 'Xi him ' iih the ex( ''.IN (lllji'ct C l.iini K'ed. hi iiropos '•"Ills. Mjiv .•'!' t;n--7oi )- I.iiid h'ede "The .Soilt ■111' ship, 'I'l '-i' Ihi' iujii ■ iiihr their i 'hi iiioviiij !-''i.,r .Jmu 'iiiiil .scries, '-•III PllSSt Tlip.s*. wt •With re '"'Vi'nniicnt. i'l'Miiy, ih;i. ■•■'■< ill se\ era ■■■fhat. at NOTE B. PARLIAMENTAKV DEBATES. 239 ■lit sliolllil the <'i)l!l- the Alii- Tlit) attrovei:ients as experience liad .li(p\vn to be desirable. It prohibits subjects of Her ''la.jesty. witiioiit license inm\ tlie iinwii, from taking any part in iiostililics between two countries with which Her \l:iji'stv was on friendly tci-ms. Ma need Uiit a arguments to show how uiijiisti- iiUeand monstrous it would be for Jhitisii subjects to take part in hostilities, wli.Mi iic avowed policy of tiie government was that of jM^rfcct neutrality ; but it was.*, utstion not of international, but of municip;il law — not between tliis country and for- ij,'ii countries, but between the (Jrown aiiil tlie subjects of the Crown. .V similar law listed ill the I'nited iSt-tes, wh'le. on the continent, governments were able to ))re- .xiit their subjects from . iolating neutrality. Tlie principal objects of the bill wt-re tu jiidliiliit any subject from enlisting or indnciiig otiicis to enlist in the service of a 'iiflligi'veiit jiowcr, and from lifting out, et|ui|»ping, or arni';g any vessel t'or such serv- II. liming the Anicric.m war, the powers of the government in this matter vero icimid to l>e insiillicieiit. In the case of the Alabama, tlnit vessel left this country bi-- i'iin- the order of the go\ eminent, issued as soon :is they had sutlicient evidence before ■\n-]u. leached the jiort ; she lelt our port as an unarmed ship, and only received lier ar- .iiiiiciit at sea. beyond our jurisdicti, lt 'II him full respoiisibility. It embodied all the reconinieiidations of the report, villi the exception of that relating to the reception of vessels into British ports, ami '!iN ohifet couhl be acc(uiiplislied by orders in couneil." ( 1'. IbTii. ) l.iinl h'edesdale " thtuight the late introiliiction of this bill was excusable, as the •signuy w likh called for it had only Just arisen." {V. IbdO.) <»rticers nl V,— Tin: TK'EATV OF WASHIXCTOX. Ill iircposing a (|iicstioii in rcgaril to the '■ Alabama claims,'' in tlie House of '•"Ills. May I'J, IrTl — (, See Hansard's I'arlianieutary iJebaUs, bird .series, r,,.,.,. i wi.ii ..ijl fl|l«-7(li ) mjlnli. I.onl ifedesdale said : ■rill' Southern Slates bnil' and tilted out the ilabnma. They ordered and jiaid for 'hi' ship. Their agents to the board of customs and see wiiether they can ol)tain evideiice by which the owners can be convicted.' It was referred to the legal advisers of the board, and on the 1st of July I was able to inform Mr. Adams that the Imard held there was not sullicii'iit evidence that the ship was fitted out with the view of making war upon the conmii'ivc of a power on friendly terms witii Her M/ijesty, and accordingly I deemed myself una- ble, on that sfatenu'iit, to direct a prosecution." {V. \S',M.) "On the 2;Ul of July, Mr. Adams informed me that additional evidence had Vkhmi procured that the ship was efpiipped so as to be fitted for warlike purposes, for lie hail obtained the evidence of a man named Passmore, who said it had been proitosod tu bim by the captain of this vessel, '290,' that he should go to sea with him and iiiaki' war on the commerce of the United States. That evidence was at once submitted td the law-ofticers of the Crowu, who, on the '29th, informed nio that there was a cnse tor detaining the vessel and iiistituting a prosecution. On that very morning, however, she escaped, and it remains a (|uestion which may fairly be .submitted to any arliitra- tors, whether I Avas justiri> thi- general i»artiality to the cause of the South, known to ])revail at Liverpool, and that a prima-facie case of iiegligen(;e could be made out ' — [not an ascertained case alter ilih' iutpiiry and iTivestigation]— ' (ireat Britain might fairly grant a sum equivalent ii the lunount of losses sustained by the ca])tures of the Alaltauia.' "That passage occurreil in the introduction of the noble earl. to his publislnl speeches." (P. lA'iO.) During the same debate, the Kail of Derby said : " The matter is one on which I hardly like' to trust to the recollection of theuioment. but I ilo not think that any one who has been concerned in these negotiations, iinwiMr much he may have justified tiie conduct of the government of tiieday, denied that tli' eseape of the Alabama was a regretable proceeding," During the same debate Lord Uairns said : " In the liixt article the duty of the neutral is (lualified in this way. The nenttnl i^ ' t(» use all diligeme to prevent the fitting out, «fcc., of any vessel 'it has ri'aioiialdi ground to lielieve is intended to carry on war against a belligerent. I want to kinnv why these words ' which has reasomible ground to believe' are not repeated in the sei ond rule. Why is t\w jduaseology so entirely ditferent in the first and second j)ari< of the clause f The only explanation hitherto given us is that given by the presideiii of the council, who says that the charge against us is that we did not use tiiat dii- diligence which was incumbent n|)on us as Ufutrals. Hut tlu» words 'diuj dilifienei occur in the first part of the clause just as nmch as they do in the second ; and if du" ililigonce is euongli, and would prevent the question arising as to whether you liadrea NOTE H. — PARLIAMKNTAKY DEBATES. 241 I'ttiok to I it was (Icrntt's, r tliin to > owners the Isi mtticii'iit mimt'rcc nv\( iiiia- liail been )r lit' luiil iposi'il to mil luakt' nittt'tl to II en tie for however, y iiil)itra- ifterwiinl sntVicient le 5i7tli of 11 question re usiiiUly fiicts ami itioiis (if a jover, liml Alexandra B still lu'Ul 8, whetlii'v e, wlietluM 1(1 whetliiT 1.) •rioun Gov- ■ one to say pini; siuli principle' detail.-* liy judjre.l Uy not usiiin overnnii'iit hieh it ha- ) so late a> n\'^ jiarti'i Ided l.y til.' [and tiiat a L after dii.- liiivalent til publisli' juMnoineiit, <, illlWCM'l led that tli>' |> neutral i- Irea-iiinabl'' lit to kii"" Tin the sn- jeond part- lo presiil''"^ %. Ihatdii': dilijl"'"''' land if '111' 111 had i«- »onuhle j;r()un(l Tor holiiie diligeii'^'. hy itstdt' means nothing. What is line diligence with one man, with one power, is not dm^ dilig(iice with another iiiai), with a greater jiower. Now this liccoiiies much mori' important when \oii introduc(^ in connectinn another consideiation. TIk^ rule I liav<^ read is to ii.' a rule of international law. and if there is one thing more cieai' than another ill international laws, it is this, that as lietween two eountries, it is no excuse where ,111 iiiternationa! oliligatioii has lieeii Itroken for one eomitry to say to another that its iiiiniieil>al law did not confer upon its Exi-eutive siittieieiit powei to enable it to fullill ;;s iiiferiiational duty." (P. 1""-:*^. ) Itiiring th(^ same debale. the Lord Cbancelhir. Lord llatherley, said : "111 the lirst i)lace, it was well said tliut thcic is no correlative co!iiiecti(Ui between iiitoriiational and municipal law in the abstract ; that a fonugn nation has nothing to do with the municipal law of another n.ttioii, but has a right to mei^t a statement tliat in any country with which it has dealings thru) exists no such law as W(ml(l prevent the aits com|ilain(^d of, with the reply that it ought to have such a law, and that in- ifrnationiil law alone must settle the i|uestioii between them — this being the line taken iiythe riiited .States in reference to the Alubama." ^^. l^'JU.) The Mari|uis of Salisliiiry s;iid : •'We have not been t(dd what is to be the standard of ' due diligence' for us. A iiiiitral will now Ik; bound to adopt a svstein of espionage in order to ascertain whether ;iiiy vessel is intended for a hostile cruise. It will b(< bound to increase its police, that It may have full information of all sui'li undertakings. It w ill be bound to interfere with its subjects, to make minute inquisitions, to take an enormous number ol' costly ,111(1 lahinious precautions which before this treaty it was not bound to take.'' ii the Ttli of ScimiihImt. I-iU. ?>ir. ^l•\\;urt'.'>)M'('triil it \ du siioiiltl riMiiiiul Loi'd i,' that wiu'ii. ill l--!', a (■i\ il waf lnokc out in Canada, ;i i>ai't ot" the Itiiti.'sli doni lUllJll-. jidjacciit to the I'liiti'd States, the (;oii;ri,..ss of tlic riiitt.-d States jtaMScd, and tlic I'lcsi dent fxcciitt'd. a law \vliirli etViH-tiially jireveiited any intervention against the (niv <'iiiinent of (ireat riiitaii. in those internal ditlereiiees Iiy Aineiieiiii eiti/.eiis, MJiatevi-i iiiijilit be their motives, real or pretended, whether of interest or syiniuithy. I send yoi; il copy of that in.'ietinent. The Jiiiti^h (ioveinnient will .jiidiC'- tor itself whether it i- 8ii;;j{esti\e ot' any uieasuics on the ]),'ii't of (ireat Itritain that niij^lit tend to ])ri:s('r\,> the peae(> of the two eouiitries, and, throii^^l.'. that way. the peaee of all luitioiKs." (Am A]vp., vol. i, ]). lO'J. iKiO.) On the 'J.^'th of November. l-t!l. ar.d, as it ajipears, before Mr. Adams had taken tln' dir<'et aetioii indieated in the dispateh ot Mr. .Seward aitovc quoted, l-ord liiissiii Avrote to him as follows: '• llavinji; thus .inswered Mr. Adams upon the two jKiint.s to which hin attention ywa- call(>d, the undersijiued has only further to say that if, in oriler to iiiaintuin invioliiic tho neutral character which Her M.ijesty lia.s a.ssumed, Her Majewty's Gov 'rminiit shotild find it neces.sary to adopt further measures, within the limitH of pul In law Her Majesty will be advis«'d to adopt such nie.isures." (Am. A)>p., vol. i, ji. titil.) On the 'iTth of March, ["(i'i. Lord Kussell wrote to Mr. Adams in part a.s follows: " I afirt'o with you in till' statement that the duty of nations in amity with cai ii tither is not to sntfer their ;;ood faith to be violated by evil-disposed persons w itjni' their borders merely from the inetlicacv of their prohibitory policy." l^Ain. Api'. vol. ii, p. (102.) On the yOth of N(>\ ember, l^t)"2. Mr. Adams, in accordance with explicit iustriictinih from Mr. Keward, wrote to Lord Kussell, subndttin^ to his consideration a larj;e iiiiiii- ber of papers, estaldishiuj; the tact tliat tins Alabama had destroyed a nuinlicr i>! United States vessels, and so was actually earryin;; out the intention which Mr Adams allejicd tliat she had juior to her departure iVoiu the ports of (ireat Britain, and in the conclusion of the letter Mr. Adanis said : "Armed by the authority of such a preicdcnt, havinjj done all in my power to ap pris«' Her Majesty's (ioveriiment of tlie ille;;al enteri)rise in ample season for etVectiiiu its i)roveiition, and bein^j; now enabled to show the injurious conse(|iien<'es to iniiorcnt ]»arties, ndyint; upon the security of their conimerct- from any dan;i;(.'r throu<^h nriti>li sources ensniui; troiii the omission of Her Majesty's (jlovernment, howt^xcr little lii- si;;'ned, to apply the pi(>|»er )Mevention in due season, I have the honor to inform ymu lord.shipof the directions which I have received fr»un my (iov(!rumcnt to soli<'it leclii^- I'm- the national ami piiv.ate injuries already thus sustained, as well as a nune ei'lntivi' prevention ol' any repetition of such lawless and injurious )iroi'eedin;j;s in Her .Nlajr- tv'8 ports hereatter." (Am. App., vol. iii. p. 7"2 ; vcd. i, i>. (idti. Hrit. App.. vol. iv, p 1;-,.) On the liUh of December, \^^V2, I..ord Kussell in part replied to Mr. Adams as tm lows : Ah regards youi demand for a more eiVectixe prevention tor the future of the tit- tin^ out of sueh vessels in ibitish ports, I ha\(' tlie honor to inform you that Her ihi|- esty's (ioveinment. after consult.tt ion with tiie Law-Olticcrs id' the Crown, arc of o|iiii ion that certain amendments might be introduced into the I'oreigu-Hulistmiiil A'l. which, if sanctioned l>y i'arliament, would h.ive tin- otVect of giving greater powei t' the Kxecutive to prevent tlie construction in liritish pints of ships destined t'oi llic n- of belligerents. Ibit Her Majesty's (iovernnieni consider that, before submittnu; .m^ jtroposals of tliat sort to I'arliament, it would be desirable that they should picvi'iiis.) cominunicate wilii the (bivcinment ot the I'liited .States, and ascertain whctlici ili:i' (tovernment is willii.g to in.ike similar alterations in its own ForiMgn-Kulistnunt .\i ' and that tlie amendments, like the original statute, should, as it were, proceed y"" pansii in Itoth countries. "I shall accordingly be ready at any time to confer with you, and to listen tdini* suggest iouH which you may have to make by which the British Foreign -Kn I istiiiciit Ail and tile eorrespondiug statute of the riiited States, may lie made mote cllicieiit lo' their imriiose." (Atii. Apj»., vol. i. p.tltiT; vol. iii, p. r-"- ; IJiit. App , vid, iv, p, '.J'.) NOTE C. REGARDING AMENDING F, E. ACT. 243 DOIT- JGLISH I'd li'iissi'i: loiniiiiiin'' till' I'rcsi [ the (iov wliatcvi-i [ si'ImI yiii; letlu'V it I- (> ]M'l.'Sfl\. i.s." I Ami takfii til'' vd Ruswl! I'litioit wa- 1 invioliitf i)V 'Viiinciii [lul In law (iC.l.) follows: witli caili sons Witllil! ^Am. App.. nstnu'tiiiii' larue iiiuii- nninl)er '<'■ wliifli Ml It HritiiHi, lOr to ail- ir elVec'tins iimort'iit ill Kritbli " lit t If ill- it'onii yiHii ■it n'lin'"- .>ri(TtiVf llfi- Maji" \o!. iv, 1' aiii> as fdi- r the ti!- t lleiMai- it'ot'o|iin iiiiiit All. (lOWI'l' fi' lortlif I'v ittiuu' aii\ jiivvi'iusiy filler tliii' iiiciil All rori;eil i"" StlMl tOiUl*' tinciit All lli.iciit 111' On tlif -'Hi of l)o(M>ml»or. H(>"2, tliis rc'ply of Lord Russell was forwardcti l»y Mr. Aiiaiii.s to Mr. Seward, (Am. App., vol. iii, ]>. rt7,) and on the IKtli of .Janiia y, HliiJ, Mf. Si'waid widte to Mr. Adaiii>, re|ilyiii;; to tin; .snf;-^e.stion.s of Lord UiisHoll, in part as follows: "It is not iierceived tliat our anti-ui'st, .and you nniy think proper to he approved. " Voii will receive herewith a copy of some ti'easonalile ci>i respondeiice of the insnr- ifoiits at l^ichmoinl with their aicents .ahroad, which throws a llood of iijrht up(m the iuival prei>arations they tire niaKiii'' in Great JJritain. Von will use the,.>,e jtajiers in siirli a manner as shall he best calculated to inducts th(> British Government to eiiforc.*! its existing laws, and, if possilile, to amend them so as to itievent the execution of tlio uiiliiwfiil (h'siijns which will thus he hrou^iht to their notice, in a manner which will admit of ni> fitt(>nii»t to ostahli.sh within the limits of tliis kiiit;dom a system of action in direct hostility to the (Jovernment of the Lnited States. This j)lan embraces not only the hiiildin^ and tiftinfj out of several ships of war under tluj direction ofajieiitN esjiecially commissiontMl for the purposes, hut the preparation of a series of measures under the same auspices for the ohtaininir from Htsr Miijostj's subjects the pecuniary meaus essential to the execution of those hostile pro- ject.s," (Am. App., v(d. i, p. .")t)',i.) On tlie i:$th of February, l."ard to the answer on the lirst jioiiit ; but with respect to tlie second, his lordship's sunf^eslion of possible amendments Id the enlistment laws in order to make them more effective had betm received. Al- though the law of the I'uited States was considcrc^d asof very suilicient vij^or, thotiov- (Mnnieiit were not unwillin;j; to consider i»ro)>osilions to improve upon it. " I'o that end I had been directed to ask whether any sncli hail yet been matured by Her ihijesty's Ministers; if so, 1 should be ha) py to receive and to transmit them to Wasliinjrton. His lordship, rei)eatinf; my renuirk that my (Jovennnent considered its jMcsent enlistment law as etliciently lititectivc, then added that since his note? was writ- ten the subject had been considered in the cabinet, and the Lord (Miancellor had i^x- jiK'ssed the same opinion of the liritish law. I'ndcr these circumstanccN he did not see tliat lie could have iiny chani;e to propose. "1 replied that I siiould rei)ort this answer to my (iox eriimeiit. What exjdanation the (Jiiver-nment was rciiilv to <'i\e for its utter failure to execute a law confessed to be etli't'tive did not then .appear. (Am. Apji., vol. i, )», ()(!-'.) On the 11th of I'ebruary. li^fi:!, Lord ln'iisscll repoilcd this same interview, as follows, Hiadis](atch to Lord Lyons: "Iliad a con\ersation a few days a;;(> with Mr. Adams on the subject of the Ala- liaiiia. "It did not appear that this (Government desired tn carry on the controversy on this ^iilijeet troni Washiiiyton : they rather left the conduit of the armimeiit loMr. Adam.s. "On a .second point, however, namely, whether the law with rcs|>ecl to ei|uipment ol Vessels for hostile ]ur, |Hises niid of March, IhC,:;, on receipt of Mr. Adams's dispatch of tiie V.Uh of Febru- aiy, M;. Sew ml wrote to Mi. Adams in jiart as follows remains i",M- this (iovernment, tiierefore, only to say that it will be vmir duty to inyeupoii Her Majesty's (iovernment the desire and expectation of the I'rcsiih-nt tiiut 1 ie iieforw.ird Her Majesty's (Jovernment will lake the necessary measures to e.nforo«i 'I .' f'xpciition of the h. w as faithfully as this (iovernment has executed the corre.Hpond- 1 'A statutes of the Ini.ed .St-'.ics.'' ' (Am. A])))., vol. i, j), ()(>!».} I 244 ARGUMENT OF THE UNITED STATES. On tilt) arth of March, IHOU, Lord Russell, reporting to Lord Lyons a couverKatioii whicli Mr. Adams had had with him tho day bttore, ami after the receipt of the dispatch hittt quoted, wrote in ])art as follows : "Mr. Adams said there was one tliinjj which mi;^lit he easily done. It was snpiKmfid tho British Government were indifferent to these notorions violations of their own laws. I^et them declare their condemnation of all such infractions of law. "With respect to the [enlistment] law itself, Mr. Adams said either it was snflicitiiit for the purposes of neutrality, and then let the Hritish (Jovernment enforce it ; or it was insnrticient, and then let the liritish (Government apply to Parliami;nt to amend it. "1 said tliat the cabinet were of opinion that the law was sullicient, hut that Ic^ul evidence could not always he procured ; that the British (Jovernment liad done evcrv- thinji in its power to execute the law ; hut I admitted that the cases of the Alaliiiiiia aiul Oreto were a scandal, and. in some dej;ree, a reproach to our laws." (Ain. .\pp., vol. i, p. ti70; vol. iii, p. Vi'2. Hrit. App., vol. iv, pt. ii, p. 2.) On the 27th of March, IH(W, tho neutrality laws of (ireat Britain liein;^ under ron- sideration, in connection with the escape of the Alaljama, tiic Solicitoi-(Jt!neral, Sir KoundcH Palmer, said : "TheUnitt!d States Government apjicar to have a more convenient nuithod tliiui ours. Their cnstinus authorities have a court always sittinj;, ready tt> th^al with such nuitters; hut in this connlry the customs autlnuities would iiave had toseizt! the ship. without any order of the court, on the itspousihiiity of the GovernuuMit ; and il would 1(0 a direct vio'ation of the law to do that, unless tlieie was a justifyinjj causf tor doinf;' so." (Am. A|>p., vol. iv, p. .'>22.) In the Siitne debate, he said further : "And if our law is defective, it is for this House to <'ousi(h^r whtaher it ou- in Spain betw(!en Don Carliw an:(( I, .'tit I.) On the '.Mil of .Inne, iHl'.?, certain nnrehants of Liverpool addressed a memorial In L»>rd Russell, in part as follows: "Your memorialists, who arc de«'ply interested in hritish shipping;, view with din nniy the probable future conseiinences of a state of alVilirs which jiermits a t'iinit;ii beiliKerent to construct iu, and semi to .sea from, British [torts vessels «»f war in t""- travention of the provisions of the existing law. "That the immediato effect of placing at the disposal of that foreign belligerent a very small luimber of steam cruisers has lu'cn to paralyze tlui merchant marine ol ii powerful maritinu) and naval nation, inflicting within a few months losses, direct anil indirect, on its ship-owning and mercantile interests which years of peace may prove inadequate to retrieve. ■w NOTE C. RKGARDING AMENDING F. E. ACT. 245 "Your memorialists woiild accordiiijjly rosppotfiilly iirjjo upon your lordship tlio expediency of proposing to Parliament to sanction the introduction of such amo.nd- ineiits into the Foreign-Enlistment Act as may have the effect of giving greater power to the Executive to prevent the construction i?i Uritish ports of ships destined for use of belligerents." (Am. App., vol. i, )>. OT'J.) On the 24th of June, If^iVA, the Lord Chief Baron, in charging the jury in the Alex- iHidra case, said : "(Jentlemen, I must siiy, it seems to me that the Alahama sailed away from Liver- pool without any arms at all, nu'rely a ship in ballast, unfurnisht'd. nue(|uipped, un- |irepared,and her arms were put in at Terceira, not a port in Her Majesty's dominicuia. The Foreign-Enlistment Art is no mcne violated by that than by any other inditteront mutter that might happen al)nut a boat of anv kind whatever." (Am. App., vol. v, p. m.) On tlie (Uh of .July, IrHi:?, Mr. Hammond, by the direction of Earl Kus.sell, replied to the inenioriiil of the Liverjiool merchants, in part as follows : "In Lord Kussell's ojiinion the FroviNions of the act weii' extended, it W(Uild still be necessary that siicli proof should b(^ obtained, because no law could oi' should l>e passed to punish upon suspicion in>teatl of upon lU'oof." (.\m. A|»p., vol. i, ]». ti?;?.) Oil tlie Kith of .July, l-'d;!, Mr. Adams, tr.insuiittiug to Mr, Seward copies of the memorial of the Liverp(K»l miTchants, and of the I'cply t<» the same, wrote in part as Ibilows : " It nuiy be inferred from this that the (ioverninent will persist in their etforts to iMitorce the ])rovisions of the Eulistnu'Ut Act through the Courts, reserving to them- selves an avenue of escape, by reason of any failure to be supplied with evidence (if intent to vitdate tlieui. Whether they expect the duty of looking tiiis up to be perforined by us, or they design to seek it also from other smirees, does not clearly apjiear." (Am. App., vol. i, p. ()71.) On the l»)th of Septend)er, Irilill, Mr. Adams, in a letter to Earl Hussell, while liescriliiiig the great «langer threatening the I'nifed Stati-s in the Imilding of the rams liy the Lairds at Liverpool, said in jiart as follows : "And here your lordships will i)eruiit me to remind yo\i that Her Majesty's Govern- ment cannot Justly plead the inellieaey of the i)rovisions of the <'.nlistuuMit law to enforce the duties of neutiality in the present emergency as depriving tluMn «»f tlm power to prevent the auti(;ipated tlanger. It w ill doubtless be reinenil)ered that the proposition made by you, and which 1 ha4.) On the iJ.'Jth of ISeptend)er, IHIilJ, Earl Russell rejdied to Mr. Adams in jiart as follows : "There are, however, passages in your letter of the Kith, as well as in some of your former ones, which so plainly and repeatedly imply an intimation of hostile proceed- nig toward Great Britain on the part of the Goviuinueut of the United States, uuIohs step!4 are taken by Her Majesty's (Jovernment which the law does not authorize, or unless the law, which you consider as insuthi'ient, is altered, that 1 deem it incumbent npon me, in behalf of Her Majesty's (loverument, frankly to state to you that Her Maje-sty's Government will not be induced by any such eonsideration either to over- Ntep the limits of the law, or to proi)ose to I'arliaunuit any new law which they may not, for reasons of their own, think proper to be adopted. They will not shrink from any conse(|uences of such a decisiurposo is obviously dc- feated, and its enactnieiits made of no ettect by Uritish subjects who defy the Queen's proclamation of neutrality." (.\ni. App., vol. v, ]). .V28.) OnthellOth of August, IH)r),tlie Jhitish Foreign-Eiilistiiient Act remaining unclianficd, and the rebellion in tho United States having been crusrhed, P^arl Russell wrote Mr, Adams in part as follows : " You say, indeed, that the Oovernmeut of tlio United States altered the law at tlie urgent rec proved to he i)ractically inade(|uate, tho object in view would not he promoted by anr attempt at new legislation." (Am. App., vol. i, p. ^77; vol. iii, p. r>(>'2.) On the IHtli of September, 18(ir), Mr. Adams replied to Earl Russell in part as follows: "The Hritish law is, as your lordship states, a re-enactment of that of the United States, hut it does not adopt all of 'its niaiu jnovisions,' as you seem to suppose. Sin- gularly enough, it entirely omits tliose very same sections which were originally en- jicted in 1817, as a temporary law on tho complaint of the I'ortugueso minister, and were made permanent in that of 1818. It is in these very sections that our experienci' has shown us to reside the best preventive force in tho whole law. I do not doubt, as I had the honor to remark in my former note, that if they had been also i ncorpoiatf tl in the British statute, a largo portion of the undertakings of which my Government mi justly complains would have never been commenced ; or, if cominenced, would never have been executed. Surely it was not from any fault of the United States that tliese ert'ective provisions of their own law failed to find a jdace in the corresponding lofjis- latiun of Great Britain. But the occasion liaving arisen when the absence of some similar security was felt by my Government to be productive of the most injiuiouc efl'ects, I cannot but think tbat it was not so unreasonable, as your lordship seems to assume, that I should hope to see a willingness in that of Great Britain to make tlie reciprocal legislation still more complete. In that hope I was destined to be uttcrh disappointed. Her Majesty's government decided not to act. Of that decision it is no part of my duty to complain. The responsibility for the injuriesi done to citizens ot the United States by tho subjects of a friendly nation, by reason of this refusal to respond, surely cannot be made to rest with them. It appears, therefore, necessarily to attach to the party making the refusal." (Am. App., vol. i, pp. 679, 680.) On the ad of November, 18(55, Earl Russell wrote to Mr. Adams in part as follows; " Yet it appears to me, I confess, that as neither the law of tba United States nor onr own Foreign-Enlistment Act have proved upon trial completely etticacious, it is worth consideration whether improvements may not he made in the statutes of both nations, so that for the future each government may have in its own territory as much secnrity aa our free institutions will permit against those who act in defiance of the iuteutiou of the sovereign, and evade the letter of its laws." (Am. App., vol. iii, p. 588.) On the 18th of November, 1865, Mr. Adams replied to the Earl of Clarendon, suc- cessor of Earl Russell, in part as follows : " Yet with regard to the proposition immediately before me, I cannot forbear to ob- serve tbat it is predicated upon an assumption that the legislation of the two countries NOTE C. REGARDING AMENDING V. E. ACT. 247 irtion of er crew ami (le- eon thus oulrt not icansi! at ', as you sol K" to !0\il»l iin- \ii out 111 AluliaiMi* rive, not f tliat b.' oi'O clriu' vt'Hait; ot i!. 1 s;iy. oiisly (If- i liin'on's idiaup'il. .vi'otf Mr. aw at tli«> UH altcrt'il 10 iav as il iiuti-y, tilt !Ht of Por- ^mijioso o( law of tlif 111- loji'isb- wo arc nol is now t'qiially incnicacioiis, wliicli I cannot entertain fo" a moment. On the eontrary, tlie neccHsity for some action in future neoms to me i:< bo imperative, hceauHc that lef,nslatiou, as it now stands, is not co-extensive. "For it is hardly jiossiblo for rae to imagine that the iieople of the United States, after the experience they have had of injuries from the imi»erfection of Hritisli lejjis- liitioii, and u refusal to anu-nd it, would be ready cheerfully to respond to another appeal like that made in I>^').">, by Her ^lajesty's reitresentative, to the more stringent ami cfVoctive protection extended by their own." (Am. Ajtp., vol. iii, jt. (".•.il.) Ou the 14th of December, this last dispatch having been transmitted to Mr. Seward, be wrote Mr. Adams in part as follows : '• I am directed by the President to approve of the views which you have expressed in regard to a proposition made by Earl Russell H)r a concurrent revision by llie two tlovernments of their legislatioii upon the subject of the neutrality laws. You will, therefore, inform Lord Clarendon that the United States do imt incline toward an acceptance of Earl Russell's ])ropositiou.'' (Am. App., vol. iii, p. ♦W.'j.) On the 30th of January, IHfJ?, a Comnussion was ai»pointed by the (^ueen — " To inquire into and consider the character, working, and enect of the laws of this iralin, available for the enforcement of neutrality during the existence of hostilities lictween other states with whom we are at peace; and to iuciuire and report whether any and what changes ought to be made in such laws for the purpose of giving to :licin increased eflieieiiey, and bringing them into full conformity with our inter- national obligations." (Am. App., vol. iv. ]>. Til.) During the y<^ar l^-t')'^, the Commission reported that in their opinion the Foreign-En- listment Act "might be uuide more ellicietit by the enactment of " certain provisions. See the rejtort. (Am. App., vol. iv, ]). 80.) The British Foreign-Enlistment Act of August D, 1870, which was passed just after the breaking out of the I ranco-Prussiau War, essentially embodies all the recommenda- tions of the Commission. (See the Act, A>n. App., vol. vii, pp. l-iK See also extracts tioui the debates at the time of its passage, ««/<.) th'i conchi- slioulil lie ted by any [as follow*: ho Uniteil Ipose. Sin- ginally en- uister, ami cxperiencf ,t doubt, as icorjtoratoil enuuent s» ■ould never that these idiug loRis- |eo of some t injurious ip 8een\s to |o make the 1)0 utterly [ion it is no citizens ol refusal to necessarily [follows: Ites nor our [it is worth J»th nations. Ich secnrity le intention 18H.) Vndou, 8UC- tbear to ob- Vo couutriw ^ P"' NOTE P.-CONSIl)RRATION OK THK CLAIMS ARISING IN THK DESTRUCTION OF VESSELS AND PROPERTY BY THE SEVKIUI CRUISERS. fo ni»lM'.l liv III' rl-'itn:iliT> to -'i|ilKi|1 th.r,i. Till' I'nifod Siuto8 prpsonlt'ii to tliis Trilmiiiil, on (ln> ir)Hi of IVconibcr List, n ,|i>. tiiiliMl |>riiittMt stut<>in*>iit ot' all tin* cliiiniH tor tW ilrstrurtion of vosscli in''t''h'rvlh'r!ii'.M '*"•' property by tlie m'voral cruisors I hut bail, down to that «lato, comi' .nniHii. ' to tlifir knowbMl<:;e iu tinie to bt> so prfst-ntcil. Tb«> United States tlieti dt'rlarcd that this statenitnt showed the eniiHers w bleb f the I'nited States subsetiuent to the ]>i intiny; of the ]trevi(Mis statement and luini to the 'i'Jd of March. l-'T'i, at which time it was necessaiy to conclude the ]>rintiii!,' ci the revised list in order that it mi<;bt reach Cieneva in season for presentation witlillic Counter Case of the l/nitcd States. (See iJev ised List of Claims. ]>. :?:{.'>.) Witt.ii,oev„i,.n..' These claim.s do in)t ai)pear as claims ainlited by the I'nited Stnti'-* but iu the form antl supported l)y the evidence in which the i laiiiiiuit- have, presented them to the (ioM-rnmeut of the I'liited States, [n his Annual Messaj-e in December. 1-70. I'roident (Jrant recommended that (on gres.s should authorize the appoint meiii of a Commission to take proof of the ainiinnt>. and the ownership of these several claims on notice to the representative of Uc. Miijesty at Washington ; and aN' that authority should be i^iven for the settleiinMit of those claims by the I'nited .■- es. so that the (ioverinuent mi^jiht Imve the nwnit ship of the private claims as well as the respoiisibh! control of all demands aj^ninM (}reat Ihitain. A Hill had been introduced into Conjiress for carryin;^ out this n-coin- mendation of the {'resident, when the n<>uotiation and ratilication of th^ 'I^r.-^aty umlt'i which this Tribunal is now assembled. ]>revented the jtroposed le^ri- ;;ition. Otlior\vi'*i> these claims inifiht now ha\e existed as so many millions of dollar's which the rniti'ii States had paid to its citizens for injuries which it believed to have been inflicted upon them by (Jreat lUitaiu. Kecofjiiiziufr the sitniition in which these and other claims of the T'nited Statt>» oxi8teaid by (Jreat Britain to the Cnited States for :»!i the claims referred to it ;'' and further, that in case the Tribunal "should not award a sum in <;ross," then that 'a board of asses,sors " .should be appointed to a.scertnin and determine what claims an; valid, and what amount or amounts should be paid bytircal Britain to the Cnited States on account thereof, under the decision of this Tribunal. The United States, however, for reassons stated in it.s Case. (p. 4rtO,) earnestly ex Th.- 1 n,i..i st:,t.-, Pi't's^"'*' the hope that the Tribunal would exerci.se the imwer conferroil dH-ir.nni.wi.r,i ..iH upouit to awanl a suHi in (xross to be paid by Great Britain to tliP '"!!l..;"."rr.Z.d.''' I'liit'^'l States, believing that it would l)e unjust to impose further delay and the expense of presentiuK claims to another tribunal, if the evideiuo which the Unite*! States has the honor to present for the couHideration ofthe.se Arbitrators shall prove to be sutticient to enable them to deterniine what sum in };ross would be a just compeu8ati«>n to the United States for all the injuries and Icsses of which it coniplaiufl. In the opinion of the United States, the evidence presented does fnrnisli all the facts necessary to enable the Tribunal to reach such a conclusion. The United States ha« not, however, thought it necessary to print all the memorials and document.'* presented by the several claimants, and referred to in the two lists of claims ; nor, in the absence of any expressed desire on the part of this Tribunal, has it produced, ** it ottered to do, if desired, the original evidence. Her Majesty's Oovernment ha«, iu vol. vii of the Ajtpendix. presented with the Counter Case a report of a committee of two persons, Messrs. Cohen and o.°thf»"ev,,ii.m'.'.''""* Vonng, appointed by the Board of Trade to investigate the claims pre- sented on behalf of the United States (jovernment. Tliis committee felt it to be its duty to sift and analyze these claims, to state the amounts which, in its opinion, should be considered to constitute a fair and proper NOTK D. rONCERNlNG CLAIMS OF INDIVIDITALS. 249 1 n ^ * !• r II <-n(ii'i^lii.i fompMisation for tlio Iobhph in rcs|»oct to which tlieso chiims are put forwunl, ami to 0K]»lHin tho if'asons upon which its foncluaioiis wtTo toiiiiuual. To that coni- iiiittee as a Hoard of A.ssessois tlu^ United States h.ive not referreil these claims, neither liiiM this Trihunai sonjrht the report of those gentlemen as the opinion of experts. The Counsel of the United States will, however, call the attenlicm of this Trihunai to ittine of the general characteristics of (he.se claims as they apjjear in the lists of claims, ;iud at the sanw) time will note ctntain comments made thereon hy Messrs. Cohen and The claims now under discussion (excluding; those for increa.sed war premiums) nmy IwMlivided into two {general classes ; 1. Claims for the allej^ed value of prop«'rty destroyed hy the several cruiMcrs. 'v'. ('laims arisini; from daimi}>;e» in the destruction of jiroperty, hut over and ahovo it« value. Ilinier the first class would he included, («) owners" claims for the values of {jood.s ilwtroyed ; (ft) nn^rchants' claims \'oy the valiu-s of floods destroyed: (i) whalers and liniiermen's claims for the values of oil or tish destroyed ; (ens(vs until their arrival home. As to this tir.st general class of claims, the Counsel helieve that theTrihnn.al will find that they are fairly stated hy thcclaimant.s. It was possihle, doubtless, for Messrs. Cohen aud Young to find therein some claims which seemed to them to have bien exaggerated ; but certainly as to the value «)f j)ro|)erty this Trihunai must regard the sworn valuation of men who owned the property destroyed, and who made their estimates at or about the time of its destruction, rather than the estimates of Messrs. Cohen and Young, who havn no knowledge of the property destroyed, except that tlm claimants say it was of a certain value. The owners of vessels have generally sought to establish their claims by a sworn iiicniorial setting forth the facts, describing the vessel, and stating her value. In some instM-inces thoy have presented tho ccrtilicate of underwriters or shii»-bnilders in support of their statement. An examination of their several claims will show that the owners have by no means given such values to their vessels as would show th(>m to have been of iMi equ.al value per ton. Ihit this is no evidence of exaggerated value, iis Messrs. Cohen and Young would seem to imply, but, rather, being correspondent with tho fact, namely, that the vessels are not of e(|nal value per ton, indicates that tho owners have placed a fair valuation ni)on their property. Messrs. Cohen and Yonug have made some investigations from which they have con- cluded that the price of $40 per ton is a liberal estimate of the average ^^ ^^^^ market price of the merchant ves.sels destroyed by the Alabama and other nr'"l"h"VIt.ni,ie '»f cruisers, and it may be well to notice how they arrived at this conclii- '|;',7JX.'.'' lVi'" ""' ition ; for it will then appear how little value can be put upon the .same. IVy say, vol. vii, Appendix, British Case, p. 22, " We have been at some pains to ascer- tain the average price ])er ton which was realized, shortly before the time of the cap- tures, in the ports of Liverpool and London by a sale of a very large number of vessols belonging to the United States, and it seems to us to be a fair inference from the fact of these sales being efl'ected in England, that the prices obtained here did not fall short of the market value in America." The Counsel maintain that no average price or uo conclusion could be more unjust ««; 25(> AWJl'MKNT 01' THK INITKI* STATKH. tliiiii this. 'I'lio I'lK^t bciii^ that liritiMh-hiiill (Tiiiscis wire (h-stinyin^ Pri(i-« .,t,'iuii..i cviTv I'liitcil States voHsi! th'V conUl liiiil, led sriiiin Uiiitfil HtjitfN ( iti. ctrriiMi. /('IIS to Hi'M tht'iF sliips ti> I'.ii^liMhtii*!!), who I oulil lly ovt-r thrill il ttit<; tliat woiiM Miive thfiii traiii thiMsol' tiie United States to I'liiliKit Hiihjcets. Itnt it' this 'I'rilinnal sliaii lind tiiat (ireat I>ritain has, hy any att or imiis- sioii, tailed to fiillill any of tin* duties set forth in the three rnU-s, or rerot^nized by the jtrincijih's of internutional hiw, not ineoiisistent witli sneh ruh's, and shall certify ^luU fact as to the Alabama and eaeli of theot her (M'liiseis, certainly it will not IIkmi inodiil to award that (iieat Britain shall pay for those vessels which the Alabama destroyed at tile low rateal whii'h l')n>j;lishmcn were enabled to buy otlitM' vessels of the llmii'il States, which were sacriliced rather than to run the risk of their capture by the smim crnisei's, And further, the value lo a citi/cn of the lluitc.tl States of a ship in LoikIimi, under tho Itritish Hag, is not tliu same as Iwv value to him under tho lla;^ of the Uiiititl StatOH. Hy the laws of the I'liited States, certain privileges are;;iven to vessels built in tiic United States and owned by citi/eiis of the I'nited Slates, and practically no vchkcI can I'arry the Hag of the I'liitcil Stales unless it u as Imill yi llic I'liited Slates. 'J'lu. object of Ibis law is to encourage ship-building in the United States, and tln^ etrect i,{ it is to make ships built in tin; I'niled States more valuable, to citi/ens ol' the I'liilcd States than similar ships built out of the I'nited States would bi^ to citi/ens of Jlic Unitiid States, or than the same ships would be to any persons not citi/ens ol' tin- United Stall's, 'riierefoie, the price at which a United .Slati-s ship can be s(dd in (iie;il Itritain is by no means the reiueseiitalive of her value to a citi/en of the I'nited Shuik. tor tlie United States citizen, while In; owns her, is able to employ her in certain tunic and eonimeri'e in which the Jbitish siibjeia cannot eni|tloy her. t'onse(|Uently, liiit few United States vessels have ever been sold in England, except when tlu' Alaliaui.i and her consorts were burning all vessels that carried tin; Hag of the United Statth, Certainly those United States citi/.eiis who lost their vessels by the Alabama must imt bo jiaid for tliem at the rate at wliich other citizens of the United .States sacritiiid their property through fear of the same danger. Tin; fact tliikt a largo iniinbei of vcn- hoIh were transferred to the Mritish Hag. though it has destroyed the comnierce of tlic United States, may have saved (ireat JSritain from the liability of jiayiiig for the ulwi- lute destruction of the vessels transferred. Ibit it cannot, injustice, be held to luesciit a standard of value for others, not sacriliced through fear of burning, but actually burned. The owners have estimated the rmind value of their [iroperty as vessels of the Uiiitod States to citizens of the United States, and at that rate it must bo estimated iu the award of any gross sum. What has been .said in regard t(» the estimate put upon the inercli.int vessels by Messrs. Cohen and Young will also apjdy to their estiiuaU' put upon the whaling and tishing vessels. They say, page IS: "Tho iii(|uiries that wo have instituted convince us that an average rate of $1(11' 1)01' ton will amply represent the value of the whalers,'' and tho context sliowc that this estimate incliules the oiittit also. From page 17 of their report it ai»pears that the average r.ate of the claims for out- fits, (;{2 in number,) which are luado distinctly and .separately from the claims for thf value of tho vessel, is at the rate of |8S per tmi. 'J'ho Counsel ask tho Tribunal to assume that these claims for outfits are strictly correct. The owners of each ves.sel keep a sejiarati- and accurate account of all the ex- jiouses in outfitting each vessel, and when they made their claim for tho loss of a ve*- sel aud her outfits, as far as the claim for outfits was concerned, they simply copied from their books tho statement there contained for moneys expended in her outfits, and hy which they can establish the claim for the same if ever they are called upon tu do so. Taking, then, this statement of outfits as correct aud true, the estimate of Mcssik. Cohen and Ymmg leaves only $12 i)er ton as the average value they would place iipou tho whaling vessels, which value is by their own estimate ouly about one-quarter of tlu' I>rice at which vessels of the United States were sacriOced iu Eugland, and a uiiieli smaller proportion of what the same vessels were worth to citizous of the United Statcti, provided they could have carried the Hag of the United States free from the dauger ot boiug destroyed by the Alabama aud other British-built cruisers. Iu this couuoctiou, .and as contrasted with the estimates of Messrs. Cohen aud Young i,.ttcrofMr Cr.po *'^"' Couuscl tofcr to thofollowiug coutract of aletter from Mr. Wm.\\. Crapo, a very intelligent aud respectable geutloman, under whose direc- tion most of the claims for the destruction of the whaling vessels were prepared. (Sw his letter to the Secretary of State, vol. vii, U. S Doc, p. 103.) Ilo says : As the attorney for nnuierons claimants, I have prepared and forwarded to the WlinliMH mill tUlf tit! ^t■^.^.■lf-. NOTE P. [•ONCKRNING CLAIMS OF IN'DI VIDUALS. 251' t\»\\ i>rii Stilt*' I)«i|iarHtitMit of tlio l!nit(MlStivtos tiictimiials iiiiilcliiitiiN. sotting f'»itli thi; dt'stnic- tidti, li.v i'oiift'di'i'iUi* iriiiMcrH, of ti liiifjo iiiiiiiImt of sliipM :iiiii fur tlio loss of tJK'ir ))i'o|t( rty ami t\w thuuixav* it'siiltiti;; tlK-rclVoiii. 'I'lic claiiiis tltiiH ]ni'- piircd and furwardtd icincscnt nearly forty -ddpH In nuiiilu'r, with their whalinj; ont- litHund eaijioes. The ay:;;rej;at- Htreyed is very lar>;e, and I lie;; leave to ntate the mode adopted in li\in;i valnes and cHtiiiiatin;; damages. Many (d' the whips, espeeially those Imrned l>y the Alahama, had liiit reeently sailed I'roin their home ports when destroyed. The valnes claimed forshi|) iiiid oiittits in such cases weri' liased upon the aetna! ( ost ami present worth of the [iropeny, as can lie alinmlantly and conelisively iirovetrnciion. ]irices weit^ p'aced upon each vessel and its ontlit which it'iircsenttMl their valne as ihcy were in that distant ocean, and at a snm less than the (list ol' i'c|dacin;j Ihrm. The more valnalde ships, w ith their ontlits, weic estimated as werth $(1(1,(1(111 each. This was the snm at which they were insured, in cases where iti- Kiiraiicc had heen ctteeted. This sinn was less than the actual cost to the owners in rt>- pliuinjt them at the hmne port, liy \essels and ontlits of ei|nal ijnali'y. An appraisal iif tlic several vessels liy ship-linilders and ship-lirokers. and the xduchers for purchased (luttits, will conlirm the justness of th« valuations made hy the claiimints." In view of this letter of Mr. Crapo the ('onusel maintain that thisTiiliuiial ou;;ht not to make any diminution in the valne placed upon thi'sc vessels and their or.' lit s hy the iiwaers thereof. The second division of cl.iims umler w hat has heen cilled the first ,,„ , ,,^ .i,,,,,, ,,,, iliiNH, is the claims of merchants for tlit^ values of {roods destroyed. An exannnation of the list of ( laims will show that these claims arcjjeneriilly proven liy the sw, 2H.) Another division of claims under the tirst da.ss emlinices the claims of the owners of whaling and tishing vessels for the value of oil or fish on board, and , , ilestroyed at the time of their eaitture. Thesi ..n «iiiieri Young propose to estimate very easily by ignoring all claims nuwle by «'"' i'-'""« "-"''" the owners for secured earnings, and by allowing inttut'st at the rate of ti.'i per e»'nt. per aiumin on the value of tlio ship and outfit, and in addition .') jier cent. i)er ton per (lay to meet expenditures on account of wages and other disbursements. Such an easy calculation as this enaV>les them to decide that the secured earnings of the forty-one whale-ships de.stroyed by the sev«'ral cruis<'rs, together with the wages of the oflicers and crews, and all other disbursements, amonnteil to but $;{(»1,75H. Taken as a sample of other estimates made V)y Messrs. Cohen and Ytiung after "careful consideration," (p. 1^,) it may be well to examine this estinnite a little more closely. Their estimate in round minibers is that the forty-one whalers, down to the time of their capture, had ejirned for their owners, their oflicers and crews, the sum of $;?01,7r>9. The oflicers and crews of these whaling vessels, on an average, consist of at least twenty-tive persons, , and there were on board these forty-one whalers more than a thonsand persons, cap- tains, oflicers, and sailors, whose earnings and expenses in this most hazardous, but at that time most lucrative employment, are estimated at one-cpiarter of $301,759, (see p. Iti of report of Messrs. Cohen and Young,) or at about $7,'>,(K)0, which divided propor- tionately would give to each man not more than $75. When it is remembered that very few of these men had been away from home for less than six months, and that many of them had been away for two and three years, it is easy to see that the esti- mates made would not cover their expenses, much less their eaimings. Under these circumstances, knowing well the large profits that our hardy seamen nave made in whaling voyages, we must earnestly protest against their claims for .#« -"i*^^ Ji52 ARGIMKNT OF THE UNITED STATES, actual earnin^H IxMiifj so rediict ■!, and fiUtluT on wn shall aroposiil to Hub.stitutn the «wtiiuafo of Messrs. Coiifii and Yonng scoms oy no means nL'e«\ssary or Just iri vii-w of tlio facts, as statcil by Mr. (.'rapo. H<^ says, (1'. S. Dot;., vol. vii, p. 101,) "Oil and hone on board, and di'stroyod wjtli the. ships, have, biion made the si.bji'(;t of inasttirs anil otHicors id' tlui rcspcctivf vcssids. and th.; Viihip hiU) liium iHin-rtainod ))y tli<- cnrrcnt rnarkot quotations at tli« time vviicn said oi] and bone V'oul I, if not destroyed, have found a market and sale." Wfi are eonhe taken as l)etter evidence of \vli:it was on lioard the wha!e-slii|is destroyed l)y the A!al)ama and Shenandoah than the so- ealle.?f i.-. made fo apply l»y Messrs. Cohen and Younj^, not t;- the wholi- len<];tii of tlie voyajLje id'llic several wiialers, but in many instances only from tli" ihitc when rile ship .-.;iih'd from linnohilu or some other jiorl .it wiiiidi it liad hisi touchcil. In rejjanl to the claims of pitsseiij^eis. otticers. .and sailors for the valm-s of personal i'.T-.,„ii.-tr.ctK propertN di-siroyed, Messrs. ( 'nheii and Vouiii; estimate it at the rate of .'S;.') pi-r Ion on the vessel; capt iired bv t he Sin-nandoali, (see p. 17. Itril. Aj)])., vol. vii,) and at the rate of s!! per ton on some ol' the vessels captured by tlic other cruisers, (sc )>p. 17. 'Ir^. Mrit. .\])p.. vol. \ii.; and on other imli\'idual vessels they have chosen to make ceit.-iin ilcy the .'shenaridoah are made a^ the avcr.'ijic r;iteol"$H per Imi. 'fhiiikinjj thi.s to be excessive, t bey j^ive their opinion that if the lo.ss of personal et I'ects in the case id' the Shenandoah ■' be estiniated at the avei'ji^e rate of S.'i ]>er tun of tlu! c,'ip> nreil vcs.scl, adei|n;ilc conipensat ion will lie provided, especially ;is it appeal^ fiom (.') ptain Senna* s"s juniii.-il. and other sources ot' inl'ormation, that in many ca.sc-, the, mai-'ers ami crews had ample opiri>perty on board the whalin;f \ essids destroyed by the Shenandoah, the oflicers and -aplain.-. bad with them articles of various kimls, and ot ctmsiderable value, for the imrpose of tradin;: wiih the natives: and it is t'or such kind of property that wo. understand lliat the claims of the master and two of the crew of the Abij;a'l were made, as iil.so the claim of the m.-istcr and mate id' the Oipsey. If the estimates I. f Jilessrs, ( N>hen and \ oiinjj; cantud i»e depended upon when niadc ftH an averaf^e, still le^sl•,ln they be when an attempt is made to estinnite particidai (daims. (See p. "J.'i, l$rii. App.. vol. vii.i Keiimndieriny; that Messrs. (Jolnm and Vonn^ have no other knowleiii^e of th<' (laimants, or of what property they have lost, tlian cr.a be obtained from ttio list of claims, we are at a loss to know why tliese jrentleintn s' oiiid decide that the idaims of the ca]>tains of the IJrilliant and (-'. Hill should bi' iriado to be et|na! to ea( h other, or why the « laini of the chief otUcor of the Ex|>ri'''> Hoenis to bo excessive or why any of tin; other deductions jn-ojioseil Hhonid be niaiii'. mlesH, as in tln^ case of t'"' Aliiia, the value of lli»* personal et^'eets of the caiitain srcnis jy them to have luseti c*i. idered .!s ha\ injj '.oine ratn> to the tonna{i;c of tin^ vcKsei. 'I'he (dain' of iiisnrance companies for tin? value of property (b'stroypil. '■'"'"• "' ■" for whi( h they have paid the owners the insurauce, is the last diviiiioii under the ! laims ot the iirst (dass. We readily atlndt tint, whenever 'he owner puts forward a claim for his loss at tin' ^. . ^, , sanut time tliat the insiirance comi)anv also < laims the nnme\ paid liy miiiportH.i by ih* tlioHi 111 rcspcct ot tli(» samc losH, tlieii only one value ot tln^ projierty ili'- cu.i.ii sua... Htroyed can be allowed; but we iusist that, in all such cases, the award should be eipial to tho full value of the property destroyed. It wan the intention of tho United Statt^.s, in preparing the list of claims, to iiiiiiiiiU' whenever double clHiins .of this class occurred, when it was evident, upon a siniplt! e\ nminatinii of tlie impers, that such double claims were made, and it will be found timt very few, if any, id'Hucii claims exist, exci^pt in the t^ase of some of the whalin>{ vcssol.i which were destroyed by the Hheiiamloah, tliore beinjj none of this class of double cluiiin in the case of merchant Hhijis, or ))roperty destroyed on luerchant siiij)s. '.Vllil'll, Ml tolnl. IS iiiaili' i):ltl. till' Villlll', rty lliai ;,i'i wc-re Ml \ii;i(li' irticiil.ii il Viiiiiig si, tllilll itll'IIUIl tdiilil b<' he iiia'li'. Ml Sit-ins i'«!KSI'l. I'nlroypii, ,v tlic <-hiirt<'r<'rs; Imf ,„'.^'|",',"' """"" ■"■ tlii-sf iliiiililo ('lainis art; of an amount aIniuHt inappri'cialilf as coiniiared witli the sum total. Tlirri' may also ht' sunif clainis t>f tlif Kffontl class for tiit; Itws of protits on jjoods and iithfi iiiiTflumdis, wliifli ilo int-lud!' (lie frt'i;;lit and insiiranrt- paid on ihrsi' noofls r.iit liflifvt; that tlit'Ht' claiiiiH slimiltl lif allowt'il tt» the ,(«*« (ll ITdtilH. Ill II i'\ti'iit of tilt! frciirlit and iiisiirant'it paitl, for, at the l;iiit; tht^ ijoods were tlestroyod, tlii'V had fost the nierclianl what he hail paitl for them, tt>;iether with tiie freij^ht anil illSU III' rii i'an<'i' lie had paitl upon ihem, and eertainly the value of those ^oixls to him eannot iisiiler<;tl as less than this a;i;^reirate (laiiiis have been atlvaneeil for what may he eonsideretl as prosjicctivcs losses in the iiss III the voyajre t»l' a t;hartereil ship, in th ■>tiUftion ot' jf'ioils sliippt^il to he stdd it a iar;;e )>rolit in attistant pait, or in the hieakiiij^ up tit' a whaliny; season wliieli h iii^t lii'<;Mn in a remote, sea. All I'laiiiis t»f this kintl Messrs. Cohen anil Vniiiiii think slioiilil he ahsoliitely rejetdfd ; iiiit we maintain that sneh a I'ejeci ion woiiM lie tlireetly eontraiy to tin jrtMier.il laii- :^iiaj;e lit tilt; lioMian law : ' (.,iiiaiit inn niea inte'.t'iiit ; itl est. i|iiantiim inihi ah est niiaii- tiniijiie liierari potiii," and would also he rontrary to the i'Mstin;f rule of the einnmiin l.iw, wtiieh i.s thus stated In tin; last etlitionof Setl;;wiek on hamaiies. paj^e •■^ti, note: "It may now he ;issnmetl to he the H;eneial ''iile that in aetions id' tort, wliere the iiiiiiiiint of prolits of whiili the injnreil party is -w prived, as a lejiitiinate j ^^ ^ ^^^^ risiilt of the tres|iass, i;in he shown with reasonaMi'c' i tainty. sneh prolits i«,< nt ih.- .iiihi^ieH (iiiisiitiite to that e.Meiit a '•afe mi asnre of tlania<;es. In these eases the ■'• ^'^•'•"' "■ '■'•' Mile ailopteil with reteient'.e to itertaiii hreaehes oi' eoiitiail whiili makes the oll'iiilin^ party lialde for the loss of prolits, so far only as he foresaw, or shoiiltl have I'oii .eeii that |iartiiiilar eonsei|iieine of ids aet, dotH not apply. ie who < I'liimits a trespas. must he. iiil.l to fontemplate .all the daiiiajie wliiili may I' iitimately lollow Iiomi his illejjal aet, «lirtliii he iiii,ij;lit lia\e loresifii it or lint. and. so lai' as it i^ idainly traieahle, he sliuiiltl 'iiaki; comiieiisat ion tor it. To this extri.t the reeov erv ot a sum ei|ual to the prolits ,(ist while fairly within the prineiple ol rompi'iisation, is also within the limits wiiieh ixrlutle It mote er.nseipieiiees Iron th seale ill wlii h tl le wrolli; IS Wfli^het ll may htH true that in some instanees the eoiiils of the I'liited Stales intl i;ii;;lanil. !iiiiiiitl tiowii hy the rules td law in prxvioiis eases, li.ave retlii lllie awaril for prospeet- ivi: ilaiiiajies ill the tlestnit^tion of a vessel ami her lar-^o, to the low am. avera;.ce rate .iliiilei'i'si upon loaned money; ami thus, llioiij;!i it is well known that the profits for iiiaiitiiiie ami mereantile atlvt ntiires are. ^jeiieially inneh y,reatfr than those ohtainetl iiiiin the loan of eapital at the orilinary rate, the iiijiired party has heeii m.ide to siilfer (roiii the iiialiility ot' the eoiirt. who. llioii;^li they leeonni/e the jiistiec of the elaini, ,111' limit I'll hy t lie elietks on their power to est i mate. In i-e;iard. however, to the elainis iin.M'ideil to this 'I'nhiinal for damage hy the Ins.-, of inolit, we eoiilideiitly e\|ieet that .iiiawaid will be iiiatle whieh will hear a tliie lelal ion to the jiitat attiial ilama^e aiisftl. What has been already saiil as to the loss l>\ tin; hre.akin^: up of a merchant vi'vajie, or hy the tlestrnetion of jiootls. a|>plies mmh imue stroiinly !i the hreakinir up of a wlialiii;^ or lishini; voya;;e. Writiii;" td' ves.sels ■ ii;;aHfd in thest; voya;;es. .Mr. Crapo says, ^7 U.S. l>oes., p. I'.tl:) The vessels destro.siil 'latl entered upon their eruises, anil were eni Itri'ttkitu* itl %hhltlili(l ^ \\ivi\ in tilt) piiKscfutiiiu of tlieii whaliii); vo\ a;,'es. .Mtist of the ships liati saihtl many thonsantl iif miles fitim their North Atkaiilie home ports, aronntl Cape Horn, ami, liaversinji; •lir leiif^th ol'lht; I'aeilie Oieaii, hail reailietl their whaliiii;-;;rouni|s in the Aret ie. iiy iiitinihs hatl heen eoiisiimeil in the p.issa;ie. I'he ships eiiifaj^etl in this husine.ss umls I oee.iM, penetrat ill;; it as li'.ive lioiiie in the months id' Septembei' amH letoher, and rem h I lieii eruisii 'III' iKJIowin;; Ma\, ami then eiilerioy the ier of that noilhen inal- s up III siinimer, eoiii;iieiiet their w hali n .liiiie. ami eontiiiiie the tat wwiii o tlirir lar^mes until the storms id .September iom(iei them to m.ike their way out tif I'-'linii^'s Straits, wheiiee they |troeeed to nt mil I'm another sea.son's work, or for the ||;i-ha;;e huiiie. When the SJieiianiloali desfroyetl Hit; twenty-six whale-ship- in tli« N'Tlli I'aeilie and Aretie, iliest; vessels hatl eiiteretl upon the portion of tln'ir voyages «luili was to remuneratt; them for Hie loii^ passage from home and the loii^j passable 'wik ajjaiii, whieh passa^fs woiilil atltl littl" or nothing' to their lai^jtM-s. lieiiee, the, linn of Hie voyage w liieh brings to tlio owners ami erew a return for their eapital s embiaeetl in a few months of summer whaliiiu'. I'he i^reat ex|tenso in- .iimI jal '"Ivi'tl in sailing these ves,si;ls into tlislant seas hail been iiuiirretl when the'shenan 'liMliiaiiit; upon them ami hiirnetl them. If they hail not been imdested, they would Navf iihlaineil their ae(;ustoineil eateli. ami ihe owners and erews wonhl havt; rei;eive»l 'III! iKiial return for their outlay and labor. If, then, the elaim id' a merehaiit-ve.ssel liir the fieijrlit- money she would have carmid upon the delivery of her carj;o, if alio M ki*- 254 ARGUMENT OF TH?: I NITET) STATES. lijul not liocii destroyed, is a Junt and lej^itininto one, and recognized a« one for com- pensiition, thiMi tin- cliiini for ' prospective ciiteh' is e(|ually Jiixt and le^iitiinate. •'AnotluT coiisidciatioii for the allowance of ' jtrosptictive <'ateli.' which pri'iontM itself willi iiuuli force, is thi^ interest w hich the captured seamen have in it. Tim masters, olhciTs. and cnnvs oi' whale-ships are not p.iid hy monthly way;es. as in tin' mct'chant marine, hut hy 'lays' or shares in the oil an*l Itone taken. 'I'heir pri)|ioi'- tion of thrse « atchinys amounts to a i)ercentajje varyin<>; from :><) to 40 per cent, nt il,,. whole car";!). 'I'liese men encounter the daiif^ers and toil of this peculiarly hazaninii^ business, and their icmuneration for the snitport of themselves and families is dcpi ml- eut upon the catch of whales duriu allowaiur i> made for prospective catch, these men receive nothing for their many months of tml and exi)osnre. This Inisiness. when undisturhed hy violence, is sure of a return. ,\> certain as the harvest to the farnuM', is the catch of oil to the whaleman. The avcniu,. eatch of whales is well known and (nnlerstood by the merchant and the seaman I'piui this knowled^je o!' ]uol)al>le a\cra;te catch the sailor reailily iimcures an advauvi- bef(>i'esailin;i.and his lam 11 v obtain necessaries aiul a support dnrin;; his absence. In < a^- of his death or disaltility during; the voyaj^e, and before any carjj;o has licen obtained, he or his I'amily share in the whole catch of the voyjijii', in the proportion of his term of service to the entire juiiod of the voyajje. Hy tin; burnin;^ of the Arctic ticit Captain Waildell. of the .shiMiandoah, hjft these nuMi utttMly helpless thousands oi miles away from their honn-s. and with no means of retnruiuj; to them. He destroyi'd not only all their )>ersonal etb'cts, but In; (h^stroyed also the earninj^s of a whole yeai of service, and burdem-d them with the debts contracted at Inune tor the suppiut m their families durin<; their absence. ■' Whatever moin'y is obtained iVom the EuKlisb Government for loss of prospectivi' eatch, is, uinler the jirovisions of the shippin>r articles, subje.-t to division amon^ the otlicers ami crews, in Uie proportion of tln-ir respective ' lays." IIctk'c the anininil embraced in this item of the claims is not e!itirely profits of the owners, imt reiu'eseiiti damage to otJicerH and crew, as well as los- ot' outlay and capital, and the exp(Mises ni cideiit to this business. " In prei>arinfj the claims whiidi have been presented to you. the claimants have varied in the amounts tor which they ask com)iensation under the item of prospeetivn eati'h. This variation arises from the fact that whale-ships are litteil (or voyajjcs ui from three to live years in duration, and while some of the shij>s destroyed had par- tially completed their voyajics, others wre upon their lirst sea.son. 'I'he estimafi-s ot oil ami boiie have been b.iscd upon the avera^je taking's of these ami other veswels e, gaged in such voyages as they were pro.secuting. Oaret'ully prepared, accurate, an,, reliable statements have veailv been collected bv those interested in th lish wliic.h exhibit the total i|uantities of oil and Ixme taken, ami the number of ve.sseU employed, both inthi' sjterm md right-whale lislieries. An examination of these yeaiiv .statenuints will demonstrate that the claims for prospective catch are not lictitiotis or excessive. "The prices allixcd in these estimates of ' |)rospective catch ' have mostly been lii- termined l)y ruling rates for oil and iione where the same is marketed, at limes when the same \\oii|d ha\e fouinl a market." We are conlident th.-it if this Tribunal shall determine to award a sum in gros>. il will lind. in the facts .-ibove stated, ami in the general ]uineiples of eipiity and juNtir abundant ground foi making an estimate in that award of ihinni,^ .hid I clannaiit< hilt have sustained in the los> of ]U'nlit> on goods in freight, or lor merchant voyagi-s. above all lor those great losses which ownt d inti ei,iin« nt tilt' ollicei-s. and crew have experu'iicei ■.ndden breaking up of the long-continuf'd but yet just begun whaling voyage. Ou page 171 of the Case of the I'nited Slates, it is stated that ■ it is ini]>ossiliii' ,ii present for the 1 'nited Sl.itcs to present to the Triliunal a dctaili'd sian meiit of thedam.-iges or in,iuries to persons growing out of the destrii' tinn ol' each class of vessels. Kviiy \ essel liad its oDicers and ils rrt'w who were entitled to the protect ion of the llag of the I nited .states. an hich are furnished, to ascei tain the nanu's and the toniiau'*' " the dilferent % essels destroyed, and to I'orm an cstinuite of the nnmbei of h.ird_\ . Imt helpless, seamen who wi re thus deprived of theii means of subsistence, and to detn mine what aggregate sum it would be just to plac<' in the hands of the I nitcd States di that ao'oui't. It cannot be less than imndreds of 'hoiisands, and poi-sibly millieiiMi' dollars." To this statenn'ut. ami to this cIohs of claims, we again call the attention of the li bnnal. feeling conlident that llcr Majesty's (ioverinneiit will agree that the,\ aie jii^' being in accordance with a recent decision ol' Sir Kdward Thornton, one of I lei M.i esty's High Comniissiom-rs in the nniking of the Tri'aty under which this Tiibuiial i- now sitting, which deeision was given in .Inly. l."^70, when he was acting as .nhiliatui on a (|uestion that had arisen between the I'niled States atnl Iba/il, as to the liahilitx of Brazil to make compensation to tin; I'nited .States for the loss of the whale-sl'i!' NOTK l>. CONOKKNING CLAIMS OK INDIVIDUALS. CaiiiJiia, of" Now lit'tlfonl, throii^h wlint was nllt'y;»'t1ict'i> of ' lie ( Jovcnimciit ot" IJi'azil, In tliiit rase. Sir Kdward rhoriiton (It'ciilt'il that tlir (iovcriiiiifiit i»l' I5:a/il,\vaN ri's])(insil)lc lor I he dainajio ^^•lllH(Ml t)V.tln> loss of till- <'aiia(la, anil in liis award saiil: "Crrtiiin cxiicnsrs inciirriMl tor tlio iiiuintonance and passa^i- lionic ol" tlic crt-w, as also three months' wa^jes to eaeh of t.lu> crew, heinji tlie anioiiiit wliieh all owners ol' vessels of the I'nited Stales are hound to |),■^y to seamen disehar;;ed aliroail, tin- ninleisiiine:! considers to he justly due;" and in hJMiward allosved tor tliese iti'nis.e^tiniatin;;; the waj^es td" the mate at sl()i» per month, tlic wall's ot' the sceoml niali' at *T.^ per month, the \va;j;es of tlie third mate at .'jiliO ])er nioiith tin a^jes of the fourth male at .«;.">(> per month, llie \vaH;t's of the four Iniat,- at •'?iln ]>er month, tin- wajfe- of four other hoatswains at s;ti) jier month, and tiio wall's " f fourteen nu'ii, si itl lilor- Ae llic'fiiree months' wa^es, and for iheexpe at Sl'-i I'er month, thus awarding; os'er >l!,Oi)() for honn- of the olheers and crew. We do not lies. an,\ way to he uudei'stood a^ restricting^ the damay;es which they (■laini in hehalf of the olticeis and crews of the vessels destroyed Ity the Alahama anil other (misers, either to the limits of len;;th of time or of wa;;es per month as yivoii liv Sir Edward Thointon. lint we lia\ f rid'ei red to his o|iinioii principally as evidenco III :>ll( at such claims are "justly due." !t will he t'oi' thi> Triliunal. takinu; into its considor- i!i the dist.iiil places in winch many of the vessels of the I'nited States WlUfl lumed, to delirmine what reasDiiiihlts ostiinatCH shall he inaih; of the ilamajjes caused to the iilhcers ami sailots. The Counsel desii > here U/ call the attention of tlie 'I'rihunal to tlm revised List of Claims wliich was liled with the (Jounler Case cd" the I'liiled States, from an exaiiiiiia- tinii of which it will api)ear that the aTUount of the claims tiled for injuries from tli« cHittUics made hy the several (Tuisers has heen consideral)ly increase.il, and that tlni iiiiii of such claim.s without iiitere,.s( was ^l'.*,":!'.',!'''''"'' h. -■""■M TI. AlMilMKNi OK SlMMAJtV sii(»\viN(. TiiK ,'o!Nrs AM) i;i;k!:i:i;i N' I m iiii: KVIDKNCK KKMKI) IIMiN ii\ liii; fiOVERNMENT (iF HER RlilTANXIC MAJESTY IN AN>VVI,.l T(i IMli (■[.AIMS Ol- 'IMIK rMTKI) S'lA'IKS; I'RF.SESTI l> 10 rilK TRIBUxNAL OF ARBITRATION lON.STIlL ll;i) I'NDEll ARTICLK I OF TIIK TREATY' (ONCU'DHD AT AVASII- lN(ir()N OX TI[H srir MAY, 1-^Tl. nKTWHKX IIHIJ J5K1TANMC MAJESTY' ANIJ THE IMTED STATES OF AMERICA. 17 C A 11 (1 U M E N T . llor r»ritiiniii(* Miijcvst.v's (ioveniiiu'iit now presents to the Tiibuiial of Ail)itralioii, iiiider tlie tit'tli artiele of tin* Treaty of \\'asliiii;;toM, a siiiii- lUiiry of tlu' (thief points on whicli (!reat llritain relies in arj;nment, in answer to the claims of the Tnited States. This snnunaiy will prin- cipally consist in a recajiitulation of the more mateiial lacts and con- sitlerations already i)laced hefore the Arl»it:a(ors in the( as<' and Connter Case of (Ireat JJritain. Jt will be answer fnlly and <'.\- plic'itly in the Uritish ("oimtei' Case, to which it now desiies to refer. The arf;nments of that Counter Case, ami the statements of facts and evidence etnitained in it, and in the orij-inal Case of (Ireat llritain. and the A|>|»endices to both those Cases, are ni'cessarily the arjiumenls and the evidence on whicli the Covernment of (Ireat Uritain now relies; and i'.il that it is possible, at i>resent, usefully to do, is to sum up. in a con- densed form, the <:;eneral sulistance and results of those arj^uments ami tvideiu'c, with sonu' additional remarks made necessary l>y lU'W nuitter lontained in the Counter Case of the I'nited States (itself a brief docu- ment, enterinj; into few or no details of arjiuineut) and the Appendices thereto, or arising out of the evidence oii;;inaliy put in by the Inited States. Her Majesty's (iovernment infers from tlicCoun'u'rCase of the I'nited States, that it is the intention of tlu- (lovernment of the I'inted States to enter, at the iiresent stage of the proceedings, at sonu* h'ligth into controversial aiguments, in whit h it may jcjssibly take occasion to offer such replies as may seem to it pi'oper to the (\uinter Case (»f IJer Majesty's (lovernment. Should this pro\e to be the tact, Her Majesty's (iovernment f'dly relies upon the justice of the ArltitrattuN, who will (lonbtless avail themselves «»f the oppovtuiuty ot calling for further statemeids or arguments upon any i>oints, either of law or of fact, which may not have been ade(iuately dealt with l>y anticipation on the part of Her Majesty's (lovernment. 1. The (piestio'is which the Tril»unal of Arliitration is called upon to ilccide, relate to certain claims whicli the I'uited States c(m- ^,„,„„, „„, ^„„. •rive themselves to lia\f against < Ireat Uiitain, (ounded on '"'""• limunstances wliit-h occurred during the late civil war in the United States. These claims are defined in the Treaty of Washington, Sth May, 1871, as having arisen out of the acts of certain cssels w liich are re- ti'ired to, but not designated by name, in the Treaty : and the claims are further delincd by a geiu'rie or class description, which had bj'eii iipim oriated to them, ami under which they had become known to the two (icvernments, before the date of the Treaty. -. The course of iu-ocee 2(H) IHUTISII AROI'MKNT, "IkUh's," laid down for this ])Mrposo in tlic Tivaty, (Arlirh' W.) or itco;»;. iii/«>tl b.v till' priiM'iph's of international law not niconsistcnt witii sncli IJult's, and to rcrtily sncli fact as to oa<;li of tin' said v«>ss('ls. This is the first duty of flu* Ail»iti'ators. Tlicir sccoinl duty (wldcli will arise only in case tlicy lind tliatt be within the eooni/ance of the Arbitrators. (Ireat llritain recalls attention to this. not because she has any doubt of her ability to ;:ive a conclusive answer to any char.i;(' what<-ver that nd;iht be hrou.uht against hci. of liavini,'', in any way or in any particular, inipeilccily di.char.m'd hei international duties, but because it is on all accounts rijiht and neces- sary that tlu' limits of a i-cferem-e to Aibitration. jointly agreed to l»y tlu' j»arties in dilferenc*'. and end»odi(,'d in a solemn Treaty, should he stiictly observed. .">. The \fssels as to which land as to which alone) the I'liitt^d States ^ are at lilM'rty to pro\e. if ihey can. a failuie of duty ajuaiiist " (Ireat Jlritain, are referred to in the Treaty as "the several I IiM.'il . The only vessels in resix'ct of which any claims had been nmde by tin; (lovernnn'nt of the Uniti'tl States n]»on (Ireat liritain from the c(»mmencement of the ci\il war uj) to tlic tinu'of thecoiu'lnsion ot' the Treaty, were the Floiida, Alabanm. (leoryiji. and Shenanritain. ami of w Inch three were never obtained l!()m,much lesse(inii)poil witl'.in, the (h)minions of ]Ier Majesty; whilst the rennnninj;" two were imilt ami sold as vessels of conunerce, and had ceased to have any connecti(Ui with (Ireat Hiitain before they were adai)ted or used for any ]Hiri)oses of war. (Ireat IJritain has not thou<>iit proper to insist on the oltjection that the additional vessels, in respect of which ne claims had jtrcviously been made, ouyht, on that account alone, to ho reject<'d liom consideration by the Tribunal, as not fallinji' within the description inserted in the Treaty. l)Ut she contends that it is' of the 'J'reaty to brinji" forward new claims in respect of any vessels, on grounds imt fallinji" Avithin any of the three Itules in Aiticle \l. m)r within tln^ ])rinciple of any claim whicdi had been pre viously nnule; and she insists that lo award in respect of any of these vessels ou<»ht to be made by the Arbitrators. 5. It is clear, at any rate, that the claims of the I'Mited States nuist. IJiitish Ci.si>. II. '.I. J5KITISII AiailMKNT. 2G1 ill this Arbitration, 1m^ (loiifmed to thos»i vessels wliieli ar<^ speeided in tlii'ii' Case as " tlie cruisors for whose a«'ts the Tniteil Statt's aslv tht; Trihiiiial to hohl (ii'eat l>ritaiii respoiisihie." Nevertheless, the I'liited States have introduced into the list of <'lainis, appemU'd to tlu'ir Cas<', claims for eaptui'es nwide by two Confederate eiiiisers (the IJoston and Sallie) whieli are not anionj;' the vessels speeilied in the Case itself. Tliey ha\'e likewise inserted in the same list claims for expenses said to liii\e been incurred in rehition to th«' Chesapeake and it'appahannock, which a;;ain ai'e not anionj;" the s,»ecilied vessels. . l-'nrther, they have, lit tlu' time of presenting;" their Ceunter (,'ase, a(Med claims for c;iptures iiiaile by the .lelV. Davis, the ^ . JI. .loy, ami the Music, three other Ceiifedt'rate vessels, lu'ither speeilied in the Case annui;; those in respect .\ ( ireat Ibitain. (1. Her Majesty's (iovernmeiit had siipp(»sed, and haonsi||le," are not, in the view of Ilei- Majesty's ( iovernment, o[>en to arj^ument or discussion, since they ( annot properly be taken into eonsideiation by the Arbitrators tor any puip(»se wiiatever. 7. In connection with this point it is necessary here to take notice of tlie I'ollowinj;' statement introduced into the Counter Case of the Cnited .Stat«'s: Hir M.iji'st \;"s (i'tvcnmiciit a>Miin" tliiit lli<' ifcljiiiiiitioiis ot' tlie I'nitrd Stairs ;irc to 111' ciiiiliiicU to claiiiis ninwinj;' out of tile acts of tile I'loriila, t lif A I alia ma. I In- (icinj^ia, iiiiil tlir Sliciiaiitliiali. 'I'lic claims j;ro\viii;i' (nil ni the acts iiC tlic otlicr vessels iiaincil ill tlic .VmiTicaii (.'asc arc rc^fardctl liy tlic I'nitcil States as also cmliraccil witliiii the trims (if tlie treaty. Tliey I'orm pait Arbitrators to assume tlnit Her Majesty'.s llieh Commissioners had iiotiet! of, and actiuiesced in, tliat coustniction. ' ' See lievised List of Claims, pp. "ill*, 2\)0. - British Counter Case, p. '2. ■' Counter Case of the United States, sec. i, par. "J. I ■i. .' /Pi 1, mfi ■ »j* t % f f 201 zu2 nRITlSM AIJGIMKNT. In \oI. iv. PI*. 1 1«)-17."», of flic AppciMlix \a \ho ('asc of (lie rnitcd States, tin- Arltitiiitors will tiiid tin- (luciiiiH'iit inferred (d in the alunc ])ara;;rapli. It jxirpoits to Im' a "list of Afiicriciiii m'sscIs <'a)itiir('(l aiiy rehcl \essels, of sneli Anieiiean xesscls as were en;;a;«ed in trade oi- r.iiu jneree." Tiiis list <'ontains the names (d" <'erlain < 'onCederate ship: — twenty-thiee in nnnd>er, (not, Iiowevei'. inelndin;: the \'. 11. Joy and tli.- Music, whieh are now tor the (irst tinn' mentioned) — with tiie eaptin•l^ made, or a!Ie;;ed to ha\e heen made; by them, iespecti\ cly, so far ;in infornnition on the snitjeet luid been re<*eivx'd at that time by the Di-- jtartment of State. Of tliese twenty-three ships, ton i- (the Alal»aiii;i. Florida, (leorj;ia. and Shenandoah) are described as havin*; been fnttil out in oi' h'om Ibitish )K»rts; thret' others as havin;; b»>en ten(h'rs fj, the Florida; oic as ha\in>; been a tender to the Alabama ; twelve ollifis (anM)ny; which are the l>oston, < hickamau^'a, .FefV. Davis, NasliMJIc. Ivetribution, Sallie. Sumtei-, and Tallahassee) as liavin;;- been fitted diit in the Confederate States. Three (amon;i which is the Olnstee) aiv i'litered without any indication of the place of eijuijunent. It is low t^aid, in j'tVect. that, because this list, which purports to lie a return of all cai)tures macb' during the war by ronfederate armed sliii)s, irhrtrso trvr fitted out nml umUr iclintrrcr would attemjit to charj^c all such captures aj-ainst (ii«'at Ibitain. llt-i Majesty's (ioxernnu'nt will merely say that siu-h an intention was one wliich it would m»t have deemed itself justified in siipposingon the pan of the Cuited States, unless it had been clearly expressed. Yet it a]' jM'ars that the I'nited States»have actually pioceeded on this jjrinciplc in prescutinj; their claims to the Arbitralois; althou;;h, for some reasuii not y«'t explained, they have hitheito ai)stained from extending' those claims to every ship winch the juinciple would seem to imdude. S. .\ttention has been drawn in the Counter Case of the I'nited States (sec. iii, i>ar. "J) to a statement made in the IJritish Case that "in and soon after the moiith of May, ISO!, a number of armed ships wore fitted out and sent to sea from jtoifs in the (Confederate States,'' ami it is observfMl that, if it I»e intemh-d " to load the Arbitrators to suppose that tliere was any insurji'ent vessel preyiny on tlio commerce of ti)e Uinted States when the FUn'id.i or when tiie Alabanui escaped from Liverpool, the United States cannot too strongly protest that l[er Maj- esty's CiOvernment is in error in this respe<.'t." The follow ing are the dates of the cruises of the sever;..' vessels men tioned iu the list in vol. iv of the Appen ton,) June to August, 1801; Winslow, (fitted out at Wilmington,) -bil) to August, ISdl ; Sumter, (fitted out at Xew Orleans,) July, ISOl. t^ January, ISOl* ; Vtuk, (jilace of fitting out not mentioned,) August, b'^il : Sallie, (fitted out at Charleston,) October, ISOl ; St. Nicholas, (( aptiuvd by the C«)nf«'derates in Chesapeake Jiay,) June ans wort' '' iuul it suppose of tl!f Ml from ler Mai- ls moil Uiiitoil w\ tlifii viiniiaii, Cliarlo> >n,) -III'} is(.;i. t'l liipMilvtl .. Kfh.), ittedo''', (place of liltin,<;onl not mcntionoil,) Juno, 1S0;>; Tallahassoc, (fittod out at Wil- niin^jtoii,) Au^iiiNt, 18(11; Cliickaiuaujj^a, (litt;Ml out at "NVilinington,) Oi'tohcr, 1H()4; Olustct', (placo of fittinj;- out not nuMitionod, alleged to lijivc l)e»'n ideiitiral with the Tallahassee,) November, lS<)t. Tiie Fhuida lelt Liverpool on the L'L'd Man^h, IHOL', and was detained i\( Nassau till the 7th August following; the Alabama h'ft Liverpool on llm \l\H\i duly of th^^ same year. Five captures are recorded in tho jisf, as having been madt.' in the interval between the L'lid March anil tho I'llth didy, l.Sdi', l»y tiie vessels Kcho and St. >'i(:holas. It may be added that, as early as the 4th June, 18tll, lh>r !\laje.sty\s Government was informed by tlie IJiitish i^linister at Washington that •■till' privateers of the Confederate States were at that niotuent in full activity, and had met with considerabh' success."' 1>. Tlie argumtMit to be ollered on the part (►f (Ireat Dritaiii will be >tri('tly conlined, in tlu' lir.st instan*^,^, to the questiini wlictlier, as to anyone or more, taken one by one, of the » ./'.7 ...''ih-Vui vessels speciiU'd in the (^ise of the United States as "the •""^•"" cMiisers for whose acts the I'nited Statesask the Tribunal to hold Great Britain responsibh'." (Ireat JJritain did, by any act or omissiiui, fail to lultill any tluty set forth in tlie thret! Itides, or recognized l»y the princi- jiU's of international law not inconsistent with those Jvules. This is the single question with which the Arbitrators have, in the first instance, to (loal. On the questions, therefore, whether, in regard to the general trallic in munitions of war or in other articles, between ports of Great liritain or her colonies and the (Jonfederate States, or in regard to the jjoiieral employ:.. ent of agents of the Confederate Government for tinan- cial and other purp«>ses in England, or in regard to the general partiality erroneously alleged to have been shown to Confederate \essels in JJrit- ish and colonial ports, the British Government did, or did not, fail in tlie performance of any of its neutral obligations — on these questions, iiiul such as these, Great JJritain, while reterring the arbitratcus to the .statements as to both law and fact, contained in hor Case and Counter Case, and the Ai»i)endices thereto, forbears to otl'er any new argument before the Tribunal. She has fully and amply vindicated the conduct of lior Govennuent on all these heads. But she declines to treat them as jirosenting, apart from the questions as to the j^articular cruisers, legit- imate matter for argument between the parties to the reference, or ele- ments for the consideration of the Tribunal. 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 reason- able or intelligible ground for making the acts of these ves- sels, or the conduct of the British Ciroveniment in respect of them, the I'ouiidation of claims against her. It will be suiUcient, therefore, to refer the Tribunal to Part 11 of the British Case, and Parts V and VIU of the British Counter Case, in which the facts relating to these vessels are stated and commented on.' 1 1. It w ill be seen — [a.) That in the case of the Tallahassee and Chickamauga, no failure ol duty has been even alleged, much less proved, against (rreat Britain. Tbf sn vessels were built, indeed, in E'tghmd, but they were built, .and WHie i;.v tl, as ships of commerce ; it was by an after-thought, when they w( p already within the waters of the Confederate States, and had be- ' Ai)|)«in'ix to Case of United States, vol. i, p. Mi. 'S(.f5 dsio British Connter Case, Part IX, pp. 107, lOS, a.s to the Siiiuter and Nashville, ,< I'll.* S.iiii'"r, N5«lt- V ; 1 . . . r.lll ltM(l!4M«., t'li . k'nn i>;i(.i, » ii n It.'lnliiii III. :niii p 114 as to tho Chickauiaiiga. I? IMAGE EVALUATION TEST TARGET (MT-3) 1.0 ^ m m -^ IM 2,2 .. m :t m 1 2.0 I.I m 1.4 1.6 1.25 .^ p*,. :^ ' ^> o ^ 7 Photographic Sciences Corporation 4. ^ ^9> V ^ \\ ;^^ O^ r^^N 33 WEST MAtN STREET WEBSTER, N.V. 14580 (716) 87i-:j07 't A 2f;4 BRITISH AKGlJMExNT. TIlH cony. i'i"! come the property of the Confederate Government, that they were armed for war, and their employment as ships of war histed 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, (Wihuington,) and to the same Confederate port they returned.^ (i.) That the Sumter and I'^ashville 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 tbey received in British ports such hospitalities us were extended to Confedei'ute vessels in general in the ports of neutral nations.^ (e.) That, in the case of the lletributiou, also a vessel not built or fitted out in the Queen's dominions, ' the facts alleged show nothing- more than that her commander contrived on one occasion, by tViuuiii- lently personating the master of a i»rize captured by him, and conceal- ing the fact that she was a i)rize, to dispose ol" the cargo in a small island of the JJahama Archipelago, remote from the seat of government ; and that, on anotlier 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, thiough the wreckers, from her master and owners, a ransom, under pretense of salvage.' These facts, if i)roved, establish no failure of duty against (ireat Jlritain.'' 111. As to the vessels said to have been ein]»loyed as tenders by tlie Florida and Alabama, no failure of dutv is alleged against ft 'relief Tm *.' -^ o ^ Ai.i,.,. ,..'.>i Great Uritain. The only question, therefore, which can arise in coiineetion with them is, whether, in case any lial)il- ity should be established against Great r>ritain in respect of the Florida or Alabama, such liability should be extended to the acts of these ves- sels. 13. The discussion, therefore, in the view of Great Britain, confines itself lu'acticaily, as well as of right, to the Alabama, P'lor- i.in/'o.'.tt.;!','' Ti't.'i ida, Geoigia, 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. As to these vessels, the material charges made by tbe United States appear to be in substance as follows: {a.) That the British (ioveriunent did not exercise due care to i)revent them from being eo.s- sessions of Great Britain ; (c.) That they were suffered, in such ports, to obtain supplies ami effect repairs, of a nature, or to an extent, inconsistent with the obliga- tions of Great Britain as a neutral jwwer. 14. It is notin| intcnisitMHiil law III lone wlieii the I. It 1-* (..ciirit'il. sels is before the Trilmnal, Oreat Britain will proceerinciples of international law are snch only as have been settled by the general consent of nations. For evidence of this ijeiieral consent, it is cnstomary to refer to the works of text-writers of iieknowledged merit, who have nuule it their business to examine the sources from which snch evidence may be legitimately drawn. Opin- ions, however, of individual i>nblicists. Judicial decisions of the tribu- nals of a i>articular country, acts of any one State or (Jovernment, can- not 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 b(^ added that acts of a State or (lovernment, when used for this latter purpose, ought to be shown to have proceede, ('/ nv<].} See British Case, p. "^3 ; and tirecedeuts qnoted iu British Counter Caa«', pp. 49, .^)0,. (note.) ' ( •""■n ~t^'^ 266 BRITISH ARGUMENT. tii-i' itfi!'-''' Piantanida, Story, Wlieaton, and Hett'ter, abiiiulantly prove lliis po- sition. Neither the sending of such a vessel from a nentral to a bellijj. erent conntry for sale to the belligerent Government, nor the sale of It within the nentral territory to a belligerent CJovernnient or its agents, was regarded as an act which, by the general princii)les of internatioiiiil law, the nentral (Jovernnient was nnder any obligation to jtrevent. (Lampredi, Azuni, Story, Wheaton.) V>y one well-known writer, (M. IJaii tefenille,) it had even been contended that such a vessel, if not sictiiiilly armed, was not to be regarded as contraband of war, but was anohJiMt 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 tiic vessel were sold in the market, when completed, to the belligerent pur chaser, without anj- contract prior to her completion, or were built to the order of the i)urchaser. In each case the belligerent purchaser acfpiired an imi)lement of war by means of a commercial transaction witli a private i>erson in the neutral country, and the adverse belligerent siis tained 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 neutrnl 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 adapta- tion Avas in progress in order to the delivery of the vessel to the bellig erent i)urchaser, the nentral Government was not bound to interfere. 2'.]. 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 u.sed,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 ju'event this abuse of neutral soil. Publicists had iu)t at- tempted to define the meaning of the expressions employed above; they iiad commonly had recourse to simple and obvious illustrations, such as the assembling of an armed force {'•'• rassemhlemcnt miUtaire") or the fitting out of privateers to cruise from a neutral port, {" aumh tunfi ran Kapern,^^) as was done in France in and after 177(), and in the United States in and after 1703. The circumstance that the several constituent parts of a military or naval expedition (such as men, arms, a ship or shii)s) had been sei)arately 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 Daltimore as a privateer, durins the war with Great Britain, was sold after the peace to newowners, wlm dispatched her from that port, loaded with a cargo of munitions of war. and armed with twelve guns, (constituting a part of her original aruia ment,) 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 Govern ment 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 aiul character of a public ship, and was understood by the crew to have been sold to the Government of Buenos Ayres. Captain Chaytor nmdo known these facts to the crew, and asserted that he had become a citizen of Buenos Ayres, and had received a coiniuis BRITISH ARGUMENT. 267 men, anus, sioii to coinniaiid 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 v'ihip afterwards crnised, made prizes, and was recognized in the United Htates as a public ship of war of liuenos Ayres. Tliis whole transaction was held lawful in the Courts of the L nited States; while (•crtain augmentations of the force of this vessel, subseijuently made ill a port of the United States, were, by the sanu^Uourts, held unlawful.' No ]>ublicist, again, had undertaken to determine what ought to be held a reasonable measure of care or diligence, nor to resolve the (jnestion what groumis of belief — or, in other words, what evidence — ought to be (letMned suilicient for a (Tovernment to act upon. All equipments, which by tiieir nature were applicable iiuliflcrently to purposes of war or commerce, were by the instructions issmnl by the Government of the Unitetl States in 1703 declared to be lawful, what- ever might be the character of the vessel, or her actual or intended employment.'^ L* 1. in tho first of the three Eules laid down in the Treaty of Washing- ton the duties of a lUMitral Government are defined, with some increase of strictness as well as of i)recision. Accord- tiuiv.!,',T.,i'\'vT,i',' ing 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 grouiuls to l>e]ieve is intended to cruise or to carry on war against a power with which it is at i)eace ; 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, Mieh vessel having been especially adapted, in whole or in part, within sueli jurisdiction, to warlike use. li."). The reasonable construction of this rule appears to recpiire that the intention as to the future employment of the vessel should be au actual, present, fixed intention, not contingent on the happening of some uncertain event ; that the contemplated employment should be proxi- mate, not remote ; and that the intention should exist Jit the time when the alleged obligation to interfere arises — either when the vessel is being fitted out, armed, or e<]uipped in the neutral port, or when, after receiv- ing there her special adai>tation for war, she is about to depart from the neutral territory. The equipment, the departure, which the neutral (lovorument ought to use due diligence to prevent, is an equipment, a departure, with an intention that the vessel shall be employed iu oper- ation.s of war, and with a view to her employment in such operations. I'G. As to the character of the beHigerent intention wliich, coupled with the act of equipment or special adaptation for war, makes it, ac- cortling 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 Gov- ernment ought to act — as to the measure of diligence or care which it is bound to exercise — as to these, the rules introduce no new principle, nor do they augment the breadth or stringency of any principle previ- ously recognized. It was never supposed that a neutral (Jovernment 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 Kules, exact from the neutral, iu the discharge of the duties therein stated, tliat measure of care, and no other, which is re«iuired by the ordiriary ' Appendix to British Case, vol. iii, pp. 85-90. ' British Counter Cane, p. •revent, and can prevent oidy by the enforcement of a law, more is meant than that the Government has grcmnds for suspicion, founded on rumor or mere circumstances of probability. Su(!li groiinds as these may indeed determine a G()vernment to undertaki; voluntarilv the resi)onsibility and risk of trying to enforce the law ; but tlicy can- not create an obligation. This can only arise «hen the CJovernuient lias adeowers.^ An exti'act from the able Danish Jurist, Teteus, beariiij,' on manifestly Just and reasonable ])rincii>le, has been given inanoteiir page 2;3 of the British Counter Case. .')(). An observation to the .same etfect as the foregoing in the Caseot Great Ihitain has been excepted to in the Counter Case of the Ciiited States, on the ground that " it set^ up as the measure of care a standard which fluctuates with each succeeding Gctvernment in the circuit eftln' globe.* This is an error. Where indi\iduals are in (piestion, tiie only general standarils of due care which it has been found i)ossible to tVaun*. ^ire trained with reference either to the care which the particular indi- vidual, against whom lU'gligence is alleged, is accustomed to exert in li!> own concerns, or to the care which men in general, or particular dius.ys of men, are accustomed to exert in their own concerns. To standards ot this kind, with various moditications and under different forms of ex pression, Jurists and Judicial tribunals lU all countries have coMuiiouly| had recourse, to assist them to a decision in cases of alleged negligeuci'. Where the acts or omissions of a Government are iu question, it iscfi | tainly not unreasonable that the general standard of care, so far as any general standard is possible, should be drawn from the ordinary con- 1 duct of Governments in matters affecting those interests which tliey are primarily bound to protect. The objection suggested by the United States, that the standard is a fluctuating one, is therefore not ouly ■Ir'i ' British Counter Case, p. 21. 2 British Case, p. 24, proposition 9. •' British Case, p. 167. Counter Ciiso of the United States, sec. ii, par. 3. ■• Britisli Case, p. 24, proposition 10. British Countet Case, pp. 21, 22. BRITISH ARGUMENT. 2G9 dToneous in itself, but might with 0(iual reason be ur^ed .igainat the principles of decision coinmonly applied to analo<>ons cases in the ad- ministration of private law. Its tendency,' if admit tCd, would be to iiitroibuM? a uiiversal hypothesis of absolute and arbitrary power, as the rale of Judgm' ^ for all such international controversies. ;jl. (Ireat Britain has, however, submitted to the arbitrators that the (luestion, what nieasure of care is in a an- i/.ed \vitiiin the United States against Mexico, Cul>a. and (Jreat Britain, lirts been largely r<'ferred to, for the i)urpose ol' showing what has here- tofore been deemeil sullicient by the (lovernment of the United States ro satisfy tlie obligations incumbent ui>on them in this resi)ect toward other nations, and how imperfect a measure of success has attended their efforts to restrain their citizens from lawless a.cts, inconsistent with those obligations.- The statements in the British Counter Case on this subject will be found to be corro!)orated l>y the papers appended to the Counter Case of the United States. Those papers show the various iiistrnotions and proclamations issued with the object of preventing vio- hitions 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 suc(;essful]y evaded. ^Ir. Seward, in his dis- piUch to ]\Ir. Adams, dated the 2d March, lS(i.'>, thought it sullicient to express the desire and exiiectation of the President that Her Majesty's (iovernment would " take the necessary measures to enforce the execu- tion of the law as faithfully as his own (lovernment had executed the (•orresi)onding statutes of the United States.'"' This is a test of due diligence, by which Her jMajesty's Govern ment might safely be content to have its conduct tried. It does not believe that upon any candid mind the comparison would leave an im[)ression to the disadvantage of Great Britain. 32. It is absolutely necessary, in considering charges such as arc made against Great Britain by the United States, to take into account, for some purposes, the laws and institutions p.n>,""" of the nation charged, the powers with which its (iovern- uieiit is invested, and its ordinary modes of administrative and judicial procedure. These are among the circumstances which bear on the <|uestion of negligence, and they have a most material bearing on it. Ill all civili/>e(l countries, the Government possesses such ])owers only as a,e (conferred on it expressly or taiMtly by law : the modes of ascer- taining dis])uted facts are regulated bylaw; through these i)owers the Executive acts, aiul to these methods of inquiry it is bound to have legard. 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. 33, These considerations in no way aftect the principle that the du- jties of neutrality are in themselves independent of municipal law. jThose duties are not created by municipal law; they cannot be abol- |i""hed or altered by it. But since, in the discharge of international * ' Britisli Counter Case, pp. 22, 125. - Ibid., pp. 25-47. •' Api)eiulix to Case of the Uiiitert St.itos, vol. i, p. GUI). n n (I r.^ 1)1" tin- Kxei 11- III (irt^iit Ilrir.:tili. m -r^^. m < t^i M^ u !i; 270 BRITISH ARGUMENT. duties, every nation acts tlirougli its Government, and each Government is confined within the sphere of its legal powers, the local law an,) w^as spoken of by Mr. Seward as "exactly similar to tluit of Great Britain;''- but it is alst> clear that, if the law of Great Britain had, in truth, been an exact coi)y of that of the United States, and had been interpreted and enforced in precisely the same way, no facts ex.ited — much less were known to the British (rovernnient — which would have warranted the arrest of either of these latter vessels for a breach of that law. ' British Case, pp. 29, 30. " ^Appcudi.x. to Case of the ITiiitecl States, vol. i, p. G70. For evidence as to the particulars in whieh the liritish law is more striiijjeut than that of the United States, see tlie opinion of Mr. Beuiis, (pioted in Annex (15) to the British Coiiuter 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 IJruce, British Minister at \Vashiuf5ton,as furnishing; evidence of the superiority of the United States' statt to over the British act. But the dispatch referred to nowhere nientious the British Foreij^ii-Eulistnient Act, nor does it attempt to nuike 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 advan- tages possessed by the United States Government in proceeding af;;ainst irsHcls, as con- trasted with the comparative ditticulty t>f i)roceedings under the same law directed aSiiinstj9e/so«s. "I may remark," writes Sir F. Bruce, "that the Government of the L'uited States has considerable advantas^es in proceeding against vessels under the statute. They have, on the spot where the preparations are being made, the district attoruey, a legal officer responsible to the Government, to whom the duty of investiga- tion 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 a 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 tock part in the Fenian raids against the British provinces, in spite of the clearest evidence, shows the ditWculty of enforcing the law when it has to be put iu operation in personam, and when it is dey»endent on the verdict of a jury." (Appendix to Case of the United States, vol. iv. p. 18'J. Appendix to British Case, vol. iii. Keport of Neutrality Laws Commission, p. (>8.) lu Aunex (A) at the end of this summary will be found a review of all the communi- cations which passed during the war between the British and American Governments with reference to the state of the neutrality law of Great Britain. ite:*' 272 Burnsn arcumknt. lifei: ■j: ■'■] 38. A};aiii, to tlio allojiation that, on a particular point — tlio (piostion whether ii vessel specially adapted by construction tor bellijicrent iiso, though not armed so as to be inunediately cai)able of liostiiities, was within the prohibitions of the Foreij;n-Enlistnient Act — tlu' i)rovisiuiisot' the Act were ref|;'arded as of doubtful construction, ami that in one oiisc (that of tlu> Alexandra) the doubt was resolved in the ne}>ative by a decision of a Jbitish Court, the ni(>mbers of which were equally divided in opinion about it, the answer (if any answer can be supposed to lie necessary) is equally clear. The Act itself was, on this point, expressed in more strin, been (to some, though oidy to a very limited, extent) Judicially in- terpreted in the United States, whilst no case calling i'or a jiulical inter- pretation had occurred in England; but it is clearly impossible to contend that it must for that reason i)e considered to have bei'U, bel'oie 18(5o, less stringent in England than in the United States, or to aijiiie that because some oflicers of a ]>articular Department of Go\ ernineiit (that of the Customs) honestly understood it in the less stringent sense. this fact constituted a failure of international duty on the i)art of Great Britain. 30. It is, therefore, abundantly clear that no argument against Great Britain can be founded on any supposed defect in the Foreign-P^nlistnieiit Act. 40. xis to the general powers of the Executive Government in Great Britain and the rules of procedure established there, the following state- ments have been made on her part to the Arbitrators. (rt.) The Executive cannot tleprive any person, even temporarily, of the possession or enjoyment of property, nor subject hiui to bodily re- straint, unless by virtue and in exercise of a power created and con- ferred on the Executive by law. (&.) Islo person can be visited with a forfeiture of property, uor sub- jected to any penalty, unless for breach of a law, nor uuless such breaeli is capable of being proved against him. (c.) Under the Foreign-Enlistment Act the Government had nopoworto seize or detain a ship, unless Avith a view to subsequent condemnation in due course of law, and on the ground of an infringement of the law sufficient to warrant condeuumtion. {d.) Before authorizing the coiulemnation of a suspected vessel, tbe law required that the facts alleged against her should be capable of proof. Open investigation before a Court is t!he mode appointed bylaw for sifting all allegations and distinguishing ascertainable facts from mere rumor. This is an ordeal which a British Government must always be prei)ared to encounter if, in the exercise of the powers intrnstetl to it, it seizes or interferes with the person or i>roperty of any one within its Jurisdiction. The British Government, therefore, j ustly held itself eutit:led and bound, before seizing any vessel, either to have suffi- cient 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 produc- mtlTISII AKOrMKNT 273 rioii of evidtMici^ siiflicioiit to creat*^ in the mind of the Judjjo or jury (as the case may be) n reasonable and deliberal,^ belief of the trnth of the tact to be i)roved, such as a reasonable ])ei'son would be satistied to act ou ill any important concerns of his own. And by evidence is under- stood the testimony, on oath, as to facts within his or their personal knowledge, of a witness or witnesses jn'oduccd in open court and subject to cross-examination.' U. It may well be true, and doubtless is so, that these rnles of i)ro- cediue, administrative and judicial, differ, more or less, frtmi those which t'xist in some other countries; that the jmwers lodjjfed in the (Jovern- meiit in some of those countries are Ijirger than in Great Britain ; that an authority may exist elsewh(»re, whicli in Great Jiritain was al)sent, to act on mere suspicion ; that the principles applied to the admission and the credibility of evidence may not be the same. ]»ut it is plainly impossible to contend that the rules established in Great Dritain were in any respect contrary to natural justice or in contlict with any princi- ples of public law generally recoyni/ed by civilized States, or so restrict- ive of the powers of Government as to disqualify it from the discharjje i)f ordinary international diities. Their "general jMinciides do not, in tact, differ from those which have been iidierited from the same original sonrcos by the United States. Those i)rin('iples are esteemed essential in Groat Britain for the preservation of public; and private liberty. The I'ritish Government was therefor«> entitled and bound to observe and acton the rules founded npon them; and no charge of negligence can be founded on, or supporter'""H« vent the htting out, arming, or equipping, within Great ..aunsi dr-ut Britain, or the departure from Great liritaiu after a special adaptation for war, of any of the vessels above mentioned, the British (ioverninent is, or is not, justly chargeable with a failure of duty for which (Jreat Britain owes compensation to the United States. 43. Before an award can l)e made against Great Britain in respect of any vessel, the Arbitrators have to b(i satisfied — (a.) That she was in fact fitted out, armeted to impute to the chief Law-Officer of the Government in tbi Colony unfaithfulness to his superiors, and dishonesty in the perforui ance 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 sus tained by the clearest evidence. But they have been shown, on the eon trary, to be destitute of any shadow of foundation. ' The United States criticise also the ruling of the Judge on a doubtful point of law. A Gov ernment, however, is not to be charged with negligen(te because a court of competent jurisdiction nuiy i)ronounce, on a matter of law or fact, properly submitted to it for decision, a questionable or even an eno neous judgment. The Executive has performed its duty when it Las brought the case before a competent tribunal, and cannot afterward take it forcibly out of the control of the court, ov refuse obedience to its tie cree. If this be true (as it is) in ordinary cases, it is still more clearh 80 Avhen the whole transaction takes place in a remote colonial depemi ency.^ 51. The tVicts relative to the departure of the ^Vlabama, and tluu'ir cumstances which preceded it, are stated in the Jhitish Case, Part VJ, and in the British Counter Case, Part VI. 52. It has been seen : (a.) That this vessel was constructed by a large shipbuilding linn ai 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 trausactioii, and without any knowledge as to the manner in which she was after wards to be armed for war — believing, indeed, according to their own statements, that she was to be carried for that purpose into a Confeder ate port ; ^ (ft.) That the first representation made on the subject was received on the 24th June, 1802 f (c.) That, on the 25th June, the Government ordered inquiries to be made on the spot, and also referred the matter to the Jjaw-Officers of the Crown;" {d.) That iiuiuiries were made accordingly, but failed to produce any I evidence that she was intended for the Confederate Government or j service ; " (e.) Tiiat, on the 1th July, the result of this inquiry was comniuiii ' British Case, p. 64 ; Appendix to ditto, vol. i, pp. 14, 27. * Hriti.sh Case, pp. G4-CG; Appendix to ditto, vol. i, pp. ;{8-52. 'British Counter Case, i)p. 7(1-78; Appendix to British Case, vol. v, pp. 19-2;;. ^ ■"The United States have called attention in their Counter Case (seetioii v, par I :>) to the fact that the success of the Florida in passing throui^h the United Statej Idockadingsquadron otT Mobile was described by the Admiral in command asoulyaiiWJ of "ajyparcnt neglect." It is clear, however, that the Government of the United Sta:<"^ j did not so regard it, by the very severe sentence passed on the otHcer in fault, wliow summiirily dismis.sed from the service. (Appendix to British Case, vol. i, p. 7;{.) * British Case, p. 117 ; British Counter Case, pp. 81, 8(5. 6Brif.sh Case, p. fl ; Ai)pendix to ditto, vol. i, p. 177 ; British Counter Case, p. ^^^ ' British Case, p. Sii ; Appendix to ditto, vol, i, pp. 180, 181. * British Case, p. 81$ ; Api)endix to ditto, vol, i, p. 182. BRITISH ARGUMENT. 277 (iitecl t(» Mr. Adiuns, with a siifjgestioii that \u\ should instruct " the United States Ooiisul at Liverpool to submit to the ( Jollector of Customs ut that port such evidence as lie might i)ossess, tending to show that his susi>icion8 as to the destinat'on of the vessel were well founded.' (/.) That, on the 10th July, a letter was received from the Consul, wbicli furnished no evidence, and gave nothing but mere rei)ort8, re- ceived from anonymous persons, of statements alleged to have been matle by others wlio could not be found, or who, if found, could not be lOiupelied to testify, since their testimony would have tended to crimi- nate themselves ;'^ {(J.) Tililt, on the lilst .Inly, for the tirst time, some evidence was jiiotlueed by the Consid to the (.'oUector, but that it was scanty and im- perfect ; •' (h.) That some additional ca idenfce was furnished on the 2.'5d, and some again was received by the Board of Customs on the lioth ;* (('.) That on Tuesday, the liDth, the Law-Otticers reported their opinion tliiit the evidence was sufficient, and that the vessel ought to be seized.^" ,13. Jt has not been shown by the United States that, before the time when the lirst representation was made to the T3ritish Government, any mcumstances proving or tending to pro\ e that the vessel was intended tor the service of the Confederate States were, or ought to have been, known to this Covernment 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 liis knowledti'e, she had been gradually advancing to (completion, liatl made her tirst trial trip, and had begun to get ready for sea, yet no lividence whatever proving^ or tending to prove, that she was intended tortile Confederate States was pro«luced to tlie British (lovernment or ;iiiy 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 wliat was then furnisheaina inijj;ht have heen (h'tained at I'oint JAiias. An examination of the facts, distances, and «lates will show that such a course would have been nearly, it not quite, impossible. The Commissioners of Customs received telegraphic information o^^ the LMUIi of July that the vessel had left the i)ort of Liverpool that morning.' The oi)inion 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 liiverpool appears to liiive been in tloubt, even the next day, whether she had not gone out on a trial trip and would not return to iiiverpool.'' On AVednesday, July ;>(), the Customs Department in London received .1 letter froni the Solicitors emi)loy(>d by the CnitiMl States Consul, in which they stated their luilief that the vessel had gone to Queeiistown. On the same morning, the United States Consul at Liverpool received intorniation that the steam-tug Hercules, which had accomi»anied the Alabama, had returned the night before, and that the master reported the gun-boat to be cruising oft" I'oint 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 ."^ Tliis was the first information pointing to the vicinity of i'oint Lynas as the place where the vessel might be found. I'oint Lynas is situated iin the northern c*..-, of the Island of Anglesea, about fiftv miles from Liverpool, and more than two huiulred miles from Queenstown. Tho nearest custom-house stJitions are Beaumaris an«l Holyhead, from which it is distant in a direct line about fourteen and sixteen miles respect- ively, but much more by road.' Supposing, therefore, that the CustomsCollector at Liverpool had been iit the time aware that the Government had decided on the seizure of the vessel, and that he had telegraphed the rumor of her movements I'l' to London on the afternoon of the 30th of July, this would have been Appendix to British Case. vol. i. p. \9',\. ■ Iliid, p. 11)7. Iliid, p. an.'). ' Iliid., p. 2m. •• Ibid., p. 249. "Ibid., pp. 204,249. "See nu'ip opposite. ■\" i»n / . vSKETC K / of ;h^ BRITISH SHOWING THE RELATI' Liverpool, Beaumaris, Moi ( Tdknt irnni the Ad -/, °^^ / HOUHtACl? /; A V t CAERNARVONSHIRE / / J b=ii Xr ^k L f ^m^^mm 280 MIMTISH AKCJUMKNT. ^jtl^HMSTTyiw^-ij: ' I I: ^ the earliest iiioiuent iit wliieh in.stnietioiis eould have been sent to tlic Collector of t'ustoins at Jieaumaris to look out for the vessel otl" Point Lyiias. The Collector would then liave proceeded to the coast- iniiiinl station at Andwch, and from thencc! to I'oint Lynas, to make inquiries: but supposinj? all ]»ossible dispat(;h to luive been used, it is still doubt- ful whether he could have succeeded in arresting the Alabama, wliicii was at Moelfra JJay, live miU^s away, and which left at .'5 o'clock on the morn in J? of the .'Wst.' lie wonld have liati, moreover, nothinj-' l»ut;i coast-j;uard boat at his disposal. The (;rcw of tlu> v«>ssel appear to have been on the lookout,' and she miKhl without dilliculty have stoanicd away on his approach. (iO. The charge broujjht by the I'nited States aj^ainst Great JJritaiii of a failure of duty in respect of the arture of the Alabama really re- duces itself to this: that, in the interval between the 2Ist andiilttli July, durin}>" which the evidence was comin;;' in, the IJritish (loveriiiueiit took a little more time to satisfy its(df that there was ;jfround sullicieiu to warrant a seizure than the United States think was necessary. ():! this ground, in reality, tin; United States found their claim that all the losses caused by the Alabama, after she had been armed in Porta jjfuesc waters and converted into a Confederate ship of war, should be ])aiil by Great Britain. (»1. On the part of Great Uritain it is submitted, that to rest suili a claim on such a comjilaint, the <'omplaint itself bein;;' supiiortod b\ so slight and at the best so tloubtful a foundation, is to assume n standard of international obligation which was never before acknowl- edged by any Governmoit, and could Jiot with safety ov Justice be con ceded. It demands that the condiu't of a Government, with its various departments, with modes of action which are of necessity complex and more or less methodical, shall always i)ro('eed with a mechanical pre cision which is inapplicabh^ to the i)ra<^tical business of life. It makes no allowance for reas(»iiable doul»ts, for the importance of careful ('e liberation when difficult rpiestions of law are involved, for accidental delays occasioned by illness or other causes, or for the casual impedi raents which are liable to occur in matters of admiuistraiion. The establishment of such a standard would be neither reasonable nor just, and would be of serious (;onse(][uence, not to maritime States alone, uor in questions relating to neutrality only, but to the general peace and tranquillity of nations. It will be remembered that one cause ol some delay iu this case has always been uiulerstood to have been tin illness of the then (Queen's Advocate.' G2. Further, if it should appear (which (Jreat Britain does not ad mit) that, through the fault or mistake of any subordinate official of the Government, either before or .'ifter 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 aft'ord a foundation for charging Great Britain, as against the United States, with a failure of duty and a grave international injury.^ 03. It has already been observed that an equitable judgment as to all these points must be formed with reference to the facts as tbey w^re known at the time, and not as varied or affected by subsequeut information or subsequent events. Mr. Adams made a contemporan 'Appendix to British Case, vol. i, j). 207. ''It is stilted in the report of the ('iistouis Collector at Beaumaris, that they woiilil not allow a boat from the shore to come alongside. (Appendix to British Case, vol. i. p. 207.) ^ British Case, p, 118 ; Appendix to ditto, vol. i. p. •i4!> : British Counter Case, p. "^'l * British Counter Case, p. 87. HKiTisif AimnMi:\T. 281 wliieli •et'iil ('e- ccidental iiupwli- oil. The able nor s alone, ,\1 peace ause oi' )eeii tilt not ad- )liicial of am a from witliout to afford I States, jut as to as tliey jseqiieut mporan- hey woiilil ;!a8e, vol. i. se, p. ■^■'. •nrti-f;. f (H)iis n'lKUl of tin* tacts as to tlie Alabama to his Gov(^riiment upon rlio 1st Anj>iisr, 1801,' ami on the l.'Jth Au^iist the I'lesident desired Mr. Adams to express to Karl linssell his satisfaction at the "Just iiiuUViendl.v proceedings and lanftuaije of the IWitish (lovernment" with respect both t<> the Oreto and tlie Alabanui.^ Xo subsequent depart- ure from tliis torn* «!an alter the fact that this was tiie original im- pression juoduiied upon the mind of the Ameri(;an Government by the circumstances which had occurred down to the 1st Au};ust, 18()l, as rliey were known to ]\lr. Adams on that day. loy its naval fontes in searclnnja; tor and i)ursniii{,' Imi on the lii^h seas. No such duty exists, or has ever been recoyni /,»'() liy nuiritinie powers. It appears further to be s^jjjgested tiiat she ouylit to have been i)ursued and seized in French waters. So far was tlii.s IVom being the duty of the Jiritisli (lovernnient tliat it wouhl liave been ;i violation of the territorial sovereij^nty of France and a direct olVt'Dsc ajjainst the law of nations.' Her Majesty's (lovernnient is not aware that any claim has ever been made ujjon France by the United Statos, on the pround that this vessel was not prevented from beinf>- arnu'd for war within the territorial jurisdiction of that country. G.S. The facts relative to the Shenandoah are stated in Part VIII of the IJritish ('ase, and in Tart VII of the Uritish ('(tiuitcr Case. G9. The Shenaiuloah was a vessel desijjned and built solely for a iiicr chant-steamer, and with a view to employment in the Ohina track'; was originally emjdoyed in that trade; was afterwards sold in the Lou don market to a Liverpool ship-owner ; and was by him dispatciuMl from London w ith a clearance for IJombay. At the time when she left England she was in no way fitted out, armed, or e^juipped for wiir. She had on board two smooth-bore, lli-jmunder guns, i)ut they wore only the same guns which she had carried during her nu'rcantile em ployment, and such as are Jisually carried by ships trading in the Cliiini seas, to be used as signal-guns, and for other ]>ur|)oscs common to inor chant-vessels.-' 70. No representation was made, no inftuiuation whatevcu" was jiivcn to, or possessed by, the British (Joverument, respecting this shij) hct'ori' her departure from England. The Government tirst beard of her livf weeks after she had sailed, aiul then not from the Minister (tr Consul of the United States, but from Jler JNlajesty's C'onsul at Tenerifle.' 71. Tliere is not the slightest pretense for alleging that, in the cliai acter and ai)pearance of the vessel, in her tittings or equipment, in licr clearance, or in the hiring of her crew, there was anytL::^g whatever to excite susi)icion in the ollicers of the CJovernment at the jxn't of Loii don or elsewhere, or to lead to iuipiiry ; nor that she had been, in tact, specially adapted to warlike use, either wholly or in part, before lier tinal departure from this country. It has indeed been suggested, on the part of tlic United States, that the liritish Government ought toliine known the name of the English merchant by wliom she had been bous'Iit and was owned when she left England, and the circumstance tliiit In* was a connection by marriage of a member of the Liverpool tirm ol Eraser, Trenholm and Co.; and that it was a proof of a want of "the anost ordinary diligence," on the part of Her Majesty's Covernment, not to be acquainted with and " take notice of" this circumstance.^ On the part of Great l>ritain, 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, tbe United States seek to hold Great Britain liable for negligence in not Laving prevented the eciuipment or departure of a vessel which was never fitted out, armed, or e. 136; Appeutlix to ditto, vol. 'Case of the linited States, p. 417. use ; as to which m' l.p. 4^> IIm' llnl imI) (io\ii«-.s(Mitati(>ii or(M»iiiiiuini(nitioii Inul been iiiiuU'! to tlic Ci<»vcniiiH'iit, luul no },'roiiii(l whiiti'vcr existed for bclicviii}; that slie was intcmh^d for tlu' (loiifodcrato States ; whieh pri'seiited no cireunistaneo of suspicion, and of tiie very existence of which tliedoverninent was totally uninformed. Those i)retensions are unsupported alike by tlie three Itules, and by the previously reiiofj^nized principles of international law. '.■». It is submitted that, as to every one <)f thes(^ four ,. ,„ „ ,„ ships, the United States liav«' failed to establish the facts ;::;!,;;::'t;i^^^^^^^^^^^ iKM'cssary to sui)i)ort an awaiil aj;ainst (Ireat Britain. It lias not been, and cannot be, shown, in the case of any one of them, that tlui llritish (loverinneut, havinj»- leasonable ground to believe that she was intended to cruise and carry on war aj>ainst the I'liited States, failed to use diu» diligenci! to ])revent her from being' fitted out, armed, oie(iuipj)ed for that purpose within IJritish territory, or from de|)artinj; thence, after having been specially adapted within it to warlike use. 74. It was stated in tlni case of (Ireat liritain that, in the ,,,,„,,i , ,„ coarse of the years l.StJl, 18<;i-', bSti.'i, l.S«i4. and 180.1. nmny lejaesentations were a with resjiect to other vessels which he be Meved to be intended to be uselaints of trallic carried on with blockaded j)orts, or in articles <'ontrabanrai)er oHicers of the (lov- iTimient at the several localities for careful investigation and iiupury. 11". on such investigation, it ap|»eared by sullicient jtriiiKi-fitcir evidence that any illegal act was being or had been committed, the vessels were lortliwith seized, and proceedings instituted according to law ; if not, the result was at once communicated to ^Ir. Adams, and directions were ji'iven to the local authorities to Match closely the v«'ssels as to which Ills suspicions had been aroused.' It is said, in I he Counter (-ase of the United States, (Sec. J II, par. 14^ that "the ITniteil States do not understand that it is true that 'alleg.. tioiis that vessels weie being i»repared for cruising or carrying on war* were in all cases followed by seizure of the vessels when sutiicient 7»/m<'/- facle evidence of the illegal i>uri»ose was furnished. They understand the exact contrary to be the (-ase." The general course i)ursued by the Jlritish (Jovernment in these mat- ters is correctly «lescribed in the foregoing extract from the liritish Case The United States question whether, '' /// all m.sr.s," this course was adhered to. Even with this addition, however, the lu'oposition cpies- tioned is true, excluding only the case of the Alabama, in which some evidence sutticient to .justify action on the part of the (Jovernment was iudeed furnished, but furnished so late that the dei)arture of the vessel took ]>Iace before the (rovernment had been advised to that effect. "'). It is, however, alleged, on the part of the United States, that each of these four vessels, if not actually armed and equipped fi,„rBP omt ni. lor war within British territory, obtained her armament from "S';v'."U" ur"ll thence; that this armament was in each case purchased and if""<'"'ti!mai.,. ■I. ' British Case, pp. 31, 32. 2H4 mtlTISII AKCil'MKNT. fft,: N(Mit out by till' siiiiic pci'soii or lutrsons who hail |>i'o(;iir(Ml aiKl .sent oiu the ship; that such person or lunsons was «)r weio an aji^Mit oi* aj;('iit> of the (Jovninnont of i\w ConfcMU'i-ato States, enipUiyed for tht^se pm poses; and tluit the (iiews with whicth tin' vessels were manned wen cliietly eoinposed of liiitish subjectts, obtained from Kn^hind by tlie saiiii' agency. Ami it is contended tliat, under these circumstances, tin* Trj. bumil onj>ht, as ayainst (ireat IJritain, to assume tliat tlu'se vessels wcrt- leally arme(l and fitted out witliin iliitish territory, and to make its award on that assumption. 7(). To assnnu', un(h'r any circumstances, that vessels armed in tiu' waters of l'ortuj;al(U' France were armed in (Ireat lUitaiu, istoassnniea fiction; and to bas«' an ar^uuu'nt or award on this assumi>tion, would be to base an ar};unu':nt or award upon a ti(;tion. International dulics and liabilities cannot be made to repose on such a foundation. If it Im- meant to affirm that a neutral (iovernmeut is as much bound to ])rev(;iii arms from beiny sent abroad for this i)iui)ose and under these circiim stances, as to prevent the a(!tual armiuj;- of a bellijjercnt vessel of wai within the neutral Jurisdiction, where is the ju'oof ofthis supposed olili jUi'ation, and when was it sanctioned by the fjeneral consent of nations f It is perfectly unknown, and was never heard of before. The acts, w liicli are supposed to be virtually the same, and whi(^h the lU'utral (Jovcrii ment is on that account supposed to be under the sauw obliji:atioii to prohibit, are in reality «litt'ereur, and the reasons which sui»port the in ternational obli<>ation in the one case are wantinjij in the other. To at temj)t to found such an obli;;ation on the second of tln^ thn-e Itiiles. which prohibits, in lanj^uaftc previously familiar to publicists, the useot neutral territory, by the permission or with thea(M[uiesc»'n .so r<'}>iinl(Ml as aj^ainsf Hir iifiitral (ioviMiiiiu'iit, which (HO far as it ( iiii deal with thciii at all in tiui way oi' invvoiition) Clin onlydral with thiMiisoparatiOy, and which may, and most fVoqiiently A-ould, l)e wholly ignorant of tlio cxistciKrc of tlii; plan that was tluMi* sole ('onii('(',tin{f link, or at any rate unable to suhstantiat*' it. For the ;i(!ts done beyond its territorial Jnrisdirate States, or for any jmr- pose which the IJritish (Jovernment .'ould be called u|Km t prevent. 7!>. The (Jeorjiia, which also left (Ireat Ibitain unarmed, received her armament in rren7.) -Ihitish Caw, p. 07; Appendix lo ditto, -1)1. i, p. 20.'>. 'liritisli CuHc, lip. 1(10-104; Ajiptindix to ditto, \o\. i, pp. '^OH-'ii:'.. ' Ainonfj tlie papei'H laid bnfoic Conjjtn'ss by llio (Jovciiinjeiit of tlu' I Initc^fl States, and now alMO printed in vol. i of the A|»pendix to the Hritish Case, (p. y.Vi,) are two dJH- jiatches from Mr. l>udley, the United Statew eousnl at Liveijiool, t(» his (Jovernnu*nt. The first of thewo, dated Angnst 12, I^Ct^, states that he "understands that J^aird's jj;nn- hoat 2!M) is somewhere either on thti coast of Kngland or Ireland, and that they are sliippinjt to-«lay lifty inoro men who are to ho taken to her to-nij^ht on a steamer." In tbe Keeoud, dated the following day, he reports that the mcMi were placed on hoard the IJahama, which, after shippin1^lj''-r-,i |i^H«[ w- 286 BRITISH ARGUMENT. seqnently api)eared that, about two hours before her departure, (which occurred at 2 o'clock iu the morning,) a number of persons, some of whom appeared to be seamen and some mechanics, had arrived by railway, and gone OD board of her. On the day following that on which she sailed, the agent for the steamer Ijld the collector of customs that she had munitions of war on board.' 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 Gov ernment or their officers, until she had already sailed, indicative of any thing 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 MadeirH Islands.^ The steamer Laurel, by which it was conveyed thither, had sailed from Liveri)ool with a regular clearance for Nassau and Mata moras.^ There was nothing whatever to connect her with the Sbenan doah, which had sailed on the previous day from the port of Loudon 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 api>ear8 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.* 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 w&r ranted 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 Tenerift'e. 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 shij) 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 circnmstances stated on this head in cer tain affidavits, which, more than two years afterward, were for the first time produced by the United States,'' 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 witli some guns and atnmuiiition as cargo. Tliero was nothing what ever to connect her w ith the Oreto, which was then lying in the har bor, after having been released by the judge ot the proper court from seizure under tlie charge i)reviously made against her, but not snb stantiated, of violating the Foreign-Enlistment Act. There does not ap pear 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 com ■BritiMli Case, p. 1'23; Appendix to ditto, v«il. i, p. 405. -HiitJNli Case, pi». i;5(i-141 ; Appendix to dittct, vol. i, pp. 477-490. 'Appi iidix to BritiKJi Vaw, xo). i, pp. 492, 41)15. ^Appendix to Case of United States, vol. vi, p. 556. ' Kntish CuHe, p. 07 ; Appeudix to ditto, vol. i, p. 85. BRITISH ARGUMENT. 287 plaint or representatiou respecting her seems to have been made by the coDSol of the United States at the time, nor until .about a month after- ward.' It is stated that while at sea she was overhauled by the Oreto, (or Florida,) and that the two vespels 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 viola.tiou of British territory by both ves- sels. But it was a violation which furnished no proof of negligence on tbe part of the local authorities, still less of the British Government,, which was the party wronged and not the wrong-doer. Green G&y is a small island at a considerable distance from Nassau, uninhabited, and visited only by fishermen.^ 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 Govern- ment, 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 ol islets —no Government in the world could reasonably be expected to exercise sach 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 ap- plied, was unknown alike to the British government and to the officials of tbe United States in England. By the latter it was believed to be destined for a confederate port, and intended to run the blockade.^ 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 Unitod States.* 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 ordi- nary course of commerce ; that the purpose to which it was intended that they should be ai)plied wa.s 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 carj^oes destined for such a purpose was in- cumbent on a neutral Government, there wojild 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 ap- pear to show that the etl'ectual discharge of any such obligation would ordinarily be impossible to a neutral Government, unless by the total and iudiscriniinate prohibition of the export of arms and munitions of war. The second rule of the treaty of Washington is directed, not jigainst 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 intendeil to be em- ployed, in the war service of a belligerent, with the consent, or by the ^utterance, of the neutral Government. ' ApiM'iulix to British Case, vol. i, p. 87. • Ibid., vol. i, p. 90; vol. v, p. '20. ^British Ooiiut«r Case, p. 74; Appendix to Case of tbe United States, vol. vi, pp. ^22, Aiipendix to ditto, vol. i, p. 7.''. : Case of the United States, p. *■':."?;« * 1 / British Case, p. 67 ; Aiipendix to d •t-'O; Appendix to ditto, vol. iv, p. 45? i^^W'^WfP 288 HKITISH AFiGLMKNT. 84. The tribunal may be here remimled that even tlie fact that any particuhir vessel was freighted with arms and munitions of war woulil not of necessity be known to the officers of the customs before hor dp parture, and would probably be unknown to them if the ])arti(!s con cerned 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 i>aid, 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 saii- ing of a ship. The specifications, being required only for the coinpila tion of the statistical returns from the various ports, migjjt be furnished at any time within six days after dearfince. 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 contin gency that, having cleared for a specified destination, she might chaiific her course when at sea.' 85. It is suggested, on the jiait of the ITnited States, tiiat the ciews of all or some of these four vessels were in part conqjosed rr,w"',*r,rru,„l,!,' of liritish subjects. Jf that fact could be proved, it wonld I'lirwi" I'lni'-VsMi, not impose any liability on Great Britain. If, indeed, the liritish government had given permission to one of the bel ligerents to enlist men in Great Britain, for cither its military or naval service, this might have given Just ground for remonstrance and com plaint, to the other belligerent, especially if the latter were refused ii like privilege. JJut it is not pretended that anything of this kind oc curred. If, again, a vessel of war of either belligerent had been sufl'ered. b^ connivance or ac(|uiescence on the part of the authorities of a Britisli port, to increase her strength in the port by adding to her conqilement of men, this would undoubtedly have been a proper subject of complaint under the general principles of intenuitional law, as Avell as under tlu- second of tlie 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 > leave Eng- land with an intention, on the part of the persons who inuaced 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 individuvi 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 in- duce them to .join, by promises of high iiay and i>riz(>nioney ; that sonif 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 pur sued. Sailors were hired in England for an ordinary mercantile voyage. in the hope that they might afterward be Avon over, when at sea, by large promises, and by appeals, which it might well be thought wonld not be addressed in vain to men of careless, roving, adventurous habits, In fact, however, this expectation was in no snmll measure disappointed. The crew who went out on board the Oreto (afterward the Florida) lodged complaints before a nmgistrate 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 ' Si'o British Cast', p. 57. BRITISH ARGUMENT. 289 nhont hor real character and itittMuled employnient.* The crew by which he was manned (hiring her cruise was hired at Mol)ih^^ With res]>ect to ilie crew of the Ahibania, it a|)i)ears from Chirence Yonjje's atTidfi. its, produced on the part of tlie United States, that, after the vessel lia' them and "in- duce tiiem to go on tiie vessel " after she slicmld get to Terceira.' Many nieii when, after arriving at Terceira the new |)roi)osal to Join was ac- tually made to them ret'ns^'d, and were sent back to England.' Of the seamen who went on board of the Jai)an (afterward the (leorgia) and the xVlar, a considerable proportion — twenty-four at the least — refused ill like nuinner to join the at really with the intention that, when there, they should enlist in the United States Army. Her ."Majesty's Government does not attribute these endeav- ors to the (irovernment of the United States, nor hold that Government responsible for them. They were nnide, however, and they partiall;^" stieeeeded, as was known to and admitted by the Government of the United States.'^ 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 new at Melbourne by the connivance or culpable negligence of the lolonial authorities. This charge is one which, from its nature, would r('(iuire 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 tiie Case of the United States, have already been answered in detail in the British (Jouiiter Case, (pages 1)4-100,) to which Her ^Majesty's government would refer the Tribunal as attbrding also a sulUcient rei»ly to the further observations eoutaiued in the Counter Case of the United States. The physical ob- stacles which delayed the repairs of the Sheuaiuloah have been fully ' Biitisli Case, p. 6.^ ; Api>oiHlix to ditto, vol. i, pp. 46, 49 ; Appendix to (Jnaa of tlio I'liitt'd States, vol. vi, p. '204. ■British Case, pp. 67, 78; Appendix to ditto, vol. i, pp. 116-12."); llritiHli Connter Ciisf, p. 7i>. 'Ai)pendixto British Case, v(d. i, p. 'i20; vol. ii, p. 'iil ; Appendix to Case of I'liited Stiites, vol. vi, pp. 4:i2, 4:i8. ^See l{t'dd«!n's alJidavit ; Appendix to British Case, vol. i, p. 'iiO ; Appendix to Cas(! of tlu' Tuited .States, v. 1:?6-I4l ; Apjieudix to ditto, vol. i, pp. 477-481, 48.j-41)0 ; Appendix to Cas(! of the United States, vol. vi, pp. r)6l)-.')71. "Appendix to Case of the United .States, vol. i. pp. "270, '281, Wi:i, .j90; vol. ii. pp. 406, ^tiO ; vol. iv, p. '248. 19 C 'S/ tr-^ \¥ . 290 BUITISH ARGUMENT. cxplaiiu'd', and tlie poculiiir (lifticulties muU'r wiiicli tlie Colonial antlior- itie.s lalioiod, ivoin the absence of any JJritisli vessel of war, and the impossibility of exercising an efficient control over tliesliii)nient of iiieu Ironi diflerent parts of the Bay. On the other hand, the iictive vigilmice enjoined upon and exerc-ised by the authorities, the exaiuination of the vessel by (roveinnient officers belore jiennission to repair was };iveii,the daily rejtorts furnished to the (Governor of the i)royress otthe repairs, the striufient course adopted toward the coinnuinderof tlu^ vessel in order to obtain the arrest of the men who were discovered to have gone on board of her, and the piosecution and i)nnishment of those of them who were amenable to the law, all show the determination of the Governor and his advisers to i)i'event any violation of neutrality wso far as it was in tlu ir power to do so. Sucli was, in fact, the impression originally made by the report of their ])roceedings upon the mind of Mr. Adams, as sliowii by his letter to .Mr. Seward of the 12th April, 18(5.j.- Tlie United States have, in their Counter Case, (Sec. VIII, par. 4.) questioned the accuracy of the observations made at page KiO of the British Case as to thecomi>osition of the crew of the Shenandoah, and as to the statements u'ade by a man mimed Temple on the subject. The correspondenc-e which took jdace at the time on this point will be found at pages (!!>l-724 of the tirst volume of the Appendix to the British Case, and will, Her ^lajesty's (lovernment believes, amply bear out all tluu has been said in the British Case. It will be seen from the list an- nexed to Temple's athdaxit (page 701) that the composition of the crew was as stated, and from the police re[)ort (page 714) that Temple hiniselt' admitted that a consideralde portion of his own allidavit was false. 81). Stress has been laid, in the Case of the United States, on the charac a. to Cm allcgcd tjicts tluit tlic vcsscls in question were built ai"l pre- Gl™fi\'ri['™hrw'',' pared for sea under the su[)(!i'inteiulence of Bullock, who ""'"'"" was an agent of the Confederate Government, or soineotiiei agent of that Government; that the armament sent out for them was alvso procured and sent out uiuler Bullock's orders, and that the olUeers and men drew their i)ay through a tirm of merchants in Llverjjool. Although nu)stof 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, it true, they impose a liability on CJreat Britain. 90. it is to be observed, in the lirst place, that the information on which the Uniteil States now rely was not, at the times with reference to whi(di the question of due diligence has to be determitied, in the pos- session of the British (Jovernment ; much of it had iu)t even been ae quired by the (iovernmeut of the United States. Of Bullock's employ ment, and of the facts that he was an agent of the Confederate Govern meat, and that he had anything to do with the contract for buildinjitiie Alabama, the British Government, up to the tiuie of the departure of the Alabauui, and until long afterward, had no proof beyond such statements — unsu[>ported by anything which could properly be calh'd evidence — as were contained in the depositions furnished by Mr. Dutlkn and Mr. Adams, in relation to that vessel, a few days before she sailed. ' The \\i\\wv icforiL'd to in the Coiuitor Case of tli«3 United States, as showing' tliin tlie lepairs (o the niacliiuciy of tlie vessel were not. emMineuce4, was found on board of that vessel when ca[)tured at 13ahia." Her Bri- ' Aiipeiulix to Counter Caso of the United States, pp. rioO, 857 ; British Coiuiter Cease, p. m. - In ii ciirrospoiidenec which has recently passed between the Governments of tlu; Uniti'd Stati's and of Ni<%ara}i;na, aiid wiiieh lias been published in tlu; Ollicial (Jazi'tte oftbf latter Kei)ublic, the United States have distinctly declined to aj^ree to the refer- ence to a Coniniissiou of the claims of Nicaraguan citizens arising out of the acts of tili- liiistcriiiy,' exi>editioiis from the United States, and the bombarduient of Gnsytowii, de- cliniiijr all responsibility in regard to these claims, and stating that, as regards the acts of Walker, the filibustering chief, they felt conscious that th(\v had fullilh-d all that could be rt'iiuired of them, either by the laws of the United Slates or by international law. ^British Counter Case, pp. 25-47 ; pp. 82-85, (note.) * See the trial of Messrs. Jones and Highatt. for enlisting men for the Georgia ; of Mr. Kiimble, for eidisting men for tiie Rappahannock ; of Captain Corbett, for enlisting men fortlu! Shenandoah ; of James Cunniugham, Edward and James Campbell, and Johu St'yiiiiiur. Ai>pendix to Case of the United States, vol. iv, pp. 550-C18. ■ "Aitpt'iidix to Case of the United States, vol. ii, p. 175. "Appendix to British Case, vol. i, p. 150. y)*»5tv5f ■ f'll 3'- : f f J. r 292 BRITISH ARGUMENT. ■j.t- ■ ' .' ■ tannic Majesty's Government is not aware tbat any proceedings were taken against Coniniotlore Barron by the Government of France. 02. It wonld be extravajjant to contend that the want of power t()])re- vent a belli<>erent from havinj? agencies in a nentral country for the purpose of making mercantile contracts for such articles ;is if • ceds, or for the payment and receipt of money on its account, (altli' ^a some of sucli contracts and ]>ayments may liave been connecte.i with shijis in- tended for, or actually in, its service,) is equivalent to a i)eiiiiissi()n to that belligerent to emi)loy the neutral territory as "a base of naval operations." 03. Upon this subject it seems necessary to observe that, althon<>li. in the diplonuitic corresjjondence, during the war, of the American (lov- ernment with Mr. Adams, its minister in (xreat Britain, a id of ;\Ir, Adams with the British Government, allegations were frecpiently iiiade that Great Britain and her colonies w^re used as a " base of operations' against the United States, that " war was virtually carried on,' and that hostile "expeditions" were pre[)ared 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 ami similar phiasM were really employed to describe what the Government of the United States regarded as the combined and aggregate effect of a groat variety of matters — the existencic of Confederate agencies and agents in Great Britain, the supplies of arms, munitions of war, ami ships, liy blockade-running and otherwise, to the Confederate .States, and tlie negotiation of the Confedeiate cotton loan — with each ami all of wliicli the British Government was continually urged to interlere, altlioii;^'!! (exce])t as to such of them as could be brought within the terms of tlie Foreign-Enlistment Act) they were neither enabled by their own nnuiici- pal law, nor bouiul by international law, to do so. 04. Of this statement, the following proofs will suffice. Gn the IL'tli May, 18G2, Mr. Adams wrote thus to Earl Russell: " It is very certain that manj- British subje(!ts are now t ngaged in undertakings of a liosiile chamdtr to a foveign ISt((te, irhich, tliouf/h not technicnlln irit'iin the sfyivt letter of the enli fitment aety are as mueh contrary to its spirit as if'tliei/ IcrivtJ war (lireethj. Their nu^asures embrace all the operations preliminary to o])enly carrying on war — the su])ply of men, and shi|)s, and arms, and money, to one i)arty, in order that they may be the better enabled to overcimic the other;" * * * and he, immef war, and even of vessels of war, to a hellificrent connlnj, not subject to blockade at fhe time, as a piirelij commercial transaction, is decided hi/ these anthorifies not to he unlauful. They go not a step furtlnu- ; and preeiselfi to that extent I have myself taken nociception to the doctrine. But tlie 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 univh in the same way that it would (h), if it could, ti'oniitsown territory; when it ai)poiuts agents residing in that country for the purpose of borrowing nioney to be applied to the htting out of hostile armaments in those very i)orts, and when it appoints and ■ ids out agents to superinteu;{, Mr. Seward, communicating to Mr. Adams information which he had received from the C'anadian authori- ties, as to certain designs of emigrant insurgents in Canada against the teiritory of the Uuited States, and expressing the satisfatttion of the President at the friendly jn'oceedings of those authorities, fcdlowed up a suggestion as to some possible amendments of the laws of the two nations, by the inquiry: "'Could we possibly avoid contlicts oetween the two countries, (f British shores or prorincfs .should, throutjh any mis- under standing, he sufered to become bases for military and naval operations against the United tStatesf^ He then, ai)parently, still (;onsidered the suggestion that they had already bec^ome so, (in the language of his former letter of the 0th March, I8()*i,) as "extravagant, if not alto- getiier erroneous." Yet, on the (Ith of January, l.Sii4, he wrote to Mr. Adams as if certain papers, showing "that the belligerents liave a regularly constituted treasury an«l counting house, with agents in Lon- don for paying the wages of the British subjec^ts who are eidisted there in this nefarious service,'' were sutiicient to " prove, beyond a possible doubt, that a sys- Mnatic naval war has been carried on for more than a year, by subjects of Her Majesty, from Ihe British Islands as a base ;" and that, by meaus of this evidence, the difliculty i)reviously felt by Her Majesty's Government in acting upon remonstrances, which were ' ApixMulix to Case of Uuitetl States, vol. i, pp. (5(5'). r>rt4, 589. ^ Ibid., pp. 591, 592. » Ibid., p. 57G. roa' the latter part of the year 18(J;i, the (iovernnuMit of Great Britain manifested a decided determina- tion, not only to avoid intervention, but also to prevent unlawful naval intervention by British subjects. This nmnifestation i)roduced a very happy effect in the United States."^ {)'>. What was, from time to time, aetually and successfully done by Great Britain to prevent any unlawful ecpiipments, orauji»inentation of the naval force of the Coniederate Government within her territory, has been sutliciently stated in the British Case.^ The Arbitrators also know in what instances, and under what circumstances, the vigilance of ller Majesty's Government is said to have been insutiicient, or to have been elude17, ^>l'*. 1 1bid., pp. 344, 345. » Ibid., p. 240. BRITISH ARGUMENT. 295 that lie has five steamers built, or bouj^ht, armed, and supplied with iiinterial of war in I'^nniand, which arc now abont bcins, or arc on their way to aid the insnr;;ents,"' In May, lSn ports, under cover of neutrality, to j^ive the insiir<;ents a naval fonje. Amou;;" tiie reports is one that a naval areiament is il'liii^" out in Eusianti Lo lay New Vork under contribution."' In certain intercepted letters of Confederate A<;ents, of ATif>nst and October, l.S(>2, it was stated that a person (an American) named 8aii'ow, and two iron-clad rams in London, and three other snspecteainst New Vork, to consist of '•'\fiee iron- clods, on their way from French and En<;'lish ports," with the aid of "live blockade-runnin}^" steamers, to be converted into privateers, armed with two j:;uns each."" 1)7. This series of reported designs, whi(di were never accomi)lished,at once proves how impossible it was for the iirilish authorities to act in- discriminately, and without evidence, upon every alarmiuf'' report and rumor which mij«ht be conveyed to them by the A}»ents of the United States in this country, and shows what mi,i;ht actually have been done, if those authorities had really been careless or ueyKjient as to the en- forcement of the law, or had really permitted ller 3Iajesty's territory to be used as a base of hostile operations ajiainst the United States. If such designs were formed, Mr. Adams merely spoke the truth, when, writing of the Confederacy on 2lst of July, 1804, he said "its audacious attempts to organize a navy in this kingdom (Great Britain) /tat't; utterly failedJ"' !>8. An answer has been given to the complaints which the United States make against Great Britain in respect of the alleged e(iuipment in British ports of vessels intended for the Con- (■n,Sr'at'!-, r..V'. '-! federate service, and of the original departure from British w'en''n"t'«lL',r'mV territory of vessels alleged to have been specially adapted with in it to warlike use. But it is further urge<» (loinands of tin"; Uiiit(Hl StatoH upon (rroat Britain duriiif; tlip Avar wove, as to many thinji'.s, <>r('atl.v in t>x«n's.s of wliat could bo Jnstilicd l>y international law; but an obli:<»est('(|. except upon the view tiiat all Confederate slnps of war and privateers, wliicli niif>lit be found upon tiu' oijcari, ouj^ht to b(^ treated as pirates, and denied any bellij>erent eliara(!ter or belligerent ripjlits. JOO, It rests witli the Uniti'd States, which assert this oblij^ation, to ]>rove that '' existed. They have atteinpteil to support it by puttin<;ii forced interpretation on oneof tln^ clauses in the tirst of the thn'e Kules— an interpretation jdainly at variance with its natural and obvious mean- iny. If the sense thus ascrilted to tin* iiule had been its true sense, it could have a])i)lied only to vessels which could be proved to have been specially adai)ted within JJritish territory to warlike use, a des(!riptioii which niijiht includi; Uni Alabama, but could not possibly in(;lude the Georfi'ia or Shenandoah. To these, therefore, the rule, even if con- strued in this strained and unnatural inanner, could not ai>ply. J>iit the reasons f>iven in the JJritish Counter (Jase (Part II, ]). 17) lor alto- {iCtlu'r rejectinj^' this construction, which was not at the tinut within tlu' contem]>lation of the hij^h contractinf*' i)arties, and is wholly repudiated l)y (ireat Ibitain, are, in the view of the Jbitish (iovernment, conclusive, Ibl. That the aryument of the United Sta' ■ on this i>oint is not only unsui)ported by the luinciples whi(!h have hitherto jj;overned the ad- niissn)n of public ships of war into neutral ports, but in direct conilict Avith those principles, has likewise been shown in the Counter Case ol (Ireat Ibitain, (Part JI, i)p. 18-20.) The j?eneral principle was there stated as follows : A vessel coiiiinissioned as a ])iildic sliip of war, eiitciinj; a Corf.'ifj;!! ]iort, is n ])oitioii of tlio naval force of the rJovi'Viniieiit by wliicli s}i(> is coniiiiissioiu'd, coiiniiaiKlcil 1)\ its oilifcis, and »lis])layiiifi tlie cnsio-ns of its initlioritv. Any act of foj'et* dircctccl aj:ainst lier (nnlcss to i)ifV('nt oricix'l afie an infractinn of a reco;xnizcd understandinjj, on the faith of which she entered, and on thi^ oliscrv- ance of which she ha necessary, in order to ju'cvent or arrest the un- lawful act, and to eomjiel her dejiarture. lint redi'ess on<;ht not to be sou<;ht against the sliip herself: it should be souj;ht, if needful, ajjfiiinst her Oovenmient. .( J'nriUm. this is true if \\w. otfense, weie committed before slu^ jirrivcd at the ni'Utr.'il |i(iit. Thus, of the violations of neutrality coinniitted durin;;' tlie war the j'rossest antl must thifirant by fai' was that iierjictrattMl by tlu^ Wachusett in the harbor of Hahia, Tin- IJrazili.'in authorities would have l)een amjily Justilied in lirin<;' on tliat v<'ssel wliilc eiiiiayed in the act, and siukinjj; her if necessary. If she had aft<'rward ])resentc(l lici- seif in a Hia/.ilian Jtort, they would doubtless have refused her admission ; l)ut tlu'v would have lijihlly abstained, even 'on such provocation, from seiziiifr anil detainiiij; her, A iiinJto fortiori, the same proposition holds tjood if the act complained of were done befoi'c the oti'endinj;' ship came into the jiossesision of the coninii.S8ioniu' of a recofjiiized sovereij^u State; and these evidences were accepted in other neutral ports as well as those of (Ireat liritain. There is no reason to doubt that they were in fact validly commissioned, according" to established usaj^e untler the authority of commissions and orders issued by the (Tovernment of the Confederate kStates. Thecin-nmstance that the i)articular a<'t- by which the vessel was invested with a i)ublic character was in each case done, not within the territory held and con- trolled by that Government, but at sea, was not, accordinj^- to usajie, material, since it is jierfectly competent for any Government to (Commis- sion, out of its dominions, vessels wlii4, in which the Slienanhai, and an ollicer, a party of men, ami a gun haviuff been i)laced on board other, she was dispatched to Join the allied tleet in Jai)an, where she took part in the action fought at Simonasaki on the 4th of September.'' 10.'). The oidy question, therefore, which remains is, whether the ossible 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 sub- jects of the neutral, those j\ira belli, which are by usage exercisable by lej^ularly commissioned ships. To merely honorary privileges, such as salutes and the like, otticers of a Government not recognized as sover- eign have no claim, though no law or (Uistom forbids that the courtesies which otli('ers of different nations are accustomed to exchange should be shown to them personally. The British Government, during the war, ' British Caso, pp. 12, 17. Appendix to British Case, vol. vi, pp. 1-148. British Coun- ter Case, pp. 119-1-2:5. •As to this, see British Case, p. 24. 'C'orr(>spoiuleuco respeutinjj ali'uirs of Japan, (Japan No. 1, 18G5,) presented to Parlia- mcut 1865, pp. 100-101). 1'^ ' i % w 29H UKITISH AROUMKNT. •jVi:; i gave onlers tlnit tlie Con federate fill}; Hliould not ho salutcMl.' IJiU tlio priiicipUi of an nnpaitial neiitiality ivqiiiirs that any powers, lilxTtics, or iuiinunitit's, tlio n^t'iisal of whicli to ont; bi'llij^crcnt would place liim at a (lisa»lvantaj;c in matters reiatin};- to tlio war, .should bii adniittcil to belonjj, f(U' the purposes of the war, to both alike. 10.~). What, then, is the reason of the inununity from local jurisdictiKn, whie.h is socureil by eiistom to public ships of war, and to what class of privih^yes «lo»\s it belon<»' ? Is it to be reckoned amouf>; hon(U'ary privi- le};es, and re{;arded as artectin<;<)idy orchi«iHy the dignity of the Sovcr- ei};n or State untlcr whose tlaj*' the V(^ss^^l sails i Clearly, this' is not .so. The reason (which has been tmpuMitly ex|)lained) is, that this ex- ceptional inununity is necicssary, in order to prev(Mit the operiitions in which, and the objecits for whic/n, a military or naval force is employed, from beinj;' snbje(!t to be defeateii or interfered with by the action of u foreij^n i*ower. It isessi'Utial that the sui>reme and undivided coimnaiid oftho.se forces and every i)art of them should be exerrobable that any belli}ferent Covern- ment would sutter its armed ships to subject them.selves, by enteiinj,' the territorial waters of a foreign sovereiyii, to any other Jurisdiction than its own. Siujhhas been the practice of all civilized nations duriii<;' revolutionary wars, before an insurjjfent i)opulation ha.s established its title to be recogni/ei as an independent State ; .such were the principles and the ju-actice of the United States duriu}; the wars between Spain and Portujjial and tluiir revolted Colonies, before those Colonies had achieved their indepeiulence. 100. A passage in ^Ir. Ju.stice Story's Judgment in the case of the Santissima Trinida»l sums np in .so clear a manner the con.secpience.s 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 llev«)lutionary Government of Buenos Ayres, under the circumstances stated in an earlier part of the present Argumciit,' "111 iiiMl hy the proper aiiHioritieH ol' tlie nation to which she l)i>!o!iu:» i is a coiupleto ]»i()ot' of her national cliaiactcr. A bill of sale is not necessary to b,; i)U)tluce tiilil to this tint I'oi'i'oltDi'iitivi' tcsiiiiiiiMv of our own anil thf iliitisli ('(iiisiil at ItuiMios Ayrt's, us well as thai of privatr (nti/rns, to tin- nntmicl y of her ilaiin to ti piiliiii- charactiM', and iinr ailiuission into our ports tis a pnlilic sliip, with tho iiiiiiiiniitifs anil pri\ ilc^fs lirlon^rinji;' to such Niii|i, with th<' ixprcss apinoliation of mil' iiwn t'DViTiinK'nt, it docs not sconi too nmch to asscil, whatrvrr nii;;hl lie the piivato Mis|ii('ion of a Ini'kinji; Anicrican intiufst, that she nnisi Ik- jndit'ially hthi to l)(> a pub- lic ship ot' the <'(Hintry whose coinniission she lifai's. "'fluTf is anothiT oltji't'tlon nijit'd against the admission of tliis \cssrl to tin' pri\i- ji'iri's and imnHinitit's of a public ship which nniy well Ix- disposed of in eoiniectioii with till' nuestioii already considered. It is that Mnenos Ayies 1ms not lieeii aeknowl- idjjcd as a sovcrei;;ii, independent (ioveiiiinent by llie Ivveentive or Lt';;islatnie of tlin I'liiti'd States, and therefore is not entitled to have her shi|is of war iecii«4;nizcd by iinr I'oiirts as national sliijis. Wn have in former cases had occasion to express our iipiiiion on this point. The (liovernment of the. riiited States has rccov;ni/ed Ihu ixi.stcnce of a civil war between Spain and her colonies, and has avowed a deter- niiiiiitii>ii to remain neutral between the jiarlies. and to iiUow to each the same. ri;;lits iit'iisyliiiii and hospitality and intercourse. I^acli party is therefore deemed by ns ji lii']li)i;i'rent nation, Iniviii;;, so far as concerns us, the soverei;;n ri;i;lits of war, and eiiti- lli'd to be respected in the cKcrcise of those rij;lits. We eaiinot interfere to the prejii- itiic iifeither belliH;erent, without malcinj; ourstdves a parly to the contest and de|>art- iiij; tiom the ))iistiire of nciitriility. All captures made by each must be considered as ii:iviii|;' the same, validity ; and all the immnnities which may be claimed by public ships III our ports under tho law of mitioiiH must bo coiisiiUtred as cqiiallv the ii<;lit of .null."' 107. 801110 inconvenience may arise (as appears to be .siififiested in tlio Counter Case of the United States) tVoin the eireiinistaiice that, slidiild any cause of coniphiint arise, no official repre.sentutions can be made by th(i neutral toa (lovernnient with wliich it has no otllcMal inter- conr.se. But this inconvenience is liable to occur in every case in which a bellififereiit cruiser coiniuissioned by such a Goveriiiuent may liave done any unlawful or imi)roi)er act on the hiyh seas, such as an ii'ro{«alar exercise of the rif^lit of search or tin ilh'<;al capture. This has not, however, prevented neutriils from concedinji" to such crui.sers on tlie liiyli sciis the exercise of the rij>hts which behnij;' to ships duly coiii- iiiissioiied. Aj>'ain, inconvenience may arise where citizens or subjects of the neutral, who may be within the territory held and ruled by such aGoveriiiiieiit, have sutfered from any real or apparent abuse of jwwer. Yet it has not been the practice of neutrals in such cases to treat the (/(\/W('/o (lovernnient as non-existent, althou/^h they may not have recoo'- iiized it as sovereign. More than on(;e diiriuj?" the war Her Majesty's lloveniment was desirous of addressin{>' unotli'.ial representations to the Government existing" in the Confederate Stiites; and it was jirevented troiii «loing so only by the refusal of the United States Government to allow such communications to pass throu{^h the blockadeHj ■I S . ww^^nif^ 'ij*.. I o 00 BRITISH ARGUMENT. WliPH! citliiT boUijifi'nMit is a coniiiiiinity or liorly of i»(>,r.sons not ivpostitiitiiiu; a sovHreiyn Slatu, CDiiinii.ssionH issiuul l>y niii;li ln-llijfiMi nt art' ri'coi^iiizi'il as a(;ts ('inaiiatin;>', not. indeed from a sovcrtMjj:ii (iovt'riiiiKrnt, l)iu Iidui a iMTson or jkmsous exercisiiij; (lrJurini;toii iv. Smith and Hartley, decided in the Supri'iiiu Court of the 1,'nited States, in Deeendter, l-(li-i. The Clnef .Justice delivered the o|iiiiioii of tlw Court. ''The (|ue.stions Iiefore us niMiii this appeal are these: •' I. Can a contiiu^t for the iiaynu-ut of Confederate notes, made ilurinir the lati' ic- belliou. bci\,ccu ]iarties residing; within the so-called Confederate States, be eid'oirwl at all in the courts of tin- IJuited States? ""J. Can e\ idi-nce be receivi'd to prove that a ])romisc rob.ibIy be found to re(|uire limitation and ([iialitieation. Hut tlu^ ocncral princiides of l;iw relatino- to di' faclo (tovernment will, wo think, coudnct us to ;i con- elusion siillicicully accurate. *' There are several deorei's of what is calhsd dvfaelo Governinont. " Such a (Jovcrnment, in its hio|u'st decree, assniiics a chanicter very (dosely ri'scni- blinn that of a lawful (jiovermnent. This is when the usurpiuj;' Government t^xpels tin' rejjular authorities from their customary seats and functions, a id establishes itself in BRITISH ARGUMENT. 301 ized hy the l)i'lli;;i'ii lit N Imt iVoin il SOVcirj.rii iont, (sit. 1. itiiti's wi'ii'. It'll pilliliinl ji'St v's (lllV- tli(i I'liittMl iVitll llfllijr. ij;llt, to cdii- iizimI ihilili- . liisi (ibsciva- t'Xin'cssious ii)V('niiii('iit 10 iSlipi'clKi' L'oiil'iMli'i'ati' ,j(^sty's tliiv- 11 ii.simI witli iti'. of ati'aiis IStiiti's, and ho Siipiviiif the lati- re- be cul'orci'd for the pay- Ill dollars 111 $10.0111) was iicil that tile iirtlintw llif "itfiil iiriiiii- il tlinm^'li ic citiitraut scribi'd as a ,hi('h it was hiiiitifs III' • till' over- l.'irii's, o!'a pri'-ii'iiliii;; sioll.'ll I'Dll- I 111' CIllllSI' St at of till' I'litral an- on ii|iiiii a years. Its the States .flit States the aniii'il it law .' crivcii may tTie ;;i'm'nl lis to a t'oii- )sely ivsein- t expels till' les itself i" 109. It is ati error therefore to suppose that it was tlie duty of tlio antliorities in any IJritish port to seize or «letain Confethu-ate ships of wnroii the efrouiid that they were suspected or believed to have beeu originally ol)taiue«l from Knolaud or etpiipped there by viohitiou or eva- sion of the law. On the coutntry, to do this would have been a depart lire from the priueiples of an impartial neutrality: ro do it without some previous notiee, exclu' them from the ri,iiiit of admission to iiii; cliaracterLstie ofsnch aGovertuiieiit i.-i, that adliereiit.s to it in war a.^ain.st the Gov- eninu'iit dc Jure do not iiicui' the penalties of treason ; and under eeitaiii limitations, (ililijialioiis ii.ssiinied by it in Ix-half of the eonntry, or otiierwise, will, iir {general, bo i('S])ectt'd by the (iovernineiit dcjiirc when restored. "Kxaiiiples of this deseriptioii of (Joveri-.nient dc Judo are found in Enf;lish history. The statute 11 Heiir \'II, e. 1, relievfs from [leiialties for treason all persons who, in , (k't'i'iise of the Kinj; for the time beini;-, wa^n war af;ainst those who endeavor to sub- vert liis authority by force of arms, though wan-anted in so doiiii>; by their lawful iiKiiiareli. '•Hilt this is where the usurper obtains actual possession of the royal authority of till' kinjidom; not when he has snceeeded only in establis,hiim bis jxtwtM' ovei- iiariicu- lai'lecalities. l?ein^ in ))ossession, allej^ianee is due to him a.-^" Kiiij;- dc fiifto. "Another example may lie found in tin; (ioveriimeiit of Kn;;ianil under the Common- wealtli, liist i)y I'arliameiit, and atteiwards liy (Jroniwell as I'roteetor. It was not, iu the coiit(!iiii)lati'.>n of law. a (ioveniiiu'iit dc jure, but it was a ( JoviMiiment dcjhclo in the iiiiist al'solute sense. It inenrred oblin-atioiis and iiiadi' eoiii|iiests which ri'iiiained the .ulijfatioiis and ('oiHpU'Sts of iMiylaiid atter the h'estoral ion. The better opinion doubt- less is, thai acts doiiii in obedience t'.> this {iovernineiit eoiild not be just ly rij;arded as tioasonabh , thoii;;li in hostility to the Kiii}.'; f/c /(O'c. Such acts were protected from ciiiiiinal pio.secution by the spirit, il' not i)y the letter, of the statute ol' Henry the Seventh. It was held otherwise by the judges by whom Sir Henry Vain; was fried for Ueason, in t!ie year Ibllowini; tin,' Restoration, lint such a judi^incnt, in sueii a time, has little authority. "It is very certain that the Confederate Government was never acknowledji'ed by the I'liitcd Slates as a (/(' /fic^* Governiiient in this sense. Nor was it ackiio'.vli'il;;i'd as siii.'li by other powers. No treaty was made liy il with any ci vili/ed State. Nooldiiia- liiiiis of a national cliara(-ter were created by it. biiidinj;', after its dissolution, on the States which it re))reseiited, or on the National ( Jovcriimt'iit. From a very early period III' the civil war to its close, it was rc<;arded as simply the military representative of the iiisiurcetion a.nainsl the authority of the I'nited States. " lint there is another description of (iovernnient, called also by ]Miblicists a (Jovern- iiieiit ih- facio, but which nii;;lit, pciliaps, be more aptly deiioiiiiiiatcil a (ioxermnent of liaiaiiioiiiit force. Its (list int;uisiiiii,n- cliaracteiisties are. (1,) that its existence is main- taiiifd by aitive military power, witliin the territories, and aj:,ainst the ri eh I fill author- ity of i.ii established and lawful (iox (•riiment ; and ("i,) that while it exists, it must iiee.'ssarily be obeyed in civil matters by ))iivate citi/ens. who, by acts of obedience, leiiilered ill siibuiissioii tosueli force, do not become responsible, as wi(nii;-doers, lor those aits, tlioniih not warranted by the laws of the iii;lilfnl ( loxernmcnt. Actual Goxerii- iiHiits of this sort are eslalilished over ilistriets dilierin;;' nieatly in extent ami eondi- tiiiDs. They are usually administered directly by mililaiy aiitliorily, but they may bo ailiiiiiiistcied also by civil aulhorily, siip])()rted more or less directly by military force. "One ex.implc of this sort of (ioveriiiie'iit is luiind in the ease of C.-isrine, in Maine, leiliK'ed to lirilish jiossession duiiii;; the war of IHl'J. l"rom the 1st of September, 1*14. to the ralilication of the Tiealy of I'eace in Hb"), aceonliiie to the jinl^ineiit of this Coiirt in I'nitcd States r.'*. Rice, "llie Ibitisli (joverninent exercised all civil and military authority over the id.ice. 'I'lie aiitlicrity of the I'liitcd Slates ovei' the terii- liiiy was suspended, ami the laws of the I'liiled Slates could no lon;i;er be rijj;htliil!y iiirtiifcd there, or be oblif^atory upon the iiiliabiUinlH who remained and submitted to the eoiiipici'or. J5y the surrender, the inhabitants passed under a ti'm|iorar\ alli';;i;i4iet! Ill the Ihitish ({overnment. and were bound by such laws, and siicli only, as it chose to iecoy;iii/.e and impose.' It is not to be inferred from this that the obligations of the lieiiple of (,'asline as citizens of the t'liitcd Stales were !ibroe;ated. They were siis- lieiided merely by the presence, ami only during tlit; prese'>ee. of the |)aramount force. A like examide was found in the case of Tampieo, occupied during the war with Mexico by troops of the I'liiteil States. It was di'termined by this Court, in i'Mtimin^ '». I'aerc, that, altliou^h Tamiiicodid not become a port of the I'nited Stales in eonse- i|iii'iice of that occupation, still, ha\iMH come, to^-cther with liie wli()le State of Ta- inan li pas, of which il was pari, i n to the exclusive jtosM'ssion of tin- national forces, il must I"' rejjarded and respected by otlii'r nations as the territory of the rnitcii Stales. Tbe.>50 were cases of temporary jtossessioii of territory by lawful and rej;ular (iovenimoiits at war with tho country of which the couutry so possessed was part. • ifi m ! l.ilimKI'V ' "»(^"' 302 BRITISH ARGUMENT. 8)» British ports according to the ordinary pracHce of nations, would have been a fiaj»rj'.(it public wronjj. 110. But it may be observed that in order to charge Great iiritiiin v.'ith a bi'each of international duty, and a consecpient heavy hability. on th.i plea tliat they were not arrested and detained by tne autlioririi's of ine British Colonies visited i»y th'Mu, it would be neoessary to prove, T;ot only tiiat the forbearance to do so was a mistaken exercise of jiKlg. '•Till- ("cntrnl ({(tvcniiuciir, t'..st;il»lislu!(l for Mm iiisurjfent States, (liU'ercd IV. mi Jk; teiiiptirai'v (Jitvt'i-miicnts at Castim^ aiiJ Taiiipico in the, circuiiistaiiec that its aiitlioritv did n()t oi'ijjflnatc in lawful ai-ts of rcfriilar war; Imt it was not, on tliat account, less arity, in civil and local matters, not only a n(!cessity but a duty. Without such oljcdieuce, civil order was im])ossible. "It was by this (ioveriiment exercising its power tiiroughont an immense territmy that th<' Confederate notes were issuet in the contingency of .successful nivolutiou, the.se notes were uiilli- ties; for, except in that event, there; could l)e no payer. They bore, indtied, this char- acter upon their f.ice, foi' they were made |»ayal)le 'ai'ter the ratilication of a ticaty ol peact' bcrwecu the ( 'onfederat(} States and the United States of America.' Whih' ilir war histi-d, however, they had a certain coutiugcuit value, and were use<' as money in nearly all the linsiness transactiinis of many millions of jieople. They nuist lii> regarde(l. therefore, as a currency, imposed on the comnninity by irresistilde force '•It seems to follow .-IS a necessai'v cousef|Ucuce frinn this actnal Hn])reuuicy of tiic insurgent (iovenmu'ut, as a Ijclligenuit, witliiu the territory where it circuhitcd. ami from the ie>'e.'.sity of civil obedience on the part of all who renuiiued in it, thai tliis currency must be considered in courts of law in the .same light as if it had been is.sind by a foreign (iovcrnuu-nt, tempor.-iiily occupying a part of the territory of the I'nitiil States. Contracts stipul.iting for payments in this currency canuot i)iMegai(lc(l I'm that reason only as made in aid of the for<'igu invasion in the one case, (Udf tin donu'stic insurrection in the other. They ha^'e no necessary relations to the liostilc Governuu-nt. whether invading or insurgent. They are transactions in the onlinary course of civil society: ami, though tli' ., may indirectly and remotely lU'iunoic llir ends of the unlawful ( ioverument , are withiut bhnne, except when itroved to liavi' been ent. 'red into with actual intent to fuith( r in\asion or insurrection. \Vi' ca i doubt that such , 17.) leferred to tln^ seceded States not as the '•Co^-federatc States," hut ;h "certain States styling themselves the Confederate States;" and thronghoul the civil WiM they wei'c constantly spoken of in the British (dticial correspondence and iiotiliiM- tions as the "so-styled C(mi'ederiit(^ States." On the other haml, the Si)anish Proclamation of the I7th .Iiino, 1801, (Appendix in British Case, vol. iii. p. 'i;i,) uses the designation " Confederate States of the South." The Unitearua of the Coniederate States." (A|»pcndix, vol. iii, p. '2.").) The term ii.sed in the Ureucli DechiraMon of tiio Ulth June, IHtU, viz, " les fitat.s qui prvlriitUiit former nne Confederatictu i»articuliere,'' is in fact equivalent iu signilication to the words of the British rroclauiatiou, "styling themselves." BKITISH ARGUMENT. 303 )iil(l have It iJritaiii liiil)ility, iMiorities t') prove, i of jiidg'- i'le m1 flMIIl i'li ts iiiitliority ifroinit, less ovcrniiiciits ijIJilioiisot'a ' war Itcjiiin. kU- ti'iritory liiil)it;iiits of .'11, Cll' iU'tlUll liin ils inili- 'llilt SlllU'Clll- iir it sliniild liiiiciit (if its (!r.s, not (iiilv 1.;. use tcri'itdvy I's in a slidit COIltlMltS ill s were niiUi- 'd, this chai- if a treaty nf ' Wliii.aiii' iis money in icy must lu' ble, foree, ^MiKicy of tlic nla'ted. 1111(1 t. that this lu'lMl issileil tlie I'liitcil ('t;'ar(h'(l for , m' (if the the hostile ordinary ii'omoie tile ved til have We eaiiimi Slates, after ;st (luestidll. lljr ([llestidllS lit ratois will ■nitcStiitcM ]?ritisli Case. ites," liiit :i« out tlie civil and notiliiM- ,\iil>eiidix til " tlie Siilltll." It tliat "tlic (lJi|ihmia(ic Hdli, spi'iili ,..;2.-..) , 's fitat.s i|iH iiiiiiilifutioii 111 (',,mpt:iiiil :i.^ to ll(i:^|»it;il!tifH JUTiinl- m CDMlclfroii' li-tTH ill itritirii irirls. nient on a question of at least reasonable doubt, but that it was a plain violation of ii known and establislied rule. It would be intpossible to maintain tliis with any semblance of reason, lu tiuth, the colonial aiitiiorities acted rightly. 111. It is further su<>«>ested by the United Sttttes that these vessels, when admitted into i)orts of the British Colonies, were id- lowed to enjoy there facilities and advant<«<;es whicli were iitt accorded to arnuHl ves.sels of the United States. Ami (since it is eviilent that mere partiality, thouj^h it woidd be 11 deviation from neutrality, and, as such, a proper subject for remou- stnince, wouhl not sui)ply a ground for such (daims its those of the United States) it is also conttMided tlnit these facilities iiiul adviintages were such as by the rides of internatioiiid law no neutral may concede to itny belliiierent, and that they eiiiibled or assisted the Confedcnite ciuisers to indict the losses on which the United Sttites found their claim ii<;'ainst (ireat liritiiin. 112. It has been clearly shown, on the contrary, in the British Coun- ter C'iisc, not only tluit the i)articnl{tr restrictions for which the United Sttites contend as im])osed by interuiitional law had in reality no exist- ence, were not known to tluit law, and are not dediicible from the three llules of the Treaty of Wa.shington, (Counter Cii.se, Part H, pp. \~k 1(! ;) but it hits likewise been amply i)roved by a detailed exiimination of the ia' ^s ihat all the complaints »)f the United Stiites on this score iire '• I : >f the slightest foundation; tlisit the l>ritish C(donies, thongli ■■';.; .(."ully resorted to by Confederate ships, were by tar more largely iind more freely used by itrmed vessels of the United Sttites ; tlnit no pai'tiiility whatever was shovvn to the former; and thiit, if infratdions of the l^)ueen"s Kegnlations were .sometimes committed, the United Sttit<'s crni.sers were the more fretpUMit olfenders; histly, that the trciitment of Coiifederiite cruisers in British ports was e.ssentiidly 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 Gretit Jiriuiiu, Pait IX.) ' Ho. It hits thus been mtule numifest thiit the complaints of the United States, notwithstanding their ntunber, the dmrac- ,(,.,.;,.„ „, ,,,,. tei' of gfiivity which hits been a.scribed to them, and the Sstr^^^^^^^^^^ wainitli with which they h.ivt^ been urged, reduce them- ■"""'^'■'"■ selves when e :,M>>iiied to a \ery small comjiass. After iill (diiirges which lire ir^kuant, jdiiinly iiiidmi.-;;iibie, or iibsolutely trivial, liiive been set a^ii.l: , '\\.u}, remain only some allegiitions, (which (Irciit Britain contentis a. ) .viTiVj, jus,) applicable, at the most, to cue or two i.solated ca.ses of uninte.. '. Jii\<\ dehiy or mistidcen Judgment on tpu'stions new and doubtful i-\ i'' part either of the Government itself or of sub- ' I' is stated in the Counter Case of the Uiiittut States, sec. v, par. .') tliat " it .-i])- pvars in el(!ar eidors that Uernuida was nuuh^ a liasc of Imstilo oiiti'iitioiis liy t\w I'ldiida. Tlition and IK-Tiiiitted jilm to coal and rejiair." This passa;;(^ iiiinht lead to the iiniu'ession that tile Flop!' h:ul cnaleu jit ?• irlmdos within seventy days of her arrival at Hermiuhi, lmttlii« A.i'. I. t, the fact. The Florida coaled at liarhados on the '.Jltli of Felirnary, 1^'>:'. \.. .:{}•■ ti» British Case, v(d. i, p. 1)1.) ISlie did not arrive at Herninda till tlu; I'ltli of .Inly )'.)'i ••»,?; '-"r did slie coid at any British port in the intcM'val. On iiis arrival at Beni ■■ ' ., liPr coniniandtir stated that he had hetMi at sea seventy days, with tlio ('xcepti(ni <.i' visits to the H.ivana, Harliados, and a port in the Brazils, each of ^vhicli had occupied less than twenty-four hours. (Appendix to British Case, vol. i, p. IW.) No coal was taken in at Barbados on this second visit. >: 1' 304 BRITISH ARGUMENT oriliuate oflficials in Great Britain or in distant colonios and depciKlcii- cies. Tiio nuiltiplicd and heavy claims wliicij the United States make apiin.st (irieat IJritain lest on this slender louudation. 1 It. The IJritish Govern nient will here repeat sonui observations \\\w\i it has already presented to tiie consideration ot the Arl>itrators : A (•li;ii'<'(! of iiljurious ncj^lij^cnci^ on tlio i)iirt of a .soverci<;ii (JovenniuMit, in tlie cx- eieise of any of tlic powers of sovt'r('i<;iity, iifL'tls to hi; sn.shiincil on sfron^r and solid jjvonnds. Evt'iy sovereign (iovcrnnK'nt idainis tin- rij>lit to lie iinlttiK'ndt'ntol'cxti'niai scrutiny or interl'i'i'onct! in its (•xinent of a Court, may, indeed, under some; circuinstiuiccs, found a claim to compensation on bidialf of a person or Government injured hy the act or Jntl^iinent IJut a eharj;e of nejj,lifience brou<;lit a{j;ainst a (Jovi.'inment cannot lie supported on such uronnds. \or is it enough to suf^j^t'st or provt; some di'tect nf jiid^nient or jienetration, or somewhat less than the utmost possilde prom])titiid(' and celerity of action, on the jiart 't in ofticer of the (Government in the exeiiiitioii of his ollicial duties. To found on t teruutional tlnty. would bt; to ■: tration which ic'w Governments >• attain, in their domestic concerns ; li unjust and fallacious standard, wonh a elaiin to comixMisation, as for a breacli ..: in- ' interiiational atVairs, a ]»erfection of adminis- II' attain in fact, or could reasonably hop,' to oiild set up an imi)ractieal)le and, theicforc, an give occasion to incessant and unrcasonalili' coini>laints, and render the situation of neutrals intolerable. Xor. again, is a nation tn be held responsible for a delay i>r omission occasioned by inert! accident, and not liyilic want of reasonable fi)resight or care. Lastly, it is not sullicient to show that an act Las been done which it was the. duty of the (ioveriiineiit to endeavos to i»revciit. It is necessary to allege and to prove that there has been a failure to use, for the prevciitinii of an act wliiidi *iie. (iovernmeiit was bound to endeavor to prevent, such care astiov- ernmeiits ordinarily employ in their domesrie concerns, and may reasonalily he cx- jK'cted to exert in matters of international interest antiin- tions, and in which the (jiovernment is bound to obev, and cannot dispense with, tliu laws.' ll.j. What, then, an» the (;laiins which, on these slijiht iind nnsiihstaii- tiid jironnds, the United Stares Inue presented to tlic tii- H,niu"".i'Vnii.Mi bnntil '. They are claims for the \alne ot all captures iiiiulo by all the ships eniimer.'^etl in their Case — nay, even (as it wonld .seem) for all captnres whatever Jiscertained to liave iiiiidc by confederate armed shijfs dnrino- the war ; for all losses iidiicted by tliem which the American (;iti/ens who Itave sidfered thereby mtiy thiidc iiioptn to ask to have (;hiu\ned aj^iiinst Gretit Britain ; ami, fnrther, lor the expenditure iUk',i;eer sen.se, the caus>>, of the loss to the belligerent; certainly, it is in no sen.se the direct or active «!ause; that the only share in jModucing this loss which can be attributed to the neutral is indirect and passive, and consists in nunc uninteutional omission; that ' British Case, pp. 1G6-7. lUv'ITIsir AliGUMENT. ViOd |)lM\tl('U- .'s make in the cx- ; ;uiil tiiilid )l'i'Xti'iiial SSUtlllltillll * i\ic laiily iidly iiiti'v- s\il;ii't'il by ii'iit. in till' I nsinif tlic from \vliii'l\ ■ss is it siif- [i(:tiiin, ami :ift rnnnilcil ,'nuist;nH'('<| \ by tiic net It c'iinnot lie lie (Icfcct lit' ,)ititntli' iUid iition (if Uin ivfiuli <•; '"■ of Milniiiiis- iibly boil.' tn thcrff'ii'i'. ail ini'casDiialili' s a nation In 11(1 iiol liy ilif iv that an net i-cvciit. It is Hi ^irt'vcntidu cure its t'ov- lably be ex- con>iil<'i';i- tVcc iiistiiu- irti; with, tlie uiisiibstiiii- to tlu' m- tiurs nmtle oven (its it uiiulc by lmI by tliem link pioiHU' ev, luv tilt-' ptiue tliose Isont to the luic.li it be- Iw tliat any , hivvo been kral, arc, in tl that the I, is not, in LeUijifivnt; lit tla' o"iy uoiitral is ksion ; that to asctntaiii witli any approaoli to iHecisioii what tliat .sliaic really had been would be in almost all cases dillicalt, and in many impossible ; tliat tlieie is no precedent for such claims, and that any argument which can be derived from the treaty of 17t)t, and the ]>roceedings of the commissioners under it, militates against them. It was further pointed out that the relation actually held toward the United States by tlie peoi)le of the Confederate States, who were the active agents in iiitiicting the losses complained of, and by whom, according to the rea- soning of the United States themselves, the neutrality of (Ireat Britain was violated or eliuled, is itself au argument against these demands. These States are part of the Union, and would share in any benefit Avhich would accrue to its public revenue from \\liatever the arbitrators iniji'ht award to be paid by Great Britain. On what princi[)le of inter- national equity, it was asked, can a Federal Commonwealth, so com- posed, seek to throw upon a neutral, assumed at the most to have been ijiiilty of some degree of negligence, liabilities which belonged in the tii'st 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 citizev.s .' ' 117. Supposing, however, the question of (tompensation 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 looses which may be taken into account by the arbitrators are at the utmost those only which have directly arisen from the cap- ture or destruction, by one or more of the cruisers specified in the case ot' the United States, of ships or property owned by the United States, iirby citizens of the United States, and that the extent of the liability (if Great Britain for any such losses cannot exceed that proi)ortion of them which may be deemed justly Pttributable to some specitic failure iir failures of duty on the part ot ncr Government in respect of such miiser or cruisers ; That it is the duty of the arbitrators, in deciding whether claims for Dinpensation in respect of any i)articiilar default are tena')le, and on the extent, if any, of liability incurred by such detault, tj take into iiecount, not only the loss incurred, but the greater or less gravity of the ilet'ault 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 Tiiited States themselves, to an omission on their ])art to take such measures as would have prevented or stopped the depredations com- plained of, and conduct the operations of war, proper for that purpose, \vitli the requisite degree of energy and Judgment ; That the claims for money alleged to have been expended in endeavor- iiiR to cajiture or destroy any confederate cruiser are not admissible to- ;!etlier with the claims for losses inflicted by such cruiser ;-' That the claims for interest are clearly inadmissible. The demands of the United States are not for a liquidated sum, payment of which has '"eii delayed by the fault of the debtor. They are a mass of doubtful 'laims, of unascertained amount, which have been a subject of negoti- iitioii, which Great Britain has long been willing to refer to arbitration, nnl which would have been so referred, had not obstacles been repeat- wily interposed by the United States ; '■'• I :i m. ' British ("ountor Case, p. 13i. -Ibid., p. 140. 20 c IHid. 141. 30G BRITISH ARGUMENT. m sis That, should the tribunai award a sum iu ftioss, this sum ougiit to bt- measured solely bj- the extent d' liability which the tribunal may find to have been incurred by (Irent JJritain on account of any faiiiuo oi failures of duty proved against her.' 118. These propositions appear to Great Britain too clear to need tlic support of argument. It is evident that should the arbitrators be satis fled th.at, as to any ship and in any particular, there has been a clearly ascertained default on the part of Great Britain, it would then becoiiii' their duty to examine wherein the default consisted, and whether it wiis a Just ground for ]iecuniary reparation ; and, if so, to determine the gen eral limits of the liability incurred, having regard both to the nature and gravitj' of the default itself and the proportion of loss justly and reasonably assignable to it. The liability thus determined, or the aj; gregate of such liabilities, as the case may be, constitutes, it is evident. the oidy just measure of the compensation, if any, to be awarded to tlio United States. The basis of the award must be the fact, established tii the satisfaction of the arbitrators, that certain losses have been sns tained on the one side, which are justly attributable to certain specitic failures of duty on the other, in respect of a certain ship or shi])s; 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 author ize the arbitrators to depart, in substance, from this basis, althongh it may relieve them from the necessity of a minute inquiry into the par ticulars of alleged losses and from intricate and perhaps inconclusive calculations. The onlj' «piestion which can arise, should the tribunal be satisfied that Great Britain has failed in the discharge of any internatiouiil obligation toward the United States, is, what, if any, conii)eirsii tion in money would afford a just reparation for the loss caused by that default? International law, while it recognizes the obligation. as between sovereign States, to redress ii 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 tbc' same, (some specific failure or failures of duty, alleged and proved te the satisfaction of the Tribunal,) and the principle of calculation, there fore, is, of necessity, the same. What is due from Great Britain I would be tlie 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 i'air and careful examination of the various classes of claims presented by the United States, so Im as such an examination was i)ossible in the absence of the necessaiy nuiterials, (which the United States have not furnished,) that theesti mates of losses, private and public, which have been laid before tlieXri bunal, are so loose and unsatisfactory, and so i>lainly excessive in amount, th.it they cannot be accepted as supplying even a j>r/wr(;/i"" basis of calculation. It has been likewise shown that the estimates oi expenditure were the daims on that head to be considered aduiissibli'. are also too unsatisfactory to serve a sinnlar purpose.^ Some new matter being contained in the revised list of claims ap ' British Counter Case, p. i;52. -Briti.sli Counter Case, Part X, pp. 134-141 ; Appendix to British Case, vol. vii. BRITISH ARGUISIKNT. 307 jtendod to tlu^ Counter Case of the United States with leCerenee points, Iler Majesty's Government lias thonftht it most conve to these points, iier luaiestys ^jrovuiumcm iias iuoii<;iil lu mosD convenient to embody their further views and arguments on this part of the subject in a further report from the committee appointed by tlie Board of Trade, wliich constitutes the Annex (C) to this arjjument. A further note on the chiims presented bj- tlie GovernniLMit of the United States for ex- penditure alleged to have been incurred in the ]>ursuit and capture of the confederate cruisers is also appended as Annex (D.) 120. With reference to the question of compensation, it has boon ob- served that it would be unjust to hold a neutral nation liable for losso-s iutiicted in war, which reasonable energy and activity wore not used to prevent, on the plea that the vessels, which Avere instrumental in the infliction of the loss, were procured from the neutral country, oven 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 nse of due diligence and proper means on his own part, have the opportunity of counteracting the mis- chief.' The United States seem to take exception to this position. To Great Britain it appears to be just and reasonable in itself, to l)e sup- ported by sound legal princiides and analogies, and to be a necessary limitjition of claims of this nature, should they be considered admissible in principle. 121. The British government has been conii)ellod, therefore, to take notice of the inetiiciency of the measures which were adopted bj' the Government of the United States during the war to protect their com- merce at sea and prevent the losses of wliich they now oom])lain — 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 1)een in great measure averted, if the naval resources of the United States had, at the time, been employed with reasonable activity for the purpose.^ 122. It is not, then, without reason that the liritish govornmont 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 bo allirmed 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, espe- cially, as cherish the freedom of commerce and have free institutions,) an almo' 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 re- s^pect nothing- which she is not ready to acknowledge herself equally bound to perforin. 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. 123. The question submitted to the tribunal is not whether the sultor- diuate ofiicials 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. Xor has it to «» ' British Counter Case, p. 140. -Ibid., part X, pp. l:{.a-140. 308 imiTLSH AKGIMKNT. (letoi'iiiiiio wliethor it would be for the lulvantaf^o ol* the world tliat rules of action which have not been recognized in i)ast tinu^ should 1m' established for the future. These are matters of opinion which Grout r>ritaiu would not have consented to refer to arbitrators. The question foi decision is a question of positive duty and liability, to be deteriniiuMi solelj' by the application of accepted rules and settled principles to ascertained facts. And no award can with Justice be made ayaiiisr Great Britain to which the United States, or Italy, or Swit/erlaud, or Brazil, or .any other power, under siuiilar circumstances, would be Jiistlv unwillinj:>' to subuiit. Mi: IVNKX (A.)-('0.MMI;NI('ATI0NS IJKTWKKN Tlll<] IIHITISII AND AMKKICAX (iOVHKNMKNTS, DllUXi; THH CIVIL WAR, WITH RKFERIilXCK TO TIIK STATI-] (IF THK NKl TUALITV LAWS OF (;||RAT I'.RITAIN. Ill iuMitioii to the Annex (15) to tliol5ritish Counter Case, it is tlioii^ht ilesinible here to exhibit, in one view, the ellect of every material eoni- iiuinication whieli passed during the war between the Ihitish and Amer- ican governments with rei'ercnee to the state of the neutrality laws of (iroat Uritain. Jt will be seen (1) tliat the equal eHQcacy of the provi- sions of the lUitish foreign-enlistment aet with those of the American act of the 20th April. 1818, -was never during that period serionsly called ill question, and (li) that the only additional legislation then solicited from Great Britain by the United States was of a dilferent kind, with a view either to the prevention of the trade in articles contraband of war between (ireat lUitain or her colonies and the Confederate States, or totlie more effectual repression of acts iiutonsistent with neutrality in the British Xorth American i)Ossessions, conterminous with the Tnited States. On the -8th -lune, 1801, ]Mr. Seward wrote thus to Mr. Adams: As it is uudcvstdod that tliorc is an act of tlic ]>riti.sli Parlianifiit ximihir io oitr net of imivaUiij of thr 'HHh ^4;)r(7, l"^!-^, I liavi' to ic(|iiest tliat, if any iiirnii}>eiiu'iit of the liiitish act adverse to tlic rilaint thereof to be made, in order that the i)urtics implicated nniy be prosecuted according to hwv. ' On the 7th September, 18G1, Mr. Seward instructed ]\Ir. Adams to remind Lordliussell of an act of Congress passed in 18,')8j during an insurrection against the British authority iu Canada, addiug: The British government will jndge for itself whether it is .suggestive of aii\ nieas- iiiis on the i»art of Great Britain that might tend to preserve the peace of the two luuntries, and, through that way, the peace of all uations.-' Ou the 10th of the same mouth he forwarded to ]Mr. Adams an inter- cepted letter relative to the shipmeut of arms aud powder from Xausau lor the use of the coufederates, aud said : Thecrhiing British sfatiile for the prcrcniion of the armed expeditions against countries at jifrtcc with Great Britain is understood to be similar to onr aet of Congress of the o/Zt of April, 1818. Proceedings like that referred to iu the letter of Baldwin, however, aft'ord us special reason to expect legislation ou the part of the British Government, of the cliaracter of onr act of If'liS. It may he, however, that the British Governnicut now lias the power to prevent the exportation of contraband of war from British colonies near the United States, for the use of the insurgents iu the South. ■* On the 11th aud the 14tli of September, 1861, Mv. Seward expressed his regret that the British laws were uot effectual to repress this descriptiou of trade. At a much later date, (I'lth October, 1804,) recurring to the same suggestion, he wrote : The insufficiency of the British neutrality act .tnd of the warnings of the Queen's liroclamiitiou,to arrest the causes of complaint referred to, were .'inticipatcfl early in the existing struggle ; and that Government was asked to apply a remedy by passing ' Appendix to Case of the United States, vol. i, p. 517. •Ibid., p. 6C0. •Ibid., p. .'>18. See also ilr. Adams's letter of May 12, lb'(>-2; ibid., pp. Cm, CM. f: 310 IJHITISII AIKU.MKNT. m. an iut inoi'i' striii;;i'iit in its cliuiiictcr, siicli as ours ol" tin' 10th Miircii, 1h:h, wliiili \,;,, «i('('asioiii'<) liy a similar roiiditidii ol" alVairs. 'i'liis r('((iirst lias not hccn coiinilicd with, tlionjuh its icasonahltMicss antl nocossity buvo bi rii shown by snbsiMiiifnt, cnciiIs.' TIu' act of Congress of 1S.'5S, tints ivfci't'od to, was a t«Mii penary statute. (of two years filtration,) by which ])owcv was ^ivcit to the ollicris of tho United States (loverimieiit ''to seize or detain ntiy vessel, w any arms or intinitions of war, which nii.i'ht be i>rovided or iitciuiicd for any tnilitary expedition or enteri>rise ((f)((liiNt the tcn'itori/ or domin- ions of (tun fonUjn P>'iitc(^ or .state, oj^^ topa.HS the frontier of the United States fof any plaee within uni/foreif/n state, dr., eonterniinom with the United Sta'ttx. where tho character of tho vessel or vehicle, and tho qtiaiitity of arms and munitions, or other circumstaiiccs, should furnish probable cause or believe that tho vessel orve]iicle,armsor munitions of war, were ititeiided to be employed by tho owner or owners thereof, or any other person with his or their privity, in carrying' on any military expedition or ope- rations icithin the territorj/ or dominions of any foreign ^ninee, d'c., eontcr- minoas icith the United States,''^ suitable provisions being made for the trial, in due course of law, of tho legality' of all such seizures. These powers (limited, as they were, to operations illegal under the act of L*Otli April, 1818, of which the destination shouhl be some territory cotitor minous with tho United States) were still further guarde.»,) when informed of the eon- cliisiou thus arrived at hy the Cabiiu't, has l>eeii referred to in an earlier |iiirtion of this argument. '• It remains," h(!said, " for this (ioverninent ou.y to say, that it will be your duty to ur^-'o upon Her ^Lajesty's (rov- (■niiiuMit th(^ desire and expectation of the President, that henceforward I Icr -Majesty's (lovernnuiut will take the neciessary measures to enforce the execution of the law ((.s I'aiihJ'uUii (is tins (Jovcynmenf has ctrcittcdtlie (■nrirsi)i>H(Uii(j Htaiutcsof the ignited *S7f(/r.v." ' The substantial af^reement lit' tliei)rovisions of the l>ritisli law with tlni law of the Uniteil States, on this subject, was rei)eatedly afterward admitted and referred to. On the Otli April, IStJ.'J, Mr. ])ayton wrote from I'aris to Mv. Sew- ard: '^ I told 31. Drouyn de IAn\yn our Forcign-Eulistnient Act icds the y(ime as that of E}ujlany till' ]5riti.sli nation, licfiinse this (iovernnient, irith a Slat lac exactly nimUarto that of (ircul lirituhi, does constantly li(»l(l itself able and lionutl to prevent sucU inju- lit's to (ireat Ihitain. The President thinks it not improper to sngj^est, for the consid- eration of Her Majesty's Goveinnient, the ((uestiou whether, on ai>peal to bo made by ilieiii, Parliament mij;:ht not think it Just and expedient to amend the existing Statute ill sueh a way as to elfeet what the two Governments actually believe it ought uow to accomplish. In case of such an appeal, the President would not hesitate to apply to Congress for an e(|uivalent amendment of the laws of the Uinted States, if Her Majesty's Government should desire such a proceeding, althoutjh hvre such an aiueiid- iiwnt in not deemed iiecismry:* On the 10th September, 1803, !>[r. Adams reported to Mr. Reward, with expressions of much satisfaction, a speech then recently made by Earl liussell at Dundee : You will not fail to observe the greatly increased firmness of his language; and more especially bis intimation that ncin powLrH mail hi: sulicih-d fro'.n rarltament, if Imc now held shonld prove insufficient. Tkin is, at least, the true tone- Oil the IGtli of the same month, Mr. Adams (with reference to the irou-clad rams at Birkenhead, which were soon afterward seized by lie- Majesty's Government) wrote to Earl Eussell : Your Lordship will permit nie to remind you that Hur M ijosty's GDvernmeut cannot justly plead the inctticicncy of the provisions of the Enlistmont law to enforce the du- ties of neutrality in the present emernjency as depriving them of the power to pre- vent the anticipated danger. It will doubtless be remeraborod that the proposition iiiade by you, and which I have had the honor of being the medium of conveying to my Government, to agree upon some forms of ameudmeut of tho respective Statutes ' Appendix to the Case of the United States, vol. i, p. 6G9, - Ibid., p. 587. ' Ibid., p. 2G2, ■* Ibid., p. G70. * Ibid., p. 0711. 'H 'J > u *■ I. I- .",12 MRFTISII AKCJl'MKNT. m ol" tlie two coniif lies, ill order fo iimUo (lioin iiion^ crt't'ctivc, was cntrrtaiiicd liy tin- latter, not from aiiji ivuiit of vonfulvmc in the uhilihi to ciifoi'ir the iwinliiKj Sl((liil(, Ixil I'ldm a (h;»in! to co-opciatu with wliat tlii'ii appealed to he tlio wisli of Her Ma/ii-sty's Mini,. rcrs. Itiit, iiiioii my coiiiinmiicatiii;; this ifply to .voiir Lonlslii]) and inviting; tin ili> (MiHsioii of ])i'o|Misiti(>iis, yoii tht-ii iiitornicd in*; tliat it had licoii docidrd not to ihimiicI any finthiT in this diic, 18G3:) Thoro arc jiassajfes in yonr letter of the Ititli, as Avtdl as in somoof yonr fornni (im~, wliich HO jdainly and repeatedly inijily an intiiinition of hostile proeeedin;; tnwiuii iveii the text of tlie tliree liulesiu Vrticle VI of the Treaty, with .sonic variations of renderinji', whieh {nn- ,es.s corrected) might possibly jjivo occasion to niiseoneeptions of the exact sense of parts of those llnles. It has, therefore, been thonyht ex- pedient here to snbjoin, in parallel columns, an accurate Cf)py of the niigiiuil English text and a revised French Translation : men (• Ai less m KII.KS. A neutral (iovoniinoiit isliouiid — First. To HMO duo diIi;{cnt'o to lucvciit the iittiiiK out, aniiinij, or eiiuippiii;?, within its jurisdiction, of any vossel wliuh it has ronsonablo ground to beliovo is iu- tiiuled to cruise or to carry on war aj^ainst ;i I'owcr witli which it is at poaco : and ;ilsoto uso like diligence to prevent the ilt'partnro from its jurisdiction of any vos- h1 intended to cruise or carry on war as ubovo, such vessel having been specially adapted, in whole or in part, within such iLsdiction, to warlike use. ''econdly. Not to permit or sutler cither 'gerent to make use of its ports or laters as the base of naval operations against the other, or for tho purpose of the rt'iiewal or augmentation of military sup- jilies or arms, or the recruitment of men. Thirdly. To exercise due diligence in its own ports and waters, and, as to all i»er- -iins within its jurisdiction, to prevent any violation of the foregoing obligations ami duties. i:i;tii.i:s. I'n fiduvenieuicut neutre est tciiii — 1. J)e fairc les dues diligences pour pn-- venir la niise en <^tat, rurmenient en guerre ou r«'(iuipement, dans sa juridietion , do tout vaissean ((u'il est raisonnablemenf 1V)nd(" a croiro destine a croiser on a faire la guerre contre une puissance iiveo la- •jiielle CO (touveruement est en paix ; et do faire aussi memo diligence pour empocber le depart liors de sa jui idictiou dartie, dans les liniites de sa dite juridie- tion, a des usages belligcrants. '■i. De no permottro ni soulfrir quo Tun aix. Co Goiiv se serve de ses ports ou do ses (iaiix ]ii)m eii faire la base d'operations navaies enii- tn' I'antre, on dans lo but soit do rcudii- veleronangnu'iiterlesapprovisionneniciits militaires on les arinos, soit do recruterdc^ Iionunes. Troisii'inenient. D'exereorlasurveillam . nt'cessairo dans ses propres ports ct (l;ui> s(!8 eaux, conunc aussi sur tout individii dans sa Jnridietion, ponr i)rt'venir tniiti- violation des obligations et des droits (jii; precedent. WXKX C -REPOIIT 01' THE COMMITTEE APPOINTED BY THE HOAKD OF TKADi:. Ill acconlaiice with tlie roqnost oftlic Board o"^" Trade, w(- liavo oxam- iiiod the Kevisod List of Claims ]»i'('soiitod by tlio United States Afjent Kii the l.")tli of April last, and have to oifer the followiniL;" observatit)ns (HI tlieni in continuation of onr First Rei)ort: The a.i>',i>regateaniount of claims contained in the ifevised Statement is sL'.j,.117,l<)l. It is cv)mi)osed of a claim of !:5-"),8l)S.O(!l), for inereasiMl in- surance premiums ; a (;lnim of 8 17!),03.'>, which is styled "miscellane- ous ;■' and n claim of ><1!),L*()0,OOL*, for losses snstainot' in respect of the vessels destroyed by the (;ruisers. As regards the claim for " increased insurance premiums." it is a claim lor alleged indirect losses, with which we have no concern. It may not, however, be unworthy of notice that the claim has been increasecl from •il,]i.'0,7!)3, in the Former Statement, to *r),8()S,0<;(; in the Itevised State- iiieiit, between the respective dates of the 4tii of October and the lath of ^larch. As regards the before-mentioned "miscellaneous'" claim, it is to be I'oinid at p. -1)0 of the JJevised Stateaient, and consists of the following items : 1. A claim oi 811,7^8, which is described as follows: " Foriletention of ship at Philadelphia, unable to i)rocure freight by reason of the depre- ilations of the Alabama and otlier insurgent cruisers." '2. A claim of 81 -"►,701 for the detention of another ship, which is de- scribed in exactly the same way as the last claim. o. A claim of 8.>. ,000 *'for loss of vessel captured by insurgent cruis- ers V. II. Joy an.1,000 " for expenses and loss on account of the break- ing up of the regular vovage of the bark Almina, the ship Daylight, and the ship Julia (r. Tyler." r». A claim of 8300,032 for damages, breaking up business of "dis- patch-line of China packets." 0. A claim of 81,'i.'>2 by .John r>urns, ]\[anchester, l-^ngland, for his tloceased son Jose[)h Kurns, " for loss of one hundred and eightieth sliarcin catchings of the whale-ship Iledaspe, of Xew Bedford, which he the claimant) states was sunk by the Alabama with all hands on board." As regards the first, second, fourth, and fifth of these claims, it is manifest at once, from the above-mentioned descri[>tion of them, taken tVom the Statement itself, not merely that the damages, wliuli are not and cannot be attributed in any detinitc degree to any oi'ii or more of tlie Confederate cruisers, are of far too remote a character :,o be allowed, tmt also that these claims are, from their very uiiture, entirely and essen- tially claims for indirect losses, with which we have nothing to do. As regards the third claim, therv^ is no doubt that it must have been inadvertently inserted, for the cruisers V. H.Joy and ^lusic therein re tirred to are not comprised in the list of cruisers mentioned in the Ignited States Case or Counter ('ase, and are not stated to have been in any way connected M'ith any ace or default on the part of the British <.iovernmeut.' 'Thti siuiie cfHisidoratiou nrtV'cts tlie (ilninif! couiK'ctwl with the cruirtur.s BoHtoii iind ^allio iu the "Former Stateuient," (set; ]>. G:<.) '^m'' ii ^P r A Xt w: i: fi- Jj i .i* ^K~ |. ^R'^ ■I- BP^^'Sfl^pr !'/';■,. ) •m :*■ J ';33 must undoubtedly be rejected. There renmins then to (;onsider the claim of .$ll),20(),0(j2. This amount ?xceeds the corres])onding sum in the Statement un which we have already reported by >5l,.T)*>,4L*!1, the excess being due parthi to claims ill respect of I'cssels not claimed for nor mentioned in the Formir .Statement, and parti 1/ to additional claims being jiut forward in rcspecl 0/ vessels mentioned in that /Statement. , JJefore, however, aualy/ing this excess, and stating the result at which we have arrived, it will be useful to make some observations which pro- sent themselves on comparing, with the Revised Statement, the Origiuiil List of claims which was sent by Mr. Seward to ]Mr. Adams in August ISGG, and also the extension of this, as i)resented by the President to the House of llepresentatives in April, 18()!>, and which are to be found in the fourth volume of " the Correspondence concenang Claims agaiust Great Britain transmitted to the Senate of the United States." These lists of claims not only strongly conlirm the opinion we ex pressed in our First Ueport, that the estimate we there made of the value of the vessels was probably a very liberal one, but also show iua remarkable manner how since the year 18G0 the claimants have in most cases enormously increased their estimate of the losses alleged to liavu been sustained by them. We will cite some of the more striking instances, calling the list of claims sent to Mr. Adams the " Original List," the list presented to the House of l{epresentatives,tlie " United States Amended List," the State- ment on which we h;*ve already reported the " Former Statement,"' and the revised Mst of claims ou which we are uow reporting " the Kevised Statement." The Alert. — The claim as stated in the " Original List"' amounted to *.->7,8i)9 ; in the " Kevised Statement" (p. 1) it amounts to $202,720. In the " Original List " theve was a claim of $30,000 for " interruption of voyage ;"" but now, in addition to that amount, tliere is claimed a sum of *144,8(»'.) for ^^prospective earnings.'" The Anna Schmidt. — This vessel was in the " Original List" valued at •*30,000, which is somewhat less than the average valuation \Ve have allowed in proportion to her tonnage, but in the "Kevised Statement" (p. 13) the sum claimed in respect of the vessel is double that amount. The Golden Eagle. — In the " Original List " the owners claimed for the vessel $30,000, and fov freight $20,000. Our average estimate in propoi- tion to her tonnage was about $4.'5,000. In the "Kevised Statement" (p. 40) the owners claim $80,000 for I'essel and freight, tlms ,.ntivi\m,i their claim by nearly oO per cent. Tne Highlander. — She was a vessel of 1,040 tons, and was in ballast. In the " Original List" two insurance companies advanced claims for in- surances to the extent of $30,000, which was probably about the value ANNEX ('. — Ki:POKT OF THE BOAEI) OF TRADE. :\\1 ,»t" the vessel, but in the " llevised Statement"' (p. -10) tlie owners i)ut toiward an additional claim for the ship to the extent of $84,000. This claim is, however, tar less extravagant than the claim for freight, which in the "Origiiml List" amounted to $0,000; whereas in the " Kevised Statement" it exceeds 808,000, and is aclvanced without any deduction whatever, although the ship was in ballast at the time of her capture. It will be found that at pages and 27 of our lirst report we have spe- liiilly commented on the character and extent of tiie extraordinary iloiiiaiids i)ut forward in respect of this vessel. The Ocean Rover. — In tlie " Original List" the owners claimed $10,400 for rdhic of ,shi]>, Ions of oil on board, and damnf/cs for breahiiiff up o/voi/- (ifjc. The claims now advance'' hi the " Jtevised Statement" (p. 08) in respect of the same losses exceed $10.'),000, the difference between the (irigiiial claim and the more recent one being made up entirely of '•double chiims for ninqle losses."' The Kate Col'i/.—ln'nw. "Original List" the owners claimed $27,800 tor the value of the brig, outfit, ard oil on board, and there was also a claim of $1,820 for the value of ''reasonable i)rospective catch of oil." Ill the '' Revised Statement" (p. ~>\) the amounts insured have, as usual. been added to the claims by the owners, and there has been inserted a claim of $19,293 for loss of ^'■proftpeetirc catch" so that the original claim for $29,020 has grown to $r)0,474. The Lafai/ette, Xo. 2. — In the " Original List" the owners valued the ship and outtit at $24,000, which is less than our average valuation ac- cording to her tonnage; and the secured earnings at$10,47."»; but in the " Itevised Statement " (p. 'h>) the claim i)ut forward in respect o^ship mid outfit and secured earninf/s is more than $89,000 ; and the prospective varniujfs which were in the "Original List" valued at$3.'>,440, are now cstinmted at a sum exceeding $r)0,00i>. The original claim for $09,471 has grown to $141,858. The liorJiinf/hani. — The claim in the '• Oi'iginal List"" ann)unted to «'10.">,000, whereas the claim in the " llevised Statement" (p. 71 ) exceeds •'r'L'25,000. This i.-, also one of the vessels which we selected in our first report (page 23) as a striking example of the exorbitan* Mature of some of the claims. There can be no doubt that the origin, ' nm was very extravagant, but in the "Kevised Statement" it has bee ; dmibled !>y imjnoperly adding the insurances to the alleged values. The Union Jaelc. — In the "Original List" it is stated that G. i 'otter. (iftcr deducting the amount received from the Atlantic Insurance Com- pany, claims the sum of $7,584 ; but in the " Kevised StatenuMit" (page ni) he claims the sum of $34,520 without makinf/ any deduction for insurances, although the insurance companies at the same time claim ''.'>2,014 in respect of the amount insured by them : and it then'fore dearly follows that a sum, at any rate exceeding $20,000, is claimed twice over. The Catherine. — In the " Original List" the owners claimed about ^15,000 for vessel and secured enrnine/s, but made no (!laim in respect of [ivospective earnings. Now in the Kevised Statement (p. 229) there is a tlaim ])ut forward of $35,829 for loss of vessel and cargo over and above •'i'31,070, the alleged amount of insurances by the owners, which is also at the same time claimed by the insurance company. In addition to this there is a claim for prospective earnings exceeding $19,000, so that the original claim of $45,805 has now grown to the enormous sum of ■^272,108. The Favorite.— ^]ie was a bark of 3!)3 tons. In the " Original List" the Atlantic Insurance Company, as insurers and assignees of the owners, :^^', ■RIHPIP r»is BRITISH ARGUMENT. claimed for loss on vessel and outfit $40,000, which there can be littli- donbt was the full valne. In the " Kevised Statement"' (p. 240) the claims in respect of the vcftsel and outfit amonnt altogether to -ftllOjOOO. The master in the "Original List" claimed $1,408 for the losn ojlmeffech ; but now he claims for tlie loss of his personal jyroiH-rty, 82,230, and /or loss of interest in oil and hone 82,700. The Isaac Eoirland. — In the ''Orjoinal List"' the claim for prosprcf in: earnings was 853,075, bnt in thu " licvised Statement"' (p. 247) it lias grown to nearly four times that sum, namelj' to 8100,158. INEoreover in the " Original List"' the owners claimed 805, 000 for sliip and outiit, svh- ject to abatement for insurance ; whereas in the " Eevised Statement" they claim the same sum, bnt protest affainst any diminution of claim In/ rea.soii of insurance obtained by them, although the insurance companies claim ai the same time the whole amount insured by then . The General Williams. — In the "Original List " the owners claimed 840,503 as damaycs by the destruction of the vessel, over and above 844, 073, the amount of insurances received by them. In the " lievised Statement"' (p. 241) there is added to the amount of insurances a sum ot 885,177, the claim being in this manner all but doubled. Tliere are also added the following claims: A claim by the owners for '•'■ prospectivv earninys amounting to 8100,807; a claim by the 'naster for loss of "jjro- spcct ire catch, time, and occupation,'^ amounting to 820,000; a sirmiar claim by the mate, amounting to 810,000 ; another claim of 830,000, for insurances on vessel and outfit ; and, finally, the sum of 810,000 for insurances by the oicners on the vesseVs prospective carninys. In this man- ner the original claim, which was less than 800,000, has grown to the sum of 8400,934, and has therefore been increased more t'lan sixfold. The instances we have given are snflicient to indicate that, since tbi' year 1800, the owners have, to a very remarkable extent, raised their demands in respect of the vessels and their earnings; but the table (No. 1) ai)pended to thi.s report, which exhibits the amounts claimed in 18(it» in the "Original List;" those claimed in 1800 in "the List presented to the United States House of liepresentatives ;" those comprised in tin- " Former Statement" of November, 1871 ; and those claimed in the lie vised Statement of March, 1872, will show, in a far more striking man ner, to what an enormous extent almost every claim has grown at each of these successive 8tr.g<^s, After these preliminary observations, we proceed to analyze tlio revised claim of 810,2G0,0()2 ; and, following the ])lan adopted at page 13 of our first report, we begin by directing attention to and correcting; some mistakes or errors which appear to have crept into the figures in the "Kevised Statement,'' as they had done in the former statement. The following have tlie effect of im]»roi)erl\ diminishing the claim. and recpiire its total amount to be increased : Commoinvvallh. — Tlio additicn ol" the itt'ins (iia{j<'ll51-lli7) ;;i\"c.s .... ,SJ."):<, (>l."> TIii> iiinount ilaimid in (ho .Suinniary (payi' '.VM) is -l.Vi, ()4'i Thus ffivini; a tliU'tneiicc, which lias to he added, ,()14.4(), yold, whereas on the statement on Avhicli we have reported it was ;|<7,744, viinriicji, thus j^iviny rise to an ap- jiarent «litVereneo of .*'i,liil(.l)0. Ihit, for the jmrpose of coniparinj^ the two statements w itli oni^ another, it will be proper to keep I he amount in currency, and therefore necessary to adil '-' •■"' Therefore the total sum t()lie added is 4, l-l^i o evly ('nun The Thi L(vi aiii the I'tfe not in?i the ANNEX C. RErOKT OF THE BOARD OF TRADE. :U9 Oil the other hand, the foiiowing errors have the eft'ect of improp- erly increasing the claim, and require its total amount to be reduced : Cnitrser. — Tlic addition of tbc items (pjiffe 31) gives s'\2, 307 The amount claimed in the .Summary (payo '.I'M) is ',VA, 'W7 Thus giving a ditfereuce, Avhieli has to be deducted, of •■^1, (H)0 Idi Starhucl: — (Page 50.) In this cl.v.ai there is an error to tiio aiiiount of |<23,3o0 of the strangest character. After the claim by tlio owners there is inserted a memorandum that the insurances cliected amounted to .'5i'urpose of keeping our tigures accurate) amounting to 1 To these errors have to be added those adverted to at page 13 of our former report, which have not been corrected, viz, those occurring in the cases of the General Williams, Gypsy, and Pearl, which errors are repeated in the " Revised Statement," and amount to 1'23, 346 rho.-.e errors require, therefore, the claim to be altogether reduced by the sum of 180, 457 We have, therefore, to deduct the last-mentioned amount from, and to add the before-mentioned sum of $4,133 to Sl9,y60,062, Avhich is the total amount of the claims in the " Revised Statement," exclusive of the claims styled *' miscellaneous," and those for " increased insurance premiums." Having nmde the necessaiy subtractiou and addition, we arrive at the corrected amount of sVJ, 0-3, T:'.!- As compared with the corrected amount of the claim in the " Former Statement," as ascertained at page 13 of our iirst report 17,763,91ii allowing therefore an increase of claim in the "Revised Statenumt,'" iiiiiounting to I.:il9, 828 i: m . ■■■% ■f Adopting, as in our first report, the classes A, B, C, D, E/F,'whicli wo theie defined, and under whicli we arranged the various vessels, the corrected amounts of claims in the "Former" and iu the "Itevised 'In the " former statement," although there were the same memoranda in the cases 'if tlie Levi Starbuck, Ocean Rover, and Sea Lark n'^ there are iu the " Revised State- ineut," the errors above pointed out were not made. -■••(. mmimi^miw o \'20 BRITISH AR(iU:MENT. Statc'uient.s " respectively, together with the inorcfse of claim hitter statemeiitj may be exhibited in the foUowiug form : in th *».2 11 s ? s S s 5 il a 1^ '^ So 0) ? s s< a s 0-3 CC I !„ A S8, 147, '.ir)2 ' 88,07:5,810 | n :?,107,142 I •>,fi()7,G19 I c . . . . D... E. F. (5, 4m, 922 88V, 8:31 nOl, 481 5, 794, 687 730,959 I 29(5,8:55 I -V. 87:i, :>:,•> 2:59, .-)•.':; (i42, 2:1:. 207, (i4ii 19,083,7:58 17,7(W,910 i 1, 319, Hi- 5,1 » It is, however, to be observed that in order to ascertain the amount of the additional claims actually advanced in the " Ilevised Statement," we must take into account the fact that in this statement the claims in re spect of four vessels have been withdrawn, and those in respect of th. ie others have been reduced. In these cases, namely, of four of the eight bonded Avhalers, (belonging to Class A,) captured by the Shenandoali. the claims comprised in the " Former Statement," amounting to -^L'OS. 990, have been entirely withdrawn ; in the case of the Altamaha, (be longing to Class A,) captured by the Alabama, the claim has been re- duced by 81">,4o0 ; in that of the Avon, (belonging to Class B,) captured by the Florida, the claim has been reduced by 807,000 ; and, fuially. in the case of the Emma Jane, (belonging to Class D,) captured by the Alabama, the claim has been reduced by 80,000. In order, then, to determine tlie amount of the additional claims com- prised in the " Eevised Statement," we must evidently deduct the above sums from the claims made in the former statement, before comparing them with those in the lievised Statement, and in this manner it <;aii be shown that the additional claims may be exhibited in reference to their amount and distribution in the following table: (»■ III ifl'crenoe to A . . . . 15.... (" D... K, V . Sa97. !H1!) :ton, M-i l. .■'T-J •,>07, fi-lti l,t;-2ii,-J74 111 ift'iTtiiec to 1 riiisei's. In veforence to interests. 1 Aliibama .. .■5-140, Of!!) rioriila .. ir,-y,!fn Taciinv (i:i, e9-j t'liireu'iu' . . :'. """ Frci(flit and insuranees on do HO, O-J Secured protipeetive earnings and iusurauocs. . If*!. 1" ' Carjio and insurances on do 4":i. ■•J'' Pei'sonal ett'ects 7i*, ■!*■ Dania''e8 !'"■ "" i,(i-iO.-j:4 We now proceed to consider the amounts of the additional claims as stated and arranged in the first column. ANNEX C. RFPORT OF THE BOARD OF TRADE. 321 Class A. st:i, .V,'.' ir.(5,87-.' 'J(»7,{i4i.i l,:U9,S'h Thtne is one alteration in the " Revised Statement'' of some importance whicli we have already referred to. In the claim in respect to the Alta- maha, (which Avill be fonnd commented on at page 19 of our first report as one manifestly extravagant,) in addition to the claim by the owner of m12,U00 for the brig ar d her outfit, there was a claim in respect of the brig advanced by " u.i agent'' amounting to $15,450. This latter claim ks been withdrawn, so that the total claim in the "lievised Statement" is reduced by that amount, and the sum now claimed for the vessel and her outfit is $11*,000, which is only 8100 more than our allowance of slOO per ton would give. lu the " Former Statement ' the claims in this class were : In respect of 41 whalers, ainoiinting to s7,4;r),74:{ In respect of (5 fishiiijj-vessols, aiiioiiiitiiifj to 4"i,m>l( lu respect of 8 whalers " honded " or detained, aniountiiij^ to. . r)l>'>, 747 Therefore the total claim in the '• Former Statement " ainoui.t ed to 8^,073.810 But there have been withdrawn the claims for 4 out of the •; " bonded" whalers, amounting together to Ami the claim in respect of the Altamaha has been reduced by 20r', 9% ir,, 4r)0 Leaving therefore the amount of , H40, 304 Which amount has to be compared with the corrected anmant of tire claims in Class A, coutaiued in the "Revised State- meut," that is to say, with Therefore the total amount of the aditional claims in Class A, coutaiued iu the Jievised Statement, amounts to These additional claims consist of — New Claims, that is claims in respect of vessels not meutioued iu the Former Statement, amounting to And i'i(i(/ier C/ni»i8, that is, claims in respect of vessels which arc uiL-ntioued iu the Former Statement, viz : u() For vessels and outfits [b) For secured earnings (() For prospective earuings ((/) For danuiges (() For personal etlects (living as before a total of $8, 147, 303 $•^97, 901> 8, 203 30, 7f*l> !.')('. U4 5;-), m) 23, 29H §30, 20') 207, 704 297, 9it9 I. As regards the Further Claims. In our First Report on Class A we iiilly provitled for all losses sustained in respect of the vessels and outfits^ their secured and prospective earnings («, b, c.) Wo therefore see no leasou why any allowance should be made on account of these Further Chtims, but it may be worth while to observe that so far as they relate to the vessels, they can almost all be proved to arise from insurance companies and the owners simultaneously putting forward claims for the same sums ; that the additional claims for prospective earnings are advanced by three vessels, the La Fayette, Catherine, General Williams, for the prospective earnings of which enormous sums were already claimed iu the » Former Statement," and which will be found specially referred 21c fl^ 322 BRITISH ARGUMENT. i|:i^ m- ti': to at pa jfcs 317 and ,'U8 of tins llcport, as illustratinf; tln^ rcMiiarkablc extent to which the owners have increased their claims since the year 18GG. The item of $55,200 for danuufcs coini)rises claims for Joss o/time, icaycs^ and occupation. These must, for reasons stated in our First Keport, W disallowed, but it may nevertheless be useful to cite some instances in order to show the nature and extent of the claims advanced under this head. The Master of the Edward Carey claims jj< 10,000 as damages for loss of time and occupation ; the Mate of the I'earl and a Cooper on hoard the same vessel claim respectively $5,000 and $1,200 for loss of time: the Mate of the liCvi Starbuck claims $0,000 for loss of time. \s regards the claim of $23,228 for loss of personal effects^ by far tlic greater part, namely, $18,34(» is advanced in respect of losses occasioned by the captures made by the Shenandoah. It will be found in our First Eeport on Class A that we considered the claims for loss of personal effects occasioned by the captures made by the Shenandoah to be very extravagant, and that we consequently made a ratable allowance tor these claims, while we passed those in respect of vessels captured by the other cruisers. We see no reason for allowing anything more lor personal effects alleged to be lost by reason of captures by the Shenan- doah; but to show the exorbitant nature of the adtlitioiial claims oi $18,34G we will mention that the blaster of the Catherine claims $3,tion of those by the Master and Mate of the Nye, (a vessel of 211 tons,) amountin}; together to $2,023. We thiidc that $750 will be an ample allowance tor these two claims. These considerations will give $3,000 as the total allowance in respect of the Further Claims for personal effects. II. As regards the N^ew Claims, that is, claims in respect of vessels* not mentioned in the "Kevised Statement." These consist of four fishing- vessels, alleged to have been destroved by the T.allahassee, vi/: the Etta Caroline of 39 tons, (p. 280 of the ''Revised Statement,") the Floral Wreath of 54 tons, (p. 281,) the Magnolia of 30 tons, (p. 285,) and the Pearl of 43 tons (i>. 280,) and two fishing- vessels, the Itipple of 04 tons, (p. 210,) and the Archer of 02 tons, (p. 207,) the former of which is stated to have been destroyed by the Taconj-, and the latter of whieh is alleged to have been detained by the same cruiser and to have lonflier outfit. In respect of the first fowrfisking- vessels destroyed by the Tallahassee the claims for the value of the vessels amounts to $16,200, and the claim for secured earnings to $000. We propose to allow this last claim of $900 and the claim of $2,700, the alleged value of the Magnolia and read,' and, estimating the value of the lOtta Caroline and Floral W^reath at the rate of $50 per ton, in accordance with our First Keport on Class A, to allow for their values $4,050, so that our proposed allowances in re spect of the four fishing-vessels destroyed hy the Tallahassee amount altogether to $8,250, whereas the claim amounts to $17,100. As regards the Kipple and the Archer, the two fishing-vessels eap tured by the Tacony, the claim in the '" Kevised Statement" in resped of the former for vessel and catehings on hoard is $8,805, that in respect ' This VfSfu;! I't-arl is a diflereiit vessel Iroiii tliat referred ti» above, ; llie elaiiii in rt- spectoi' tlie former, whieh is a small lishiofi-vessel, is at paj^e 2C:(i, and the claim inii- Bpect of the latter, whieh is a bark, is ut p. '^iV.). ANNEX C, REPORT OF THE BOARD OF TRADE. 323 (tt the Archer for outjits lost is $2,500, .and for loss of time $1,800, so that tilt' total claim in respect of these two fishing- vessels is $13,105. Ill accordance with our First Ueport on Class A we in'oposo to allow for the value of the Uipple and her outfit at the rate of $50 ])er ton ({jiving $;?,200,) and for the outfit of the Archer at the rate of $20 per roil (giving $1,210,) and for the catchimjs of the ]{ipi)le, and the detention ot' the Archer, we propose to allow the sum of $*.K)0 each. We thus find that the total amount to be allowed for the ]{ipj)le and riio Archer will be $(5,240. The result, therefore, is that for the New Claims, amounting to $30,205, we propose to allow $14,490. Adding to that .amount the sum of $3,601>, the above-mentioned allowance for tha Further Claims, we find that our allowance for all the additional claims in Class A, comprised in the " Revised Statement," is .41S,()90. The above results may be exhil>ited in the following form : Claiiiis. l'i'o|M)il A How's. SfH-Vlaimx IHO, 2(tr> fil4,4IK» rtitthcf Cliiimn — I a) VeHSc.ls aiul outlits !&iS, •2(!'.$ /ii S(;cnr»!(l ciiniinjjs liO, 7W> i) I'rospectivts eiiiiiiiigs loO, IU4 .(f)DamiiK<-s Tm.'SOO i.iIVrsoiiiil etlWtH ;V2,'2'2H :5, (509 '2()7, 7«t4 4» ',i? •297, lie eouipared with the corrtieted amount of claims in Chiss r>, contained in the Revised Statement, amountinj; to '•^, 107, 141 Tlicrefore. the total amount of the additional claims in the Ke- visfd Statement is SOfi, 522 And it consists of: i'l) Additional claims for value of vessels, (including insurances).. $1(')1, 642 i'') Additional claims for value of freights, (including insurances).. 39, 2:W (') Additional claims for value of cargoes, (including iusurauces).. 87,706 }■ |306, r)";i2 t <'; Addit iomil claims for damages 7, 183 I (i) Additional claims for personal etfects 10, 758 J |. iipnu iin - n»,i 1 1 m ^: m IS' 324 mUTlSII ARGUMKNT. As roganls tho item (a,) tlio additional claims for the vesnels^ it con si.sts of !?40,()()0 claiiiu'd by owners or iiisuraiK^o companies over ami above tlieir claims in the ' Former Statement;'' of $17,442 for vessels not mentioned in tho " Forinei'- Statement;" of $104,200 for rcsHcIs tlic vahie of which was not claimed for in the " Former Statement," althouj^li claims in resi)ect of thviv cargoes, or other matters connected with tluMii, were advanced. Tho tirst-mentioned part of tiie claim, amounting to $40,000, nnist, of conrse, be rejected, as tlie estimate of ••"'10 per ton which wn made in onr First JJeport will, ni our opinion, attbni an adecpuite allowance for the value of the vessels. Tho second-mentioned i)art of the claim, amountinfj to $17,442, is for the Otter Jiock, (paj;t! 12;J,) the Arcade, (i)a^e 200,) and the E. V. Lewis, (paye 27!>.) Althou}»h in none of these cases any tonnage is j^iven or other means atlbrded to arrive at a .judj^ment of the values, never- theloss, iiiasumch as it would not be prudent or proper, for the purposes of our IMesent IN-port, to reject these claims altogether, we have esti mated the value «>f the vessels by makin<;" a deduction proportionate to Aviiat we found in our First Heport on Class 1>, to represent the overvalii ation of all the vessels. The deduction so arrived at amounts to $G,84l', leaving ns the allowance to be made,$10,S0(>. As rcinards tlu' last-mentioned portion of the claim for $104,200, it will be found, in the note at ita^^e 20 of our First Iteport, that in Class ii tlieic were live vessels the values of which were not claimed. In the " Itevisod Statement," claims are now advam^ed for three of these vessels, viz, the 31. L. Potter, of 40() tons, (pa^-e 122,) the AVindward, of 100 tons, (pa.uv 204,) aiul the Lamont Dupont, of 195 tons, (i)a};e 2S.j.) Accordin<;ly, for the values of these vessels of an aggregate tonnage of 7oo tons, we now make an allowance at our ordinary rate of $40 per ton, amounting to $30,200, ami, adding this to the afore-mentioned sum of $10,800, wc tind that there should be allowed, in resiiect of the claim of $101,04:' for the value of the vessels, {a,) the sum of $41,000. As regards the item (/>,) viz: the additional claim of $39,233 ftn freif/hts and insurances thereon, it is divisible into $8,477 claimed l>y owners or insurance companies for freights over and above their claims in the '• Former Statement;" of $1,250 for freights in respect of vessels, not comprised in the "-Former Statement;" of $29,500 claimed for freights of vessels (for the lirst time) in the " Itevised Statement," although other claims connected with those ships were advanced in the Former State ment. The iirst-mentioned i»art of this claim, $8,477, must be rejected, siiire we have already made allowance in our former report for losses in respect of freight. The secondly-mentioned part of the claim, $1,250, we propose to pass, as it does not appear to us to be very excessive. The last-mentioned part of the claim, $29,500, is made up of $(5,000 in respect of the M. L, Potter, $5,000 in respect of the I. Littlefield, ami $18,500 in respect of the Gildersleeve, for which, in the Former Stato- ment, no claims were advanced; and, consequently, no allowance lia;* yet been made. We have shown in onr First Iteport that the claims for f)ross freight cannot be admitted, and we ])ropose, instead thereof, to wake, in accordance with the principles stated iu our First lieport, tho ample allowance of $6,000. As regards item (e,) viz : the additional claim of $87,700 for cargo awl insurances thereon, the amount of the insurances being $72,197. Tho same difficulties which we explained in our First Report of course present AXXKX r. — REPORT OF TIIK HOARD OF TRADE. 325 tlit'iiisclves hero also in rcsiH»ct of the carpoos ; and, althon;:;!! (as we shall show when discussinj'- the additional claims nnder Class C) there are Jiiany reasons for inferrin}:? from the adtlitional claims made in the Revised Statement that our <0,'5r>L'.2(J, while the insurers on cargo claim e.vacthj the same amount. Finally, as regards item (<',) viz: the claim of 810,7.")8 for personal (feets, we propose, as in our First l*e[)ort, to go through the dillerent eases, and to state when we think that any deduction should be made ; merely premising that, in estimating the deduction, we have taken into account the tonnage and character of the vessel, the form in which each clrtim is presented, as well as other circumstances which, in certain cases, appear to us material, but which it is not necessary to point out specitically. I.dfiiiiclte. — Here tlie claim by the mate for $700, wliicli is more than that advanced iiy tlic Captain, appears to us excessive. We propose that it sliouhl he reduced hy i=i:W. .V. L. I'olto: — W(i ])ropos(s no reduction. .iron. — In this case the Master, in aildition to his I'ornier claim, which (as will he '< l)y Henry W. Johnson, who is merely described as of Stamford, Connecticut. We think that so vaKue and large a claim for pet'soual effects ])ut forward at the last mo- ment is not likely to be a boiia-Jide claim, and that it should therefore be disal- lowed, making a deduction of 4, 941 ^ I 1 -!» ■Plpplpplffpl ;j-j(; lUlITIsn AUCW'MKNT. H'iiidiraiit,— h\ MiIh ciiMt! tlio MiiMlor fliiiniH for Iohh of pimonol vfficlH, ,*'i()(>. Tliis !il»lMMirM to [\H tixttuxannut, aixl we propono tliiit a tlctliiflioii sliuiiltl In- muiU'or SI".) Tlu'so (UMluctions will hv tbiind to hmIiico tho claiiii of !!<10,7."iS, tor jH't'sonal ([(f'lrts, to lj'.'{,4.'i2. Tlici n.'siilt, tlicivforo, at which wo hiivo uiTivod in respoft of tin' chums coinpiiscd in Chiss II may hv exIiihittMl in the followiii}; form: Cliiiiiis. rri)|niii.| llllllWlllll'<'< («() For vcHScls ^(.•=(1 »),(■) I-,' fll.lMil (h) h'or trt'inlits ' j :\[t,'SV.i :.•,•:,(, (r) h'or carjfonH if >'7,7()(J Tt), Ivj ((0 For tlaina]in's 7, 1^:! ((•) For pcrNotial cllccts H), 7riS :!, 4:j-,> :iOt», W'^i l-.'7, -^T I Class C. Ill (lio '' Former Statement" the claiiim compriMcd in this eiaiss amonnt to i:r>, 7'.M. ii«r In tho "Revised Statement" tiio ehiiniMeompriseil in thin chm.s amonnt to §(1, 44:i, 370 Unt tho errors pointed out at ]mgv lUH of this Keport in respeet of tho Commonwealth, Sea Lark, Union Jaek, Crctwn I'oint, antl Colcord, vessels behtnyinj; to this elass, re((nire alto- getlior a deduction of (i, 418 So that the correcte«l amount of claim in tho " Kevised State- mont "is t), 4:5r>, !W Tliereforo tho total amount of tho additional ehiims in the " Ue- vised Statement" is (il'J/ir, And it consists of : --— ( Additional claims for vessels, anKumtinj^ to $104,<)51 ) fl. •? Additional claims for insurances on vt^ssels, •:ii!l7'J,();VJ ( amouutiiiK to f)8, 001 > i Additional claims for freiirjits, amounting to 14,4'.):$ ) l>. ' Additional claims for insurances on freiylits, ■ 7'J, (il*:! ( amonntinj; to ()">, 200 *) i Additional claims for car;;oes, amountiiif; to 'J.i(5, 478 ) f. ^ Additional claims for insurances on cargoes, > 3:?t'), (i'.t'.t ( amountiiifj; to ll(»,2"il ) (I. Additional claims for daniajjes, amonntiiif? to y'J,0(li) I. Aihlitioiial claims for personal etlects, amountiiif^ to :U, li)l ()4-^, 2:i:> As ro^arI,r)U(), tlie residue of this itejii, it is (claimed by tlii^ Atlantic insuraiiee Company in resiieiitof the ('oldest, (pa. The ship was boiunl on a voyajjc t'lom .lapan to New York, and was 1,109 tons rej^ister, so that theclaim [\)i freight is at the rate of $"»<> per ton ; Imt itnuist be rejected, because it is an unjustitiable claim for {jross frei00. We now i>ass to item (c*,) for earf/oes and insiimnn- onvargot's ; but be- fore analy/iny this large additional claim, it api)ears to us important to preiiMse the following general observations. As r« ;;ards the form in which these additional claims are ju'esonted. there are two facts disclosed in the list of documents appended to the statements of the claims which distinguish, in a very notable manner, these flf/f/tf/owff/claimsfrom thosecomprised in the "Former Statement." The one is, that the majority of the new chiims are presented, not by the claimants themselves, but by one or two firms who seem to have made it their business to collect claims. The other is, that in a very jrreat number, and, we believe, in the majority of cases, there are no bills of lading tiled at Washington which would evidence the shipment of the g ')ds or the property in them. Fr(,''ii tlie volume already referred to in this Jieport, containing "The correspoi'dence relating to claims against (Ireat Britain,*' it appears that ;i list of claims was prepared as early as the year 1800, and that in 180t> therit was i)resented to the Congress of the United States a new list, \vhi<;li, according to the statement of yiv. Hamilton Fish, (to be found at i)iige 414 of the same volume,) the (jovernment of the United States '•used every effort to make as complete as jmssible." Under these cir- cumstances, and also when we tind again a third list of claims i»resented to t lie Tribunal at (leneva, it seems scarcely credible that persons having sustained hona fide losses, unless they ha.| the gross aniouut of the additional claims lor ^^oods, ])rofits, cominj.s. sions, and insurances, and to regard, for the purpose of the ])roseiit estimate, the bahince as representing the value of the goodS; free on board, together with ordinary interest from the time of shipment until capture. This deduction of 12 per cent, is jnstitied by the reasons fully stated in the introductory part of our FirstKei)ort, especially as the ad- ditioiud claims for cargo here also include sometimes claims for piotits at the rate of 50 and even 100 per cent., as well as claims for coniniis- sions, and lamages for non-arrival of goods, and moreover a]>pe;n' to involve "double claims for single losses" to a considerable amount. Having made these i)reliniinary observations we proceed to consider this item (c) of 8'>3G,G09, whiclj comprises claims for caryix's^ profits, ivmmissiom, and infturances thereon ; and we will begin by specifying those particular claims whi(;h we think ought to be rejected. 1. W. McGHvcrji, j)age 210. — This is a vessel not claimed for in the "Former titatement,"' aud for her cargo a claim is made of !? 4,752 ; Imt as the Jetf Davis is not one of the cruisers mentioned in the United Stabs Case, this claim must, for the r- asons stated at page 2 of the JJritish Counter Case, in referfuce to the Jloston and the iSallie, be certaiiily rejected. 2. Anna F. ^Schmidt, iiage 1(5. — Baker and Hamilton, of Sacrauu-nto, California, claimeSm JadL] — F. :M. and .Mary IxoD'-s claim 810,000, but admit haviiii; received from insurance comi)anies 81,505 in gold, Avhich, according t«i the rate of exchange inferred from the case of the ^lorning Star, as .stated lu page ."JlOof this jfeport, would an)onntto82,150('»;;T»(;i/- Tliere must therefore be a «ledncti,588 for loss on cargo bore iit.siir- anve, and a claim by Samnel Stevens of 8'>,500 i"or /*».s,s' on cargo (in>( jtrofits above insiiranrc. On comparing the claims inade by these pcrsiuis ami by the comifanies witii whom they liad etlected insurances in tlif "Revised Statement*' and in the "Former Statement," we have scarcely any tloubt tiiat these claims liave been already discharged by tiie insui- ance companies who are claiming at the same time, and we therclun.' reject these two claims, which together amount to 87,088. (». (iood Hope. pageL'bS. — Here the ]C(|uitabl« Nilety Insurance (dm- pany have ad\an<'e(l two additional claims, one of 810,<*('0 as insvri'r^ on cargo, and another of 81<*.(>"0 as insurers on mip for lasigi, Gudilard ct Co. On iomjiaring tin' claims maresented to Congress in 1800," as well as with those in tln- " Former" and in tlie '^IJevised Statements,"' we think it can be prevcil. jdmost beyontl a «loul»t, that the additional claim by the insurance cuin- pany of 81('.('(>0 in respect of the cargo must be re.je<'ted as a double ehmn for a single Inss. ^mm ANNEX C. RfirORT OF THE BOARD OF TRADE. 329 connnis- '. present ',; free on eiit until jons fnlly IS tlie ;i(l- "or pvotits ' coniinis- i]ipear to sunt. » consitler .v, profits, ;peeityinj;' For in the 52; l»utus ted States lie IJritish e certainly icrauiento, y «lirei'tly, itatenient" the former (nihJc rl^iin il cliiini oi in it havin- any ii-l. '»(»». same lime es a ilouhk 00. niitliavius eorflin.u' to \\\i, Siar, as nvii. 'fi'<'i't' •lainis. viz. More insur- i-nf(j<> <('<" }so pers»ni> lices in tlif jv«' searcely *iie iiisin- ■ there I OIL' Ivauce Com- as inmirif-^ I'l. /;«(/'/(Nvi couipauifs liose in tbo lose in tln- |l»e pnivt'il. ranee eoiu- 7. Crown Point. — It appear.^ froiii the "Original Ijist" tliat ^l. lleller & Urother, of San Francisco, and J. Heller «S: Brother, of Xew York, are the same firm ; and from this fact it can bo inferred, with scarcely any doubt, from the claims which ]M. Heller and J. Heller advance for loss (111 cargo, (at pp. 125, 120 of the forruer, and pp. ir)2-ir»4 of the Itevised Statement.) that they are making dovhlc claims for .single h ..iCft, at least to the extent of $9,044 ; we say at least, becanso we cannot heli> viewing with consUlerrble suspicion a claim made at the same time by a lirm of William Heller «!v: Co., of Xew York and San Francisco, ([»age 12.") of the • Former," and page 151 of the " Ikcvised Statement,'") for very nearly the >aine amount as that claimed by John Ifeller. We therefore deduct the tated, and subtracting their total amount of 840,0 -S from the amount ilairaed for cargoes, )iamely, 8''>30,090, we obtain a balance of 8-90,001. For reasons already stated, we deduct from this Oahmce 12 per cent., ami thus obtain tlie sum of 8200,534, which, for the purpose of the present estinmte, we propose to allow, instead of the claim of 833(i,09t>. As regards item (,000, represents a claim for damages occa- sioned by the detf Davis, (see page 219,) with which, for the reason already stated, we have nothing to do. It follows, therefore, that we [•ropose to reject entiiely the claim {d) of 822,000 for damages. As regards item {e.) of 8')l/it>l i'ov personal effects, it will be found, on 'cferring to our former Ile})ort on Class C, (page 20,) that the claims for ■im of ]>erso7ial e^p'ects on board the vessels compris(Ml in that class are. (.specially extravagant, and that we consequently made a geiu'ral allow- ance for these ilaims, at the rate of 83 i)er ton. This allo«vance appeared iiul still appears to us to bo, on the whole, sullicient to cover any loss inobably sustained in ivsiK'vt o( jters '.VM'i, (i'.t'.l '. PaiiiMjics V>-J,0O(> '• IVisoiial ('llwtH 'M, I'M DiHiillowcd. AUowtil. *i(;:t,OiVi *i>. 000 7.'., IM\ l.tiltO Tc, k;:. '.'(;(», .'.:!4 'J'i, 00(1 .. ;{|,i'.ti ctv', •:>:tr) UilH, 101 ^r:\,r.\\ '?• ' ^ li 1 m 3;)0 MRITlSIl AROrMKNT. Class J). In till' •• I'oriiitM' Stali'iiu'iit" (ho claiiiiK coniinistMl in tlii.s ulasis aiiioiiiit t<> ... Jii7;!i), 'x,.i l$nt ol" tliis aniDiint tlicic lias hccn withdrawn, in th(! case of tiio lOninui .lane. ( |ia;?2,io!>. Further Chums, (i. e., fresh claims i'or vessels comprised in " Foniici Statement,-') 814,500. The Seir Chdms, amonntinjr to )5! 102,450, are — for the Tacony, 205 tons, (l)age 206 ;) the (lolden liockel, 010 tons, (paye 200;) and the Vigilant, 050 tons, (pajj;e 271.) In the absence of all information as to the class or condition of tliosc vessels, we vidne them at our average rate of *40 per ton, whicli givtv^ ai' allowance of $02,200. Tiie Furtlicr CItiinis, amounting- to $14,500, consist of a claim of «."»(lii for the Josiah Achom, and $14,000 for the Estelle. As to the Josiah Achom it will be found that at l)age 28 «»f our First JJt'port there was a claim of $7,500 for the rcssd a)td her oiitfifj which we felt ourselves compelled to allow, because there was no iiiforination g:iven as to her tonnage, destination, or employment. The " Iteviscd (Statement" snpjiljes the rc(iuired information, and as our valuation of this vessel of 125 tons woidd be cons!d?!';ibly less than the amoii?it nt $7,500 already allowed, we think the additional claim must certainly he rejected. As to the ICstelle, on referring' to page 2(5 of our First Keport it will 1m seen that we there rejectetl tlu' claim of $1,000 which was made by an insurance <'omi>any , because it did not seem in any way to re|)resent the valiu; of the vess«'!, lor which no claim was advanced in the " l-'oriiio! Statement." In the "IJevised Statement "a claim is madeof $14,OI) should be allowed, \Ve have thus estimated the Neic claims at $({2,200, and the Fiirthr claims at $14,000, and therefore propose an allowance of $70,2(10 for the claim (o) of $110,050 in resjjcct of the vessels. As reg'ards item (c,) for vnrgoes and insurances theretui, it consist.-^ot'a claim of $21,155 by the Atlantic iMutual Insurance ('omi)any, for in ANNKX (" -WKPORT (W THE BOARD OF TK'ADi:. 331 liin of ><"t by Messrs, Lawson and Walker oii aecoimt of Collins for cargo ])er the IMondamin. As to (lie claim by tlu' Atlantic/Mutual Insnrance (Company, although It seems almost inexplicable that it shonhl have been presented only at the last moment, we i)ropose to allow it, subject, ho\vev<'r, to those re- marks which we made at ]>age 14 of this J{ei)ort as to all the aihiiiioiwl , hiinis for cargoes. As to the claim for goods per the Moudamin, it is tor mr, which, tor reasons stated in our First Report, we assume to represent the value i)t the cargo free on board, and we therefore i>ropose that this sum of siS,Gl'.'> be allov.ed for the claim {<•) of $2(),155 in respect of the cargoes. As regards the item (. 1)0. — llen^ are claims amounting to $•">, 171 by the Master 1111(1 Mate for /o.s',s' of effeeta., time, passaffe, and t'.vpen.se.s, no such claim bav- in}' been made in the " Former StatenuMit." i'\)r reasons stated in our First lieport the oidy claim which can be taken into account is that for loss oj' inrxonal eff'eet.s\ and we consider that for this loss a sum of !ifl,0(M>, vi/, s7(Kl for the Master and *.'}()(> f(U' the ."Mate, will give adequate com- iifiisation. The Monilamhi, p. 1S,9. — Heic a new claim is advanced by Dillingham iiirAl,!!.! for loss of personal e()'erfs, Ov:c., but as the vessel was in ballast, 111(1 the Master ami Mate imike no claim \\n- personfd f//t'c^s, and there is 110 description given of th«^ claimant, and no intbrmation as to whether lie was a passenger or a seaman, we think this claim ought not to be allowed. Tin J[arrei/ lUrrh, p. -L*(). — Here there is an additional claim by the • aptain of )iil,(»47. In our l-'irst Report (p. L'S) we allowed the sum oi" *:>..VHMbr loss of personal ejf'eets on board this vessel, and as we con M'ler this allowance ami)ly sutlicient to covi'r all su(;h losses, we think 'Ills eiiiiiii should be rejected. The Jh'Iphlne, )>. L'.'M. — Mere the ^NFate claims f^H'J't. but as in !>0 for loss of persinml if(T(.s in respect of this vessel of 7(l."» tons, we tliink this fuitlu'r claim should be disallowed. The Taeonif, ]). LMKI. — Here Doherty at the last UKunent nnikes a new • laiin of •"i<772 tor loss of personal tji'erls. Here again, as no description i>iKiven of the claimant, an«l as it is not known whether he was a pas Milder, eonunon seanmn, or oflUu'r, Ave think that a claim of this vagiu' 'iiiid, presented (udy at the last nu)ment, ought not to be assumee allowed -ISl.OSO. M..| !*!♦ I-^'^ iff! ^i"i^«7^ ^^ 332 BRITISH AKGUMENT. The result at which we have arrived with reference to the claims In Class D may be exhibited in the following form : Anionnt claimed. Disallowed. Allowcil. ((t.) Vosscls (/;.) CiirKoes (c.) Dainiij^cs ((/.) IVrsoiial flVccts... .tiiifi.ono •>(•), If)') 1:5. r,w 140, 75(t 7,r.:J2 13, 500 8,178 176, 20(1 is,w;i 1,0-0 IC).-) (■)!>, ItOlt It"), W.', Class E, F. In the •• ronin'i' Statoiiiciit " tlio claiiris comprised in this class are S"-2'.'tl -ll.' In the "Revised Statement" the claims in this class amonnt to sloOl.tlf)! IJiit on acconnt of the enors of .S-,i:Hl and of ^lOlt, )»ointed out at l)a<;o 4 of this Report, in reference to the Corriss Ann and Mornin^f Star, (two vessels l)clonj;in^ to this class,) there nnist he addi.-d the sum of \>,:>M\ r.oi.M So that the total amount of the additioiinl claims in the " Rm'ised Statement "' is 2()l.i\\>, This consists of claims — (.) For freights 'il.ir.ti^ .,, , Forinsnranc(>S(Ui Ireij^hts S ' ' ' ' {('.) For carj^oes r., 000 { .,., .,.^, For insurances on carj^oes Ir*, r>70 ^ " "' (<1.) Fordanm. L'Gt). — This .ship, the tonnage of whicli is nor given, is repres»nted to have been captured by the Sumter and run ashore, to have been afterwards got off a'ld taken into the port ot ("icii- fuegos, and to have been there sold w ith her cargo by order of the Court of Admiralty. The claim for the vessel is !!roceeds, nor supplied any particulars to show that U was sul)staiitially depreciated by any injury directly sustained by reason of the capture, we are of opinion that this claim ought not to be allowed. The Further Chtima for v«'ssels are as follows: I. The Corriss Attn, (i>. 147,jrt/".")()8 tons. — On referring- to our First lie- jtoit (p- i>0) it will be found tliat there was only a claim of «1,(HK) for jh'iglit and no claim for the vessel. In the "Ivcvised Statement" there is a cliiiin of $1*0,000 for the vessel, and as we do not consider it excess- ive, considering her tonnage, we projwse to allow it. The General Berry, p. 171*. — This vessel, the tonnage of which is not ^ivcn, is described as having been in the United States Service when (kstroyed. It appears from the synopsis of the list of papers ai)pended to the Statement that a claim of $1(J,000 was presente«l to the L'nited States Senate for the loss of this vessel. Jf this amount liad been paid, the present claim is, in fact, one presented on behalf of the l'nited States Government in respect of a vessel in its s«uvice; but, whether this be or be not so, it seems to us at any rate certain that under the circumstances nunc tiian $10,000 cannot be fairly demanded, and we, tiiiiefore, i)ropose only to allow that sum. .1. The Oeorge Latimer, (p. 17.'$,) of L'OO tons. — Ifere there is a claim ,)t >ilO, 134. In the " Former Statement'' there was a claim only of $1,000 tui the vessel, which we allowed, as hc-r tonnage was not given. (See paye .'50 of First Ilei)ort.) Ileing now informed of her tonnage, and valu- iii;;' her at our average rate, we think there should be an aihiifional iiliowance of $7,(K»0. I. The Jiyzantinm, (p. 1*08,)^}/' I,0."iO tons.— It will l)e found at page .^0 of our First Iteport,that, as no claim was made for the value of the ship in tile "Former Statement," we inferred that she had been probal>Iy insured and paid for by English undtu'writers, but as a claim is m)w advanced tor ship and freight of $50,787, of which weasci'ibe $t."),000 to ship and H7S7 to freight, we propose to allow for the vessel, at the rate of $10 jier ton, (though with very considerable doubt,) the sum of $12,000. .1. The Daniel Trowbridye, (p. 'JG7,) of IS.") tons. — In the " Former State- iiiciit"' there was no account given of her tonnage, nor of what had been (lone with her. In the " ltevise tons, and that, whe:; she was caj)tured, she was leaking badly, and had no cargo on boa'.d. as we have already allowed $2,500, we have no iloubt that we shall be giving ample com[»ensatiou by making an addi- tioiiiil allowance of $20,000. The result (>i this analysis is, that for the additional claim («) of ^ i ■ "f ;f fe, :jn4 BRITISH ARGUMKNT. u*- .tISOjIT? for irssds and htmiuinces flureon, we jnopose that there slionld be made an allowauee of $112,.j0(>. As regards item {b) tor ftrit/htsy this consists of three ehutns: 1. Tlie Harriet Stevens, p. 1 7!K — It will be found, at page 'M) of our First lleport, that we have made an allowance hi lieu of freight, and we do not think that the additionai claim calls for a»iy additional allowau(M'. 2. The lit/zanfium, p. 208. — Here there is a claim for ship and /night ()\ which, as already mentioned, we put down $r),7S7 to/reif/ht. Instead ot this claim we propose to make, according to the principle stated in om First Report, an allowance of 84,000. 3. The Ehen Dodge, j). 2(58. — Here there is a very large claim for/;mv- pecticc earnings. As she had oidy been twelve days on her voyage, \w think that $1,000 will be an adequate allowance, in accordance with tlic principle stated in our First Report, which led us to reject the claims iw p r aspect i I'e ea rn ings. We prefer, therefore, that for this cjlaim (/>) there b(^ made an allow ance of .15,000. As regards item (c) for cargoes, this is ma«le up of the following; claims: 1. The Ariel, p. 2.?. — Here there is a claim of $78, which, though siiiiill, must, in our opinion, be rejci ted in accordance with the observations which we made at page 20 of our First Report. 2. The Corriss Ann, p. l.>7. — Here there is a claim of $4,400, which we propose to allow, because it is an insuramie claim, although the fact ot its being jnesente^l at so late a peri«>d makes it open to considerable suspicion. ;{. The Joseph ]'arhs, p. 2(i!K — Here there is an insurance claim oi $3,000, which we propose to allow for the san>e reason, but also witii the same observation as before. 4. The Neapolitan, p. 270. — Here there is again an insurance claim foi' $8,08(5. This we also propose to allow. 5. The Joseph Maxwell, [>. 2(5!>. — Here there is a claim of $2,000 for cargo, which, in our opinion, ought to be rejected for exactly the same reasons as have been already state by the o1He(Ms, for loss of personal effects, which we propose to allow. ANNEX C. KEPORT OF THE BOARD OV TRADE. 335 4. The M. Y. Davis, p. 185. — For tho same reasons wliicli led ns to re- ject the new claim for this vessel, we propose that this claim, which is likewise presented by ^Messrs. Lawson and Walker, should be disallowed. Wo therefore think that for the claim (e) of $4,()t;{, for Ions of personal I pets, there should be allowed $1,000. " The result at which we have arrived, in reference to this class, may therefore be exhibited in the following form : Ani't claimed. Disallowed. AUowi d. (I, Vcssfils.. ii. Freights ' . Caifjoes Diiniiifjes . itil ;')!», 177 21, 1.% ! 2:?, 270 !? If), r)77 lH,%ti 4,(iu; I. reisoiiiil ette. 4, 04:$ ;{, 04:$ 207, f)46 73, 21)2 )S!112,.')00 .'■), 000 lH,(J.'-i4 1,000 i:{7, ir.4 m{>li .small. )serviitioiis CORRECTION AND ('OMBINATION OF ALLOWANCES. The following table exhibits the results we have arrived at as above lueutioned in respect of the Additional Claims, contained in the lievi.spd Statement arranged (X) according to Claims, (Y) according to Interests, Z) according to the Cruisers. (X) Clacses. (V) Intt'reuts. (Z) Cruisers. Claims. Allow- aucKH. 1 (Haiius. Allow, anees. A 1 *297, 99!t' m, 099 :«)C,52a 126,800 042 235! 274 134 Vessels $048, 898 ?2;»4, 755 Earuiii"s 181 103 . Alabamii Koston $440, 989 »83, 729 i; ('hie.kainaiiKii - Florida (Mareiice Taeoiiy Georgia .TelV. Davis .... Nashville Jtetributioi) . . . Siillie Slieiiuniloah . . Sumter Tallahassee . . . 87, 410 4,'i.'i, 811 39, 022 03, 892 32, 184 7, 7,')2 38, 897 8, (ie3 "i4.Viii 149,041 l.'iO, 840 40, 14fi 203, 027 11,880 49 240 r Freislits 140, 082 30, 404 1 Cargoes 473, 83o' 374, 958 Daii.ases 97, 883 lVr.s.iiial .-tteets 78, 478 9, 121 1 II IG.'i, 872 207, C4(i 95, 877 134, 328 2, IMIO }-..¥ 23, 724 1,320 98, 705 07, 947 1, 02(1,274 049,238 1.020,274 »)49,238 1, 020, 274 0(9,238 le ollii'tn's. Before proceeding to combine the foregoing allowances with those made in our First Iteport, so as to arrive at tlie allowance in rcs[»ect of all tlio claims contained in the " lievised Statement," it will be necessary to 'liaw attention to some alterations which should be made from the toriner alhncances ; i)artly on account of the withdrawal of some of tho vkims contained in the " Former Statement," and partly on account of ""Oiiie corrections the propriety of which further investigation has led us to make. It was stated, at p. 5 of the Piesent lleport. that the claims iu rt'spoct to lour bonded whalers, amounting to $208,000, have now been «itli(lia\vii, and that three other c7«/hj«, for vessels and freights, have ''ton KMliiccd by (altogether) the sum of $01,4r»0. The last three reduc- 'ioiis, it is to be observed, do not give rise to any diminution of our I'li'iiu'r allowauvvs, because these were based on our average estimate ot i i'^ ■^ M *i': %»';■' ir- S- ■ ■ i r4* mn^ft^m^r^^^ »» i i ¥ m 336 imiTrSH ARGl'MENT. the valiios of the ships, aiul not on tho .ictual amounts contained in the statement; but, on the other hand, it is clear that the withchawal of tlie claims i'ov the four bonded whalers must cause a deduction ot .*i;}(;.()(ki froju onraUowance, this being tlie amount whicli wo allowed in our Kirst Iveportfor those four vessels. We will now point out the corrections which our First Keport scoius to us to require: ' Jn the first place, the claims made in respect of the Texana, captuioil by the IJoston, ami in respect of the lletsy Ames, ca])tured by the 8allio. must undoubtedly be rejected, for the reasons stated at p. 2 of the l>iit. ish Counter Case. These were respectively 8 K)() and .*.">,54(). in oiii " First lleport " we made no allowance in resjject of the claim by tin- Texana, for other reasons therein named, but for the ]»etsy Aiiics wc allowed the amount of claim less V2 pov cent., or, in all, 84,87i"). The allowance made in our First lleport for the values of the vessels beloiifjing to Class U requires an achlition of 87,000. On referriii;i namely to the foot-note at ]>. 20 of that Keport, it will be found tliat we supposed there were ;flce vessels mentioned but not claimed for in tlie Former Statement, whereas there were in fact only /owr, the vessel wliicli we had erroneously included among the live being the Palmetto, of ITI tons. "We have, therefore, to add an alloiranve for the value of this ves- sel at our average rate, amounting to 87,000. In the second place, a closer examination of the claims made for cai-jto iu the Former Statement when compared with those in the Original List and in the Kevised Statement has enabled us to discover the followinjr cases of douhle claims for single losses, in addition to those commented ou at page 27 of our First Keport: 1. The Union Jack — George A Potter (p. O.l of the Former, and p. Ill of the "Kevised Statement,'' "Alabama," Class C) advances a claim in respect of cargo of 834,520, whilst, at the same time the Atlantic Mutual Insurance Company claim in resi)ect of cargo 832,014, so that the latter sum must, of course, be deducted from the allowances we made iu our tirst report. 2. The Charter Oak— (p. 182 of Former, and \\ 2.11 of " Kevised State meut," Shenanadoah, Class C.) — Here the Manufacturers' Insunuut' Company claim 83,.">00 as insurers on cargo, and the Columbian lusur ance Company likewise claim the same amount as re-insurers for the former company. This is, therefore, a double claim, and 83,500 must also be deducted from the allowances made on our First Keport. These deductions from allowances made under our First Keport iu le spect of cargo make together 835,514, which amount, however, nnist be diminished by the 12 per cent, already taken otf. AVehave therefore to deduct 831,253 in respect of cargo. In the third place, we have, after considei"able doubt, arrived at tlie conclusion, that it would perhaps be better to include in our "»(//()»• ances for freights " some i)art of the expenditure which was taken iuto account iu our valuation of the vessels and their outjits. 'Tliero arc also the followiiijr irmta in our First Report: r. "^4. — Fourth paragraph from bottom, for " carj^o ot" Kraiu " rea7,0:J1 " read "$>i21,0;il." AWKX (• -KKrnKT OF THE UOAKD OK TUADK. :\:m it will be roineinlxM'cd, that ill the iiitrodiictorv part of our V'n i lleport we fully exphniied that, in our opinion, the claiiif of fp-oss freight could not be allowed, and that ade(piate eonipensation would be granted, in Inspect of the claims for the losses of the vessels, their outfits and trei},'hts, if to the original values of the vessels were added all the ex- jieuses incurred by the owners for the pur[>ose of the voyages up to the time of the eajtlior, together with interest. We luul, therefore, to esti- mate the values of the vessels antl their outfits, including the expenses in- nm'C([ i'ov i)vovisioninfi them uud makinij them Jit ami ahle to leave port, aucl to add thereto the expenses invurretl from the eommenvement of the roj/ages vp to the time of capture, toijether with interest. h will be found, on reference to page Hi) of our First Jieport, that we considered the price of HflO i)er ton to be a ''liberal estimate of the iiverage market pri(!e on which the value of vt^sselsa^ the eommeneehieni of their voyages might be safely based," and we therefore took that price (if $40 per ton as represeuting the average value of ships and their outfits. together with the crpenses neeessarg for rendering tliem fit and ahle to leave port. These expenses we estimated on the average at il.J per ton, leaving for what may be called the " naked value" of tlie ship and her outfit a sum of $.'>7 per ton ; a sum which we considered, and still consider to be, on the average, amply sutUcieut. The expenses to which we have just referred would, no doubt, depend in each particular case to a con- siderable extent on the length of the voyage, the employment of the ship, on her carrying general cargoes, or carrying a given specific cargo, tin her being loadetl or being in ballast, and on other similar circum- stances; but we were and still are of opinion that such expenditure will on the whole be fully covered by the average allowance of $.'} i)er ton on all the vessels. It should, moreover, be observed that we have also left ourselves a considerable margin, inasmuch fis we have made no exception in the cases of those vessels for which freight is not claimed probably because it has been received from English underwriters) and which therefore clearly are not entitled to this allowance. As the estimate of >*M) per ton of the vessels includes the allowance i)f 'j.'lper ton for the expenses of making them /if and able to leave port, it follows from the i)rinciple stated at the commencement of these obser- vations, that we had only to add for the vessels claiming freight an allow- iince in respect of the expenditure incurred from the commencement of the voyage until the capture, together with interest, and it is this amount which we put down in our First lleport as the "allowance for freight." Aitliongh this was for several reasons convenient, it has, no doubt, the t'lh'ctof concealing the fact that the allowance actually made in respect of the claims for gross freight not only comprised the last-mentioned iiiiount, but also the other allowance of *;j per ton, and we think that, as the form in which the claims are presented renders it almost neces- >^iirv to award a separate allowance in lieu of freight, it may, on the whole, be better to make it include, not only what we termed in our First lleport " the allowance for freight," but also the ^'S per ton for the e.v- pcnai's of maliiig the vessels Jit and ahle to leave port, and therefore to de- 'luct tliis latter ann)unt from our estimate of tlie values of the vessels, wliidli, as we have already said, included these expenses.' This alteration is, however, a matter of comi)aratively small impor tauce, since it of course oidy affects the distribution and not the amount ' Striitly sjM'akinjj. tilts iillowniice in lioi of frrU/lil iiuliidcs also an auionnt oqniva- Ifiit to tins wi-ar aiul trar oltlic vessel up to the time of (.'rti)tiire, ituusmucli as wo have illowt'tl tile orifiuiol value of the vessel at the eoninieiieeineut of the voyH!%■ AIloWillK'l' ill fcspi'ct of Ill rc'SiM'ct III' hili'ii'sts. Ill Ifsiiirt 111' t'liiiHi i>. A. n. I, l-iti, *'>1 Ciilgoii I) . . K. K :t:t!i, ,">i \ Diiiiiii;,'i'.s litt, 4:17 l'rlsi>ii:il rdicts 7, !I74, ,V>7 *l, 74ri, i'il I VcNSflrt and oiUfltM *:«. U37, »:»0 I Aliilmniii I ItiiHlmi I, ti'Jf, ii'.H Kroi^jhls ami ciiriiiiiyM h1-J, o:w ('liirkiiiiiiiiiKii . I . I'liiiiilii :j, 70l>, MO (ir.iri;iii ! I XilNllVillc , (is, AW I Iti-ti'iliiiliiiii .. I Siilli.' I4«i, I'lQ!) , Slii'iiaiidoiili .. 1 SlIlllllT 'I'lillttliUNm't'. .. 7, !t74, :i.-)7 *:i,a«7,i;> Hl.ll- •.'. ii:).-.. .-j;. •-•.■il, 11.11 ti-i mm 17. ;iii I :i;tH,'j;;i: 4, ii:hi ;m,-.;::. 7,!I74,X: To these allowances we have now to add the allowances we haveaswr tained in our Tresent Keport for the additional claiius contained in the Uevised Statement; and the result, which is fully exhibited in TabiisNo. .'{, is brietly seen also from the following; table iid jjives the total alloir ances ive propone for all the claiins contained in the Rerised Statement. Total AllowaiicoH in rt'f- rrciii't) to Claws<'M. Ill ri'frrriu'f to Intrrrst.f. Ill ri'ft'roiior to CniiRpiM. iil,7ti:i,M0 , Voswlnaml outlits *3, 47-.', (iiTi Alabama. lio.stllll . R 1, 7r)."i, (i!t4 KarniiijiiH anil riTJKlitH . (; : 4, 40-J, n88 Cartoon I) I 4:i."i, 4-J8 Damages K. K -Jlili. 7ti.') I'l r.siiiiiil I'lli'ctn 1 ('liirkaiiiaii);a 842, I3(i Fliiiiila Clarciiro Tiifoiiv 4,0r'l, 478 (iroi«ia .Iitf. IMivis (T, 1 ! | Hut tlii.s iiiiiiiMiit ImcIikIi's it claim Inr iiirrcasi'il iiiMUiiiicc |iic- iiiiiim.", iiiiiniml in;;' ti) •*•">, f^".-', (liji; And also a cliiiii st\ lid " .\Ii-ircllai>c(iiis," iiiiiomttiiio; in J7l», (»;>:> For ii-asdiis si;iit'(l at pai^n I oC lliis |{i'|»(iif, tlicsn last two claims must In- riji-ctcd, ami there an- certain eriiirs in tiie ruiiiies |ii'iiiti'il nut at jia^i'S l and ."> til' tliis Ik'eiioil, wliicli oil tlio wlioli; iieci'Sfiitulu.i a tlcl>l. 141 Kll If I in, OKI, 7lrt VpMHflu iind oiilllt-t ♦<;, !Mio, liH Kiiniiiius anil rii-l);litH . . . ti, -Jl*, ini Cat^Kcs ■*,'.)',:{. lilt Daniiim'.M tiDI, :IIT ^^^l•»onal rll'i(I.H ;t.'>rt, ■; I-. I III, (iK», r.\H III nil Ti'Mcr III CiiiiscrM. Alaliamii | ifti, !t."il, l."i!( Kiislnn I ino ('liirluiinaii;;il It'll, 071 Kliiiiila 1 Claniui- [. I, IH,-i,(W7 'I'ai'iin^v ) (liiifSini IKi, ll'iO .litr. havin 7, 7.VJ Naslivill.' .. KM, 4:i| KrtrihiitiiHi yii, OIH Sallii- .-., .-.■to siiiMiiiiKloah li, :io:t, o;t!i SiimtiT l.v.t, 7:tii TMllaliaHsi'f 7;U», fO-J I l!t,iif:i, 7:iH CJ CI' to CniiKiMs. I. — As I'O TIIK VKSSKLS AM) Oll'I "US. For tln^ reasons stated in our First IJeport we have, with scareely any exception, vahu;d tin* wiiaier>* at ."55100, the lishinj^- vessels at •■?.")(>, and the other vessels at >? 10 per ton at the cotnmcturment of their roi/affis, iiit'hulin^v therefore the expenses necessaiy for making; them ready for sea. We have also shown that in tiie cases of the whalers captured by the Shenandoah it is, with the ex«*eption of two or three cases, clear, from the very adndssions of the owners, that they arts advancinj? claims lor the .sanie los.ses simultaneously M'ith the insuraiu'e comi>anies, and that, in a great majority of the <)ther eases, a similar course hasj to a very l^reut extent, been ak' i){ restitutio in integrum, hy\AiH''u\}i the claimants almost in tlu^ same I'lisitioii as if they had \U)t einl»arlved in the iiiisiicces.stiil adventure; an iiHowance wliii^h is far mure liberal than that which has been awardi'd i'.v the courts of America in similar cas«'s. This allowance we have fstiinati'd at s^S 1"J, l.i«», which, when added to our allowance for vessels "mi (iidiits and expenses ineurred in malimj the shipn ft ami able to leave ;'"/•/, amounts to^ I,.{1."), I'JI, and will in our opinion lairly cover all losses ill resiu'ct of tlu^ ressels^ their ouljits, €aruin<)s, and claims for freiijhts. 111. — As TO THE CAlUiOES. As rcfiards the elaiius for " carefoes,''^ it will be .seen from the intro IMMTISir AKUl'MKNT, l»r('.s(»iit«Ml 1ms romli'ictl it iin|u)ssil»U> to nsrotits, eonimissions, aiitj insurances thereon, iL'per cent, be deducted, the residt so obtained will, in all probability, exceetl the real value of the jjoods at the port of sliip ment, to^jether with inteiest irom the time of h)adinfr until captuic. We also explained that, by awartlinjf this compensation, and then-liy placiu}; the owners in the same position in which they would have been, if, instead of (Mubarkin^ their capital in the .shipnuMit of the i^oods, they had invested it at the ordiiuiry rate of interest, we were adoptiii}- a mode of (rompetisation, not oidy consistent with well-re<'o^-ni/(Ml prin ciples of iurisprudenco, but also more liberal than that which has evor been applied by the courts of the Tnited States. In some cases, distinctly spc^'itled in our l{ei»orts, we have been aide to dis(;over that the owners and the insurance companies are siiiuilta- neously advancinjj claims for the same losses. In these cases we have. of course, deducted one of siu'h double claims, and these deductions, together with those in respect of one or two claims which we liavc sjiecially noticed and jfiven our reasons for rejecting, amounted to about $.{4(),(K)0. Aftei" taking off 12 per cent, from the residue of the total ,7r)0 will cover any loss for personal effects which can bei>roved to have been sustained. ^^ — I'KSi i.T. The ultimate result at which we have arrived is the following : The total amount of the claims we have been considering, that is, all the claims contained in the "Revised Statement," exclusive of those t'oi increased war premiums and the claims styled " miscellaneous," (all ot which are " indirect claims,") and after correcting certain errors of cat culation, and withdrawing those for the Sallieand Boston, is !jtl9,(i77,7!>S. We are of opinion that the sum of $8,023,70.5 will be amply sutMt'i(Mitto meet all the losses embraced in these claims. The following arrangement shows the amount of the claims connected with each cruiser, after adjusting the several corrections, on wliicli wc have reported ; and also the corresponding estimates we have niiilo iis ^i- ANNKX (\ — KKI'ORT <»K TIIK HOAKh oK TRAI»K. Ml fully >Ml«M|uato ti» iiioi't all tliu lossi^siuMii.illy susfiiiiiud, wlii(;li, howuvur, .{WKuhject to the I'CHvt'mtionH iiictitioiHMl in our First Urport : CluiiiiH on iici-utint of— AniDiiiitM clililllrtl. AlllllUlltH iillowtMl. K f' Aiiiimniii ijio,iiri4,ir)y )ji:i, :jr»i , 407 lloNtori (liKkiiiimugti IKl, (»71 I'jc;, '.i»>4 Horiila ) * ( iiuviiir ' I, if^.'-.tw ',', '.Hio, :uri liiridiv ) (i.M.i>;iii iKi.ltMt v>.'):«,»Wl JclV. Davis 7,riVi Naslivillf l(IH..j:{4 h;, «>\i.| IMiilMitidii •.';»,01H ll»,(l',>l Salli.' siicnaiuldiili ♦!, :nt:», ():w ; 1 , :»:jh, 4:iti Miinti'i- l.VJ, 7:tti 10-i, H15 hillaliassff 7;M), H(J'2 :{rtr., 'i'i'i !'*», iit,077,7iw d,w;»,7!»r. % Tlie r<'servHtions to which we hav«' aWove rcferriMl are the follow- ing,' : 1. — The question whether (rreat Britain is liable lor any of the losses wliidi are the snbject-inatter of these claims, and, if for any, for which (if tliein, is a question with which we have not been concerned ; and, keepinj; ch^ar of what was not within our province, we have studiously ronliiied ourselves to the task of siftinj;" and analy/iny the claims, and of iiscertainin{>' what in our opinion ouj^ht, accordiii};' to wellrecoji;nized |tiiii(!iples of jurisprudence, to be considered adequate compensation tor till' losses occasione eonsi»l«'rably less tban Cl,(li»(),()»)(>. II. Wi" have appiMnU'd to this loport Table W. wliicli sh()\v> tin' values [Mit i>y C'a|>tain Seniines on tin*, prizes lie eaptmed, and inasimirli as the captor generally considerably o/er-estiniates the value of hj^ prizes, we think that ttiis ta!)le may throw some li;iht which may pnnc useAil on the nature and exti'ut of the claims advanced for losses al!»';j;f(i to liave been si;.staiiie«l l)y the Alabama captnies. Arthi H CoiIKN. SlDMON Vl>l'.N«i. Jr.NE s, 1S7J. Tahi.K N<(. 1. — Shin'hiii jirniinsn'ivf (Hc/rdv ht ihr unioinit of ihihti'' for lofix inrnifci thtouijh til' riMjui lirt cnn-'i'rx an ulaltd iil dijt'i rail piriodt. — (.">Vt' njntrt. iip. ;!l(i-o|."!.} t»liL-iii;i! I.isi Ifidli. I'liif.-il stilt. iKDvnicrStii'i'iii'tit ' Itcvisi'il Si.itf .\mcnilf(II,ihl,l''(i!t. N'oMiiildT, r-iil. jural. Mairli I-:.' i I t I f 1 k ^ « CS ■* Alabama IU>8t»ri (Jliirkaiuaii;;!! I'lori'la t'lidiila, Chiri'iicp Florida. Tat'Duy r ■J'alialias.xpf- Oiuslffl , lucn-afM'il war |ironiiuitiN Mi8cell;tn«H/ti» r.l ! »1,',0g. -HI ia i riniV-jfri •1 -jio, -jw r>7 i?.v,M-,', :>(:2 :r I : (, 1 17 ■j:» ;i, (i:)I.H4!t 1 \i:>-M \. 1 r-. IIHI j. '■> :wt), ;i5l ; S8 1 :t 3ft •26 3, •£»'), 8(ir> I I S!t ) •I 70, :>!<4 at, :■)^3 T), ,'. 1(1 ■1. r.K), 1(10 •i, -I'A) 97(i, : 73, H7,'> 1 -i 1 ■to 3 *C, r)47, (ilO lUU 3, liilH. ()0!) :!,<•. !i7<; 17 Tutsi !ti !», lA 104 i;w ; 13. -I)!*. :m Kit) •Jf). xt I .'., .140 (i. 48H, 3ia» 10, •>!))) r)7!l. !»,Vi I, liiO, 'AKl) OF TKADK. ;}4:j bility to !).> sllOWs flii> «l iii;isiiiiii';i iiliK* of iii^ may piovc SSI'S all»'j;»'(! COIIKN. lo-ixiK ilhlllfi.l Krv iscil Si, ill- I'nl. Miiirli I-:.' .'•>> 1 ifi. [m. vv. 1 ^ll.• I i>:). "T! :iii :i, it.vi ;).vi •1 .-.4. H; U) , IliM. W R 410. \Ui '.' KM. i:u •1 •.".', Ill- 1 .'. .'.4" :i)i ti. i-.ii, .(-.; ~ iiiT.ii:.! •)•> ;:m. -^i-; Ti. HOH iH'ni ••••■ 4711. m ir:i itv r>4", iiii ■|'.uu-K No. '-i- — Shot ■hit/ thr ffniill of (he ronTclioiiH and rc-oppnipriittioiin of the rlaimii and llif conrKitoinliii;/ aiiitiru, ...• in moHmoriix Ao". 1, "J, (iiiit 'A of '' I'irsl Hcjwrt,'' in accord- itiiit irilh our rvmarkx, {i'lcmnt Jieport, i>i>. IJ'.Jii-JWH.) Si .MMMiV iNii. I.)— CluHxi's (iiini'ctril ;iiii\ ri'inraii;;i'il uh pir lii'iiuil.) Alliiwaiii'i'H. Valiii' 111 (ns )ici' rill n rtnl Ui'port) — I Cl.AS!- .\. (.'liiiiiiN. I V (111. V.I. *I. 731. 417 'iill. Iti:i K.S. HP lie . till!, Tilill 4, OK'!, fill I ! Ill.lilill I'K KiL'liI \vlial«rM(li'tiiiiic. tw-j ;ifj. Hill 4i:i. 1III7 !KI. IMHI •JIH, S.id r.7(i. :i(i!i 4',', IlliO rj4, H:i() tmi ,Vi!t. tl.'iU I .'^iti. 144 i Mi 14. io:< I I ;tl7. (Hi *T. Hiil, :«i4 1 I.Vi 4MI :m. '.K)7 If.). ','H» !l^l.ll^'4 j .m7, II I -J _ •aw. rtiti i7.-<, i:ti (■ I l.:t.v.>.7:«i \.i' (h) •,'. -Jrt.-., !I4(I L.^itc, lI'Mi 44,'..'j:i7 :t, tiiiH, (i7(« J Dili, >j:iH 44:i, i»."i li-.>. iiwi I 11. IKHI >:>:>, 005 14.04(1 ■.!, INNI lb. IIOO 40, HOO i.iK. ac;i «(», 071 l.%4.!H»0 Iii.j !,»'>» 9Sm, 4X> 17, 4S7, :m ■X\, Ttl'i #1,74;.. 4JI I *-.-7ii. 7,»ri ti4.'i, I(i7 i«, 7;i'j -I 1 . li'iH. -ilM m^. :i'.i.'> Kill. ■*'J!4 ill) (I) ( /) :i. iHf. :w.-. .iH, •.>4,'i 4. l-.M, fir,4 •«t4, ;«:iri :a. :b).-i ll.H-'l xfii. r>5t I'i. (i;(4 3r.,lMW 4.0R0 i.ia, 417 7, 974, 5.17 1 Is m TicFw^^*-^ 344 fmiTISH AUCJl'MENT, Tahi.k Xo. 5J. — Shoirunj the nuiill of the conettionx luid t-e-approjniatioiix, iVc. — ('oiitiuiiotl. Si'MMAiiy (Xo. 2.) — Intci-eHtH (corrected and ni-arraiiKed as i>er Ucport.) i-h> A!lowniie<'.' Valued at — ^ Vf^ufi)' and oiitlits : • 'liiMs A (a) 1! i)(.n. K. F . Iii^iiiiinof tin diltii <1;,!*N A 15(6) IKc). K. h- . KariiincK : Clajis A luHiiraiicf. . D... K. F IiiHiiiaiK'i' ilittd : (; 1) K. V . < 'ar^iiM « lass II D... K. F IliMiU'illii'i' nil ditto: "liis* It I' (A) 1).... K. F(i). *l. (i7-.', (i^a !t.-|.(IHI n:i,(io:. i:>i,ii.-,() ' .V)'.,!1I'J I I-.'. (Hill i.ii!ii.:iiii tilf, «H-j *4. lo:i :t;(i ^iiiiilrii'S. idiiiiai;)''' ■iiid \»'\ wHial (ii.M'tH :) ^:Ulstl, A (/>. U... c ... I). . K. F ii:i. :ki7 ■JI-, M.".(l I :i.vj, 7:tti If, (itio .r,n. 'Uio •,'f-.">, !M0 Id. fill! I- 1. -Jill l,.-(V t:u I, ■.III, I -It lll.tili!) ?iK •.'."li -J 10 I. »-JI h.VJ •.i^ii. i:ii I, l(M,:iti" 1. 5!)(), -^40 !Mi:i. .-ii: I, i!i:i, :ii(; i:i'j ■>:( ' It. 11 10 >-r<. o:i. :<'x\ I Kin. p",'!» I :t:i. ;i'.i.-i I rj, o:m 04.'., 1 07 (i)(i » :(, o-jH. :w5 DaiiinK'* VJ. 00-J , ; I'm: crtVrt liKi. -i'tf •J.-i. 071 ."pit. I-Jl) I :t.'>. iiiiH ill\r'. 44(1 140. 0-i!> J4I. ^.•,l :(. Id!). .VJJ •|-tl, 7.14 •ji.i, (cr. 17, 4.17, :m ,»'i mm ANNKX C. KEIOHT OF T»K HOARD OF TKAIJK 845 *;!. -.'IIV :i:io Tahi.k No, "i. — Shoiciiig the nmiU of the corrcvtioim and re-approiniatioiig, c)'r — (.:«»iitiimeil. SrwMAUV (N'n. H.) — CniiscrM (correrteil and rn-nrranspd aw per llojutrt.) Clitiiiis. Alaliama: Cla^s A («) I #1, Hit, 171 AllowaiiciM. Allinvrd at — (' I» (.0 ('■). K. V ■I i.:i(i(i,fiio »l(il^,.^:w a, H47, ;»;n /-j. (hh, int; :J7ri, u:» 1 Ui, (id'.l ChiKS K. V «■) ('liickaninuKii : ("lasH 15 !t,"i. C.Vi #(i, ,-.l;i, no '.i,"i. ti.'),i Mi>riilii.(in('1ii(liiigl'lai'i'iii'i'anil Tixuiiv :) ( 'lans A I I K4, li 1- 11 (b) (.•) 1 f,V.. 7'.Mi ( ■ t -J, j:),".. 7i>;i I ) I 70, :i7!> K. K 7!t, 7.%fi ..i;;ia : CiaHN I'. (' i;. 1" V;,»hvillr ; Class I) 3, (i-Jl), MOJ ■jo:t i!i,'. l,Ml. 7h1 :to. (M)o :tf^:t, !(7ii i:if;, O'ji 17, .-.■.0 --tl. I IK lliv. ,'.ii4 I. II, 7(l!t I 77ti. in,') ; •II, ,-.70 ' l>l,:i.-rfl 111.-., I'.l-I ll.^i, H;t7 i'J, •JtJ7, ti7« -(I, 118 (ill. ,-i;)7 li-J, ill Id •J. ii:i,'i, :>i'-* j,-ii,o;ti t;->. (ion IMriliM'iioii : ClaxN It. o : Class A I) . . IV K, If. lO,-) l.lilJO * :i:i."i li:. 111! 1,-JIO 17 71 1| (/) 7!C., ()!,■) , ./l.ni.Hi-l 101, HI,- JM. ti;io n.'i,!i;ri /!i!»,,V'j !•;<, 100 •J-,', ;'>00 •jio, ;mo !'07,74l 110. .'iOO :t(i, H7,-. (i, l,-i7, WIf III, liO.'i .■)7!l, !l.^>f! 17. r.x :.>-t :i7, ,"(00 4.000 i,:t:if, -iMi 1, OM 1, ,"(00 i:i:i, iiu 1(11, lU ,"lH. ,'.00 111, lf<7 HI7 ti7."> 7, !I7'I, o."i( "I' 'I'liis liiis ln'cii ii'diuM d liy ^\ illidrawal Iimim rlaiiii nl' tin' Altaiiialia ii4 the ,smii id' 'i Tills lias liccii ifdiii'i'd liy wlllidiawal licdii claim ciT ll.i' ivcin iil llii^ sum of i) Tliis lias lici'ii riiliiccd li\ witlidiawal IViim claim at lli.' .\vmi iil' tin- sum of "'I Tills has lii'i'ii I'cdiiri il !> » illidiawal Tniiii claim nj' ||i<' Kiiima-laiic nl the sum nT I' I Tlii.s lias liccii I'cdiK'cd by willidi'a\tul Irum claim mT tlic Kiiiiiia ,)aiic nT tin- siiiii iiT '.'I This has 111 I'll reduced by withdrawal Tluiii claim of Tour oT the vessels detained liN the Slieiiamliiali ly) This has liceii reduced by witlidfawnl Tioiii allowuiii e tor tlm vcusids detiiiiU'd by the Sheiiaiidoali. 'ii This has been reduced by witliilrawal t'riiiii claim 15 Isy Ames (see p, :i:i(i) '11 [Tills has been riMluctMl l>y withdrawal I'mm alhiwaii e t'lir Hi'tsy .Vmc't iti Tliis has been iidticed by withdrawal Triiin ■laim id Texiuia (see p. iWI) I'l Tliis liaH been reduced liv w ithdniwal truiii 'lie aevcal alliiwaiiccH an mentioned (at p. :i:0) : SlmwinK in all dodiictioiiH I'roin — Claims AlluwauueH \>ni This lidH on Hie other hand, been liicrt-iined li\ allowance Tor Hie pHiinetlo, (Ncep. :»;ui) '. .«i.-., •(,-.0 l-J, Olio ■J,'i, IHHI I. IIIMI ,"., 1 101 1 •jiy, !H«> ,-., .'>40 400 301) .\M 4. H7.') :il,)i.Vt Ti, VM 7,000 :54« ^ t:5 ■-'-•* ri S, ^2J?^ IJ s s « - -S s t i s -e c ■~ ■- r- ; a S -S - 2 5« w ~ s s o -^ ~ " ~ ^ £ - ''I i =. i. s* ~ ::- •*■ ^ '^ 'S ^ "S -* ± i^^ 5 O' »> B 4; ^ ~ ^ -; ^ = i JJUrnsH AKOrMKNT. s ef 1^ :3 °h.)iii))1h;) I — T Cf t" 1* IT ^' ■ 1- ??!• ?? *' • 1- : S -2 i : S ^ *^ -• " I s le- ts !53 (MM •¥5 X — -- -^ . *i fij 2i Msi M« MM «■*"'*■* '•^ •■* •- -^ ._ iJL.: u >, J «i *f 1- Ci 1^ C-: O "P p^- Sis S'- tii; MM ZiX MM MM MM III Jl^7 M o •■*-■*- •*.* y< 5 I. *> I I a I- 5?! PSM '4^' :iy. If f2" SIS MM MM MM XX ibX a.1. r<« Wf: ANNKX C. REI'Oirr OV rilK HOARD OF I KAOK ss fz CiK «y KK Xa U,i^ (fa ^ Ifa ^ u.' ^' 147 m» f I"' \u 34K ' K .M J .« •-•St ^ 5 X 5 ^ '•J -s — « "B^P HKlTISir AR(JIMKXT, S" M ;ss '■^ 1. '%7. TI IS ?^ 1 ir; P 1 •¥ r5-j *- *- ■«J rtj T 7'tf X, trt c-. -r (JtCI p r^ M ss — 'T r-* s..* £ ■£ i- 9 Tt -r 2" to t» cii" no o ""t s (- o u p c- r. 11^ ■*r •-" X 7» X *- Ci f :2 It^ s :t M Yj ■^ c ?» < r t' -p '■£ « - *j: '^ 7* ^1 ''^ VT -r ,4» ^ — , -- -r rfl Ti iv L? Z 1* ~ — '- =i — ^t «::« : -r ■ii '.£ n •, •i: r. 3 ■*. T I- -, -r tj r* r; r: -j c ^3 • Si ' i- ■51 1^ ^? ^Si^il^lll - -"' IT s " ? •f 7.-: "Z ^ sE i- 7 5T-7i55si! i' "> I - •!• ••-; « r. - -. w c *» i,*^ -r Ti -r r; -r .-r* = = — ». c. 5 -T r: r: 71 -r ~ r. = rt .^ li » - — * 71 7' — »' X tI tI -c -t ri I * cT i: r: f — -I — f - ii n :'. •:> -^ — s *- *' r: — X s c I I. 1- 71 '-. C — J S 71 r - ^5: fi 71 !*. <■- — 41 ^ 5 • 71 1 Xi V. y.r-. — T). i i •si . i 7 . " /; 5 i. ' r • ^ !■ / ! 3 2 3 - -: : z ^ s; V Ji 1^ — -r 71 it 1 I- ?. = T : $ : S .*» £ i: S ' - ,** :S * 5! x 1 V, »: It = ,-s r: i I- — r7 2 5 : — — 7'-.^c*-xit-. : 71 'c t- — 3 — ^; — • *c -r ;j at l: i : T < - ? 7! •? '.-; "' 1' • 7i -T 7' - r: . -S « 5 !5v"3 -§3 »i i B 5 c'>-J •>?g ^ S a * ;■ =. :..= i. u -<" — ■2 \M si 2 . 3. .n : = •« 2 1 = ti. « = •- i k- = =T s- =-":fl|c «■/. e - « f- ; 52^1:^5?^- S5=- = .i3 3--^ > 3." = J ^ i -rjj- J '^'mm m ANNEX C, KKI'OKT OF Till", HOAHM OF TRADK 349 ? t ^'- * r* "f rt ^. rt T' i» — 1 — -r !r ;1 \z .-r ' f-i S ffl i« •* — S ■ j; .T i IS . - ^ X X o -^ TO -f ■^ S; -i r: — o • — ' — T' i O « 3-. T X X i* X rr s r'' ■m' t- — " 3 — — " - ""''2^1''^ — " ; ^ 5 r> — J 7 — s i .-= -5 -^ • cf - p X T — — r; 7,- o i-i T r: T 7r t s i-: r. ' '"i ~ "^ 5 2?' ?^' "* rt -"-:i5. — - t'-p 1- — *» r — <"• "^ -Tt- :i X ;-: :j =: ; \z X -5' r. \z — 71 52 = £ 3 .■^. X :=2t » ■ Ji 5 «,%>-.. 1 ?• i ■r 1 T -t i Ji I i i' *•/ «a — - -i ■ !S - - -A •/ H r- ;-''C ? o w =: -/. < i; n ?; v'. 7. I 1 '■i''-n,'T]T^ i(\' ANNEX D.-FURTHER NOTK ON THE CLAIMS FRESENTKI) |!V THE GOVERNMENT OF THE UNITED STATES FOR EXI'KNDI- TllKE ALEE(JEl) TO HAVE BEEN INCURRED IN THE I'UKSIilT AND CAPTl UK OF CONFEDEKATE (IIILISERS. KFFOIITS MAIH: TO CAlTlIlfK CONI- KDKItATK CliUlSKKS. AlwMJAMA. The United Stiites in thoir Counter Case, while (UMiyinj;- the pertiiit'iuc of the point to the (jnestions at issue, reiterate the assertion that thcv " made great ell'orts and incurred great expense^ in their ellorts to eiip turc the Ahibanui.'* It is not proposetl in this pai)er to do more than nnike a passing reloi ence to the cases wliieh the British Government consiiU'rs point to an ojjposite conclusion, and which have been fully discussed in its Case and Counter Case: (a.) The Tuscarora's rcmissiu^ss in not following up the Alabama aftci getting away from Liveri)ool. (/>,) The escape of the Alabama from the San Jacinto at Martini(iiit'. on IGth Xovember, 1A(\2. [e.) Commodore Bell's remissness in not capturing her after she sunk the llatteras ott" Galveston. ((/.) Admiral Wilkes's interference with the Secretary of the ^'avv■s orders to the Vanderbilt; the failure of the captain of that ship to (;ain out the orders im])licitly when allowed to proceed in their execution, and his final abandonment of the [)ursuit at the Cape of Good Jlopi'. The (piestion now to be l. vii, «ti»]i(i.-ito Ut jki^i' T-iO. ANN'KX l>, KXPKNSKS OK ITRSt'IT, ,ii}\ sslnj; rolV'i' iihama afti'r Martiiiitiiit'. or she sunk the Navy's ll. Ol I SI ll VCSSt' As Mr. Welles, in tlie ssuiie I'eport to C«ni}j;ress, stated that " the Tiis- carora is now in ])iii'siiit of this pirate,'' (Alabama,) it may be taken that these or«lers wi're sent to her about the time that the Chippewsi was ordered to relieve her at Aljjferiras in watehinj^ the Sumter. The Chii>pewa was at Cadiz early in November, 1(S<»2. It may therefore be assumed that she lelieved tlu^ Tusearora about thur tinu' ; but, as the Tuscarora was, in the months of Novmilu'r and Decendn'r, cruisinjj ortMadeira; was at (libraltar on the olst Decnnlier, 18(»li; at Cadi/- 1)11 ro the ITfli .lanuary, lStl.{; subsequently paid t".o, if not three, visits Madeira ; was a;^°ain at (iibraltar on the ITtli rdar(;h,' and completed licr cruisi', it is presumed at Miune port in the Cnitetl States, on the l.'Jth April, (See Synopsis of Orders,) she could not possibly have put the lU'dcrs into execution. The nauu' of the Tuscarora does m)t appear in tlic returns of the I'uited States sliips-of-war that visited tlu' I'.ritish Islands in the West Indies s on this (M'uis(> uothiiij;' further is kmnvn.- •'». The San .huMiito, a suitable vessel, then iii tln^ West Indies; the Alabama had on the previous IStli Noveiiiber escaped from her at 3Iar- tinique. 4. The Mohican, a suitable vessel ; shecMiuld not have left the I'liited States on the " bellijicrent" mission of capturinj;' the Alabama, as on tlio 1 Ith November, 1S(>2, when api)lyiuy tor coals at liermuda, to ena- ble him to }»() to tlu' eastward, her commander, Captain (llisson, assured lioveriKU' Ord that " he was n<»t directly enj;aj;ed in any belligerent itpcrations ajiainst the Confeiiii>li Consuls. Mail Aj^cnts. Ac. wliicli can I"' iMcicliiccd for I lie satisfaction of t lp' Ai liit r.iluis, if so disircd. ■ll is more tlian prolialdc, iVcnn imiicalions met with in liacinii out tlic i)roc('cdiii;j;s "I iilliiT I'nitcd Stales cniiseis. I lial , had lime iiermilled. jiiiod reasons would have I'i'cii iliseovered for sunj^cst inn alialemenls on accDunl of lliis eiiiise, the claim for '•Ma(hi,>at the rate of neai ly .■r'I,.'!UO a day. Indeed, il mi^hl he cr|nall.\' ilesirahle to iiiilcasor to trace out, the proceediu^is of other vessels, w hich an; wholly unknown, i'Xcc|ii so tar as staled in the synopsis of orders, such as the .\u;;usla, 'l'iconilero;;a tVc; 'lie claiais on their account were iiecess.-irily tnated. in the foimer ri'poit, as adinissi- lile ill the hypolhelieal sense there explained, liiU further li^ht iiiiuht diseovei', as in -1) uii.iiy other cases, errois which would Justify alialeiueiiH. I; i ■ ■\r}2 lUnriSII AKUI MKNT. «h • I a. Oinviinl. 7. Hiihiiu'. H. I no. 1>. St. liOiiis. ^ Sjiiliiiji-vi'ssels, oltvioiisly iixrU'ss in imrsiiiii;; tlic Alahaiiiii, and wliosi^ tMiiployincnt on nu('Ii s(>rvio> was 4oninn(', A|>|>4>ndi\ to tlio liritisli Caso, vol. vii, p. r>.S,) by 3Ir. Adatns in his di.spiitch ' to Mr. St'wai'd, lUtli .May, l.S«lt, after a conversation witli Prince do .loinvlMe on the inutility of I'nittil States sailinjf sidps in ICnropean waters, «S:e. Sim. ihir opinions were expressed by the captains of tin; (JonsteUation, St. liouis, «S:e. Adnnral Wilkes's tlyin/jf sc|nadron <*oidd not, from a previous inentioti made of its special duties in the same Report, p. vi, have been inirltuicil in Mr. Welles's "rieet." It is thus seen that, exe«*ptin}j: the Tust-arora, Mohican, I)aeotali,aiiti the useless sailinj; ships, Mr. Welles's " tieet" is reduced to two vessels. although at the time he could boast of having iu«*reased the Unittd States Navy to 427 vessels, and L'.S,(MM) men ! Turniii};' now to the ships in pursuit when Mr. Welles made his iioxt Report to Conjiress, viz, on the 7th DecendK'r, l.S(»;j, the Alabama tlu'ii being in the lu^ghtof her car<'er, the Synopsis of Orders gives the f(»l lowing ships as so engage«l : 1. A'anderbilt; but on the L*7th t»f October she had abaiidoued the j)ursuit,' and on the 7th Decendier was making her wav back to tlic United States. 2. jMohican ; this shii>, whicli, as will be siibse<|uently shown, com menced her pursuit of the Alabama on the iMh -May, l.Sd.'t, from tin- Caite de V«*rds, also, on the 1 1th J)ecembei-, iSlj.}, abandoned the pni suit at the Cape of (lood Hope, an«l turned her head westward. Slic was at St. Helena on the L'lMh December, on her way l»ack to the IJiiitetl States.' Had she lemained at or near the Cape, or the Mauritius, oi gone to llourbon (where she could have coaled) for a few weeks, siic would have learnt that her chase had gone to the Kast Indies. Insleatl. however, of so doing, her t'aptain retraced his st«'ps homeward, in s|»ir«' oi' communit-ations lie ha iMitail a heavy hnrch'n i>i" nseh'ss ex|>ense, and retain in ntter inactivity a eonsidcra'ili- nnniher of tlie best etass of oiif nsel'nl seamen. It. wonld bo qnitc as well for rih' lonntry if tlu'V were oii appear in the Iiiiliaii Ocean."' :;. (Miwaril. i I. Ino. [The sailing s]ii|>s alieatly disposcMl of. ,".. St. liouis. \ li. liliode Island, stationed oil tiie liahamas. and, like the De Suto, |i< rtiiiinin;; precisely the same duties is Admiral Wilkes's llyin;;' s(|uad- 1(111, I, see post, p. .SS.) 7. l)e Soto; the same oil' the Havana. (Ai'i>endi\ to iJritish Case, vol. vli, p. li.) s. Wyoming. This ship, with the sailinht' was, at the very time Mr. Welles was makiiifj tiiis Jteport, well i)laee(l to intercept the Alabama, boinjj near the Straits »)f Sunda when tlu' lat- ter passed throujiii thorn. The Wyominji'.N further proceedinj^s will be siiltseqnently dealt with. It is thus seen that, within a very few days of the date of Mr. Welles's Kt'port, the ('hase, pursuit, or search for the Alabama was practically reduced to one elhcieiit ship, the Wyomiii<>', and she, as will be elsewhere shown, virtually, on the 1.3th of the followinj; February, }j:ave up the imrsuit, or did what, as far as any claim on account of the Alabama is loiicerned, amounted to an abandonment. Findinjf the Confederate had |irobal)Iy left the limits of his station, lu'r commander conceived the orders he was then acting under did nor Justify him in followinj; the Ala- liaiiia beyontl such limits. And yet, at this time, Mr. Welles could justly make the yet prouder boast that the I'nited States Xavy consisted of iss vessels aTul i{i,0(M) men, exclusive of otlicersl From this period to the date of the Alaltania's i>einj; sunk, the chase, inustiit, or search was couHiumI to — 1. The Sacramento, a suitable vessel, ordered, on •' the isth January, 1S((4, to cruise to the Cape de Verds, llrazil, Cai»e of (lood IIoi)e, ami theaeo to the eastward, or to Kuroi>e, accordin:^ to news of the Ala- Laina." She was at Table Day from the 20th April to tlie ."»th May.- Learning- there, doubtless, that the Alabama had sailetli of June; it has not yet been ascertained on what day she arrived there, but tifty-six days would seem to have been a very long passage lor a powerful full-rigged ship like the Sacramento, with a speed under stci\in of 12.^ knots, to have made in time of war and iu the actual pur- suit of an enemy. She may, therefore, have arrived at Lisbon some time hetore the lit)th June, or have touched at some other European i)ort. Although probably in want of stores and supi)lies, she does not a|)pear t(i have called at Cadiz, w hich was then the depot for the United States ships. -. The Kearsarge, from the time she left Flushing till siie sunk the Alabama. ■ ). The Wachusett, a suitable vessel, and ordered apparently to limits judiciously chosen to inti->''i''^ the Alabama on her return westward, i^he was, however, so fr((pu;i!r.y to be found during this period in the ports of Brazil, that she c j'fii! stave spent but little of her time in cruis- ing near the equator. Th AU bama, on the 2d Ma3% 1804, (having for tt'ii days previously been on tlie track of the homeward-bound Facitic I •:>< 23 'Appendix to Cas«) of the United Stiiti's, vol. i., p. 250. * Appendix to British Ca8o, vol. v, j). 'i'iH. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 141 _ S IIIIM IIM 2.2 m 2.0 1.8 1.25 1.4 1.6 -m 6" — ► V] <^ /2 es 'c>l c'l 0%. J»>' '/ W w Scioices Corporation 33 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 873-4503 A^ &? '^ 1- ' L<'/ ^ fe% WWmr^^^r'^ 354 BRITISH ARGUMENT. ■';:-i ships,) was, according to Admiral Semrnes, at " our old toll-gate at the crossing of the 30^ parallel, where, as our reader will recollect, we halted on our outward passage and vised the passports of so many trav- elers. The poor old Alabama was not now what she had been then. Her commander, like herself, was well-nigh worn down." ("Adventures Afloat," p. 749.) Where was the Wachusett about this time ? At Bahia on the 31st March, at Peruambnco on the 27th April, at Bahia again on the 13th May and on the 11th June. It would seem from the translation of a dispatch from Mr. Webb to the Brazilian Minister for Foreign Aliairs of the IGth of October, 1804, given at page 142 of the first volume to the Appendix of the British Case, that her commander was then more concerned in opposing the wishes of Mr. Webb and the United States Consul at Bahia than in following up the " rebel" cruisers. The claim on this ship's account has been considered admissible for the Arbitration, (in the sense explained in the Admiralty Report ;) but it will be here- after shown that subsequent investigation warrants the suggestion that a considerable abatement should be made from it. 4. The Niagara, a suitable vessel ; but the postscript to the Admiralty Report will have shown that this ship was sent to European water:> oa account of the ironclads and corvettes which were being built in Fraiioe for the Confederates.' It is therefore clearly demonstrated that, when the Alabama Mas sunk, the United States cruisers in actual search of her (including tbc Wachusett and also the Kearsarge for nine days) were only three, out of a navy which by this time must have numbered over GOO vessels. FLORIDA. m->-^ Pursuing the same course of inquiry, and only incidentally alhuling to the acts of remissness on the part of United States cruisers in regard to the Florida, viz : allowing her to get through the blockading squadron into Mobile ; allowing her again to pass the blockading squad- ron, and get out again ; it will be found that, at the date of Mr. Welles's Report to Congress of 1862, no cruisers were in pursuit of that Con- federate vessel, then blockaded in Mobile ; nor, indeed, does the United States Counter Case contend that the pursuit in her case was effective. It simply states " that it is scarcely necessary to say that the United States deny the allegations regarding the supposed negligence of their Navy." The Tuscarora, as already shown above, was never in the West Indies in pursuit of the Alabama or Florida, although she was ordered there for the purpose. On her escape from Mobile, the R. R. Cuyler — a suitable vessel— was sent by Admiral Farragut in pursuit of the Florida, and continued to cruise for seventeen d.ays. It is not known that there is any official account of her cruise published ; but a letter,^ purporting to be from au officer on board, and dated 21st January, 1803, " oif east coast of Yu- catan," after mentioning that they had pushed on to Cape Antonio, hut had lost sight of the chase, proceeds : " Had the Oneida accompanied us, as she was ordered to chance would have been double what it was. * * * "There were seven vessels of us off the port, (Mobile.) We had fifteen hours' warning, and her (the Oreto) only way out was through the uiaiu ship-channel, which, at the bar, is less than a mile wide. * * ' Appeudix tu British Case, vol. vii, p. 110. <• » * Putuam's Record of the Rebellion, vol. vi, p. 398. do, our ANNEX D. EXPENSES OF PURSUIT. 355 " Everything was done to incre.ase our speed, but the utmost was 12^ linots. 1 have seen the ship go 14. " The prime cause of her escape was neglect to prep.are for her ; and remembering Commander Preble's case, 1 think the Department will soon decide where the fault lies." At the date of Mr. Welles's next Ecport of Congress, on the 7th De- cember, 18G3, there was not a single vessel in special pursuit of the Florida, nor had there been any sent during the previous twelve months, except those already named. From this date to that of the Florida's seizure in the Port of Bahia by tbe Wachusett, the following were sent in pursuit of her : 1. The Ticonderoga — a suitable vessel — which appears to have been withdrawn from the protection of the Fisheries, on tidings that the Florida had re-appeared off Bermuda, in June, 18C4. She touched at Barbadoes on the 8th August,' but nothing further is known of her proceedings. 2. The Pontoosuc — a suitable vessel. She appears to have been the only vessel of those out on the 12th and 13th August, 18G4, in pursuit of the Tallahassee, whose orders embraced also the Florida. 3. The Niagara — a suitable vessel — but, as already shown above, she was not sent in pursuit of the Florida ; further references to the same eft'ect will be given below. It is thus seen, if no " grciit efforts " were made and no " fleet" was dispjitched to capture the Alabama, still less were any serious efforts made to capture the Florida ; and this assertion is advanced with a full recollection of the intermittent and fitful attempts made by the Kear- sarge to blockade her in, and capture her after leaving, Brest, in the performance of the ordinary duties incidental to a state of war, and when, as shown by the synopsis and her actual proceedings, the Kearsarge was not detailed for the actual purs^nt of any of the Confederate ships iu Class I of the Admiralty lieport. None of the sailing-vessels are stated to have been sent expressly in pursuit of the Florida. Her escape from the Saint Louis at Madeira on the 29th February, 1864, is, however, a further apt illustration, if fur- ther proof could possibly be needed, of the utter unfitness of the sailing ships for the service of following up these vessels. " I have little hopes (said Captain Preble) of bringing her to action with my canvas wings, though I shall follow her to sea, if practicable, and try," with what re- sult might easily have been divined.'^ GEORGIA. Tlie United States, iu their Counter Case, sec. vii, par. 5, state that, "when Her Majesty's Government made the statement that no serious endeavor to intercept or capture the Georgia appears to have been made on the part of the United States, it was mistaken." No trace, however, of any such endeavor appears in the synopsis of the orders to the United States cruisers, where she is not even named ; and the only ship known to have gone in pursuit of her was the Niagara, which captured her when it vaa notorious she had been dismantled and sold, and was char- tered as a merchant-ship to the Portuguese Government. There is no act of special remissness on the part of any United States cruisers averred in reference to the Georgia. It would seem, however, from the translation of a letter addressed on the 2l8t May, 18G3, to Mr. 'Appendix to British Case, vol. v, p. 220. ^ Diplomatic Correspondence, 1864-'65, Part iv, p. 297. .;; '<^ fei.i.f:, mm^ 356 BRITISH ARGUMENT. ■VYebb, the United States minister at Eio, by a Mr. Grebert, an "intoUi- gent Gernian gentlemen,"' that the Mohican had been in sight of the Georgia oft" St. A'incent, but it would not appear that she followed her up. Mr. Grebert stated, " A\'e were informed at Saint A'incent, Cape de A^erds, that a few days before our arrival, a steamer had appeared in sight of the port, but had immediately disappeared. It is supposed that this steamer must have been a secessionist privateer." Mv. Grebert had previously said that the INIohican was at Siaint Vincent, and that he " there gathered information that in the neighboring waters anotliei vessel of war was cruising, supposeersonal communication with the United States Consul, to get on her track, the Iroquois went to Penang, from whence, on or about the 2d March, 1805, the senior British naval officer in the Straits of Malacca reported to his commandcr-in chief, Vice- Admiral Kuper, then in China, that "the United States sloop Iroquois has appeared at Penang, with the avowed intention of eiidea\ oring to intercept the Confederate cruiser Shenandoah." On the 29th May, 1SG5, she is reported to have been at Singapore, ami still in search of the Confederate steamer Shenandoah. She was thus probably for nearly three months in the Straits of Ma lacca and its neighborhood — in fact, near Batavia — the destination indi cated in, and therefore it may be presumed obeying, her original orders, which, as before stated, could have had no reference to the Shenandoah. In June or July she must have quitted her station, for on the 12th August, 18G5, she was at the Cape on her way back to the United States. This step of returning homeward could have had no reference to the Shenandoah. She called at St. Helena on the 25th August, 18G5. While there, her commander informed the Governor that he had taken otf from Tristan d'Acunha the people landed from the Shenandoah and conveyed them to the Cape of Good Hope in the early part of that year; and, also, that " he had been to the eastward in search of the Shenandoah, and believed she had proceeded to the Pacific, where it was to be apprehended she might do some mischief among the American whalers in those regions."^ On a full review of these facts, and with the light thrown on the Iroquois's proceedings by this conversation of her commander with the Governor of St. Helena, it cannot be seriously contended she was ever in actual or even constructive pursuit of the Shenandoah. She left England with no such orders; it is not averred in terms that she or any other United States cruiser ever had such orders ; she never deviated substantially from the orders laid down for her guidance before proceed- ing to her "distant station;" while on that distant station she never went far from Batavia, the final point named in her orders; and her commander avowed that he quitted the station with the belief (as was the fact) that the Shenandoah was destroying whalers in the Arctic seas. Surely no proceedings can be less unlike "pursuit" than those of the Iroquois; that her officers should, while in the Straits of Malacca, have named the Shenandoah as the then special object of their quest, ' Appendix to liritish Case, vol. v, p. 22;). * Ibid., vol. V, p. 22\). ANNEX D. EXPENSES OF PURSUIT. 359 was natural, since she was then the only "rebel privateer" known to be in existence, and they would have said so in good faith, but of course witli no notion that the whole cost of their cruise was to be eventually claimed from Great Britain. If such a claim were admissible, a similar claim would bj equally admissible on account of every United States ship of war of suflicieut force then in commission, since, if the Shenau- tloah had ftillen in the way of any such ship, it would have been the duty of that ship, as it was that of the Iroquois, to capture her; but this is not, cannot be, "pursuit." It is therefore obvious, from this further investigation, that the Admiralty Committee were fully Justified, on every groniul, in considering as inadmissible the claim made on her account. Tiie claim made in the United States Case for the pursuit of the Shen- andoah, the asseveration in their Counter Case that " Ilcr Majesty's Gov- ernment is mistaken in its belief that no endeavor to intercept or capture the Shenandoah appeared to have been made by the Government of the United States," and the large sum involved in this claim, amounting, without interest, to no less than $329,805.08, will, it is hoped, afford good and substantial grounds for thinking that the labor and reseirch expended in the investigation of this particular case have not b'^en fruitless. IXAl)E(iUACY AND WAXT OF CO>'CKRT OF UNITED STATES NAVAL FORCE ABROAD, ETC. The United States ministers abroad were constantly calling the atten- tion of their Government to the inadequacy of their naval forces to arrest the career of the Confederate cruisers. Messrs. Adams, Dayton, Pike, Perry, Webb, Harvey,^ one and all at different times dwell on this theme ; but when the letters on the subject (and many of the consuls made similar representations) were referred to Mr. Welles, he may be said to have acted always as if he regarded this question as wholly sub- ordinate to that of the blockades; hence it is seen that the most suitable vessels were taken from the pursuit to re-enforce the blockading squad- rons, without regard to the injury which the depredations of the Confed- erate cruisers were inflicting on the United States commerce. Some- times he explained that it was want of men which prevented him from sending a greater force in pursuit;^ but with the number of seamen at his disposal, 28,000 in 1802 and 30,000 in 1803, exclusive of officers, this excuse would seem to be of little avail when the facts are sift^ed. How- ever, besides this notorious inadequacy of force to compass the ends which it is submitted the United States Government ought to have had in view, and to have considered a necessary, if not the first, duty, there were other causes in operation which are disclosed sufficiently in the correspondence laid before Congress and the House of Representatives, and which tended to impair the efficiency of the small force detailed for this special service ; they were — (A.) The absence of any communication to many of the different lega- tions of the movements of the several men-of-nar in European waters, of which there are many complaints. (B.) The fact that there was no naval head or senior officer in Euro- pean waters ; each ship appeared to act independently and for itself ; there was a consequent absence of all concerted action. 'For instances, see Diplomatic Correspondence, 1862-63, part li, pp. 908, 980, 1278; 1864-U'), part iii, p. 323; part iv, pp, 275, 302, 319, 325 ; ISGr-'G^, part iii, p. 102. * Diplomatic Correspondence, 1864-'65, part iii, p. 42. ^ >? 9m 360 BRITISH AR(;UMENT. From tliese caust's coinbined, which may be abuiKhintly proved I'loni the United Htates documents, and which were — (a.) Insnfticiency of force; {b.) Ignorance of movements of the ships on the part of United States Ministers ; (c.) Independence of action on the part of each sliip ; it may fairly be inferred that the United States Government did not " actively and diligently exert their naval power" to arrest the courso of the Alabama or the other Confederate cruisers. KlMiOKS IN THE SYNOPSiS OF OliDEIlS. Frcijuent rofereiiee is made in the Keport of the Admiralty Couuiiirteo and its Appendices, as well as in this paper, to errors in the syno[>si.s of orders ; a few fresh illustrations may not be inapt : («.) The Chippewa is stated to have been watching the t'umtor at Algeciras to the .'>()th ^lay, 18(53. Now not only, as is well known, liad the Sumter left Gibraltar as an unarmed ship on the previous stli ot February,' but the Chippewa was herself with some of Admiral AVilkos's shii)s in the West Indies, at Cape llaytien, on the L*lst May, ISiJ.'!, ami at Nassau, " from St. Thomas,'' on the 2Gth May.^ She had been at Cadiz on the 12th February, and again in March, and she was at Ma- deira in April ; hence the synopsis must oe in error in stating that she was watching the Sumter at Algeciras to the oOth May, 1803. (/;.) The Kearsarge. — In the admiralty report it lias been noticed witli reference to this ship's orders of 30th September, 18G2, " to capture tlie Eappahannock or other rebel privateers in European waters," that the synopsis must be in error. Mr. Welles, in his report of the 1st December, 1802, stated, at '• last Jidvices (she) was also in pursuit of the 200," (page 23.) In the United States Case she is stated to have been at Gibialtar "with the Tuscfirora, watching the Sumter, and it is implied that this was continued till that vessel's sale. The Kearsarge was, in fact, about the time to which Mr. Welles must have referred to, viz, on the 30th Septeuilcr and on 3d November, watching the Sumter at Gibraltar,^ and on the 4th November she nas at Cadiz ; she was certainly not in pursuit of the Alabama, which ves- sel was then in the AVest Indies. (c.) Ino. — There is a claim on behalf of this sailing-ship for fifteen months for convoying the Aquila with the monitor Caminiche on board. Now the Camanciie, on the 1st February, 1863, was building at Jersey City, and on the 14th March of the following year, was at San Fran- cisco, California.^ It seems more probable that there is a further errror in the synopsis than that this service should have taken tifteen months to perform. {d.) Juniata. — From the synopsis of orders, the dates given, and the amount of the claim on her behalf, it would be inferred that this ship commenced her service with Admiral Wilkes's squadron on the 4th December, 18G2 ; whereas she did not leave the United States for nearly five months after that date. A correspondent of the New York Herald, writing on the 22d January, 1863, says that tie Juniata, ' Appemlix to British Case, vol. ii, p. 57. '^United States Navy Report, December, 1861?, p. 557 ; Appendix to British Case. vol. V, p. 225. ' Appendix to British Case, vol. v, p. 229. ••United States Navy Registers for 1863 and 1864. ANNEX D. EXPENSES OF ri'KSUIT. 3(U whicb had been nmler sailing orders siiue November, was still at Phil- adelphia, being detained by a defect in her machinery, (Neiv York Her- ald, January liG, 1803.) She went to Fortress Monroe on the 17th March, and sailed for the Havana on the 2r>th April, 18G3, (see New- York Herald of that date.) The United States Navy Jlegister for 180;t shows that on the 1st Febriuiry, 1803, she was in Hampton I'oads, and not with the West India squadron. (e.) The Connecticut. — To cruise between IJermuda and Nassau to watch for the Sumter from 3d August, 1803, to 7th September, 1803. This claim is made for a period when the Sumter, as admitted in the United States Case, p. 88, had changed her character, and become the Gibralt.ar. She sailed from Liverpool on the 3d July, 1803, as a merchant-vessel without armament, with a cargo of warlike stores for Charleston, ^ and the Connecticut was doubtless employed to look out for her; but as she was then simply a blockade-runner, or a merchant- ship, with contraband of war on board, or both, it is clear that under 110 circumstances could this claim be admissible under the treaty. (_/'.) Tlconderofia. — In a note in the appendix to the report of the ad- miralty committee, ^ attention is called to the fact that between jMay, 18G3, and June, 1801, although her cost is claimed, no service is given in the synopsis of orders for the period. This was not an omission to specify the service, but an error in the dates and charges ; as within the period, for which it would otherwise be inferred she was in pursuit of Confederate cruisers, she was actually under repairs (had " work done*') at the navy-yards of Brooklyn; Charlestown, Massachusetts; Philadelphia, and Norfolk, respectively ; ' and she is shown in the Navy Kegister for 1801 as being on the 12tli of ]\tarch of that year "ready for sea at Philadelphia. "' Again, it is obvious that she could not have been employed in the Culfof Saint Lawrence protecting the fisheries (lurii)? the winter. [g.) Siaf/ara. — The claims on account of this ship and the Sacramen- to have been already dealt with in the admiralty report and its post- script on the grounds — 1. That they are generally inadmissible. 2. That they extend far beyond the existence, as confederate cruisers, of the vessels on account of which the claims are nmde. 3. That they extend to periods long after the cessation of hostilities. But in addition to these fatal errors or objections to the claims, the following are also obvious errors : 4. Mr. Adams stated that the Niagara had left France for the United States on the 8th August, 1805;* the claim, however, embraces a period forty-four days beyond that date, although a vessel of her speed could hardly have occupied that time in making the passage across the Atlantic. 5. The Niagara accompanied the llussian squadron, which convoyed the remains of the Czarovitch from Lisbon to the North Sea, and for ^bich act of courtesy the Ilussian government expressed itself deeply sensible and grateful to that of the United States ; but, through a manifest error in the synopsis and in the claims, the cost of the ship for this period is claimed against the British Government. ^ (A.) Nereiis. — The claims for this ship on convoy service embrace a ' Appendix to Case of the United States, vol. vi, p. 203. ^Appendix to British Cae3, vol. vii, p. 75. ^ United States Navy Report, December, 1864, pp. 1,005 et scq, ^ Diplomatic correspondence, 1865-'66, part i, p. 572. f' Ibid., part iii, p. 127. ,;i ■'■' fii&,v«J^ 362 BRITISH AROJJMENT. period during which she was employed with the fleet at the attacks on and final capture of Fort Fisher between 24th December, 18G4, and lotli January, 1805.^ She may have been employed on this service for a much longer period, and she, as well as her consorts in convoying duty, may liavo been often similarly withdrawn during the periods embraced in the claims, as it is only incidentally that errors of this character can, in the absence of complete information as to the orders and the movements of the United States cruisers, be discovered. It is thus shown that tliere is a suflieieiitly large number of patent errors in the synopsis of orders to warrant its authority on matters of fact being questioned, when other data, generally derived from United States official documents, point to dilierent conclusions. They are ad- duced with this sole object, as they generally refer to claims which have not been regarded as admissible (on the hypothesis ex[)laii,ed iu the admiralty report) under the treaty, and consequently it has not beeu thought necessary to give their money value. ADMIKAL WILKES'S FLYING SQUADROX. The total amount claimed for the services of this flying squadron, which originally consisted of one converted merchant-steamer, four second-class steam sloops, three paddle-wheel steamers, one sailing-ship, one sailing store-ship, and one sailing-ship occasionally, if not always, used as a coal-ship, is so large ($1,457,130) that it may not be thought an abundance of caution to add to the reasons which the admiralty com- mittee justly looked on as conclusive why these claims should be con- sidered wholly inadmissible : 1. The accounts of prizes captured by United States cruisers, which have beeu carefully examined, the returns of visits of United States ships-of-war to British West India Islands, and the incidental notices scattered here and there in the reports of the Secretary of tiie Navy to Congress, in other official papers, and in the newspapers of the day. abundantly prove that for the periods respectively claimed none of these ships, though the squadron is called '' flying," proceeded beyond the limits officially designated by Mr. Welles as the " West Indies." When finally broken up under the command of Admiral Lardner, Admiral Wilkes's successor, Mr. Welles spoke of it as the " West India squadron ;"' the term "flying" is an ex post facto designation. 2. The continuance of this squadron as an organization had no refer- ence whatever to the confederate cruisers, but solely to the duration of the trade at Matamoras. Mr. Welles stated in his report of 7th Decem- ber, 18G3, (page viii,) that " the occupation of Rio Grande and Browns- ville (13th November, 1863) has put a final termination to the lately ex tensive commerce of Matamoras, which is becoming as insigniflcant as it was before the rebellion." Now at that date the Alabama, Florida, an«l Georgia were in being as confederate cruisers, and yet so little were their i)rooeedings heeded in reference to this "flying squadron" that, taking the dates from the synopsis of orders, when that report was written the squadron had dwindled down to — The Tioga, a paddle-wheel steamer of 809 tons ; The sailing-vessel Gemsbok, which was frequently, if not always, used as a coal or as a store ship ; And the sailing store-ship National Guard. 1 United States Navy Report, December, 1865, pp. 28, 77. 2 Ibid, December, 1864, p. xix. ANNEX D. EXPENSES OF PURSUIT. 363 ,'eiueiits of It (?iuin()t be aiipposeil the Tioga was ever afterward detached from ^\(lmiral Lardner's squadron or sent in the actual jmrsuit of any of the cont'edcrate cruisers, (all then on the other side of the Atlantic,) since on tlio L'4th March, 1804, she was off Elbow Light, (IJahamas,) and it may be assumed slie was within the limits assigned to her by her orders until the claim on hei account ceased, viz, 27th June, 1804.' All the other vessels stated to have composed this scpiadron had, at (lirt'orcut times, been i)reviously withdrawn, and were afterward to be found attached to blockading squadrons. The words " stated to have composed'' an used intentionally, as it is impossible to reconcile the dates given in the abstract of the claims with those given elsewhere ; for instance, in the case of the Juniata, as already bliown, there is an error of nearly live months ; in the Navy llegister for January, 18(J3, the Gemsbok and the Oneida are shown as attached to blockading squadrons, an«l in that for January, 1804, the Tioga is named as attached to the East Gulf blockading squadron — duties palpably in- consistent with the pursuit of the confederate cruisers. Tlie claim on account of the Oneida commences on the very day (IGth January, 1800) that she allowed the Florida to escape from Mobile. It is believed that after that date she continued to be employed in the blockade of that i)ort, as she is stated in the Xavy Ilegister for 1SG3 to have been attached to the AVest (iulf s<(uadron on the 1st February, 18C3. MISCELLANEOUS CASES, Xot (itjccthig the claims eo)isit1eyc(l h\f the admiralty committee as admissi- ble {npon the hypothesis explu'ncd by them) for arbitration. VANDERBILT. 1 It should be borne in mind that, notwithstanding her superior speed and armament, the Yanderbilt was an untit vessel to send in pursuit of the Alabama, since she was wholly dependent on her steam-power ; hence, after making a passage, if she could not replenish her coal, she \va8 powerless ; this explains parts of her proceedings. On her way to the Cape she, in obedience to her orders, -went to Fer- umdo Noronha, Pernambuco, and Rio, there coaled, and notwithstand- ing she was in pursuit of an enemy remained in port nineteen days. ^ As a matter of fact, if she had staid there about live or six days and sailed on the L'Oth July direct for the Cape, (as she was ordered,) she would, instead of never meeting the Alabama, have found her in Table Bay. From liio she, however, went to St. Helena, there took all the coals she could get, (400 tons,) but on her arrival at Simon's Bay (where it was not known that she had been at St. Helena) she was again allowed to coal, taking nearly 1,000 tons. * After remaining eight days " paint- ing ship," (so Semmes says in " My Adventures," page 608,) she again put to- sea and went to Mauritius, where she was again allowed to coal, (though under what circumstances, or what representations her captain made to the governor, it is nowhere stated,) but there is another unac- countable delay in port of seventeen days ; ^ she returned to Table Bay, ' Uniteil States Navy Report, December, 1865, p. 485 ; Appendix to Case of the United States, vol. i, p. 360. ^ United States Navy Report, December, 1863, p. xxiv. 'Appendix to British Case, vol. V, pp. 228, 934. ^Ibid.,p. 233. ill' 364 Hinnsil AKdllMENT. n ami made arraiiffcineiits to coal before obtainiug nerniission ; tliis wa^ of course refused, aiul her coaling stopped, but not until she liatl tui.oii nineteen tons on board. Tlien hearing, doubtless, that there was coal at Angra l*e(|ueria, her captain went there and took possession of it saying " ho must have coal,'" and with this supply he went to St. Ik-una and iiahia, where doubtless he obtained a further supi)ly, thenco to Barbados and to the United States. These facts prove : 1st. That the Vanderbilt was not fitted for the pursuit to such distant regions, where supi)lies of coal were limited, owing to her haviiij; no sail-power. 2d. That in addition to deviating from her orders she exhibited uo haste in . Semmes describes her as having a more powerful battery and double the crew, but that the Alabama had the " speed of her ;" however, it may be assumed she was not an unsuitable vessel to have been sent in the pursuit ; she was, as will be subsequerttly shown, withdrawn alter being about two and one-half months on this service, and was afterward attached to the eastern blockading squadron. li the arbitrators consider that she is proved, as stated at p. 138 ot the British Counter Case, to have been remiss in allowing the Alabama to escape from ^[artinique, a question would then arise whether any portion of the claim made in her behalf Avas admissible, and whether such claim (if any) could be carried be3'0ud the date of the AlabaiuiVs escape. AIGUSTA. Nothing is known of her cruise, which only lasted ten weeks, ami consequently, though she was a suitable vessel for the service, she must necessarily have performed it in a very perfunctory manner. She does not appear to have called at Dermuda or any of the British West ludiii Islands. She was afterward employed in the Xorth Atlantic bloekiuling siiuail- rou.' DACOTAlI. Also a suitable vessel ; was withdrawn after but one month's service, and for the same service. NIAGARA. It may possibly be thought unnecessary to accumulate further proots as to what was the actual employment of this ship, since the postscript to the admiralty report, and the United States official documents thereiu mentioned, will, it may be considered, have proved, conclusively that she ' See " Correspondeuce respectiug tlie capture of the Saxon by the United States ship Vanderbilt," laid before Parliament, (North America, No. 2, 1864,) pp. 1, 7, 12. ^ See Navy Register, 1863 ; also, Navy report, December, 1863, p. 56, and Synopsis ot Orders. ANNEX l>. KXPKNsivS OF riKsriT. 365 tU\s service, was not SLMit to Europe in pursuit of any of tlio Coiifodorato vossols mimod in tho United States t'liso, bht to v. atch tlie vossols then being constructed for the Confederates in Freneli ports. Tlie chiini, however, lortliis ship is so vast in amounl, (>Jti,) that it is thouj-ht better, at the risk of bein;:? prolix, to give other ^notations from United States sources wliicli have been met with, and whieli are very ]tertinent to tlie contention tliat she never was engaf^ed in pursuinj;' the Alabama or Florida. True it is tluit on the L'Stli April, ISGi, Mr. Adams informed Mr. Sew- ard tliat the Alabama was "reported at Cape Town, ami about to come to rrance;"' and as the ^^iagara left the United States the end of tho Ibllowing mouth, it might be not unmiturally inferred that she was dis- patched to JCurope in consequence of these tidings, and hence that she was sent in pursuit of the Alabama ; but a dispatch from jNIr. Seward to 3[r. Adams of the 28th May, when that of the 2.Sth April must have 1)0011 receiv^ed, effectually disposes of this liypothesis. '"■ The Niagara," Mr. Seward stated, " will go to Europe on >V"eduesday next. * * * We have adopted this policy, not alone on account of the naval expe- ditions with which we are threatened from IJritish ports,^ but also be- eanse we have not l)een able to procure entirely satisfactory assurances from the French Government," o. f., about the vessels building at Bor- deaux. Mr. Adams had, two days before, (2Gth,) written to 'Mr. Seward to this effect: "My impression i that hereafter the base will be substan- tially transferred to the othc i ^ide of tho Channel," and he also refers to the four vessels in process of constvaction in France.' Attention has been already cidlcd by the committee to the Niagara being " without orders." Mr. Harvey, the United States minister at Lisbon, writing to Mr. Seward on the 29th November, 1804, confirmed this curious and important fact in these terms : " In saying that I refer to the fact that the Niagara has been practically tied up for several months at Flushing, Antwerp, and the British colonies," (query, Chan- nel,) "and, as is understood, waiting for orders whi(;h are to regulate her further movements."* Can it still, in the face of the overwhelming evidence to the contrary, be seriously contended that from 30th INFay, 1804, to the 2()th Septem- ber, 1805, the Niagara "was cruising in the North Atlantic in search of the Alabama and Florida f MONEY CLAIMS— FuirniER abate:ments suggested. Where none are suggested the cniisers are not named. TUSCAEOBA. It has been already shown that she never went to the West Indies in pursuit of the Alabama and Florida, and consequently the amounts ^vbich were considered admissible, upon the hypothesis of the admiralty report, under the belief that she had carried out her orders, should be abat<^d as follows : 'Diplomatic Correspondeuce, 1864-'r);'), Part i, p. (341. -Ibid., part ii., p. 60. At this time the only f nifetlerate cruiser in a British port of tlie whole of those named in the United State's Case -was tho Georgia, then dismantled, ami known to be for sale; conseqnently, tho "naval expeditions " which Mr. Seward \vas apprehensive of could not have co-,»-iisted of any of the C jnfederate cruisers, which, Ity auy possibility, could be considered to come within tho purview of the treaty of AVashiiigtou. ^ Ibid., Part ii, p. 29. ■• Ibid., Part iv, p. 325. T^W^nWrffm^W^ 366 BRITISH ARGUMENT. Amount considered liypothctically admissible by the Committee |S0. 705 -jS Abatements sn gjjested on account of the Alabama $32, 7;{fi 29 Abatements sufjgested on account of the Florida '.12, TSO 9.9 or., 472 of< There would still remain a sum considered Lypothetically admissible, which refers to a period of six weeks before the Alabama left Liverpool, and to another of four weeks during which the Tuscarora was visiting British ports; she 111 illy went to Cadiz on the 2d September, 1863 ; amounting — _. to V!4.2l»:5 uo fiv.- SAN JACINTO. Reference has already been made to a letter from the Secretary of the Navy, giving details of this ship's proceedings ; but it is by no means a full report, as no mention is made of her visit to Martinique, when the Alabama escaped from her, nor does it mention the fact that alter this escape the San Jacinto was no longer employed in pursuit of the Alabama, but was attached, during a part of the period for which claims are made, to the East Gulf blockading squadron. This is shown in the Navy Register, where, on the 1st January, as well as on the 1st f eb- ruarj^, 18(>3, she is named as attached to this squadron, though the pre cise date at which she was withdrawn from the pursuit is not given. It the official Navy Register needed confirmation, it would be found in a correspondence from Key AVest of the loth January, 18G3, published in the New York Herald of January L'7, which stated that " she (the San Jacinto) comes from St. Thomas for supplies, and will, I nnderstaml be temporarily attached to the Eastern Gulf blockading squadron." Taking, however, the date given in the Navy Register, viz, 1st Jan uary, 1803, as the date of her withdrawal from the pursuit, tlie claims on her account Avould stand thus : Amount considered hypothetically admissible l>v the Admiralty Com- mittee \ §»)."), 421 41 Proportion now shown to be inadmissible lii, iSIi 'J(i Amount that may now be couisidered hypothetically admissible .... 4'J, 238 MOHICAN. It has been already shown why this ship should be considered tohfive been performing the ordinary duties on a foreign station^ until the Dtli May, 1863, when she left the Cape de Verdes for the Brazils, and may be assumed to have commenced her pursuit of the Alabama. She event ually arrived at Table Bay on the 11th December, 1863.^ Here, with out waiting to ascertain where the Alabama had gone, which she might have done (if he could not remain at the Cape) by proceeding to Bonrbou or to the Mauritius, her captain, like the commander of the Vanderbilt, gave up the pursuit, and on the 19th December turned his ship's heail homeward, w^here he arrived in April, 1864. Although a very suitabk' ship for the pursuit, and although when she arrived in the United States the Florida, Alabama, and Georgia were on the high seas, she was withdrawn from this special service, and was afterward employed on the North Atlantic blockading squadron. It is therefore clear, on these premises, that the (hypothetically) ati- missible claim on account of this ship could not extend beyond the ' That the Cax»e de Verdes was the foreign station to whidi the Mohican was pro- ceeding iu the ^)erformance of an ordiuiiry duty when she called at Bermuda miiy b" fairlv inferred from her being there on the 'ilst December, 18G2; 22d January, IWll) ; 20th February, 1803; 2l8t March, 1803; 22d April, 1863; leaving on the Uth May, 1*' for the Brazils. '^Appendix to British Case, vol. v, p. 228. •etary of the ANNEX D. EXPENSES OF PURSUIT. 367 period embraced between tbe 9th May, 18G3, when she may be con- siderfHl to have commenced the pnrsnit, and the 19th December, when she abandoned it, the amount of which could not exceed — Amouut considered by the Admiralty Committee asjlij-potbetically admis- B2r)S, 310 32 slble. .*a Proportirn now shown to he inadmissible 151,863 7(5 Amouut that may now he considered hypothetically admissible 106,446 56 WACHUSETT. Second cruise : She was, as before stated, a suitable vessel, and her cruising-grouud, well chosen to intercept the Alabama when returning to Europe or again going south. Although she actually captured the Florida in Bahia, the Admiralty Committee considered itself justified, by the synop- sis of her orders, in considering her as in search of the Alabama only; but, on the supposition that she was cruising near the line and making only occasional visits to Brazilian ports, it was of opinion that the claim was admissible up to the 10th September, thus allowing her three months to learn the fate of the Alabama. It turns out, however, as before stated, that the Wachusett spent a large portion of her time in port. The news of the sinking of the Alabama on the 19th June, 18G4, was taken to the Brazils by the French packet which left Bordeaux on tbe 24th June and arrived at Kio de Janeiro on the 18th July, at which (late tbe Wachusett must have learned the news, as she arrived at Eio (le Janeiro on the 7th July, and did not leave until the 3d of the follow- ing month, when she sailed for Bahia and arrived there on the 12th August. Hence the claim on her account for the pursuit of the Ala- bama would cease on the 18th July. The fact of her remaining in port sixteen days after the news arrived and then going on to Bahia is a fur- ther proof that the Florida was not a special object with her. The claim on account of the Wachusettjwould stand thus : Amount considered hvpothetically admissible [by the Admiralty Connnit- teo .' $ 1 45 , 036 66 I'loiiortion now shown to he inadmissible 3f^, 666 *J8 Amount that may now bu considered hypothetically admissible.... 107,269 68 RHODE ISLAND. This case is precisely the same as that of the Be Soto, and although she did not h.ippen to take as many prizes as that vessel, yet her actual positions from time to time can be sutiiciently traced to prove that she never went in pursuit of the Alabama, but was continuously employed on the same kind of service as Admiral Wilkes's squadron, in the imme- diate vicinity of the Bahamas. In the Navy Begister for Ist Januarj', 1861, she is given as belonging to the West Indian squadron, and she was Avithdrawn from the service before the sinking of the Alabama, showing that her employment was not dependent on the Alabama's career or movements. Tho Ehode Island's positions on the following days were : 12th May, 18G3 Hog Island, Bahamas. 21st-L'3d May, 1803 Cape Haytien. 30tU j\ray, 18G3 P^leutliera, Bahamas. l«th August, 18G3 Latitude 27° N., longitude 70° W.,' [(where .she captured steamer Cronstadt'.\value, $301,940.)i 'Appendix to British Case, vol. v, p. 2'2o ; United States Navy Iteport, December, i«)J, pp. oo7, 507 ; Diplomatic Correspondence, 1^64-65, part ii, pp. 4ia et aeq. tWR 4 I 368 BRITISH ARGUMENT. ii" T-. - ;' 1 t^ '' ; i 1 31 St August, 18G3 St. Thomas. IGth September, 18G3 St. Thomas. IGth October, 18G3 St. Thomas. As she therefore never went in pursuit of the Alabama, the whole of the claim on her account is inadmissible, amouutii g to $177,972.0(5. SACRAMENTO. With reference to the Postscript to the Admiralty Report, it now aj)- pears, as before stated, that the Sacramento was at Lisbon on the 2!)th June, 18G3, and must therefore on that day, if not before, either there or at some other European port, have heard of the fate of the Alabama. The(hypothetically) admissible claim on her account would consequently be subject to a further abatement of at least fourteen days, and would stand thus : Amount origiually coiiHidered hjiiotlietioally admissible by the Admiralty Committee . . . /. $112, 205 22 Abatement suggested by the Postscript to the Report G, KJS Tfl Further abatement now suggested b,'M9 IH Amount that may now be considered hypothetically admissible 97,441 'M WYOMING. Until the middle of 18G3 the Wyoming was the only United States vessel of war in the East Indies, including China and Japan, (the James- town sailing-sloop, sent to reinforce her, being at the Cape on the 14tli March. )^ When the orders of the 26th January, 18G3, were sent, as well as when they would have reached her headquarters, Macao, she had to perform the whole of the duties of this extensive station ; and, in fact, in July of that year, the Wyoming attacked the batteries of Simonosaki, in consequence of an outrage upon an American ship;^ hence, it would appear, she wa^ 'lot able to put the orders to proceed to the Straits of Sunda to watch for the Alabama into execution until the 25th Septem- ber, 1SG3. She was at Singapore on 1st December, having been near the Straits of Sunda when the Alabama passed through, early in ^Jovciu- bcr, and where she had been for some time on the lookout li)r the Alabama. After leaving Singapore she went to lUiio, where she remained loiij; enough to receive a ball from the Dutch, and give one in return ; and yet the Alabama had been burning shii)s almost within sight of her. She was at Labuan between 15th and 18th December,* " in search of the Alabama," and it is probable, judging from the dates, that she had a fair wind up the China Seas, that she called at IVEanila after leaving Labuan, and was repaired at the royal dock-yard at Cavite, as she was not at Hong-lvong until the 9th February.^' Here she must have hoard of the visit of the Alabama to Singapore ; that she had left on the 23d December, going to the westward, and that she was off Malacca on Christmas Day. Is'^ow, the commander of the Wyoming must either. o;i the 9th February, (a) Have given up the pursuit, or, (what amounts to the same thing. so far as any claim against Great Britain is concerned,) ' Appendix to British Case, vol. v, p. 228. ■^United States Navy Report, December, 18(3:1, pp. 558,561. ■'Semmes's Adventures Allont, p. 708. * Appendix to IJritish Case, vol. v, p. 2'J2. '• Ibid., p. 2-M. ANNEX 1). — EXPENSES OF PURSUIT. 869 [h) Have considered that he had fulfilled his orders; for, instead of ijoins to the southward, he reappeared at Hong-Kong on the 9th March.' At this time he probably received his further orders of the "21st No- vember, 18(5;i, to continue cruising until news of the destruction of the Alabama should reach her, then to return to the United States;" as in little over nine weeks (KJth May) she was at Table 13ay,^ and her passage tlown the China Sea being against the southwest monsoon, she must liiive proceeded immediately on receipt of these further orders; but whatever chance there may have been, had she proceeded in February and not then iiractically have given up the i)ursuit, in March she had none. Indeed, it is abundantly" clear that the Wyoming did not, when she arrived at the Cape, regard herself as in pursuit of the Alabama, but as simply homeward bound ; Since otherwise she would have followed the Confederate cruiser to Europe, which wns known to be her destina- tion. On the 28th April Mr. Adams (writing fiom London) informed }h\ Seward that the Alabama was " reported at Cape Town and about to come to France,"' information which he doubtless received from the Cuitod States Consul at the Cape ; Avho would also, without doubt, have imparted it to the commander of the Wyoming on his arrival there in May; but instead of following up the Alabama until he heard of her ilestrnction, (which, at all events, might have given a color to tiiis part lit' the claim, which covers the cost of the ])assage of the ship from her station, China, to tlie United States,) he, notwithstanding his positive orders to that ett'ect, appears to have made the best of his way to the United States. It would thus seem that the period for which a claim (tould be made lor this ship could not extend beyond the nth Februnry, 1804, when she practically abandoned the pursuit of the Alabama, and cc nse(piently the amount hypothetically admissible would stand thus : Amount considenMl bv th(i Adiniialty Coiiimittee to he. Iiypothetieally lul- missilile '. ." 4;-202, (ili'i iVi i'lnportioii uow sbowu to bo inadniissiblo 110, 1563 14 ^? *■»_«'> Anioiiiit that itiay now b(! considciiHl as hypothetically adniia.Hible. y-i, 'i'j'j 4K There are two or three noticeable and curious features connected with this claim : 1. The United States Minister at Japan seems to have had no expec- tatiou that the Wyoming would have quitted the station when she ilid; her doing so caused him great embarrassment.* -. During the period for w hich claims are made against (Jreat Britain, Uritish men-of-war were assisting the Wyoming's consort (a sailing vessel) on the station, and receiving the thanks of the United States (ioverument; for instance: When the Jamestown, the consort herself, was ashore near Yeddo in October, 1803; When the Encounter took an American consular prisoner from Japan to Shanghai in January, 1804 ; Her Majesty's steamer Perseus assisting the American baik Maryland, iishore in Japan, &c.'' ' Appendix to British Ciiso, vol, v, p. 223. = Ibid., p. y2H. ^Diplomatic Correspcmdence, 18(i4-'r), I'art I. p. 641. ■* Diploiiintic Correspoiideiict', 181)4-'"), Part III, j»p. 447, 49:5, 517. ''Ibid., Part I. p. :51(i: Part II, p. 197; Pait III, p. r92. 24 C % . 'I %■ 1 ' A iiV W >■ "j m ^ ' H > '' ^'is F 1 , 1^ •■ It' ' «i' *L ^ ' '' 1^' m |if m 1.^" ' MM - -U^'.J^t^liUUMI !■ ' !l; 4:, -"^ ii' . 370 BRITISH ARGUMENT. CONCLUSIONS. From these premises the followinj? results are deducible : (a.) Tuat on the 1st December, 18G2, ouly two suitable vessels wort" in the actual pursuit of the Alabama. (h.) That ou the following December the two were reduced to one. (c.) That when she was sunk, there were only three, including tlie Kearsarge. (ursuit. (/'.) That the average uuniber of United States vessels in pursuit, while the Alabama was pursuing her career, was less than two. (g.) That the United States Navy was increased from 400 to 000 vessels during this period ; a considerable proportion of which were suitable vessels. {h.) That on the 1st Dec^ember, 1802, no vessels were in pursuit of the Florida. (/.) That on the 7th December, 18G.'>, no vessels were in pursuit of the Florida. (_/.) That on the 7th October, 18G4, when captured at Bahia, two vessels were in pursuit of her, exclusive of the Wachusset. {h.) That no United States cruiser was sent in special pursuit of the Georgia. (l.) Nor of the Shenandoah. (/«.) That the claim for the conditional arbitration considered ad missiide (upon the hypothesis explained in the Admiralty lieport) ou account of the Alabama should be accordingly further abated by $530, 104 21 (H.) On accouni of the Florida 32, 736 2!) (0.) On account of the Sumter, {sec Connecticut, p. 83) . 20, 051 00 (p.) And the hypothetically admissible amounts so corrected wouhl stand thus: For the four Confederates in Class I $940, 400 24 For the Alabama onlv 891, rm Si' For the Florida only \.. 48, 87!> 4'.' P. S. — With reference to the note on page 351 as to the cruise of the Vanderbilt, it would appear from announcements in the New York Herald during the mouths of November and December, 1802, and Jan- uary, 1803, that this vessel was at least 20 days in ports of the United States during those months. The following are the dates of her arrival and departure: Sailed from New York November 0, 1802; returned November 30. Sailed again December 11, and returned to F< "♦^-oss Monroe January 17, 1803, from whence she did not sail again till afier cue 28th of the same mouth, when she left with the Weehawken monitor in tow. This suggests a still further abatement of $30,000 i«i the claiin for this vessel, reducing the total amount, hypothetically considered admi? sible for arbitration on account of the Alabama, to $801,580.82, and that for the four vessels Class I to $910,400.24. III. SUPPLEMENTARY STATEMENTS OR ARGUMENTS M.VUI'; »Y THE RESPECTIVE ACtENTS OR COUNSEL sCnSECit'KXTI.Y TO FILING THE ARGUMENTS ACCORDING TO THE PROVISIONS OF THE TREATY. ■^ 151 ; , ::|-r-:P ^ . :i' \ Hp^ ' ^' ' ' "■< l'.^^ ,', '- -sm'l ■■?. i^ '^1 it ' iWJ»i'!«^^jJJ(J r 'j? 1 ' r n ' m CONTENTS. I. Statenioiit of Sir Kotiudcll Palmer, Jniie iiTtli, lri7'^. II. Iveply of the Counsel of the United States to tbo same. III. Ar<;umeiit of Sir Itonndell Palmer on the points mentioned in the resolution of the Arbitrators of July 25, 1872. Filed July 29, 1872. IV. Argument of Mr. Evarts in reply to the argument of Sir IJoundoll Pahncr. V. Argument of Mr. Cu.sbing in reply to the argument of Sir lloundell Palmer. Vr. Keply of Mr. Waito to the argument of Sir Koundell Palmer on the special <[ncs- tion of the supplies of co.al. VII. Argument of Sir Koundell Palmer on the (|uestion of the recruitment of men for the Slienaudoah, at Melbourne. VIII. Ob.servations of Mr. Gushing concerniiig the enlistments for tin? Shenandoah, at Melbourne. IX. Argument of Sir Ronndell Palnuu" as to the legal etl'ect of tlie entry of the Flor- ida into Mobile. X. Reply of the Counsel .>i the United States to the argument of Sir Koundell Palmer on the special (luestion of the legal ellcct of tlie entry of the Florida into Mobile. XI. Argument of Sir Ronndell l*almer on the claim of the United States for interest. XII. Keply of the Conusel of the L'nited States to the argument of Sir Ronndell Palmer on the question of interest. XIII. Comparative Tables presented by the Agent of the United States on the IDth of August, 1872, in compliance with the recjuiist of the Tribunal. XIV. Tables presented by the Agent of Her Britannic Majesty on the IDth of August, 1872, in compliauce with the request of the Tribunal. XV, TJeply of the Agent of the United States to the new matter introduced by tlu' Agent of Her Rritannic Majesty on the call of the Tribunal for elucidation in respect to the Tables presented by the two Governments. A VI. A note on some observations presented i)y Mr. IJancroft Davis, on the 2S>th of An gust. % IWi''^ » I -t 1-STATEiMENT OF SIR KOUNDKLL PAI.MKR, MADK AT SEVENTH CONFERENCE, ON THE Ttm JUNE, 187-i.' THE Further argmnent appears to Her liritannic Majesty's Counsel to be necessary on the following, among otiier points, as to all ,/!l!,?.^'K'r'Iiar''H.' wliicU lic is i)repared to show that the new arguments now '"" "' advanced by the Counsel of the United States are either wholly erroneous and unwarranted, or cjilculated to mislead, unless corrected by proper explanations and qualifications. [The statement then continues, as shown j>osf, pages 380 to 384 in- clusive, and closes as follows :] W.—As to the particular shi2}s, Florida, Alabama, Georgia, and SlienaH- doah. Her Britannic Majesty's Counsel does not here particularize various new matters now brought forward or suggested in the Argument of the United States as to each of these ships. If those matters should appear to the Arbitrators to be of any importance, it is not doubted that they will ask for and receive the explanations and answers concerning them, which Her Majesty's Counsel will be ready at the proper time to give. General reasons ichy further arguments on the above points should be alloiced. 1. The character of the documentary evidence presented in the several volumes of the Appendix to the Case of the Unite«l States, containing a large mass of miscellaneous papers, or extracts from papers, laid before the Congress of the United States, as to much of which it was necessa- rily impossible for Her Britannic Majesty's Government to anticipate the use which would be made of them in argument until the present Argu- raeut of the United States was presented. 2. The course taken by the Government of the United States in with- liolding (as far as was possible) their reply as well to the Case as to the Counter Case of Great Britain until the Argument was delivered, so as to make it impossible for the arguments to be at the same time delivered on the part of Her Britannic Majesty's Government- to deal adecpiatelj- by anticipation with many important views which it wgs intended by the United States to present to the Tribunal. 3. The new and copious use made in the Argument by the United States of extracts from the works of Sir Kobert Philliraore, and from speeches and writings of various British statesmen in Parliament and elsewhere, to many of which no reference had been before made, and some of wliich are actually now appended as new matter to the Argument itself. '' 'M "* ^ 'This application was denied, and tiie reply which follows waa not received by the Tribunal. H -RKPLY OF THK COUNSEL OF THE UNITED STATES IN RESPONvSE TO THE FOREGOING STATEMENT OF SIR ROIN- DELL PALMER.' ll''iHiirm wl'.v lur- thfrarRiinient Nliniild tint ^er)r(liTf(l xt (hiis j(tjiK« f>\' the prcicecil- The Counsel of the United States desire to submit to the Arbitrators some observations regarding the Memorandum of the Coun- sel of Great IJritain, presented at the conference of the I'Ttli instant, in support of the request of the British Govern inent for leave to tile an additional argument on behalf of his Gov ernraent. I. The Arbitrators having already refused to grant that request as be- ing incompatible with the first clause of the fifth article of the Treaty of Washington, no occasion renifiins to discuss the Memorandum in this relation, but it needs to be done in relation to the second clause of the same article of the Treaty. The stipulation is that subsequently to the filing of written or printed arguments by both parties on the prescribed day, " the Arbitrators may, if they desire further elucidation with regard to any point, require u written or printed statement or argument or oral argument by counsel upon it." In construction of this clause we respectfully suggest : 1. That under it no itrators dfcliiu'd to U'coivc lliia !{epiy, haviugdeuiccl the re(iiiest of tlu' IJritish Counsel. AMERICAN RKl'LV, .JUNK 2S, 187'i. 377 What this .Meinornndmn proposes is still more inadmissible in the last ;is well as in the first relation, because its professed and special object is to respond to the final Argument of the United States. That the British Government has no right to do, any more than the United States liavs right to respond to the final liritish Argument. And above all, in the present relation, such a responsive argument is inadmissible, because it is not elucidation of any i)articular imint, and still less elucidation of any parti Si"A IKMKN TS. m IV. TIio McinoraiHlmn a.s.si}>n.s us liirtlier r(>a.soii for re-ar^jnmciif, that the ]iritish (lovcrniiiciit eouhl not aiiticipatt; the use to he made in our Arguiiient of'tlie(hH!Uinentary (nidence tiled with tlwt Aineriiiau Case. The suggestion is u siuguhir oiu'. Wo do not understand that wlion counsel put in evidence, they are reijuired to ac(!onipany such evidence with argumentative exphinations of why tliey jmt it in. The adverse party, versed i]i the rules of law and the juactico of the courts, is to study such evidence and Judge for him.self of its pertinency or value. If any of the documents thus tiled were irrelevant, it was for theilritisli Ciovernnient to say so in its Counter Case or in its Argument. There was ample time for consideration, namely, in the lirst relation, four months, and in the second, six. So, also, during those four or six months, there was ample time for the eminent Counsel of the British (lovernment to Htudy tho.se doeu ments, and perceive, with the practiced eye of forensic experience and science, what use might be made of these do(;uments by the Counsel of the United States, an->, 1872. old l)(M!.s or ciiii tho Comiscl for the Ilritish (i(»v(^rniiu'ift sii|>]>(»s(' that we Hliouhlomit to icspoiul to this Jirriiij;iinu'iit by WWua ilt'fcn.sivt' in'ools jim the basis of ai jjmiK'iit ? Does or niii the Counsel of the Hritisli (ioveniiiK'iit suppose that we »»liotil(l admit tlie peilineiiey of this arniiyiuiieiit, or that we siiotild fail to sn}?gest its inappropriat«'ness * VII. The MenioraiMimn sii«jo(.sts as a eause for rearj;niiieiit, that we liiive referred in our Arf^imu'iit to the great English work of iSir Hobert Philliinore on International Law, and to eminent statesmen of (Ireat Ikitain. We submit that we are wholly unable to .see the foree of this consideration. In our argument we ipjote IMiillimore as we quote Wolf, N'attel, Martens, Ilaiitefeuille, C'auehy, Calvo, or Fiore. Why not? And why shoidd (Ireat JSritain objeet to our (iiting her most eminent author on the subject of the law of nations ? Can :*; be any sur|>rise to the Counsel of the JJritish (lovernment'^ J)id we not in our Case indi- cate the use to be made of Sir IJobert IMiillimore? (Pages 117, 11*:?.) Then the Memorandum objects to our citing in our Argument the emi Dent statesmen of (Ireat liritain, living and dead, — the Cannings, the Oastlereaghs, the Denmans. the (irants, the Hollands, the Althorps, tbe Peels, the lluskis.sojis, the Colliers, the Ilarcourts, the Coleridges, the Kedesdales, the Ifussells, the Granvilles, the Cairns, the Derbys, the Uatherlys, the Salisburys, the Palmers, and the Gladstones. If it be .just cause of ottense in the ey(;s of the Arbitrators that we have referred in honorable ternn to these high luimes of iU'itish states- men, we submit to the censure of the Tribunal, but we deny that the ff'X att'ords any reason w' y the Arbitrators should ask for elucidation ou the subject, or that it justifies the apidication for additional argu- ment on the V'ht of the British Government. VJII. The Memorandum enumerates under three heads, with subdi- visions, the main reasons of the Briti.sh Government for desiring further argument. It is remarkable that each one of the points thus suggested has been already argued by the British Government, except one which it pur- posely omitted, either in its Case, Counter Case, or Arguments. We do not say that all these points have been fully argued by the British Gov- ernment: that was for their Counsel to judge. But they were argued, and in a much larger nnmher of Kordn than appear in the discussions on the side of the United States. Reduced to the same standard, (that of the page of the IJritish Ca.se,) we have the following state of things : I'ages. British Case 168 British Counter Case 154 British Argument and Notes 91 Total pages 413 American Case 128 American Counter Case r 11 American Argument 200 Tota pages 339 1,' '« '"'N f Surely, in view of this comparison, the British Government has no .■ft^ i ■! 380 SUPrLEMENTARY ARGUMENTS AND STATEMENTS. cause to come fwward now and supply deficiencies in its Cases and Argument. To show that every point on wbicli tlie British Government now desires to be reheard is discussed in as ample manner (or that it delib- erately refused to discuss it at all) as it pleased, with six, four, or two months' time of reflection, and with all the bar of Great Britain at its back, we now proceed to prove by the following tabular statement, the right column of which contains the points which Sir Rundell Palmer desires to argue stated in his own words, and our comments thereon being as in the left-hand column : I. — As TO rKINCll'LE. , '*« This doctrine is referred to in all the Cases and Arguments. It is not a new suggestion of princii)le in our final Argument. Considered United States Case, }). 149, €t acq. British Case, pp. o, 23, and li4; British Counter Case, pp. 11 to 23; British Argument, pp. 7 and S. Considered United States Case, ])p. loO to 158; United States Counter Case, p. G. British Case, p. 24; Britisli Counter Case, pp. 21 and 22 ; British Argument, p. 8. Considered United States Case, pp. 100, 118 to 122 ; United States Counter Case, pp. and 7. British Counter Case, p. 5 ; British Argu- ment, p. 9, et acq. See also Annex "C,'' Jiritish Counter Case. In this paragraph of the 3Iemo- randum our Argument is errone- ously stated. Wo say that the Queen's prerogative is a part of the common law of England. AVe deny that the British Foreign-En- listment Act was the only law of Great Britain. If .so, it should have been amended. Considered United States Case, j)p. O.'J and 04; United States Counter Case, p. 7. British Case, pp. 4 to 7; British Argument, p. 30. the United States Argu- (rt.) The doctrine of general in- ternational obligation asserted more particnlarlv at pages 20 to 23 of ment. {h.) The view submitted in the United States Argument (pages 14G to 147 and elsewhere) of the elieet in the present controversy of Uer Majesty's consent that the three liules embodied in the sixth article of the Treaty of Washing- ton may be applied by the Tribu- nal as rules of judgment to the lacts of the present case. (e.) The doctrines as to due to .■>.".. Considered United States Case, l»p. ]2<], 351, ;5.-)2, -l^O and 400. Itritish Counter Case, p. 1."); Brit- ish Avj^ument, pj). .'53 ai^d .34. Considered United States Case, i>. 4.V.K IJiirish Counter Case, pp. (•(MIL'; British Argument, p. 2."i-2S. s recognition of tlie belligerency of the Confederates by Her Britannic Majesty and the effect of Her Britannic ]\Iajesty's Proclamation of Neutrality and the bearing of these matters upon the present controversy, notwithstanding the admission, at page 201>, that such recognition of the belligerency of the Confederates is excluded by the terms of the Treaty of \N'ash- ington from being admissible as a pecilic ground of claim before the Tribunal. (/,) The doctrines that the pub- lif ships of war of a non-sovereign belligerent are liable to neutral Jurisdiction or control in cases in which the j)ub]ic ships of a sov- ereign belligerent would not be vso liable, and that it was part of the duty of Her Britannic ]\[jijesty's (lovernmeut toward the United States, either by virtue of the first rule in the sixth article of the Treaty of Washington, (u* other- wise, to detain certain of vhe Con- i'edeiate vessi^ls, being i)ublic ships of war of a " non-sovereign bellig- erency," when found within Brit- ish ports, or (in the alternative) to exclude them from all access to those ]torts. (See pages l."»2 to 1.13, 17."» to ITS, and 1S2 oi' the United States Argument.) {(/.) The application attempted to be made in several parts of the United States Argument of phrases, " l)ase of naval operations" and "angmentation of force," used in the second Bule, and particularly tlu' doctrine (see pages ]3(> to 1.32, and 130) that to allow belligerent cruisers luivigated by steam-power to receive supplies of coal or ''re- pairs which may make their steam- power effective*' in neutral ports, is a breach of that Itule or of any other neutral obligation. (/<•) The doctrine that the char- acter of acts or omissions on the part of a neutral power, which would otherwise be consistent with the due perfornumce of neutral ob- ligations, is altered by the circum- stance that a belligerent has agents !■ >.!>■ i»!|!!iy!' 382 SUrPLEMENTAKY ARGUMENTS AND STATEMENTS. I' <- ; > * S*: Considered United States Case, pp. 101>, 212, 4(i7-181 ; United States Counter Case, Part IX. British Case, p. 1G7 ; British Counter Case, ])p. 130-142; Notes in vol. 7 ot" British Appendix ; British Argu- ment, pp. 35-37 ; Annexes C and 1) to British Argument. Considered United States Case, pp. 100, 110 ; United States Coun- ter Case, p. 16. British Case, p. 24 ; British Counter-Case, p. 7; British Argument, jjp. 9-11. See also An- nex B to British Counter Case. Considered United States Case, p. 112 ; Uiyted States Counter Case, p. 10. Bi'itisb Case, p. 25 ; British Counter Case, p. 7 ; British Argu- ment, pp. 9, 11. See also Annex B to Ih'itish Counter Case. Considered United States Coun- ter Case, pp. 0, 20. British Case, p. 57; British Argument, p. 9. See also .\t iiex C, British Counter Cas . ^Ve cite Sir H, IMiillimore and Lord Kussell, Sir lloundell Palmer, and Sir Alexander Cockburn, and Mr. Canning, iia Great Britain may and do cite Wheaton, Story, Jelierson, or Washington. Why not? — we say a second time. We find good matter, excellent nuitter, in these documents. Considered United States Case, pp. 402-406 ; United States Coun- ter Case, p. 11. British Counter Case, pp. 119-123; British Argu- ment, p. 34. and agencies within the neutral terx'itory, and ha.; direct dealings there with neutral citizens. (<*.) The argument of the United States as to the liability of Great Britain to make pecuniary compen- sation to the United States if she is found in any respect to luive failed in the performance of her neutral obligations, and as to the measure of damages, and the prin- ciple applicable thereto. II. — As TO FACTS C;ENE]^ALL^ . (J.) The argutnent of the United States that the British Foreign-En- listment Act of 1819 contained no provisions of a preventive elli- cacy, bntwas merely of a punitive character. (A.) The argnmentative compari- son between the British Foreign- Enlistment Act and the Foreign-En- listment Act and Executive powers of the United States and those of other countries, intended to show the inferior etlicacy of the British statute. (/.) The suggestion of the exist- ence of prerogative powers in the Crown of Great Britain, and of powers under the British customs and navigation laws, which ought to have been, but were not, used for the maintenance of Her Britan- nic Majesty's neutrality. (m.) The alleged admissions of various British writers and states- men in printed books, iiarliauient- ary speeches, and otherwise, of principles or facts, assumed to be in accordance with the present Argument of the United States. (m.) The alleged ditterences be- tween the conduct of France ami other countries, and the conduct of Great Britain in the observance of neutrality during the war. III. — As TO ERRONEOUS VIEWS or imiTISII ARGUMENTS, ETC. Considered United States Case, (o.) The assertion that Great hj,v; . ,; AMERICAN REPLY, .ILNE 2S, 1872. 383 SEllALLV. pp. 2.i()-25(; ter Case, p. ' United States C'oun- Hiitish Case, ]>. L'-l. Consuleretl United States Case, pp. 113-110. IJritish Counter Case, pp. 8, 9. We do not understand that, be- oanse tbe British Government re- fused to discuss this point in its Connter Case, we are, therefore, de- prived of the rifjht to discuss it. Besides, why seek for re-arjjument on a ])oint which she refused to dis- cuss t Considered United States Coun- ter Case, pp. 13-1(». British Case, pp. 2r)-29; British Counter Case, pp. 25-47 ; British Argument, pp. 8,9. Britain has made her own munici- pal legishition the measure of her international obligations, and has pleaded any supposed inefliciency of her laws as an excuse for the non-perfornumce of such obliga- tions, which she has never done. (p.) Tiie inference that because Great Britain has thought it right to legislate, since the war, so as to eularge the legal control of her Government over certain classes of transactions by her <;itizens, calcu- lated to lead to difficulty with for- eign I'owers, she has tliereby or otherwise admitted the insuffici- ency f)f her laws, during the civil war, for the ])erforinance of her neutral obligations. (q.) The manner in which it has been thought lit, in the .argument of the United States, to treat the refusal of Great Britain in her Counter Case to enter into a)>j de- tailed justification of her Govern- ment against the imputation of in- sincere neutrality, ami unfriendly motives toward the United States, as a virtual luPiiission of such in- sincere neutrality and such un- friendly motives. {>'.) The erroneous representation in the same argument, of the pur- pose for which nunu'rous historical instances of the extension and per- sistent violation of the neutral or friendly obligations of the United States toward other powers, by citizens of the United States act- ing contrary to their laws, have been referred to in the Counter Case of Her Britannic Majesty's Government, and the attempt to escape from the direct bearing of those instances upon the ques- tion, whether the views of the preventive power which a bellig- erent has a right to exact from a neutral State, and of the measure of the due diligence with which it is incumbent upon a neutral State to use its preventive powers, in- sisted upon by the United States ii the i)resent controversy against Great Britain, are historically well founded, or politically possible or m I m. It.? ;384 SUPPLEMENTARY ARGIMEXTS AND STATEMENTS. consistent with tiie practice ;iiul experience of the United Stutos themselves, who have appealed in , their own Case and Counter Case. and in the Ai)pendix to their Couii ter Case, to most of the very same transactions (which (Jreat Ihitaiu is now alleged to have improporly brought forward) as actually fur nishing evidence of the efficacy of their laws, and of the diligence and good faith with which those laws have been executed. IX. In conclusion, we respectfully submit to the Arbitrators that the sense of the treaty is plain, and that it imperatively forbids any sueli action, direct or indirect, as is proposed in the Memorandum. In preparing their arguments the Counsel on both sides considered the (|uestion, and without mutual conference they both came to the same conclusion, and expressed it in substantially the same spirit, with differ ence of language only. In the expression of courteous deference to the Arbitrators, we beg the Tribunal on this point to look at page 1 of the IJritish, and page G of the American Argument. We have uot discussed here the argumentative points of the Memo randum, as we might well have done, considering all siu;h discussion inai)propriate at this time. Finally, we need say little on the overr.Mient8 would have stood without it. I. — As to the rules and principles of international lo.w. These must be obtained from the authorities which show what had ineviously been received and understood among nations as to the obligations of neutral states toward belligerents; nnfi' pmlnnV, rfli" leiiieinbering always, that wdiat is called international law (in the absence of particular compacts between states) is imposed only [ity the moral power of the general opinion and practice of civilized na- tions; that, (in the words of Lord Stowell, quoted with approval by the great American jurist, Wheaton, '^Histoire des Brogres du Droit [ties Gens," vol. i, p. 134,) " une grande partie du droit des gens est bas()o |8url'u8uge et les pratiques des nations. Nul doute qu'il a ete introduit 25 '% '» f ,! 'i ^ ..'^fi I 5; ! i. ■ 11 m m v\ ■si». 386 SUPPLEMENTARY ARGU'IENTS AND STATEMENTS. par (les i)iincipes g(5ii(''ranx, (tin droit natnrel;) mais il ne marclio avoc CCS priiiciiK's (juo jusqnVi mi certain point; et s'il s'arrcte a cc point Dons ne jionvons pas prctondre aller pins loin, et dire que la seiilo tbt'orie };cn«''rale ponrra nous soutcpir dans nn i)rof?r«'S nltcrienr." In a case in which no active • '.nference in war is imputed to a neu- tral state, international law «..iows nothing of any oblijiation of tliiit state toward a belligerent, as such, except to preserve its neutrality. To constitute a merely passive breach of neutrality on the part of such a state, some act must have been done by, or in aid of, a belligerent, for the pmposes of the war, which, unless done by the permission of the neutral state, would be a violation of its territory, or of its sov- ereignty or independen(;e within tliat territory, and such act must have been exj)rcssly or tacitly jjermitted on the part of the neutral yovoni- ment. For acts done beyond the neutral jurisdiction by subjects of tlie neutral i)ower, to the injury of a belligerent, the law of nations lias appropriate remedies; but tliose act.s, involving no violation or liostile use of neutral territory, are not imputed as breaches of neutrality to the neutral state. And for a violation or hostile use of neutral terri- tory without the permission or intentional acquiescence of the neutral state, re[»aration may be due from the offending belligerent to the in- jured neutral, but the neutral so injured has been guilty of no breach of any neutral obligation toward the other belligerent, whether he does, or does not, subsequently obtain reparation from the offender. Between the commercial dealings of neutral citizens, in what(?ver kinds of merchandise, (and whether witli the citizens or with the governments of belligerent states,) and the levying or augmentation of military or naval forces, or the fitting out .ind dispatch of military or naval expe- ditions by a belligerent within neutral territory, international law has always drawn a clear distinction. The former kind of dealings, if they are permitted by the local law of the neutral state, involve on the part of that state no breach of Jieutrality ; if they are prohibited, a disregard of the prohibition is not a violation or hostile use of the neutral territory, but is an illegal act, the measure of which, and the remedies for wLicli, must be sought for in the municipal and not in international law. The other class of acts cannot be done against the will of the neutral sov- ereign without a violation of his territorj^, or of his sovereignty and independence within that territory ; and to permit this, for the purposes of the war, would be a breach of neutrality. The continuance during the war, within the neutral territory, of trade by neutral citizens with both or either belligerent, in the i)roduceor manufactures of the neutral scate, whether of those kinds which (when carried by sea to a belligerent) are denominated contraband of war, or of any other description, has always been permitted by international law, and no authority, anterior to the departure of the Alabama from Great Britain, can be cited for the j)roposition that unarmed ships of war, constructed and sold by neutral ship-builders in the course of their trade, were, in the view of international law, less lawful subjects of neutral commerce with a belligerent than any other munitious or instruments of war. The authorities on this subject are quoted at large in Annex (A) to the British Counter Case. Galiani, one of these authorities, ar^^ iied that the sale in a neutral port, to a belligerent, of a ship not only built but armed for war, ought to be deemed prohibited; but Lampredi, Azuui, and Wheaton rejected that opinion, and Utid that (the transaction being a conuuercial one on the part of the neutral seller) the addition even of au armament would make no dififereuce. Story took the same view of BRITISH SUPPLEMENTAL ARGUMENT. 387 tlie dispatch by ji neutral citizen of a ship of war fully armed from the neutral territory to a belligerent port, with a view to her sale there to a bellifterent ]>ower.^ 3[r. Adams himself, in insotlicial correspondence with Earl Russell, (April 0, 180;{,-) admitted the st)undness of these doctrines, assuming the transaction of sale and transfer by the neutral to be " purely commercial ; " and also assuming the belligerent country, to which such vessels of war might be sold and transferred, to be " not subject to blockade." It cannot, however, be seriously imagined that the existence of a blockade of the ports of the belligerent purchaser would make such a transaction, if it would otherwise be lawful, a vio- lation of the neutrality of a neutral state, in the view of international law. It may be true that, when an armed ship of war is sold to a belligerent within neutral territory and goes to sea from thence fully capable of offense and defense under the control of the belligerent i)urchaser, there would often, (perhaps generally,) exist grounds for contending that the transaction was not substantially distinguishable from the dispatch of a naval expedition by the belligerent from the neutral territory ; and this was doubtless a cogent reason for the special legislation of the United States and of Great lUitaiu, which, (whatever further scope it way have had,) was undoubtedly intended to prevent sueh expeditions, by striking at the armament of ships '>f war within neutral territory, fur the service of a belligerent. JJut t case of a ship leaving the neu- tral country unarmed is, in this respect, wholly ditt'erent. Her departure is no operation of war ; she is guilty of no violation of neutral territory ; she is not capable, as yet, of any hostile act. The words of Mr. ITus- kisson in the debate on the Terceira expedition in the British Parliament, iHuskisson's Speeches, vol. iii, p. 559,) and of Mr. Canning, as there ([uoted by him, are strictly applicable to such a case, and deserve reference as showing the view of this subject taken long ago by those eminent British statesmen. Speaking of certain complaints made by Turkey (luriug the Greek revolutionary war, he said : To these couiplaiuts we coiistiintly replied : " W(! will preserve onr neutrality witliiu our dominions, but we will go no further. Turktty tlicl not unctorstiUiil our exphniii- tioii, and thouoht we niiglit sunnnarily dispose of Lord C'<»chrfino, and those other siib- jicts of Her Majesty who were assisting the Greeks." To its remonstrance Mr. Canning loplied : "Arms may leave this country as matter of merchandise ; and however strong tlie general inconvenience, the law does not interfere to stop them. It is only when llic elements of armaments are combined that they come within the purview of i\'<- l.iw; and, if that combination does not take place until they have left tliis country, wc have no right to interfere with th«>m." Those were the words of Mr. Canning, who ixttiuled the doctrine to steam vessels and yachts, that might aft(>rward be converted into ves.sels of war, and they appear tation, either in whole or in part, to warlike use, within British jn- risdiction, of any vessel intended to carry on war against a Power with which Great Britain might be at peace, although such vessel might not receive, or be intended to receive, any armament within British Ja- risdiction ; and although she might be built and sold by ship-builders in the ordinarj' course of their trade to the order of a belligerent purchaser, so as not to offend against any known rule of international law. It has never been disputed by Her Majesty's Government that when, at the time of the breaking out of a war, prohibitions of this "munwpni klud, excecdlug the general obligations of international law, exist in the municipal law of a neutral nation, a belligerent, who accei»ts them as binding upon himself and renders obedience to them, has a right to exi)ect that they will be treated by the neutral Government as equally binding upon his adversary, and enforced against that adversary with impartial good faith, according to the principles and methods of the municipal law, of which they form part. Oblijja- tions which are incumbent upon neutral nations by the universal prin- ciples of international law stand upon a much higher ground ; as to them, a belligerent has a right to expect that the local law sliould make proper provision for their pevlormance; and, if it fails to do so, the local law cannot be pleaded as constituting the measure or limit of his right. But a right created by the municipal law of a neutral State must receive its measure and limit as much with respect to any foreign belligerent Power as with resi)ect to the citizens of the neutral State it self, from the municipal law which created it. Any engagement of the neutral toward a belligerent State, which may be implied from the e\ istence of such a law, can go no further than this. And if to this is superadded an express promise or undertaking to a[)ply the law in good faith to all cases, to which there is reasonable ground for believing it to be applicable, that promise and undertaking leaves the nature of the obligation the same; it does not transfer the prohibition or the riglitoi the belligerent with respect to the manner of enforcing it from the re gion of municipal to that of international law. Accordingly, the Minister of the United States, during the civil war. constantly api)lied to Her Majesty's Government to put this municij)al Ijiw of Great Britain in force. To select two out of a multitude of i" stances: On the 0th of October, 1802, (soon after the departure of tho Alabama,) Mr. Adams sent to Earl Kussell an intercepted letter from i. KA liiliitory liiw BRITISH SUrrLEMENTAL ARGUMENT. 389 tlie Confederate Secretary of the Njivy, in wliich the Fk»ri(hi was re- forred to "as snbstantiatin;;: the aUejiations made of infringement of the KiiUstment Law by the insnrgents of the United States in the ports of Great Britain ;" and added : I am well awuro of the fact to which your Lordship calls my attention in the note of the 4th instant, » # # that Her Majesty's (Jovt-nunent are uiniblr to jjo la-yond the law, municipal and international in preventinj;; entiM'prises of tlir liind re- teiTod to. l{ut in the rejuesentations which I have had the honor hitcly to make, I lii'ij to remind your Lordsliip that I hase them upon evidence whicii applies directly tuiufriufjements of the municipal law itself, and uot to anything boyond it.' M\d on the L'Dtli of September, 18({3, writing with res[)eet to the iron- clad rams at Birkenhead, he said : So far from intinuvtinfj; hostile ])roceedin{5» toward Great Hritain unless the l.iw, wiiicli I consider insuHicient, is altered, [(inotiufj; words from a letter of Ear! llnssell,] llio burden of my ar^jument was to urjje a reliance upon tlie law as sutlieient, as well I'nini the past experience of the United States, as from the confidence expressed in it by the moat eminent authority in this kinj^dom.'- In answer to all these applications, Iler Majesty's Government uni- t'orudy undertook to use their best endeavors to enforce this law, and to do so (notwithstanding a diversity of opinion, even ui>on the judicial Dench of Great Britain, as to its interpretation) in the comprehensive sense in which they themselves understood it, not only by penal but by preventive measures, (/. e., by the seizure of any offending vessels before their departure from Great Britain,) upon being furnished with such evidence as would constitute, in the view of British law, reasonable ground for believing that any of the prohibited acts had been committed or were being attempted. When, therefore, Iler Majesty's Government, by the sixth article of the Treaty of Washington, agreed that the Arbitrators should assume that Her j\[ajesty's Government had under- .iNhAv' aij'.'i taken to act upon the principles set forth in the three Kules, though declining to assent to them as a statement of principles of inter- national law, which were iu force at the time when the claims arose,) the effect of that agreement was not to make it the duty of the Arbitra- tors to .judge retrospectively of the conduct of Her Majesty's Government according to any false hypothesis of law or of fact, but to acknowledge, as a rule of judgment for the purposes of the Treaty, the undertaking which the British Government had actually and repeatedly given to the Goveinmeut of the United States, to act upon the construction which they themselves placed upon the prohibitions of their own municipal huv, according to which it was coincident, in substance, with those Rules. With respect to these three Rules, it is imi)ortant to observe that not one of them purports to represent it as the duty of a neutral Govern- ment to prevent, under all circumstances whatever, the acts against which they are directed. The first and third Rules recognize an obliga- tion (to be applied retrospectively upon the footing, not of an ante<;e- (lent international duty, but of a voluntary undertaking by the British Government) "to «se" within the neutral jurisdiction ^' due diligoice to prevent^' the acts therein mentioned ; while the second recognizes a like obligation "wo^ to permit or suffer'''' a belligerent to do certain acts; words which imply active consent or conscious acquiescence. HI — Principles of Law relative to the diligence due hy one State to another. The obligatiou of "due diligence," which is here spoken of, assumes ' Brit. App., vol. i, p. 216. « Ibid., vol. ii, p. ;578. I 'J i i I' "'-^^'.■J '' '"'ttl-^^- 390 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. undor tlio first 7*ulo oxpros.slv, ami niKU'i'tlie tliird bv iiccox i>i,«iM, iin.iirmvvimt sjiiv imi>liojitioii, tiH> oxistciice ol SI " iciisoiiablo ground df boliof;"' aiul hotli those «'xi)rossioiis, ".sprvaiico of iiitt'iiiatioiial ohliKatimis, without vcjxanl to wluit may hf thi- iniiniciiial moans whicli it, posHt'sst'H (or riiforoinj^ this oiisfrvaiicc. Tilt' act of an imliviiliial citizen, or of a small nnmbcr ofciti/cns, isnot to Itc iniinitcil \vitli()Ut ch'ar proof to the (Jovcrnmcnt of whicli they an- siilijccts. Atiovcrnmcnt may hy knoHhihjc ainl«/(//>')'rtii«', as well as l>y ilircci pfniiisM'uni, hcconio roHiioiisihlo for the acts of snhjccts whom it iloi.'S not previMit from tln^ (M)mmission of auy injury to a foreij^n State. A Ooveinmcnt is jnesnined to bo ablo to rcstmin tho subject within its territory from contniveninjj; tho olilijfationn of nt-utrality to which the Slate is bound. Upon this pas.sajjo, which eonplos together "armiiment.s and ships of war," it is to bo observed, in the first place, that lliere is nothinfi; in it which implies any ditl'erent view of the extent of tho.se international ol)lij?ations (as distinct from its own mnnicipal prohibitions) by which a State is bonnd, from that wliicli is sliown to have been established by earlier authorities. Sir K. Phillimore i.s too sound a Jurist to suppose that any private opinion of a particular jnrist could impose retrospec- tively upon the (Jovernmeiits of the civilized world oblij»ations not pre- viously re(!Of(nized. lie does not detine here what are "the obligations of neutrality by which the State is bound;" he leaves them to be ascer- tained from the ])roper sources of information. Next, when he lays it down as a maxim, that "each State lias a right to ex[)ect from another the observance of international obligations, without regard to what may l)e the municipal means whiearinj«!(rts ]irof«'Hscs to nniintain relations of fricndslii]) or neutrality. The passafi'c in a former volume here referred to is in the chapter on " SeU' -Preservation," vol. i, part 3, chap. x. This, as well as all tlio other passages relied on by the United States, litis reference to the onjanhatUm ofhontlU' crpeditions against ti foreign Power in it neutral or friendly territory. " If" (says the learned author) '• the hostile exiiedi- tion of the present" (or hite) "Emperor of the French in 1842 Jigiiiiist the existing moiuirchy of France had tJiken place iclth the sanction or connivance of the IJuffliKh Government, Enghmd would have been guilty of a very gross violation of international law ;" and, after .some interveiiiiifi; renisirks applicsible to " nil cases where the territory of one nation is inradal from the country of another,^'' he refers to "a very important chnptor, both in Grotius and in his commentator Ileineccius, (Mititled ^ De l\vm- rum Communicatione,'' as to when the guilt of a uialefjictor, and its con- sequent punishment, is communicated to others than himself." "The (piestion," he proceeds, " is particnhirly considered with reference to the respon- sibility of a State for the ('(Midnct •)f its citizens. The tests for discoverin> ull pnhlieists, anil are .ut for tho provcntion of tliost^ tliinijs which (when tlio rciinisito kiiowhMlfjo of tlu'ui exists) it is IxuiimI to (Mideavor to ])roveiit, ami for which it will lieconu! ivsponsililc if it " knows and siinV»rs " thcin, they throw no li<^lit Ih'VoihI this: Tliat a neutral Government is presumed, in general, to have the means of performing;' its international obligations ; that it may also ht^ presnnu'd to know (and to suffer, if it does not interfere with tlu'Mi) hostih' acts ()f an une(piivocal character done within its territory by large numhers of |)ersons without disguise or concealment; and, on tlic (itlier hand, t iiat it is not presumed to have the means of preventing, iiud is therefore not held responsible for sutferiikg tliose things (thougli (lone by its citizens to the injury of a friendly State) ()f whicli it cannot be presumed or proved to have liad knowledge ; and that the knowledge or surterancc^ of such acts on the i)art of inilividmil citizens, or of small numbers of citizens, is not to be imi»uted to their (lovernment without positive proof of such kiu>wledge and sutforance, in each [Kirticular case, as a nuitter of fact. Tiiese are aiming the elementary ju'inciples on whi(^h, iji the present controversy, the Uritish (Joverninent relies. Nothing can « ^„, „,,„ „„. be further from the truth than that the British (Tovernment ';:'^';ril^';:',^:'\ lias ever (as is repeatedly, and in a nuinner not free from "'"'i'" offense, imputed to it in the ArgunuMit of the United States) "defended Itself against charges of wrong by setting up a jilea of incapacity to discharge tiie duties of a sovereign State." It has always maintained, and it still maintains, that it has Justly and adequately discharged all those duties. Wherever, in this controversy, it has referred to the limitations upon its own power, imposed by the laws of (Jreat Britain, from which its existence and its authority are derived, it has done so iu strict accordance with tho principles of international equity and Justice. Those principles, being founded on the laws of nature and reason and the received usages of nations, cannot contemplate the i>erformance of international obligations by national Governments as against their own I'ilizons and within their own territory, except by means of Just and reasonable general laws made for that purj)ose, and by the proper use of the legal nu';vns so provided. Tiiose principles also recognize the absolute right and duty of every national Go. ernment, which has extended the prohibitions of its o\^u municij)al law to things which it was not, by international law, antece- dently bound to j)rohibit, to act upon those municipal laws, as constitu- ting, with respect to such matters, the just and tin; only measure, as well of the right of a foreign nation seeking to have the benefit of them, as of its own powers of prevention. The passage in Teteus's work (" Considerations des Droits Eeciproques de? Puissances Belligerantes et des Puissances Neutres sur Mer") cited from M. lieddie's English, in the note at page i.n. .."'to'muLipai -3 of the British Counter Case, is irrefragjibly sound and ..'nt.t,.,i"„t''''i,'.Te,n"- J list : It is a wise forcsi dilijrence and ex.utuess as are exercised in in(|uiries .'ind other proceedinj^s relative to taxes or imposts and Customs. lie who does as niiicli tn prevent a wronj; meditated a;j;ainst another as he does for his own protection, siitisiies every just and reas(uuii)h^ exi)ectation on the part of that other. IVrhajis, however, nu)re mi^ht be done;, if it were wi.shed, completely to attain the (diject. Jn tiiiicdi' war special instructions mifrht be ordered; tribunals of incpiiry mij;ht b(! estiihljslieil afj;ainst the frauds of merchants and shii)-owncrs, and more ri^^or mij-'lit be shown in tlii- punishment of tlnir delin?||neneies. But this cannot be deniiinded on the one side ; and, on the other, it mi^ht be diflicnlt to jfrant it. becau.se ther(> mif^ht result fnun it consecjuences inconsistent with the }>;eneral spirit of the prohibitory laws of the State. At least, this care must be left to the neutral Governments, to whom alone it beionirs to jiulj^c what it may be; proper for them to do with reference to the circumstances ei' the war. rurtberinoro, in coiisideriiiff any question of "due diligence" on tlic ])art of ii national Governuient, in the discharge of any ot jt.s duties, it is unavoidably necessary, upon those yenoral 10. In(1uriir(> npoti till' (luistiim dl' ilili- i;'n'nV,',V,laVio'n"i piiuci[)les of veasou, and of the practice of nations, wbicli to Ociv.^rniiient.". are the foundations of international law, to have regard the diversity in the forms and Constitutions of different Governmoiits. and to the variety of the means of operation, for the performance of their public duties, resulting from those various forms and Constitii- tiotis. Tlius, it is .stated, at page 40 of the Argument of the United States, that "in the United States it was necessary to impart .such executive powers" (as were given by the Acts of Ct)ngress of ITJlf, 1817. and 1818) " to the President ; because, according to the tenor of our Constitution, it does not belong to the President to declare war, nor lias he complete and final jurisdiction of foreign atfairs. In tdl that he iiuist act with the concurrence, as the ca.se may be, of Congress or of tlic Senate." If the President has no executive ])<,)wer in the United States. except what is conferred upon him expressly by the lawof that coiuitiy. it is equally certain that the Sovereign of Great Biiiain, and the various ]\Iinisters of State and other oflicers by whom the executive ( iovermiioiit in Great IJrititin is carried on under her authority, have also no exoci tive power except what is conferred upon them by British law; and that (assuming the laws of both tho.se countries to make just and roa sonable provision lor tlie fulfillment, within their respective jurisdictions, of their international obligations) the question whether the Govermiioiit has, or has not, a. w li 1 r h in ■ MiIvijM a iinivrr*al hyiMithi'^i^ III' arln- liaiy iiii'yiM-. BRITISH SUPPLEMENTAL ARGUMENT. 305 iMice " oil tlio '. of any of its lose j^cnoral itioiis, which ve regard to lovernmciits. if'orniance of \\\{\ Constitn- )t' the United impart .such of 17'.)4,181T. tenor of oiir '. war, nor has tliat he iinist ^ss or of the inited 8tatos. tliateonntiy. (1 the various (JovermiuMit 80 no excel, ish hnv: ami list and rca- urisdictioiis, (Joverniiieiit !• case, is ow )ut reforoneo which tlie ional ol)lii;;i- )le ratioiiiilly al proceihnv sutlicieiit tor ^, objects fov 'to when till' es necessary. I them to the national inde]>endenee; and (as no great Power conld tolerate or submit to it) would tend, not to establish, but to subvert the ix'ace and amity of nations. In the words of the British Summary, (page U, see. 30,) "its teiuleney, if admitted, would be to introduce a universal liy[H)thesis of absolute and arbitrary i)o\ver as the rule of judgment ior all sueli inter- national controversies." The practical falseiiood of such a hypothesis, as applied at the present time to the two nations les of progress, of advancing hberty, and of extended civilization, which distinguish modern society. If the dreams of some politicafphilo.sopiiers could be accomplished, and if all the nations of the earth cculd be united iu one great federation uuder the most perfect imaginable political C(Uistitution, tlu^ riglits both of particular States, and of individual citizens, and all (juestions, whether as to the represvsion and prevention, or as to the i)unishmentof uiiLawful acts by States or citizens, would certainly be determined, not by arbitrary power, but by fixed ami known laws and settled rules of procedure. Is it conceivable that it should enter into the mind of man (nay, of citizens of one of the freest States in the world, whose whole history is a refutation of such a doctrine) that practical iiiii)ossibilities, which (if they were possible) would be hostile to the highest interests and intelligence of mankind, can be demandecl by one State of another, in the name of international law ? IV. — On the preventive poivcrfi of the Laics of Great Britain. There are several pas.sages, in the Argument of the United States, which apjiear (A) to contend that the Eoyal Prerogative in i^. i,,^ A™>„m-,it Great Britain actually extends, under the British Con.stitu- "' -i"'' '''•'■' tion, to a power of summary and arbitrary control, v» ithout legal procedure, over the persons and iirojierty of its citi- zens, when there is any ground to suppose that such citizens may be about to act, or that such proi)erty may be about to be employed, in a manner hostile to a foreign belligerent Power, with which Her ^lajesty is at peace; and (B) to assume that, if such a prerogative power does not actually exist under the British Constitution, the very fact of its ab- sence is proof of a defect of British law, in itself amounting to an abne- gation of tlic use of due diligence (or, what is the same thing, to a want of the means of due diligence) for the prevention of such a(!ts. Q'here are, also, other passages which assert (C) that "(Ireat Britain pretends that punitive law is the measure of neutral duties ;" while (D) "all other (lovernments, including the United States, prevent peril to the national peace by means of ])r(Mogative force, lodged, by imidied or express constitutional law, in the hand of the Executive," (page 37., These arguments require to be severally examined. (A.) The following passages embody the American argument us to the prerogative power, supposed by it to be actually vested ,;, n. ..Bnn.nt. iu the Crown of (Ireat Britain : M r.'h;nir(* on Pn-r'tii- iiliv.*, li.r due dill. 11-* til pr.T '« n 1 1 v H [mw.-rn !)'• onuiiiR to till lliili»h Ciown. (1.) We liiid, oil tlio most t-ur.soiy obsorvatiou of tho Constitutioii of Grnit Hiituiii. that the dcelanvtiou of war, tho roiiclusinn of peace, the coiuliict >f for- •MK" ati'iiiis, that all these thiiij>« aro In Great Britain elements of the prerogative of till' Crown. W(> cannot iMiliovo. and do not eonced(\ that in all those {jrtir.ter preroKativ^o powers there is not included tho lesser one oi' pnvintiHg imauthorizod private persons fromeu- m I- wvm .1 ! 11 i ll il 4 m ^ .*«»'■' -I! 306 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. {jajjing in privato, war af^ainst a friendly foreign State, and thns connnittiii<; Groat Britain to cannes of public w.ir on the part of such foreign State, (j)ages '2^. •27).) (2.) The whole lioily oi the powers, suitable to the regulation and niaintcnaiipo of the relations of Great Britain, ud extra, to ot'.'.'r nations, is lodged in the ]»r(".ogativc of the Crown. The intercourse of peac<', the decdaration and jiroseention of wmi. tlio proclamation and observance of neutrality, (whichlast is but a division of the general subject of international relations in time of war,) are all, under the British Constitu- tion, administered by the Koyal Prerogative. Wo refer to the debates in Parliament upon the Foreign-Enlis' ment Bill in 18]!>, imd on the ])roposition to repeal the Act in IH'i:?, and *^'> the debate npr)n the Foreign Hiilist- nient Bill of 187(t, (as cited in Note B of t!io Api>ei.dix to this \rgument,) as a dear exhibition of this doctrine of the British Constitution, in the aistinetion betwe(>ii tlio Executive power to pcfi'edt violations of international duty by the nation, througii tlit> acts of individuals, and the pnnitke legislation in aid of such power, which needed to proceed from Parliament. Wo refer, also, to the actual exercise of this Executive power by the Government of Great Britain, without any enabling act of Parliiinieut to that end, in various public acts in the course of the transactions now in judgment before the Tribunal. 1. The Queen's Proclamation of Neutrality, May I'X 1801. 2. The regulations issued by the Government of Her Britannic Majesty in regard to the reception of cruisers and their prizes in the i)orts of the Empire, June 1, l-Til— June 2, 1865. -i. The Executive orders to detain the Alabama at Quecnstown and Nassau. August 2, 1862. 4. The Executive orders to detain the Florida at Nassan, August 2, 1802. 5. The Ex<'cutive orders to detain the rams at Liverpool, October 7, 180;5. 0. The debate and vote in Parliament justifying the deteut'')U of the rams by the Government "on their own respoiisiI»ility," February 2:?, 180t. 7. The tinal decision of Her Majt.'sty's Governnnuit in re., .d "'o Tuscaloosa, as oxp*essed by the Duke of Newcastle to Governor Wodehou^ "• > : . llowiug words: •'If the result of these inquiries had been to prove that the ,tsst t , -s really an uu- condemneil prize, brought into British waters in violation of Her Majesty's orders made for the jturpose of maintaining her neutrality, T consider that the mode of pn)- ceeding in such cireiimstances most consistent with Her Majesty's dignity, and most proper for the vindication of her ttrritorial rights, would have b-ien to prohibit tlie exercise of any further control over the 'I'usealoosa by the captors, and to retain that vessel under Her ^Majesty's control and jurisdiction, imtil properly reclaimed by Irt original owners."' November 4, 18l3;{. 8. The Execnfiv(( order that, " for the future no ship of war belonging to either of the belligerent Powers of North America shall be allowed to enter or to riinniin, or to be in any of Her :Majestv's ports for the puriiose of being disnuintled or sold."' Sep- tember 8, 18ti4. 9. The fiii.il Executive orders to retain the Shenandoah in port "by force, if neces- sary,'' and to "forcibly seize her upon the high seas." September and Oitober, i^fi.'), 10. Tlie rej'ction l>y Parliament of the section of the new Foreigu-Enlistuifnt liill, which jtrovided for the exclusion from British ports of vessids which had Iv-cm fitted out or dispatched in vi(dation of the Act, as reeonimended by the Report of t-'. Il'nal Commission. This rejection was moved by the Attorney-General and made 'i^' i'.iili.i- nient, on the nieie ground that this jHiwer 'could be exercised by Order in »' ritii. That these acts were understood by the (Joveriunent of Great JA!»a'; t< ■ . t itpon the luerogative and its proper exercise, is apparent from the responsibi <■, : i; 'i c^ the Law Oftieers given upon lifting occasions, (pages :$2:}-;{25.) Tlioso passa^-es oxliibit a very strange contusion of ideas, bet .' •: ' . prerooativc, of the JJritish Crown, as ie|)resenting tlie llritisli natiCii in its external relations towards foreign Towers, not subject to its laws, and its means of control within its own territory over its own citizens or coniinorant subjects, its relations to whom are created and detinei' by those laws. The declaration of war and peace, or of neutrality in a foreign war ; the issuing orders and regulations as to the reception of foreign cruisers or their prizes in British ports j the exi .ioo of control over loreign belligerent vessels or prizes (as in the sup^ ^-^v'i i ,i:-oof the Tuscaloosa) brought into British ports by a belligerent Po„" " "frary to Iler Majesty's otders and regulations; the exclusion of it;r ^i '»*^'- ligerent vessels from being brought into British ports to be dismantletl or sold, or from being brought into such jwrts at all, if originally littnl out or dispatched from British :-rritfnv iu violation of British law; the BRITISH SUPPLEMENTAL ARGUMENT. 307 iissau, August seizure of a foreign vessel, (as in tlie supposed case of the Shenaiuloali,) if found committing depredations on the high seas, after tl>c belliger- ency of the Power, by which she was commissioned, had ceased; all these are acts within the former category, concerning the (external rela- tions of Great Britain towards foreign Powers, not subject to British law or to British national jurisdiction. Tlie Executive orders to detain the Alabama at Quoenstown and Nas- sau, the Florida at Nassau, .and the rams at Liverpool, were on the other haiul all issued by virtue of the powers with which the British (Jove.n- nient was armed against its own subjects by British municipal law, (viz, by the Foreign-Enlistment Act of 1819,) and not by virtue of any actual or supposed prerogative of the (Jrown. The words used by the ]>ritish Attoniey-General in Parliament, on the 23(1 of February, 18(54, with reference to the detention of the rams at Dirkenhead, (or to the preliminary notice that they would be seized if any attempt were made to remove them,) have been several times quoted iu the American Argument.* Those words were, that the (ioverument had given the orders in question, " on their own responsibility." But this does not mean that the orders given were, or were supi)osed to be, founded on any other autli^rity than the powers of seizure given by the Foreign-Enlistment Act ; to which reference had been expressly made, as the authoiity for wiiat was done, in a letter to the Law-Ollicers dated October 11), ISC).'}, also quoted at page 331. Those orders were lU'cessarily given upon the responsibility of the Executive Government, on whom the burden was thrown, by the Foreign- Knlistnient Act, of first taking possession of an oll'ending vessel, in any case in which they might have n^asonable ground for belief that the law was, either by actor by attempt, infringed ; and afterwardjustitying what they ha thereof; and all the Kinnted. In arbitrary States, this law, wherever it coiitru- »licts. or is not i»rovid<'d for by, the uiuuicii)al law of the country, is enforced liy the Koyal power ; hut, since in England no Koyal i)ow«'r can introduce a new law, or sus- pend th(^ execution of the old, then-fore the law of nations, whene\er any (iiicstion arises which is luojierly the snl)ject. of its jurisdiction, is here adojited in its fnll extent by tlie coniniou law, and held to be the law of tIk! land. Hence those Acts ef I'arljji- lueut which have ironi tinu; to time been made to enforce this universal law, or to facilitate the execution of its decisions, are not to be considered as iutroductive of anv new rulP, but uk rely as declarat«»ry of the old fundamental constitutions of this kinj;- tlom, without which it must cease to be a part of the civilized world. * * * ^\,7i iv, pages, SOi, ;»):?.) With ro.spo(;t to the particular question of tlte power of the Ilritish Crown to prevent, by virtue of its prerogative, the buikliiig of ships of war for foreign Powers within its . The Aineriran '^^^'l ai>i)ear to coiitend that the British Government must be deemed to have been wanting in due diligence beeause tlu'y ])roeeeded by law, and not by suspension of law, or by pie- rogativc witliout law. (1.) Apart from otiu-r and' direct proofs of iiermissiou, or knowledge and sutferancc, the responsibility for any injury is tixed on the local Sovereigu, if he dc-pend on niinii- cii»al nu'ans of enforcing the. observanct; of international obligations, instead of aetiii;; preventively to that end in his prerogative cajtacity as sovereign. (P. '■i:).) (2.) The next great faihne of Great liritain to use di(C diUijinvc to pirrciit the viola- tiou of its neutrality, in tiui nuitters within the jurisdiction of the tribunal, is sliown in its entire omissicm to exert the direct Executive authority, lodged in the Koyal Pre- rogative, to iutercept the ]>r(!parations ami outlits of the offending \essi'ls. and tlic contributory provisio)is of armauu'ut, uiimitions, and men, which were emitted tVoni various ports of the I 'uited Kingdom. We do not lind in the Hritish Case or Counter Case any s' t lous contentiou, but that such powers as pertain to the Prerogative, in tlio maintenance of intcrnatiomvl relations, and are exercised as such by other great I'owers, would have prevented the escape of every one of the ottV'iuling vessels emitted from British ports, and preclmled the subsidiary aids of warlilce equipnu'iit and siip- )dies which set them forth and kept them on foot for the maritime hostilities which they nuiintained. (Page 1()5.) (;i.) Tlie British Miuisters do u<»t scruple to suspeml the privileges of the writ of hahian eor^/i/v, whetlu'r with or without i)revious parliamtintary authorization, and Avhether in the United Kingdom or in the Coh)uies, on occasion of petty acts of relicl- liou or rev(»lt ; that is, in the case oi' domcutic war; a fortiori, they should and may arrest and prevent suttjects or conuuoraut foreigners engaged in the couimissiou of acts of foreign war to the prejudice of another Goveruiueut. (P. 25.) The answer to these arguments has been, in substanee, anticipated; but with respect to each of them, a few further remarks may not bo supertluous. With respect to the first, it is difficult to understand whether tlie Counsel for the United States mean to intply (in the face of the admis- sion as to the lindtation of the powers of their own President to siicli authority as was expresslj* conferred upon him by the Acts of Congress of 1701, 1817, and 1818, which is found at page 27 of their Argument) that the Tresident of the United States has a '' prerogative capacity as Sovereigu,'" by which he can "act preventively," or that he does uot BRITISH SUPPLKMENTAL AKGIIMENT. 399 iidopoiul upon niuiiicipal means" for tlieeiifoiceiiioiitofsncliiiitornational ol'i;;'ati()ns as are now in question with Oreat IJritain. liOj^al powers (.'Oiiterrcd upon the President of the United States by Aets of Congress lor tlie perfornianee of international obligations, are as much " muni- cipal means" as legal powers conferred upon the Soven'ign of Great Ihitain by an Aet of the British Parliament, for the like puri)ose. With respect to the second passage, it is to be observed, that it not only imputes as a want of due diligence the abstinence frou) the use of arbitrary i)owers to supply' a sui)posed detitnency of legal i)owers, but it assumes that the United States has a right, by international law, to expect Great liritain to ])revent the exportation from her territory of what it describes as "contributory provisions,'' arms, munitions, and "subsidiary aids of warlike e(]uipment and supplies," though such elements of" annaments v.ere uncombined, and were not destined to be combined, within British jurisdiction, but were exported from that terri- tory under the conditions c" ordinary exports of articles <;ontraband of war. For such a pretension no warrant can be found either in inter- uational law, or in any municipal law of (Jreat Britain, or in any one of the three Kules contained in the Ylth Article of the Treaty of Washington. The third passage reipiires more particular attention, because it pre- sents, in 51 particularly striking manner, a radically falsf. assumption, which pervades many other portitnis of the United States Argument, viz, that the acts done within British jurisdiction, which (rreat Britain is said not to have used due diligen(;e to prev(Mit, were ^'- Hctn of icin'" by British subjects or comnKU-ant foreigners against the United States, justifying and calling for sinnlar means of repression to those which inijiht be necessary in a case of " rebellion or revolt, /. c, of domestic war." It is imi)ossible too i)ointedly to deny the truth of this assumption, or too positively to state that, if any military or naval ex- „,,,„. urui^i, peilitions, or any other acts or operations of war against the '/Hmn'm,' T,«r;r;m, United States, in the true and i)roper sense of those words, .',',',;i ;,',V',i i'',',',''.'r';ii liad been attempted within ]>ritish territory, it would not !,',';;, ';;'''>"„'"„ .t'llm have been necessary for the E itish Government either to "'^"i'i't''^"t"'-5- suspend the Habeas (Jorpus Act or to rely on the Foreign Enlistment Act, in order to enable it to intercept and prevent by force such ex|)edi- tions or such acts or operations of war. The whole civil police, and the whole naval and military forces of the British Crown would have been lawliilly available to the Executive Government, by the common law of the realm, for the prevention of such proceedings. But the fact is, *hat nothing of this kind ever happened or was attempted, h Ki)rf-iRU En!i.-'- int'iit Act levt'r jtl- H'cle.l the diljBemv (if tlie British Gt,\- ornnif-nt. L':f: W^ i .V ii mi 402 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. foniprelieiided a ship built and speciallj' adapted for warlike purposes but not .armed or cjipable of offense or defense, nor intended so to be, at the time of her departure from I>riti.sh jurisdiction. All the ju(l<;es were of opinion that the departure of such a ship from neutral teni- tory was not an act of war, was not a hostile naval expedition, and was not prohibited, inter genten, by general interimtional law ; aiid two of them thought that, not having any of those characters, it was also not within the prohibitions of the Statute; while the other two were of opinion that the existence of those characters was not, under the words of the law. a necessary elenjent in the municipal offense. The language of Baron Jbamwell, an eminent Ihitish 20. Hnroii It r(i m* well's vifw of the in- tf'riiuttoii.il, It!* (li.s- linct trout niiitiiripal oliligatioii, iiu I'r c'll with thi\l of I lie Aliiericiin Attoniuy- tii-inTiil in 1H(I. Judge, (afterwards a nieniber of the British Neutrality Laws Commission,) explains clearly and forcibly the vie\v of the case, as it would have stood umler international law only, which was taken by the entire Court : If wo look at the rights and the oblij^atioiis created by inteniatioual law, if a hos- tile expedition, litted ont by a State, leaves its territory to attack another Slate, it is war; so also, if the expedition is litted ont, not by tlu) State bnt witli its snU'crjiiuc, hy a part of its snbjeets or stranj^ers within its territories, it is war, at least in the option of the assailed. They would be entitled to say, either yon can prevent this or yon cannot. In tlie former case it is yonr act, and is war; in the latter case, in .sclt- defcnse we must attack yonr territory, whence tliis assanlt on ns proceeds. Anil tliis is (Hiually true, Avhether the State assailed is at war or at peae»' with all the world. The riju;ht in peace or war is not to be attacked from the territory of aiiotln'r Stiitc ; that that territory shall not bo the basis of hostilities. Bnt there is no internationiil law forbiddiufi; the supply of contraband of war; and an armed vessel is, in my judj;- ment, that .and uothinjf nn)ie. It may leavts tiie neutral teriitory niuler the sanu' tiiii- ditions as the materials of which it is nnide mifflit do so. Tiio State intennted in stoppin}5 it must stop it as it would other contraband of war, viz, on the hi»>r Stiitc ; lo international is, in my jiulj;- •v tlie sanu' (.'oii- t.e intercHtLMl in he bijj;li seas. the authoii- iu the earlier lid down by n December, of war, built a military IS, GUJiht to He says: been, perl'oet law of nations, preserved by perfect iiiipai- tive it is super- less familiar to •omplahi, no long 'rue, to coiifimte he has no (jmrnii full knowkds" to ships of war, w to comiuenT, ling within her ilties. (Britisli loiintries. 3osition, tbat States, pre- J of preroga- .itutiouiil law H\s, a general treat Britaiu, BRITISH SUPPLEMENTAL ARGUMENT. 403 by an argument derived from the laws of the United States, and of other conJitries, with a view to show, by the couiparisou, the insunieiency of the preventive powers of British law. To the whole principle of this argument, so far as it relates to matters not prohibited by the general law of nations, Great Britain demurs; and, even with respect to matters which are prohibited by that general law, it is obvious that nothing can be more fallacious than au attemi)t at comparison, which, without exact and special knowledge of the whole complex machinery of laws, judicature, and legal procedure, and politi- cal aiul civil administration, which prevails in each ditferent country, can pretend to decide on the relative efficiency of those various laws for political purposes. The materials, however, on which reliance is [daced for this comparison in the American Argument, are so manifestly scanty and insufficient as to make the answer to this part of the argument simple, even if it were in principle admissible. As to the laws of France, Italy, Switzerland, Portugal, Brazil, Bel- pum, and the Netherlands, and, in fact, of almost every country men- tioned in the Argument, except the United States, it can hardly be tbonght that the Counsel (or the United States understand these laws, which are all substantially the sanu», better than M. Van Zuylen, the >'etberlands Minister, who has to administer them, and who, in reply to certain inquiries from the British Charge d'Att'aires at the Uague, wrote : There is no code of laws or n'<;nlations in the Kingdom of the Netherlands coneern- ing the rights and duties of neutrals, nor any special laws or ordinainu's for either party on this very important nuitter of external luihlic law. The (Joveniment may use Articles ti4 and 85 of the I'enal Code, hut no legislative provisions havt; heeu adopted to protect the Government, and serve against those who attempt a violatiou of neutrality. It may he said that no country has codified these r«;gulali(ui.s and ;;iven them the loree of law ; and. though Great llritain and the United States have their Foreign-Enlistment Act, its etVect is very limited. This language is criticised in the American Argument as "inaccurate," but it is in reality perfectly exact, for such provisions as those of Arti- cles 84 and 85 of the French Penal Code cannot possibly be d<'scribed as either prohibiting oi' enabling the Government to prevent those detinite acts and attemi»ts against which it was the object of the British and the American Foreign-Enlistment A<;ts to provide. These Articles are punitive only, and they strike at nothing but acts, unautlunized by the Government, which may have " exposed the State to a declaration of war," or " to reprisals." The language of the corresponding laws of almost all the other States, except Switzerland, is admittetl to be similar. That of Switzerland prohibits generally, under penalties, all "acts contrary to the law of nations," while it regulates (by enactment, the particular provisions of which are not stated) the enlistment of troops within the Swiss Federal territory." No man having the least knowledge of the laws and constitutional systems of Great Britaiu and the United States can be supposed to imagine that enactments conceived in these vague and indefinite terms, if they had been adopted by either of those countries, would have beeu of the smallest use for the purpose of preventing such acts as those of which the Government of the United States now complain ; much less that they would have been comparable in point of etiiciency •with the definite means of prevention provided and directed against attempts, as well as acts, by the Acts of Congress and of Parliament, which were actually in force in those nations respectively. But it is assumed, in the Argument of the United States, that these special laws were in all these countries supplemented by au elastic and m:' ' lil ««-■ 404 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. arbitrary executive power. Oftliin assertion no proof in detail is at- tempted to be given ; nor is it believed to be consistent with tli<> fa(;t. If the French and other tJovernnieiits issued executive l'ro(!hiiiiatioiis forbidtling their subjects to do acts of the nature now in question, so also did the (^ueen of (heat liritian. IJy iler ^Majesty's Proclamation ()t Noii- trality, (13th ^lay, 1801,) she "strictly chargedand comnnmded all her subje(!t8 to observe a strict neutrality durinjj the hostilities" (betwooii the United States and the (confederates,) "and to abstain from violatiii<' or contraveniui;;- either the laws and statutes of the realm in this bdialE or the law of nations in relation thereto;" and she warned them, ''luui all persons whatsoever entitled to her protectior " — "That if any of thorn should presnuio to do any acts in doioj^ation of their duty, i^ suliJt'ctH of a neutral sovcrt'ifjn, in the said contest, or in violation of the law of iialidiis in that lichalf, as for example, and more especially, hy entering; into the military sci- vice of either of the said contending parties as commissioned or non-connnissioned (iitj. cers, or soldiers ; or by serving as ollleers, sailors, or marines, on hoard any ship or ves- sel of war, or transport, of, or in the service of, either of the said contending paities; or by engaging to go, or going, to any jdaco beyond the seas with intent to enlist or engage in any such service, or l»y procuring, or attempting to procure, within Her Maj- est.v's dominions, others to do so; or by tilting out, arming, or equipping any sliip m vessel to be employed as a shi]» of war, or jirivateer, or transptut, by either of the said contending i)arties;" (or by breach of blockade, or carriage of contraband,) "all per- sons so otiending would incur and be liabh! to the several i)enalties and penal coiisi- (luences." by the (British Foreign-Enlistment) Act, " or by the law of nations, intbat behalf imposed or denounced." If this Proclamation referred (as it did) to British law in some cnses. and to the law of nations in other cases for its sanctions, the French and all other Proclamations of the like character also had reference, for the like i)urposes, to their own respective national laws, and to the law of nations. Whatever surveillance may have been exercised by the French Government, according to the particular i)rovi8ions of their own 'laws, over the builders of the rams ijitended for the Confederates, at Xtmte.^- and at Bordeaux, the construction of those vessels was at all events not stopped ; and one of them, the Stonewall, did eventually pass into the hands of the Confederates; nor was it by any power of tin- French Executive, or of the French law, that, she was afterward inter- cepted, before she had actually committed destructive acts against the shipping of the United States. The (Georgia received her armament in French waters. Commodore Barron, " the head of the Confederate Navy Depaitment in Europe,"^ was established in Paris; a Frenchman resitiing in Paris, named Bravay, intervened in the Confederate interest as the ostensible purchaser of the rams at Birkenhead, and claimed them, against the seizure of the British Government, without any aid from French authority to Her jMajesty's Government in their resistaiif' to that claim. These facts are not mentioned as implying any Avant ot pro])er diligence on the part of the French Government ; but to show. that even in that country, at a time when the Imperial Government exercised much larger powers of control over public and private liberty than could ever be possible in Great Britain, (or, as it is believed, in the United States,) the Executive either did not possess, or did not find it practicable to exercise with the preventive efticacy which the American Argument seems to deem necessary, any merely discretionary powers of interference. Yl. — On the Preventive Poicers of the Law of the United States. The comparison between the law of Great Britain and the law of the ' See letter, dated January 27, 1865, from Consul Morse to Mr. Adams. (United States Appendix, vol. ii, p. 175.) BRITISH SUPPLEMENTAL ARGUMENT. 4ori 22. ih\ tliHi-ornitiir* I'mtril St.ltr-t liM. twr. II llii'ir 'US ri I i»ii nil. I lll'lll-ll li». Ill iirtlfi til linn (• II gen- ITll W.lllt III ilili' illl- ifti'liri* llK.lltinl (iriMt llntiiill. '2X K\:itiiiiKi t i on lit t h f pri'M-iil ivi- pIlWlT:* lll'llll' AllllT- ic 111 (J'lViTIIIIH'llt. Mil- iliT tliiir Arts III' Cniiuri'H.s t'li r t lit* prcsci'vatiiiii of iifii- tnility. ITnitod States is more easy ; beeanse they have a very close iiistorical and Juridical relation to each other; and because Imth these nations exclude from their constitutional systems all forms of arbitrary iK)\ver. What tlien are tlie preventive ])o\vers, found in the sev- onil A(;ts of Conjjress from time to time passed ui)on this subject in the United States, and wliich are admitted (at im^e L»7 of the Airicricnn Ar}>nment) to be the oidy preventive i)owers whitih the lOxecu- tive (lovcrnment of tlie United States of right possesses ? How have those powers been used in practice ? And witli whatdegree of success and I'lticicMcy so far as regards tlie i)ra.) "And to the restoring the prize or prizes in cases in which restora- tion shall have been adjudged j" (a purpose applicable only to cases (//) ami («).) (('.) "And also for the purpose of preventing the carrying on any such expedition or enterprise from the territories or jurisdiction of the United States against the territories or dominions of any foreign Prince," &c.; (a purpose applicable only to case (c).) It is thus seen that all these powers of i)reveutiou given by section 8 to the President are limited, and not arbitrary, and that tht^y would none of them have been api>licable to prevent the departure from the United States of an unarmed vessel, not intended to be armed within American jurisdiction, built and equii)ped within the United States, and (lispiitched from thence for the use and service of a belliger«»nt. Nor is there b lieved to be any trace in the annals of the law or history of the United States of their ever having been employed for such (I purpose. IJut, further, this eighth clause of the Act of Congress of 1818 is a re- enactnuMit of the seventh clause of the Act of 1791, the purpose ami effect ot whicli was examined and autlioritatively ex[)lained by the Supremo Court of the United States in the year 1818, in the case of " Gelston ivs. Uoyt," (reported in the fourth volume of Judge Curtis's Reports, pages i.'ll-L'31.) An action was brought against certain olUcers of the Customs of the United States for the wrongful seizure of a vessel, and they attempted (among other things) to justify themselves by pleading that iu taking possession of and detaining the ship they had acted under the instructions of the President, given by virtue of the seventh section of the act of 1791. That defense was disallowed, on the grounds that the plea did not allege any forfeiture under the third section, nor justify the taking or detaininy the ship for any supposed forfeiture, and did not show tliat the defendants belonged to the naval or military forces of the United States, or were employed in such capacity to take and detain the ship, in order to the execution of the prohibitions and penalties of the act. Mr. Justice Story, in giving the judgment of the Court, observed: Tlie power thus intrusted to tl.e President is of a very liij;h and delicate nature, and niiuiitestly intended to bo exercised only when, by the ordinary process or exercise of civil authority, the purposes of the law cannot bo eH'i'ctuated. It is to be exerted on extraordinary occasions, and subject to that hij>h responsibility which all executive acts necessarily involve. Whenever it is exerted, all persons who act in obedience to the executive instructions, in cases within the act, are completely justirted in takinjj possession of and detaininji the ottendinff vessel, and are not responsible in danuiyes lor any injury which the party may suH'er by reason of such proceeding. Surely it uevtT could have been the intention of Congress that such jmwer should be? allowed as a shield to the soizing-olHcer, in cases where that seizure might be made by tlie ordinary civil means. One of the cases put in the section is where any process of the Courts of tile United States is disobeyed and resisted ; aud this case abundantly shows that the ):■ I "!1 I t IfM Pft-f^'p' I ■ 408 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. r t : 1 ■il ■ 1,1 my ■ ■ ti ■■ m :4a !:i W: aHthorUi/ of flic I'rcnidciif wan not intended to be called into exercise, unless where militarii aui naval forcvs were ncivsudrij to iiixiin: the ixcnilion of the law. In ttsriiis, tlic soction is ((iii- lined to tlir^ (Miiijioyiuciitof iiiiiitiiry and iiiiviil forces ; and there in neilher public ixilini nor principle to Jiixtify an rrlenxio'/t of the prvrotjalirc beyond the trrm^ in which it in (linn. Cti:ij!;re,s,s nii>;lit In; pcrtoctly \villin<>; to iiitinst Uio Prosident with the powor to take and detain whcneccr, in hin opinion, the case wan no Jiaijrant that military or naval /«nv.y were ncccsnary to enforce Ihc lawn, and yet, with {•reat proprif^ty, deny it where, from tin,, cintnnistantu's of tlie case, tlie civil otHcers of the (Jovt^'ninent niif;;ht, npon tlieir private ies|ioii.sibility, witliont any ilati) to the British Counter Case, (pp. 149, 150,) the inferiority (not superio .ity) lor preventive as well as for other purposes of the Act of Congre^ss of 1S18 (the only law then and now in force in the United States i'ov the maintenance of their neutrality) as compared with the British Foreign- Enlistment Act of 1810. Nor was there any reason to complain of the lairness of Mr. Seward, when (disregarding, as in his view practically luiimiiortant, all those points of detail in respect of which these two Acts differed from each other) he described the laws made for this pur- pose in the United States on the 0th Ai)ril, 1803, as "in all respects the same as those of Great Britain," and on the 11th of July, 1803, as " ex- actly similar." (See Annex (A) to the British Argument or Summary, page 40.) But it is certainly astonishing, after these acknowledgments, (and in view of the facts al)ove stated,) now to find these ditlerences between the ]>ritish and American Statutes insisted ui)oi>j in the Argu- me.it of the United States, as amounting to nothing short of the whole tlittcreuce between a merely penal Statute and a law intended, and liiective, for the purpose of juevention ; and as constituting, on that account, a sufficient ground for inferring, a priori, a general want of due diligence o:» the i)art of Great Britain, with respect to all the uuitters covered by the jtresent controversy. Some reference must here be made to an argument, derived by the Counsel of the United States frouj the fact that a consider- ble change and auuMulment of the British law has since b'-^-Mi ti."'v„Zi's"!.,"s iiuide, and that new preventive i)owers (of a kind not r,'i',"'i:.,'LtmenV a^ lonnJ, either in the Act of Congress of 1818 or in the British Act of 1810) have been conferred upon the Executive Government of Great Britain, by a recent Statute passed by the British Legislature in 1870. The Legislature of the United States has not yet thouglt it nec- essary or exi)edient to introduce any similar or corresponding provisions or powers into the law of that country; it cannot, therefore, be sup- posed that the Government of the United States deems such provisions or powers to be indispensable to enable a constitutional Government, the Executive of which is bound to act according to law, to fulfill, with tlue diligence, its international obligations. No one can seritmsly con- teiid that because, after experience gained of rhe working of a particu- lar law or administrative nuichi 'ry of tiiis nature, certain points may be found, on a deliberate exaitiination, in which it appears capable of being improved, this is a pro; i that it was not, before these improve- ments, reasonably adequate for the fullilbnent of any international obli- ;iati;)iis to which it nuiy have been nu^ant to be subservient. In all im- liroveiuents of this kind, it is the object of wise legislation rot to limit itself by, but in many respects to go beyond, the line of antecedent obli- K'dioii ; the domestic policy and security of tho State which nuikes the law, and the reasonable wishes, as well as tho -strict rights of foreigu I'oweiffi, are proper nujtives and elements in sucl. legislation. No nation won d ever voluntarily make such improvements in its laws, if it were siipliesed thereby to admit that it hud previorsly failed to make such m ■■r^^ m 410 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. I i ' ' m Tp m due provision for the performance of its public duties as other Powers inipfht be entitled to require. With respect to the lijjht which is thrown upon these questions by . , American history, it is, in the first place, to be observed 26. Illui.tratii.ii.-.»of ,, . ,, • t • j^- o ^ -,- a^ i • i j^i ^ ■^' » ^u th- [..Hrin. ,.i ,i|.e that thc violatious of neutrality which the Government of h'Z!" oiiheuni',;.';! Presidcut Washington took measures to prevent, , 150, 157, 158, 100;) also in the letters of District Attorney Glenn to the Spanish Consul Chacon, (September 4, 1810,) and to Secretary Monroe, (February 25, 1817,) and of Secretary Rush to Mr. Mallory and Mr. McCulloch, (March 28, 1817,) which are among the documents, accom- panying the Counter-Case of the United States (Part II, pages 40, 53-50, 01, and 02 ;) and in those of Attorney-General Hoar to District Attorney Smith, (March 18, 1809,) and to United States Marshal Barlow, (^lay 10, 1800,) among the documents accompanying the Counter Case of tlie United States, (Part HI, pages 743 and 745-747;) and in the Circular of Attorney-General Hoar to the District Attorneys, (March 23, 180!),) and in the letter of District Attorney Pierrepont to Attorney-General Hoar, (]\Iay 17, 1809;) which are in the "('uban Correspondence, 18(J0-IS71.' accompanying the Counter Case of the United States, (pages 29 and 5!).) VH. — Ohjcctions of iheUnitcd Strifes to the Aflminhtrative System of Great Britain, and to the ecidence reiiuircd for the enforcement of the Law. It appears, however, to be suggested that it was necessary, for the exercise of due diligence on the part of Her Majesty's (lov- ernment, that they should have organized some system of espionage, or other extraordinary means of detecting and proving the illegal equipment of vessels, during the latt^ civil \v -; that it was inconsistent with due diligence to treat evidence of illegal acts or designs, produidble in a British Court of Justice, as generally necessary to constitute a "reasonable ground for believing," that an illegal etiuipment, which ought to be |)re- vented, had tak'ii place or was being attempted ; and that in all su(!h cases the orticers of the British Government ought to have obtained for them- iBi'itiHb App., vol. V, p. 242. 27. ArsimicntH (if ttl.- I'lirti-,! Sl:ilii fntin rdlHKHStfti (ir- (V*t't^ in the iidtitini^- IritlVO Ui:|rlliliiTV tif llnli'.li I iw.iuhl iHirii thiM'viil.'rn'i'ri»t|iiln'il liy tlw lln^l^unish, and^ by the terror tluis inspired, to prevent, the infractions of law which temh'd to the violation of its internatiomil duty to the United Stfates. It was equally without any system of ext'cntivc officers specially charged with the execution of process or nmn- (lates of courts or magistrates to arrest tiie disi)atch or escape of suspected or incrim- inated vessels, anii tlieir duty in these respects, of si)ontan(!ous, organized, and p' rmanent vigilance and activity, and in the methods and vjficavii of its performaiid ' »ii all the occasions w|)()n which this duty has been called into exercise, the (Jovernnient nf the Unit ! States has enjoined the spontaneous and persistent activity of the corps »{' Distriii Attorneys, Marshals, Collectors, and the whole array of subordi initios, in the duties of ol>ser\ itioii. detection^ information, detention, pro8ecuti«ui, and prevention. They ask, also, (page So,) for the assent of tlic Arbitrators to the views of Mr. Dudley, the United States Consul at i.ivcrpool, when (writ- ing to ]\Ir. Seward with respect to the re(piest of I he lUiti.sli Govern- lueiit for evidence as to the destination of the Alabinna, before such evideuce had been supplied) he said : I do not think the British Government are treating us propi j I.v in this matter. They are not dealing with us as one friendly naticm ought to deal with another. When 1, aa the Agent of my Goveriwnent, tell ^Imm from evidence submitted to nu- that 1 have no doubt about her character, they ought to accept this until the parties who are building her, and who have it in their power to show if her destination and i)urpose are legiti- luate and honest, do so. * * * The burden of proof ought not to be thrown ni)on 'IS. Ill a hostilt! community like this it is very difficult to get information at any time upon thesjj matters. And if names are t«» bo given it wouhl render it almost impossi- hle. The G'.iveruiuent ought to investigate it and call upon us for proof. If the line of argument contained in the two first of the foregoing I if ■it ' 412 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. ': 1' m •xm 2-t. inrnn.i.t.„..v cxtracts IS usGcl foF tlic puii>ose of inducing the Arbitrators Ireu'v w!l'h hi 'n' to lioUl the BHtish Government responsible for matters Z-mT"',' Invl';,','; which were never actually brought to their knowledge, so nMml.'I'hr'yimn'l' as to make their prevention possible, (as in the case of the .1 hei.ei. Georgia and the Shenandoah, and of the vessels which took out armaments to those ships, and to the Alabama and the Florida respectively, from Great Britain,) it appears to lose sight of the fact that, according to the express words of the first Rule, and the evident meaning of all the three Kules of the sixth article of the Treaty of Wash- ington, the obligation to " use diligence to prevent" is consequent ui)on, and not antecedent to, the existeiice of " reasonable ground for believing," that in the particular case something which (if known) ought to be ])revented, is intended to be done. If that reasonable ground for belief wa - in any particular case absent, there was no such obligation ; and tf> invite the judgment of the Arbitrators upon some supposed detects in the administrative system of Great Britain, with reg-ard to the discovery of offenses against the Foreign-Enlistment xVct, or the laws of Customs and Navigation, in order to found thereon a conclu- sion that, under some different system of administration, facts which never actually came to the knowledge of the British Government, and of wliicli they had no Information, either from the Agents of the United States or from any other \hen it comes to be applied to cases in which information, unaccompanied by legal evidence of any actual or intended violation of the law, was given to the British Government before the de- parture of a vessel alleged to have been illegally equipped, it seems e\i)edient not to i^ass it by without refutation. It is a complete error to suppose that the British Government did, in fact, ever rely merely on such information and evidence of actual or fiitended violations of the Foreign-Enlistment Act as might reach them from the Ministers, Consuls, or Agents of the United States ; or that they did not recognize and fulfill the duty of endeavoring, by the inde- pendent activity and vigilance of their own officers, and by lollowing up i\\l such information as reached them from any other quarters by proi)er inquiries made through those officers, to discover and i)revent any intended breaches of the law. The warnings of the Proclamation of Neutrality, issued at the com- mencejnent of tin- war, announced to all the Queen's subjects Her Ma- jesty's determination to enforce the Foreign-Enlistment Act against all offenders, to the best of her power. Notwithstanding the statements, (already cited at page IGO of the American Argument,) it is the fact that there did exist "systematic and general means of action," ade- quate in all respects for the due aiul honajiile enforcement of the law, in all the ports and places where ship-yards existed, throughout tiio British Empire. It is also the fact, notwithstanding what is there said, that special instruction were issued to the Custom-house authori- ties of the several British ports, where ships of war might be con- structed, and also by the Secretary of State for the Home Department to the various authorities with whom he was in communication, to "en- deavor to discover and obtain legal evidence of any violation of the 29. The Kritich (■nvenuMfnt took ;ir- tivf aiu) sixinliiiii'iiiis im'iHiire.H to ju-iimrt' alt priiper iiill'iiiia- tion, innl to pit-vnit breaclies oC tht- law. imii BRITISH SUPPLEMENTAL ARGUMENT. 413 Foreign-Enlistment Act, with a view to the strict enforcement of that Statute, wherever it coiihl really be shown to have been infringed." These instructions were repeated in or before Ai>rii, 18(>.'3 ; and Earl Knasell, when communicating that fact to Mr. Adams, (2d April, 18(53, Appendix to Case of United States, vol. i, page 500,) stated that " Iler Majesty's Government would be obliged to him to communiiiate to them or 10 the local authorities at the several ports any evi ; their attention having been called to the slup by the CiKist Guard oOieers. The acttion of the British Government to prevent the Anglo Chinese flotilla, early in 1804, (as to which no obligation, muni(Mi)al or interna- tional, was incumbent upon them,) from falling into the hands of the Confederates, was wholly spontaneous and unsolicited. Furthermore: In every case in which iid'ormation, however unsuj)- ported by evidence, as to any suspected vessel, was com- iiuniicated to Her Majesty's Government by Mr. Adams, or <.m;rnm,„iiv,li'„'«ei otherwise, a strict watch was directed to be kept on the ves- m'n'v>,i,'''h'y'' ti," f'Cl, and speci. inquiries were ordered to be made by tiie proper persons. The results of these inquiries were reported, in every I L* ' '* t 414 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. ! . !. :!'■ ^ f case, to Mr. Adams by Earl Kiissell. In a preat majority of instaneps, even when Mr. Dudley or Mr. Morse (the United States Consul) liiul stated and reiterated their suspicions and belief, with the utmost con- iidence, and had supported it by hearsay statements, or hearsay deposi- tions, in which mention was often nuule of the connection of Captain Bullock, and of the firms of Fraser, Trenholm & Co., Fawcett, Preston & Co., and W. C. Miller & Sons, or one or more of them, or other kiio^vn or suspected Confederate agents, with tbe vessels in question, the be- lief of the local authorities, that the law bad not been, and was not about to be, infringed, proved to be well founded. In the cases of tlie Florida and the Alabama, inquiries were made by the Custom-house oflicers, among other persons, of the builders of these ships, and other information was obtained by those oflicers, which was duly reported to Her Majesty's Covernment. Earl Kussell made inquiries ioiiceruing the Florida of tiie Italian Government; and the zeal and activity of tlie proceedings of Commanders McKillop and Hinckley, at Nassau, with respect to that ship, will not be called in question. It was by means of a very diflicult investigaticni, conducted by Her Majesty's Government, through their own Agents in France, Egypt, and elsewhere, that the evidence applicable to the rams at Birkenhead was brought up to tlie point necessary to establish a "reasonable ground for belief" that those rams were really intended for the Confederate service. Nor is there any trace of ]>roof, in any part of the voluminous Ap- pendices to the Cases and Counter Cvses on either side, that the various oflicers of the Customs and other civil or naval authorities to whom the duty of taking proper measures lor the discovery and pre^'ention of offenses against the Eidistment Act was intrusted, neglected any proper means, which they could and ought to have used, to obtain information or evidence. It was not, indeed, their practice to search out and inter- logate all persons who might be crimimUly iujplicated by any accusa- tion ; because such persons are not obliged, by British law, or accord- ing to the general principles of Justice, to answer any questions tending to criminate themselves; and also because the general exi)erience of those accustomed to the administration of the law is, that statements voluntarily made by such persons, if really guilty, are not likely to he of assistance in the discovery of truth. Nor was any general system of espionage established ; though, on what were considered proper occasions, (see British Appendix, vol. ii, page 1G9,) the agency of detective officers was employed by the municii>al authorities for these purposes. Such a general system would be contrary to the genius and spirit of British institutions; it cannot be pretended that, to establish such a system, was part of the " «liligence due" by any free country to any foreign nation. But, speaking generally, everything was done which, in the usual and proper course of the civil and political adminis- tration of affairs by the Executi\e Government of Great Britain, ought to have been done; and, if these means were not sufficient, in all cases, to discover and prevent (though they did prevent in most cases) the violation of the law, the experience of the British Government, in this respect, was only the ordinary experience of all Governments, with respect to the occasional success and impunity of every species of crime. VIII. — Results of the Adminhtrative Syntem, and of the practice wUh respect to evidence of the United States in similar cases. In a question of due diligence between Great Britain and the United BRITISH SUPPLEMENTAL ARGUMENT. 415 States, it cannot, with any show of justice or reason, be con- ^^ ^^^^^ .^ ^^^ sidcred irrelevant, that tlie general system and principles, i';;;j;:;;;.'Jf;f^^^^^^^^ with respect to evidence and otherwise, on which the British Z"y\''vJ''Zi!.rm". Governnient acted throughout these transactions, were sub- stantially the same as those which have been usually and in good iaitli acted upon, in similar cases, by the Executive Authorities of the United States. A neutral Government, though it ought spontaneously to use all proper means of discovering and ineventing violations of law, which are really within its power, may, in many cases, not have the same means of knowledge whi(!h the agents of a foreign Government (to w hich those illegal acts would be dangerous) may happen to possess ; and, when its information proceeds from those agents, it is both natural and reasonable that they shouhl be requested to furnish evidence in support of their statements. In transactions of this kind (as Mr. DiuUey stated to Mr. Seward in his first letter abort the Florida, February i, 1SG2, with respect to that vessel) "there is much secrecy observed;'' and, when this happens, (as in ordinary cases of crime,) the i)reventive i>owers of the law cannot be r-alled into activity, without souie timely informa- tion; and the persons vho give that information are usually able, and may properly- be requested, to pioduce son:e evidence in its sui»port, if such evidence is really forihcoming. Mr, Jefterson, in his letti'r to Mr. Hammond, dated theoth September, 1793, (annexed to the Tre ity between Great Britain and the ^ ^^ ^ ^. ^^ , United States of the 10th .November, ITH-l,) after promising i.ttn Jis^pIeTX' to use all the means in the jM^wer of his Government to r, and acknowledging the obligation to make compensation for such prizes, if such means for their restitution should not be used, added the following just aud rea- sonable remarks : Instruct io:. 8 are given to tbe Governors of the diffeiont Stattis to nse all the means in tlieir power for restorinj;- prizes of tliis last descriiitiou fonnd within their ports. Tliouj>h they will, of eonrse, take measures to be informed of (hem, and the General Governnnmt has f^iven them the aid of tlie Cnstoni-honse oftieers for this ]>nri)ose, yet .villi will be sensible of the imjiortanee of m.iltiplyingthe channels of this information, as fur as shall depend vtn yonrself orany person under your direction, in order that the Governors may use the means in their power for niakin<; restitution. Without knowl- edfte of the capture, they cannot restore it. It will always be best to give notice to them directly ; but any information which you shall bo jdeased to send to me also, at any time, shall be forwarded to tlien\ as quickly as distance will permit.' When the questions of comi>ensation, claimed by the owners of cap- tured British ships, which had not been restored according ^^ ^^ ^^ ^ to this letter, came for decision before the Commissioners r •»'i iri.Mr'i''r,t'"h under the Treaty of 1794, no such claim was allowed, exce:i)t r;'',p'sip"'hyli* when the claimant had substantiated his legal right to have ( i'mir Tn'p ii.'« the prize restored by a regular judicial proceeding, j)roi)erly '"""" "' conducted before the proper Court of the United States; which, of course, threw upon him, in all such cases, the burden of i)roving, by logal evidence, the illegal outfit and annauient, within the jurisdiction of the United States, of the capturing vessel.* Extracts are here subjoined from some of the letters of the various authorities of the United States (to which reference has ;„ i,,,,,,,,,, „,,,. been already nuide) during the wars between Spain and •;■,';.■ "l„l,',',n,;;.r;',; rortugal, and their revolted Colonies in 1816-1820 ; and, r;m.l;r'ulf.;,'b"«'"i iiiore recently, at the time of certain designs against Cuba, !;[';'eZ',';v*"i,'"'''iJJ«'i in 18(59. These will be fonnd to throw some light upon the -"'•■"" 1 Britieh App., vol. v, p. 256. " Case of the Elizabetb, British App., vol. v, p. 319-338. fr ■•13 i?. J- li T»!W" 416 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. |i' I functions and powers of the District Attorneys and Marshals of the United States, and on the practical rnles by which the exercise of their functions and powers has always been governed. On the 4th September, 1810, Mr. Glenn (District Attorney for Mary, land) wrote to the Spanish Consul,(Chacon,) in answer to certain ropie- sentations made by him : I ninst beg leave to Hiifjgtsst that my powers are merely lefjul, ami not politii al. I have already the power, when I am offmaUy informed, in a Irijal manner, of ani/ nO/d/m,; of the laws of (he United States, to iiiHtitiito a prosecution against tiie ofi'eiulers, and cdn- (inet the same to a Hnal issue; and I hope I shall always be ready and willing to ;;() thus far on all |)r»)per oceasions. If an armament be fitting out within the district m Maryland for the purpose of cruising against the subjects of the King of Spain, it is n bn'aeh of our laws, and the persons concerned therein are liable to punishment; hm- hefore 1 can take any legal steps in the affair, the facts of the cane mnst he supported hij nffuh- vit taken hefore some Judge or Justice of the Peace, and when that is done, 1 will, witlumr delay, proceed to call upon the ott'enders to answer for a breach of our laws. //, then- fore, you will be pleased to furnish nie with the names of any witnesses who can make, out Un- ease which yon hare stated, I will at once have them summoned, if within the reach ni' the process of our Judges or Justices, and attend to taking their depositions, or, if you have it in your power to bring within this district any persons who can testify on the cases referre! offenders to piniishmcnt, and their proi»erty to coudennmtion, in all proper casus. (Ibid., pages 5.5, 56.) On the iJSth March, 1817, Mr. Eush (Acting Secretary of State) wrote to Mr. Mallory, Collector of Customs at Noifolli, directing him to make iu(piiry into tlie cases of two armed ve.s.sels, tlie Independence of the South and the Altravida, which had then lately arrived at Xorfolk from voyages, in the course of which they had cruised against, ami m.'ide captures of, vessels or property belonging to the subjects of the King of Spain. If [said Mr. Rush] there be any proof of their haring committed, or of their inteiKruni to commit, an infraction of any of the laws or Treaties of the United States, you will caiisi; prosecutions, subject to the advice of the Attorney of the United States, to bo insti- tuted against all [tarties concerned, or such other legal steps taken as events may uiiike necessary and justice retjuire. And on the same day, Mr. Eush also wrote to Mr. MacCullocli, Col- lector of Customs at Baltimore, directing inquiries to be made as to another vessel called the Congress : If [he said] there be any sufficient proof that this vessel either has committed, or llw! she intends to commit, a breach of any of the laws or Treaties of the United States, ymi will advise the District Attorney, and cause pro.secutions to be forthwith instituted against all parties concerned, and such other steps taken, whether with a view topnmd or punish offenses, as justice requires, and the laws will sanction. On the 11th of April, 1817, Mr. Collector Mallory, having been re quested by Don Antonio Vilialobos to detain the Indepencia del Sml and the Altravida, and certain goods (in fact, prize goods) lauded from that vessel, for alleged violation of the Act of Congress of 1794, answered by the request — That I may have the aid of every light to guide me which facts can afford, ■aiid «* the allegations made by you, in an official form, must be presumed to be bottomed oh potiiif facts which have come to your knowledge, you will have the (joodness, I trust, to furni>ih nn: with evidence of their existence in your possession. mn BRITISH SrPPLKMKNTAL ARGUMENT, 417 ala of the seof their 7 for Mary- tain ropre- t politiiiU. I ' anil viiilal'wii ItM'S, i>ll»l Cdll- rvillinj; to i;o the (Ustriet ui fSiiain, it isu iiislmifnt ; hue lorttd h\j >iffi(\a- will, witlumt tws. //, ihm- an make, out //it I tho voiU'li III ions, or. if ymi I testify on tlu; as the fomiilii- takc occunioii to (Klintion of ni'ij I'accoinpauyiii^ wrote to :Mr. )• Ihe laws of nnr \cvcr a Kiifliicxt'm prosecnt iug tli-! II proper cusls. State) wrote liiiii to make (lence of the lI at Norfolk against, and bjects of tlie their viiemUn'j I, you will ciiuse Ites, to bo iiisti- ^euts may iiuike iCnlloc.h, Col- made as to [ommiml, or Ik'- \\Uh\ States, yoij Uvith iiistituteil [a i-icti' '0 i>''«*'''"' [ing been ve- licia del ^lul lauded from f94, answeietl In afford, and «* itomed on pontK'' \st, to ftirnUh /«' Tiie Spaniard replied, (12 April, 1817 :) With reniud to the evidence you re(|nirc. I will not hesitate to say that. Jis the fiict.H 1 liiive stilted are mutter of pnhiie notoriety, kimwn to evtjryhody, and 1 hiul no reason Id .siil>l>ose yon were ignorant of them, 1 did not deem it ineumhent upon me to add ;iiiy proof to the simide narration of them; and I was conddent that, l»y K"'"n '^" **' Hiiiiit out to you the stipulationa and laws which are infringed in eonseiiuc^iue of these i;ietH, you would think yourself authorized to interfere in tlu- nuinner rement in, or dispatch from. the United States was unlawful; and, witit respect to a subsequent alleged enlistment of men in the port of Norfolk, he stated that he was engaged in inquiries, in order to be satisfied ui>ou that point before the vessel was i)ermitted to sail, aiul to be governed by the result, " al- though," he .said, " it does not appear to be perfectly certain that such an augmentation of their force is interdicted by the Act of Congress of the 3d of March last, which, being a law highly j>enal in its nature, will admit of no latitude of construction. (liritish Ai)pendix, vol. iii, pages 112-114.) This correspondence has the more interest, as relating to the cavse, in «lmh the legality of the dispatch of the Independencia (fully armed ami equipped) from an American port to Buenos Ayre.s, for sale there to the belligerent CJovernment of that revolted colony, and the illegality of her subsequent anguientation of force, became the subject of decision hy Mr. Justice Story in the well-known prize-suit of the Suntissima Trinidad. On the l(>th September, 1817, the Spanish Consul, Mr. Stoughton, wrote to Mr. Fisk, (District Attorney for New York,) stating a case ol illegal enli.stment of men, then alleged to be in progress on board a Venezuela privateer schooner called the Lively, or the Anuiricano Libre : Now, [he said,] as there must be provisions in the laws and Ti'eaties of tlu! United ^tiiti's vesting an authority in some of its olTicers to i)revent the ecinipiiient of v»!S.sel!^ mil the enlistment of men in the United States, I make this application to you, most iiiKfiitly n-questing you to take whatever measures may be necessary immediately, hi "rf'T to previ'tit the. departure of the aborc vesnel, at least until she shall ifire hondn that xhe "ill not commit hostilities against Spanish suhjrcts. The ressel, it is said, irill sail to-morrow 'Mniin{ for tlio piiiiislinu'iit ot' tln) i)tl'«MiHt'H HtiittMl. h ;> ,„/ a cam; from thf indetwe mttiliomd, that ivoiild jiiHliJij Ihf Colhctar in (hluiiihi;/ Ihr nxrri, llw iij^mt'HHion \H to 1x1 iiimislitMl in tin* ordimirv mode of |ir«N«'ciitiiij? those wlio im •;iiilty of iiiiNaiioi'H. Outli Ih to bci iiitHle of tliH i'iu;tH by tin* (^onipliiiiiiiiit, uii.i t'liti'i's into 11 nM'o^iii/aiic)! lo appear uiid pi'oseeiite tlie olfeiiders liefore any jnocess cn; iwHue. Tliiw oath lieinjf made and r(!C'oj;hizanprehended, it is the jirovince of the Att(iriii\ of the I'nited States to (Hindnet the proseenti(Mi lo jndynient. 1 have no anlhorify t" administer an oath, or to issne ii warrant, nor hare I the power to iHxur otnj jtrim-t, ;,, iirrtHi and dttain the xrnnvl in tinvnlion, nnlvnx by the direction of tin Hsevntirc oflitrr of ih, I'nited StdlcH. » • * ]\y ailveitinf^ to the statutes, it will be Heen thai Uie vessel i^ not lialtlt) to sei/jire for the ael of any |>erHon enlist injj; himself lo ^o on boani, or Un hirinj; or retaining;; anotlier person to enlist: the jinnixlimcnt in pernonal lo the offtmlii-^. ' * ' It is inipntclieahlcfor me, or for any other officer of the I'nited Stiiten, lo /«/,( /m,; lef/al menmircx af/ainxt aiii/reHsors, npon the indefinite ntulement of ctrtain perxonn heiiKj ivi<. rerned in an illef/al tranxaelion. (Ilritish Ai»pe,ndix, vol. iii. jip. ll'J, liid.) Tiiis i>r«'ce(lent will, it is trusted, be borne in iniiid wheiie\ er the Arlii triit(»rs may have oec.isioii to eonsider the (|nestioiis (ioniieeted witli tin eiilistiuent ot certain men on board tlie Shenainloah on tlie nijjht of the dei)artnre of that vessel from Melbourne in 18(54. On .'iOth September, 1.S20, Mr. Se(;retary Adams wrote thu.s to tin l*ortu{>uese Minister, the Chevalier de Sena : The, judicial jiower of the rnited Slat<'s is. by their C'onslitntion, vested in their Sii- prenie Conrt and inTril)nnals snbonlinate lo the same. 'Jlie .Indf-esof these 'I liliniial- are amenable to the eonntry by impeachment, and if any I'ortnf^nese snliject m^ snti'ered by the act of any eitizen of tins United States within their jnrisdictioii, it i> before these Tribnnals that llni remedy is to be sonfjlit and obtained. For any iulsm eiti/.ens of the IJjiited States, eommilteil ont of their .jnrisdietioii and beyoiid thtii control, tin' (lovernnn-nt of tin- United Stales is not resixinsible. * * * The (lovernment of the United States have; neithei' count<'nanced nor iiermitteil jiiiv violation of their nenlrality by their citizens. They hav(?, hy rarionn and miccennitr mt- of legislation, manifested their constant earnestness to fiiUill their dnties lowanl ;ili parties to that war. They hare reprenncd erery intended riolntion of them which iiiix lui" broiiyht before their Coitrtn,(tnd unbulanliatcd by lextimony, conformable lo prineiplea ricrr. IMerrepoint, District Attorney of Xew York. wrote to Mr. Attorney-General Hoar with respect to certain vcs.sds called the Memphis and Santiago, accused of a hostile destiiiation against Cuba: There in no evidence, an yet, on which to detain them. I would sugj^est that if the Spun- ixh Minixtcr would inxtruct the Spanish Conxnl here to take some pains and collect xoim ci dcnce relating to these nrnttcns, and bring it to my notice, 1 shall act with the gnati-! proni]>tne.s8. On the 11th May, 180!), Attorney-Cxeneral Hoar, forwarding this let | ter to Mr. Secretary Fish, said: The several District Attorneys are instructed that, whenerer Hufflcient evidence in »"«" | known to them to establish before a Court of Justice probable cause to beliere that any n'"' is forfeitable for a violation of the neutrality laws, they are to file a libel ami arrest tin I vessel. (Cuban Corresponclenco, 18(50-71, presented with the American Coiintor t'iise.| pp. .'-,8, .^.<».) On the same day, Mr. Attorney-General Hoar sent, as general instriK tions to the United States Marshals, a copy of a letter addressed outluj 20th of May to the Marshal for the Southern District of :Sew York.j which contained the following passage: It is not deemed best, at present, to authorize or ref/uire you to employ deteclitex for "' special purpose of discovering violations of the provisions of this Act, (the Act of Coiigro!- rs. BRITISH .SUri'LKMENTAL AKOUMKNT. 4i:) llttMl. ll if mil ihihiii tlii' (•(« »/, tlulSf wild illi- i)])l!iinsiiit, wli.i liny inoccsH imi; (' Oiiciiil Coiut III, tolif t'urtlir: tf thi' Att(irii<\ no mitlidiity t'> II- itiiji ;)»•'»•(. If u, livr olfinr nf lln ml tiu' vt'sscl is )ii hiianl, <))' till /() llir tifdtdd^. la ten, III (((/.( (Ill;/ erxoun hrliKi (om- .) iMor tln' Ai'lii- it'tt'il ^vitll tlif e J»i{jflii of till' ' thus to tilt cstcil in tlicir >ii- >i tlii'M'TiilmiKil- U'sc siiliji'i'l ii:i> jiuisdictiiiii, it i- Fov any iiri-"i md beyniiil thiii * # lor ponnittfil iuiv (tiiil niii'ccnniri (Id Intit's tiiwanl iiH cm which hiiK /'(" hiciplcn yccoijnr.iif of the United Miihuk'lpliiii ; uffirictif locatabM' 'ciliiblc for if ••i'l'"- arrest the vcsxl ,rt iii, 1>. ■Ji.i. 1 of New York. [ertaiu vessi'lsj he destination ttliat if IheSpmi; \d collect WHK (H- ritli tlu'. <;ri':iti-! Irdiujl this let- it endouc is ""H" Jitrfi //irt( flHi/ n-'i' Icl and iivri'st tlir ]an Counter Case leiieral instnif Idressed on tlif )f New York. (MectireH for ">' Act of Viiaff''' „( 1«1H;) hill j/oii ntid i/oiir dcpiilUx air cj/nrtcd to icccin nil iiifininalion that innii he of- ;,ii(/, ami to luMittniitivo (o all iiiatti'r.s of siis|iicion that iniiy coiiir to your kiiowiciljj.- ; iiid. ill casfs \vli*>rb your aittion is rf<|iiiri'(l, to lie vigilant, proin|it, anil clliciciit. 1 lilltlianU yon to eoininnnifatt; to iiic, from tiiiii' to tiiin, any inforiiiaMon that yon ,ii;ty (It'cni ft'iistvvorthy iiiul iin|iortant. ()ii tlie.l'.Stli Deeeiiiber, 1S7(), Mr. Fisli, Secretiuy of Htate, wrote thus to Mr. Roberts, tlie Spanish Minister: Tlic iin(lorHiposed both to British and to American law. hi August, 1801, the American Con suiat Liverpool, through Mr. Adams, denounced the Bermuda as an •armed steamer," which was "believed to be about to be dispatched [with a view of making war against the people of the United States," and which was "ostensibly owned byL'raser, Trenholm & Co." (British Appendix, vol. ii, page 133.) Mr. Adams, writing to Mr. Sew ard on the iOtii August, 1801, said : " No stronger case is likely to be made out iia:aiii.st any i)artie8 than this. The activity of our (Consuls, Messrs. Wilding and Davy, furnished me with very exact information of all the |m'cumstances attending the equipment of this vessel, and yet Her Maj- esty's Government, on being apprised of it, disclaimed all power to in- |t«rtere." (American Aj)pendix, vol. i, page 518.) The Bermuda, ne\er- jtheless, turned out to be an ordinary blockade-runner. In March and April, 1S03, a ship called the Phantom, building at Liveri)ool by W. Miller & Son, for Fraser, Trenholm & Co., and 8U[>plied with engines jl>y Fawcett, Preston & Co., at the launch or trial trip, of which Captain piillock, Mr. Tessier, and Mr. R. Hamilton, &c., were present ; and an- other ship called the Southerner, building at Stockton for Fraser, Tren- i , 1 ' V -:1 1 ff ^ ilsi IF^ 42(1 HlIl'I'LKMKNTAUY AWMMKNTS AM) STATEMKNTS. lioliM «Sc Co., and meant to b«> comnianiU'd l)y Captain Biitolicr, \v(>r<' i like inanncr denounciMl. Atlidavits of the eonnoction of tliosc flims and pt'isons witli the ships were fnrni.^jhed; and tlie accusations wci,. piessed with jjreat peitiinicity, even after Mr. Sfpnuey, tlie lejjal advisn of .Mr. l)nli Ai)pendix, vol. ii, pages 1({7-Ii0!>.) With respect to the value of the suggestions, In the Argument of tin United States, that certain parts of their administrative Hiii'i.v'iVi'h'rAnV.V machinery (such as the employment of District Att()riU'y>. 1 'T/rjVnn.'V,'.' and tlui encouragement ottered to informers by the law, which gives them half the forl'eitures obtained by tluii means) are more etlective than the practice of Great liritain, luidd which the Attorney-deneral is (in I'^ngiund) the only public proseciUid, and no share of any forfeiture under the Foreign-Enlistment Act i« given to inforn-.ers; light may also be derived from the precHMlinycx tracts. On these, however, and all similar points, (giving to the aiitlioi ities of the United States the credit which they claim for using siitli l»reventive powers as they i)ossessed in good faith, and with what tlicv deemed due diligence for their intended i)nrpo.ses,) no evidence can !>• more instructive than that of practical results. Between the years 1.S15 and 1818, (notwithstanding everything wliidi the Executive of the United States (toiud do to the contrary,) tweiitv eight vessels were armed or equipped i ;, ;, d dispatched fiom, the iH)it> of the United States, or within their Jurisdiction, for privateeiiii;; against Si»ain, viz, seven at New Orleans, one at Barrataria in tin Onlf of ^Mexico, two at Charleston, two at Philadelphia, twelve at l?;il timore, and four at New York. (See the list furnished by the Spanish .Minister, Appendix to British Case, vol. iii, page 132.) In the years 181(i to 181J>, twenty-six ships were armed in and (li> patched from Baltimore alone for privateering against Portugal. (Let ter from Chevalier de Serra, November 2.J, 1819. Ibid., page 1.')').) In the period between 181G and 1828, sixty Portuguese vessels weiv captured or plundered by privateers armed in American ports, and the ships and cargoes appropriated by the captors to their own use. (Letter from Senhor de Figauiere e Morao. Ibid., page 105.) The Proclamation of President Van Buren, of the 5th of Janiian. 1838, stated that information ha within the territory of the United States, and notwithstanding the presence of the civil officers of the United States, * * * jirins ami munitions of war and other supplies have been procured by the (Caua dian) insurgents in the United States ; that a military force, consisting in part, at least, of citizens of the United States, had been actually organized, had congregated at Navy Island, and were still in arms uudei the command of a citizen of tlie United States, and that they were cou stantly receiving accessions and aid." lUnriHH HrrPLKMENTAK AWOl'MENT. 4-21 Oil the 10th March, l.s;J8, a tiMiiporary Vet of < 'oiiKn'Hs was passiMl to provicU" for more elHcaciioiiH aetioii in repr«'.ssiii{; tliese outrages tliaii was jirovided by the Act of 181S. Nevertheless, on tliel'lst November, IS.'JS, President Van lliiien found ir iieeessary to issue another Procdamation, in which he sai(), M. See also Appendix to American • 'oiuiter Case, pages G7(i-(58(i.) In October, 18r)3, an cx[)edition agi-inst Mexi(!o issued under Walker lioin San Francisco, and seized the town of La Paz. In INhiy, bS.")."), a second expedition issued from the same city, under the same adventurer, iijrainst Central America. This ex[)edition landed at Healejo, and Walker continued in Central America until May, 1807, when he was conveyed from Kivas in the United States ship of war Saint Mary's. lie then made prepsirations in the Uiiit«'d States for a tiiird expedition : and these renewed preparations occasioned the circular of Septeiiilier 18, 1857, urging the District Attorin-ys ami Marshals to use " due diligence" to enforce the Act of 1818. (British Counter Case, page .'{8.) In spite of this, AValker again eluded the law on the llth September, 1857, and sailed from Mobile with three hundred and fifty men. After occnjiyiug Fort Castillo in Central America, he was intercepted by Com- modore Paulding and brought to the United States. The American Argument mentions this oflicer as one of those who have been employ<'d "to maintain the donustic ord<»r and foreign pea(>, Walkor made Ins Inst oxjiedition froiri the Unitfi; Htatcs, ajul was shot at Truxillo. (British Coniiter Case, ])a.'j;es ;i7-tii. See also Appeinlix to Amerieai! flounter Case, pages 515-518, .; It may be iiiterestiiif*' to mention that a correspondence, respoctin;; claims between the liepnblic of Ni(!arajiua and the United States, luo iose'iia for injuries ami losses snstaiiUMl by these " tilibnsterinjn''' expeditions should be tiiki^n into consideration. The (lovernment, however, of the United States declined all responsibility, on the {jronnd that they had fulfilled all tli;it (jould be requiietl of them, either by the laws of the Uniti'd States oi by international law, and declai'Ml these claims to be inadmissible. The llritish Counter Case gives an a'count of the open preparatioii- for an atta(*k on Canada continned dni'iiig the years lS(>5-'<}(). The fiisi raid took place from Buffalo aiul Saint Alban's in June, 18(»(!. The second raid was from 31aloue and Saint Alban's, in May, 1S70. The thir. (The latter \v;i- stopped at Nassau.) Another expe patched from American ports,) tw«)expe«liti()ns against Cuba under L()|hv.; s.x exiK'diti(ms under Walker; three Fenian raids; and three exiMMJi tions Ml aif ^'- due ilUujenveP The general result, to win-, i we have been led as well by reas-jii ami principle as bv experience, is this: that occasional (if in.t) -III pr..v,s Ti,..,! even be fro(,;u'nt) ladui'es to prevent acts contrary to i;nv, r'".?t nmniw"- and injui'ioiis to a fiiendly Srate, may nevertheless bi' It/h™!',"'."' Tr'.'", entirely consistent with a si'tious intention and hona-M' diligence ii', having made reasonable provisinii by law for the prevention of illegal a(!ts of this nature on the part of if" citizens, it i)rocee-518, (>1L'-»»J-. ICO, rospoctiii;; l«m1 States, lijiv ublic, ill wliidi adjustment (it or iii.jiiricsaiiil Dtild be tiikoii United States nlfillcil all tliat lited States oi dniissible. )i pivpaiatidiis -'<;<>. Tlie fust LSCd. M May, ISTd. r, 1S71. I of tlie Ciiltiiii and from New Tlie latter \v;i> ly roas'jn iiini isional [h m\\ iiitrary to ijiw. ■ivertlieless !"■ and hoiKiJi'l' whose siibji'ci- prevent tln'iii. without tiiiii'l) propel' to eon- ) use any siidi nation ("iiim'I ai)h^ provisiiiii lilie. part of it* 'oiirse, iiccoi'il iiis is, ill t'att. ises, <;ciieiitll} nt; and f""" ies or delnyv ,ir ev^-n slips and errors, su(5h as are liable to result, in the conduet of |)ul)li(- alfairs, I'roni the nature of the subordinate instruments by which, and the circumstances under \vhi(di, civil Governnientis necessarily car- ried on, and ajiainst which no human foresifjht can always absolutely lirovide. oii;;iiL not in themselves to be regarded as instances or proofs of a want of " due diligence," where good faith and reasonable activity oil tlie jiart of the Government itself has not been w.uiting. Least of ,,lUaii the Government of a free country be lield wanting in due diligence, nil file ground of errors of judgment, into which a dudge of a Court of l.iiw, ill the exercise of a legal jiiristliction properly invoked, may have talleii (as when the Florida was acquitted at Nassau) in the decision of ;i particular case. 'Tlu' I'liittMl States aj^HM' with Ih^v Majesty's (JoveniiiHMit when it says, as it , and tliey hope it is not, in the ]»()\ver of Iler Miijesty's GoveiiinuMit to instinct a jnilj^e, whether in the United Kiii indue in Her Majesty's (h)niiiiions should isnhinit to he so iustrneted ; no connnnnity. Iiciwever sniiill, should t-'i-rate it : and no minister, however iiowerful, sliould over iliiiik (ilatt(!in|ilinK' it." (Arjjunieiit of the Ihiited States, ;i. ]2l.) This being so, if the Government had information and evidence which made it their duty to iletain such a ship as the Florida, and to endeavor to prosecute her to condemnation, and if they actually did so, aii<( ft'eied for that purjiose proper evidence, they used all the diligence which was due from them. Over the Judgment, whether right or erro- neous, they had no (control ; and for it, if erroneous, they have no respon sihiiity.' Jiiit the counsel of the United States say that — •The efforts of the British Case and Counter Case to ascribe to, or ai)portion anionj;;. lilt' various (h-partnu'iits of national authority, lej^islative, Judicial, and executive. !iiiiioi]ial or siilxndinate, the t'.'.e nieasurt; of obligution and res)ionsil>ility, and of fault 111' liiilmi,', ill the prenii.ses, «N (uiiok// //ir/ii^y/rfx, seem wholly valueless. If the sum of •ill' alili;;atioiis of Great Jhitaiii to the I'nited Stat«'s was not p»rfornied,th»' nation was ii: laiilt, wherever, in the fniietioiis of the State or their exercise, the failure in duty arose." (Ari^tinieiit, p. 147.) Tlie (piestion, whether " the sum of the obligations of Great Britain to the United States" was or was not performed, (which is the jioint at issue,) seems to be here assumed. A petitio prhuipii cannot, of course. Ik' an answer to arguments intemli'd. to show that the sum of those na- tional oliligations was, in fact, performed. The United Stat(>s allirm that ill the varit)us ca.ses in which they themselves failed to prevent, within tlieir own territory, equipments and expeditions hostile to other States, tlie sum of their own uational obligations was performed ; and yet Ihey seem to deny to the Government of (iieat Britain the beneht of the same equitable principles of Judgment. X. — Of the burden of proof accoriling to the Treaty. They go further: iiey seek to invert the whole burden of proof in the present controversy : ^ ... . ,., ' •• .W. Atl lit ol lli>' I'rilt.vl ,St:itHii til nvjoiiiiilalion of ihr ohlhjnt'wu of (Jreat Britain to use "diit^ diligence t^;;T' ^"U^i^ ",';. lo/orrcrt/ ' lertiiin acts an»l oeeiirrenees williin its Jurisdiction, it n nun- ni- im'-Hnt .m.t... fioiwd in the three Rulex, is, that those nrln and occurrencen within iln jnriHiUc- "'"' , ""' Jmlyrment of ac<|iiitlal, when (Mice )irononnced by the Court of Aclniiralty in favor i>f tlie vessel, was conclusive, as a Ju(lH;nient in rem, prevontinji; tlie possibility of iier lit'iii;,' afterward a;;aiii seized as Ibrfeited for ii breach of the Jtritish Foreijjii-Enlistmout .\ ii;ay apply these rules to the decision of the (ilaiins, npon the fooiUuj »»/ itii Hvdertakiiiff hij (iriat Britain to act upon their principles — it is lien assnnuni that all su«;h acts or occurrences within IJritish Jurisdiction ii> are mentioned in the Treaty are to be dealt with by the Arl)iU'ators a^ nfenses tiijainst iufervational lair; notwithstanding the proofs, given in the IJritish Counter Case ami the annex (A) thereto, and referred to iii the coinnienceineiit of this paper, that international law never did lequiK a neutral (ioveniinent to prohibit and prevent the manufacture, salt. and dispatch of unarnie obligatitMi of due diligence to jnevent, only when there are "reasonable ground^ to believe" that some prohibited act has been or is about toliedoiu, the United tStates decline the burden of establishing, in each or iui\ case, the existence of this preliminary and indispensable condition, rm- Honahle (irounil for hiUef; and they ask that tliis should be taken I'oi granted in every <^ase until it is disproved. To justify this disregard of the ])rimary condition of the rules, tlu\ appeal to a sui)posed law of nations, which is sai commit any ott'ense against international law, injuriou; to a forci;rii State within itsjiirisdi(!ti subjects openly and fre^piently commit ; " that, "as to his power of liiii dering Ihe evil, this likewi.se is also presumeii\i Hoi' ^^:l.iest> es as a state woiv ill Ibrcc ^ Arbitrator^ the fooliiKj i>j 'S — it is hcMc irisdiction as Li-hiliators a> )ot's, ,i>iviMi ill I'eh'mMl to at i»r did iv(]uiii ifactnro, sale hill its tiMii lu> oblijiatimi nbh' <>nmii(l> t to iu' doiif. earli or aii\ onditioii, rcn- H' taken tm rules, the\ I universally v«'doin fVoiii losci citi/A'ir- to a, l'orei;iii in the eail.\ the preseat s or by saiall iselves to !»' of their eiti event, umiti )\vs what lii> M>\ver ot'liiii kvant ol' it lie le appliealil" • ainst (ileal r('uiiistaiu't'> 1 the riiitcfl ctnitroveisy ry dissiiiiiliit ^"attempt on The l'iiit«'(), and British Appendix, vol. v, ji. ;»li- :) " Fidin this cximiiiiation of tin- letter, wliicli is {jiveii to ns for a rule, (Mr. Jeft'ersoii to Mr. Ilainnioiid, otii .Se]>tember, 17!i;?,)it results tliat it was tlie o])iiiioii oftlm I'resi- iltiit, therein expressed, that it was iiieiiiiilieiit on the; United States to make restitu- tion of, or compensation for, all sneh vessels and projterty helonf;iiij; to Hritish snhjeets , IS should have heen, tirst, captured lietween tlu^ and Aiij^ust 7 within tho line of Jurisdictional protection of the United States, or even r)n tlie hi;>h seas : if, secondly, sueli e.'ipfui'ed vessel and ])rojiert,v wen; 1)rouj5ht into the ports of the United Slates ; and. thirdly, provided that, in cases of caiilure on the hij;h s(;as, this responsi- liility sIkuiUI lie limited to captures inaile by vessels armed within their jjorts; and, t'oiiillily, that the ol)li<;ation of compensation should exttmd only to captures made lie- lore the 7th Au;4Ust, in which the Ignited States had eonfi'ssedly foreliorne to use all the imiiiis in their power to jiroeure restitution ; and that, with respect to cases of captures iiiiidi' under the first, second, and third circumstances aliove enumerated, Itut hronftht ill after the 7th Auj^ust, tlio President had determined that all the means in the power ol ;lic United States should lie used for their restitution, and that compensation would I'i ri|iialiy inciimljent on the United States in such of these eases (if iiiiy such slmuld ill any future time (iccnr) wh<^re, the United States havinj^ decreed restitution, ami the ia]it(irs liavinL; opposed or relnsed to comply with or sulimit to such decree, the I'liitt'd St;ites should forbear to carry the. same into i-lfect by force. "Such was (he iironiise. In what manner was that iiromise to be carried into I'fll'it .' It wii-j tiot absolute to restore liy the hand of power, in all cases wlieit! cotri- plaiiit should be made. »»*»»» "Xo, the jiromise was conditional. We will restore in all those cases of complaint "7i()> (7 k/(«// he istahlislud bji >iiiffiriiiil liKtimoiin llial llic fuvts air iriif which form the huHin 'ifimrinoiiiisf — that is, that the property claimed belonj^s to liritish subjects; that it was taken either within the line of jui isdictioinil protection, or, if on the liij;;'' seas, tiiin by some vessel illegally armed in (uir poits; jind that the projierty so taken lias ticcu brouj^ht within our jiorts. IU/ whom in re Ihiat fnrtH to he finiriilf Arvordiiig to iva'ji iniiuiiilc of irimoii, jiinlur, or iiiiiiti/, it beloinjn to him ivho (laiiiiH the biiiijit of a I'lvmiKi' to itroii; that he in thv iuthoii in ivhow fai'iir, or iiiidir thf (iiciiiiinluiu'cn in whiih 'hr imimisv iiax inlinilal to oiwniti." XI. — Special tjuestions remaining to he eonsidered. These are the arguments, upon the subject of the diligence generiilly tliic by (Ireat Britain to the United States, with reference ^^ ^^ .^ to the subjects to which the three Bules of the Treaty of tMu,-rBm','nin«T.ri,V Wa.sliiiigtou relate, and the ininciples accortling to which tiiiit tliligence is to be proved or disproved, which it has been desired '•y Her Britiinnic Majesty's Coun.sel to submit to the Arbitrators. There • iiiain some other spechil (juestions, which r-^'uire separate e.xaiuina- tion : I' ' % \ rf^ "1 - >^ 1. \ ■i -fi N "' li 1 Vi 420 sijpplemp:ntary arguments and statements. i\1 i ■•1-N,r J. Whether the diligence due from (rreat JJiitaiii, as to any vessel equipped contrary to the tirst Kule, exteinled to the pursuit of tiic vi > sel by a naval foree after sl»e liad passed beyond British jurisdietion '. 2. Wliether the diliy,enee, so due, extended to an obli;^ation, on tlic re-entry of any sueli vessel into a Jiritish port, after she had been eoiii missioned by the Confederate States as a public ship of war, to seizt an«l detain her in such port ? And, .{. Whether supplies of coal, furnished in British ports to Confcd erat(^ cruisers, can be regarded as infractions of the se(;ond Rule of the Treaty, or as otherwise wrongful against the United States ? XII. — There existed no d at y to pursue ships beyond the limits of lirifinii jurisdiction. Upon the flist of these three points, the sole argument of the United 4,. A- u, ti, States api)ears to be derived from the precedent of the Tei 'iZ,'\ Ti''.. •iv,.''.'i'r;i ceira exi)edition in 18U0. It is a strange proposition, and ""'"'"" one unsupported by any principle or authority in interna tional law, that, Itecause a (Jovernment, which conceived its ntnitrality laws to have been infringed npon u particular occasion, may have thought tit to visit that offense by extraordinary measures (reiflly in tlie nature of war or rejjrisals) beyond its own territory, therefore it idaced Itself under an obligation to take similar mej sures upon sul>stMiu('iit occasions, if any such should occur of a like character. In point of fact. there is no simihirity between the Terceiracase, which (in the view taken of it by the British (Government) was an exi)edition of embodied, t loiijsli unarmed troops, proceeding in trans[)orts from Great Britain, against an express prohibition of the British Government, for the invasion of a friendly territory, and the departure of unarmed vessels, for the use nl the Confederates, from British ports. In point of international law. the British Government was not only uiuler no obligation to pursne the Terceira expeence to prevent the departure from its jurisdiction of any vessel intended to (anise or carry on war as ;il)Ove, snch vessel having' been specially adapted, in whole or in part, within such jnrisdiction, to Wiirlike use.'' Dots this Knle authorize the Arbitrators to treat it as a dnty nndertaki'U by (Ireat Ihitain, to seize Cout'ederate cruisers connnissioned as public sliips of war and entering; British ports in that character, without notice that tlu^y would not be u'oeived on the sanu> terms as other i)ublic ships of war of a belligerent State, if they were believed to have been " specially adai)ted, in whole or in [Kirt, within British jurisdiction, to warlike use T' Th<^ negative answer to this inquiry results ininiediately Iroin the natural meaning- ol the words of the Kule itself, which jdainly refer to a departure from tlie neutral territory of a vessel which has not at the time of sucii de- parture ceased to be suhject, according" to the law of nations, to the iindral Jurisdiction ; and the cruising ami carrying? on war by which still rests in intention and purpose oniy, and has not become an accom- plished fact, under the public authority of any belligerent Power. If a ])nblic ship of war of a belligerent Power should enter neutral waters in contravention of any [»«)sitive regulation or pro- liiltition of the neutral Sovereign, of which due notice had i" .....im 'I',V's"ni heen given, she might, accoi'ding; to the law of nations, be """""""" "'"" treated as guilty of a hostile act, a violation of neutral territoiy ; and hostile acts muy of course be Justifiably repelled by force. IJut the original equipnu'ut and dispatch from neutral territory of the same ship, when unarmed, whether lawful or unlawful, was no hostile act ; ami a foreign Power, which afterward receives siwh a ship into the public establishment of its navy, and gives her a new character by a pub- lic commissiim, cannot be called upon to litigate with the neutral Sovereign any cpiestion of the nuuiicipal law of the neutral State, to whose jnrisdic tion it is in no matter subject. The neutral State nniy, if it think fit, give notice (though no authority can be produced for the i)roi)osition that it is under any internatiiuial obligation to do so) that it will not allow the entrance of a ])articular description of vessels, whether commis- sion* d or not, into its waters; if it gives no such notice it has no right, by the •\n\\ of nations, to assume or exercise any Juris- dietion whatever over any ship of war coming into its waters under the Hag ami public commission of a recognized belligerent.' Snch a ship, com- nntting no breach of neutrality while within neutral waters, is entitled to extra-territorial pjivileges ; no court of Justice of the neutral country can assume Jnrisihction over her; the Aug and commission of the bel- ligerent power are conclusive evi(lence of his title and right; no inquiry can be made, under .such circumstances, into anything connected with her antecedent ownership, character, or history. Such was the de- cision (in accordance with well-established principles of international law) of the highest Judicial authority in the United States in 1811, in the ease of the Exchange, a ship claimed by Ann^rican citizens, in Amer- ican waters, as their own property ; but which, as she had come in as a public ship of war of France, under the commission of the first Em- peror Napoleon, was held to be entitled to recognition as such in the waters of the United States, to the entire exclusion of every proceeding ' Th- 9n '^B 428 8UPPLEMENTAKY ARGUMENTS AND STATEMENTS. ■Hi i:! I ' :i in •> . i i 1!^ I and inqnirv wliatpver, whieli inifjht tend in any way to deprive lu r nl the benefit ol that privile^^ed charaeter. Tlie principles laid doVu in the followinft' extniets from thatjndjjment are in accordance with those which will be tbnnd in every authoritative work on internation.al law whip. 14, lo; also A/uni, vol. ii, (Paris edition, 180r>,) ])p. ,'{14, "U.'i. &('. ; and Illnntschli's "Droit international," Article o21, p. 184 of the French translation by Lardi:) Till' world liciiiif coiuposctl ot' distiiict sovcrfinntii's, )n)s.s«'.s.siii;j i.-({Uiil lights and tM|ii!il indcpcndi'iut', wliost' nmtiiiil l»iiu'(it is promoted by KviiH'i'm.r ' iutcn'oiirsr with cacli other, and liy an iiitcrchaiiffcof thos<< fjood ((fliers xvhieh Imiiianity dictates and its wants riMiiiiic, all Sovereifjiis have consented t.i u relaxation in |ii'a*-tice, in eases under i'crtain peculiar circiiinstances, ot' that; abHitliur and eoiiiplete Jniisdiction within their respective territories which sovereignty coidii^. 'I'his consent may, in some instances. In; ti'sted by common I'.sagi' ..ml l)y coiniiioii opinion giowiiig out of that usage. A nation wonld.jnstly he considered as rioluthi;/ ilx faith, although that faith iiii;;li! not be ex]iressly plighted, which should suildenly, and without previous notice, cmi- cise its territorial powers in a manner not consonant to the usages and received olili- gations of tiie civiliziMl wposed to enter a forei,'ii territory only under an exjuess license, or in the eonlidence that the immunities Ih- longing to his indei»eiideut sovereign station, though not cxjin-ssly stipidatcd, iiic resi'ived by imiilieation, and will be extended to him. This i»erfect e(|iiality and absolute independence «if Sovereigns, and this cuiiimou in- terest imjielling them to mutual intercourse and an interchange of goodotliccs wilh< m. h other, iiave given risi^ to a class of cases in which every Sovereign is understooil to waivi' the exercise of a jiart of that coiiiph'te exclusive territorial jurisdiction wliiili has been stateil to be the attribute of every nation. U\ for reasons of state, the ]iort8 of a nation generally, or any jtarticular jtortv. '» closed against vessels of war generally, or the vessels of any particular nation, iiotin is usually given of such determination. If there be no prohibition, the pints oIm friendly nation are considered as oiieii to tlie public ships of all jtowers with whom ii is at peace, ^. and to rfinuiii in them, while allintid to remain, under the protection of the Government of the place. When private individuals oi" one nation spread themselves through another as liiisi ness or caprice may direct, mingling iiidiscriiiiiiiately with t^ie inhabitants of tliat other, or when merchant-vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and woiihl subject the laws to continual infnu- tiou and the Government to degradation, if such individuals or merchants did not owi- temporary and local allegiance, and wore not amenable to the jurisdiction of ilir country. Nor can thi; foreign Sovereign have any motive for wishing such exeniption. Hi.s subjects thus passing into foreign couunies are not employed by him, nor are tlii'V engageii in national jtursuils. Consequently, there are powerful motives for not rx eiupting persons of this description from the jurisdiction of the country in which llnv are found, and no one motive for requiring it. Th«i implied license, therefore, nnilri which they ent«H' can never be construed to grunt such exemption. ]Jut in all respec'ts ditlerent is the Hitiiatioii of a public ariniHl ship. She coustitntts a part of the military force of her nation ; acts under the immediate and tlirect com- maud of the Sovereign ; is ein|)loyed by him in national objects. He has many am! powerful motives for preventing those objei-ts fnuii being defeated by the interfeniu'i' of a foreign State. Such interfereiico cannot takr place without atVtictiug his imwii and his dignity. The implied license, therefori;, under which such vessel enters a friendly port may leasonaldy be cou.strued, and it sei>ms to the court ought to be lou- strued, as containing an exemption from the jurixdietion of the Sorereiijn within whose ter- ritory she claims the rights of hospitality. Iljion thestj principles, by the iinanimouH consent of nations, a foreigner is aineiiablc to the laws of the jdace ; but certainly, in practice, nationx hare not net anncrled Ihiir inrixdiction over the public armed ships of a foreign Sovereign entering a port iqicii I'm their receiition . The words of IMuntschili are : 4. Other (mthoriti**!*. Exceptioiielleiiieut oil acconle l'extf'iTitorialit(> uux iiavirt-* ili* m KRITISH SUPPLEMENTAL AROrMEXT. 4'2i> ive lit r i»r I doVu ill vith tluiso tioual law 11, lliUltf li Coiiiirt'r I. .'514, ;ii:.. L84 of tlic 3. riic i-H-i .• '• )S(^llt("(l I'l ;i liat ilbHiililtr ff iity coiilii-. by coiniiiuii faith iitijjlii iiotici', I'Xcr- UCt'iV(!(l olili- )!" t'vury Suv- [ not sffiii til One Sovci'- ;ati(ins of the liinisflf or it- iittT ii foici'.'ii iiniiiiitii's lii- tii)iihit»'\ iiil''in.itiiili;il •jiitMre dtranfjiT'i. hnsi|n'ils sont tMitrr.s dans les canx d'nn t'tat avcc hi pi>nnission (h> (•(• (leiiiier. Mr. Cusliiiiy, when Attt)riipy-(Teii(»ral of the TaiitiMl States, in 18;m. tlius stated tlie rule, as ienblic otticor, poHWHses- 111 tin' jtort.s of tilt' t'nited States, thi; rijrlit of extt'rritoriality. and is notsnbject totlu' lotial .jnrisdiction.' It eannot, tlierefore, be snpjMjsed that when two nations, l»y both of which these principles of interniitioiuil hiw had lu'oii habitiijilly acted on, recoonized, in the first Kiile of tlie Treaty of Washington, an obligtition to " use due (liliifcnvc to prevent thr (lepurtnrc of a .ship Intended to cruise,''^ &.C., from the *' neutral juris- diction,'^ either of them meant to anthori/e the other tt) deinand, under any circumstances, a violation of these principles, in the case of any ship cruising as a ship of war by the public Jiuthority of a belligerent iit the time of her entrance into neutral waters, and which, atuiording to these i)rinciples, was there entitled to the privilege of exterritoriality, ami was not subject to the neutral Juristliction. Had an innovation of so important and extraordinary a kind been intended, it would certiiinly have been unecpiivocally expressed ; and it would have become the plain duty of any neutral State, which had entered into such an engage iiieiit, to give notice of it beforehand to all belligerent Powers before it could be put in force to their prejudice. It is impossible that an iict which would be a breach of public faitii and of international hiw toward one belligerent could be hehl to constitute any part of the " dili(/enee liiie'" by a neutral to the other belligerent. The rule says nothing of any obligation to e.vdnde this class of vessels, when once commissioned as public ships of wjir, from entraiuie into neutral ports upon the ordi- nary footing. If they were so excluded by proper notice they woid:.•.. p; I Hrii//i1 has mnor jilaotMl hcrsolf in tliis exet'ptioiial conditioii, but, iiniler tlio <;i'ii( r;il nil*', \vlii(rh admits to tlir lutspiiaiity of her ports sliips of war, and even to a puiv atn r compelled by stress to se«'k it, provided Hho hriiiys no prizes, nor makes nse of lur \h,^\. tion ill sneii jiorlsfor acts of hostility )>y takiii}^ them as tlie hasis for her operations. The rule adopted by eivili/.(!d nations is to detain in jtort vessels ecpiipped for \v;ii until twenty-four lioiirs after the departure of any hostile vesstd, plv to the Georgia — a sbip T0('(1 to hf I some cii.st's insta Power iriiio; vcsst'is vjud (Miijiloy isily be sup new owners a Power not one of per- slii|) intti y pirtites in i"(;ise of any isers, ceases lers, as was ivy CouiK'i! tioii of tliis possible to Jritish pro nal law Inid uiiariiietl ^ereiit, as ;i te) tliat tin- led the ves which had ritish terri rned as the )Joct of the gia — a sbip ion, to war- ied without le MHITISH .SrriT.KMKXTAL AIUJIMKNT. 431 •*. 'nif ihsliti. T nil I'ml-d St.itc'* h '■ • tWr'Ct) nliip.-* ot \v;i|-tliipH til :i nt-n- ri'cnn?nZ('il Stute. any evidence, thonj^li it is ravely l)rou;;ht forward and seriously com- iiieiited on, as a reason why she oujihtto Inive been seized at Melbourne. The Argument of the United States suj,';;ests, however, a distiiicti»»ii between "public ships of r<*coonized nations and Sover- eifjns" and " public ships belouoinj.- to a bellij,'erent Power wliitih is not a recoffnized ^Stato.'^ For such a distinction there is neither principle nor authority. The passaj^e cited in the British Summary (p. .'il) from the jutloimmt of Mr. .bistice Story, in the case of the Santissima Trinidad, states tlu' true piinciplesapplicable to this part of the subject. The ship IndepenK»'d of in coiinectioii witli tiio i|iii-stioii ahviidy considiM'iMl. It is, tliat Jiiiriios Ayivis lias not yet Ik'<'ii acUiiowIcdjfi'd hs a sn\crri\ tlit- i'.xiH'titivi- or lA'jiislaliiri' of tlu' Uiiiti'd Stali.s, and, tlicii-fori', is not I'lititli'd to liavi- lipr sliips of waf i'i'ro of tlit! I'niti-d Stiitt's has frcojjnizcd thi^ ('.vistciictiof a civil war lii'twi-i-n .S|>ain and hrr colonii-s, and liiis avowed a ili'tfiininiitioii to roinain ncntial tictwcin tin; paitii'.s, and to allow to each the saiiii' ri^fhr of asylitin and hospitality and intrfcomst'. Kavh jntrli/ in, Ihniforr. (hdiicd by iix a bvllificniit luilioii, haviiiti, go fur ax coiiiTniK iin, the sonrtifiii lii/hlnof ivar, ;iiul cntithd to bo icspcitiMl in the oxcicisi' of those lij-hts. Wo cannot intciicii'. to the prcjndiec ofiiithcr bcllif^ercnt, withont inakiiifj oinsflvcs a party to (lie <;oiitcst. and departing; from the posture of iientrality. All captures made liy each must lie ciiiisidered as haviiif; the same validity ; and all tin imniiiiiHicH which nun/ he iiaimcd hij imhiic ghipH ill onr ports under the law of nalionx mnxl he eonxidered axeqiialli/ the right oj mrli." In like manner, in the lecent case of the Hiawatha, (a British juize, taken by the United States at the commencement of the late civil war,) when the question arose, whether the civil contest in Anu'iica had the proper lejial character of war, J ii .stum helium, or that of a mere domestic revolt, and was decirot'onf <1<'(miiL'-17(>,) in wliiirh, ujmii tluMissuinptioiis oi fact contaiiu'd in a s[K'eeli of Mr. Sinniiu'r in the Senate of tlie United States, (antl on tliose asHiunptions only.) lu^ favors sonic part of the eiainis of tlu' United States aj;ainst (Jieat Britain, so far as relates to tile pai'tienlar siiip Alal)ania, Hti<|M<>, airjl, :iliiis nii'-MM- (|M'il Mc Inline itoiiit mm ('tat, toMt aM iikiIms comimic s'il cm coM.slitMait mm, an liiii el place iI'mm t'-tat i"an Stjiates statt"), 11 alliiMie la Justice dt; sa canse, et !a lc;;iii Miiti' (le sa MiissioM. (HV'c luic bi)inie J'oi vijnh' I'l rcUv qui xc pn'mniu' <1f ilroil die:: loiil iln lii'lliin'ranl. (l'a,<;>'s l.'i.'i-J.'iCi.) Aj;ain : I'ciKlaMt la friicrn- lui ailinet, dans I'mti'rcl de riiiiMiaMitt-, ijiir Irs ilnir jmrlirx «.v(amh' d'' h>iinc/'oi pi>;ii' \n di'-d-w-n' i{i. ( I'.i;- \'*-'.) And, at paj-i's 4»J1, 402 : Si I'on tieiit <()iM|(te de toiites ces e(Misid<''ratioMs, om arrive a In coiKdMsioM sMivaiitr: ('tats ('■iirttpi'iMis, CM pi-cseMcc de la sitMatimi (|Me croaient les faits, l.i liittc eii^ii;;! {.''t'M <|iu', a C()M.sidcrei' (I'mm poiiir de viie jtMpartial, tcl (jiTil s'oUVail el s'lmposaii mux eiitre I'MMioM et l;i confi'dei'al i(Mi, c'cst-a-dire, (Mitre, hi ford et le slid, il etait alisolii incMt iniixissilile de ne pas adMieffr(! (|Me les (''lats-rnis fiissenl alors eMy;an<''s dans iiiir j;raiHl(! <;Merre i i\ ile. on les deiix partis avaieiit le caractere de ])nissiiMces politi(|Ui'' nieiit et niilitaireineiit (njraMis('cs, se faisaiit I'Miie a I'aMtre la ;iMerre, sniviiiit Ic modi (|Me le droit des y;ens reconnait coiniiie r('jiiilier, et aMiin('s d'uMc (■;jale contiance dans li- lioM droit. * * Tout fr moiidr I'lait d'acvortl ifii'il if aniit i/iicn< . rl 'il eqiiipjied or adapted f«>r warlike nses within iJritish territory, were, in fact, eoniniissione*! and employed as public ships ot war by the anthorities then exereisinjjr the powers of piibli(!(ioverntii('iit in the Confedi'rate States, is not seriously (if it be at all) disjnited by tlic United Staiis. The proofs of it' aboiincl l)oth elsewhere and in those intercepted letters from Confederate authoritit^s, and other (/onfederatf doiMnnents, isn«-h as the Journal of Captain Semmes, &c.,) which the lJnite«l States have tnade part of th<*ir evidence ; and to which, for tliis puri)ose at all events, they cannot ask the Arbitrators M refuses credit. All these vessels were always received as public ships of war in the ports of Fran(U', Spain, the Netherlands, Brazil, and other (countries. •• As to till' lloiid;)." said tln^ Mirtinis d'Ahraiitt^s, the Fohmj^m .Minster of Iha/il. writing to Mr. Welili an the VJ'id.Iniie, \'^i\'.\, '"the Miider.sijrned ninst he^in l»y askin;; .Mr. Webb's .-oiisent to observe that if the President of INMnanibneo Unew that tliiit steiimer was the ciHisort of th(! Alab :um;i, .'is was iilso the (Jiori^ia, it does not follow, iis Mr. Webb otherwise arKU(!s, that tin; said I'resident 8hoiihl consider the Florida.!- a pirate. •'Aceordiii;;: Jo tlie prin(d[>les of the nentrality of the Empire, to which the iiinlti sijrned has alicady alluded, all these V(!ssids of the Confederate Stat(!s ar(^ vessils ul war. exhibit iii/i tlie lla^' and beariMn the cDunuissioM of tin; said States, by which the Imperial (jioveriuneiit recoj;iii/,(>d them in the character of bellifjerents.'' ' U'pon the same footing the Shenandoah was delivered up to tlic United States, as public property, when she arrived- at Liverpool after f'ltiimiscionetl Ml w;ir. ' Soo Appendix to Case of the United Stat(,'s, vol. ii. i)p. 4H(i, 4H7, (Sumter ;) ioal., |)|', .'.r)0, 'i!M, (Nashville ;) ibid., pp. 614, 6;5;5, and vol. i. p. 54:1, (Florida ;) vol. vi, ]». 48H, (Alii bama;) v9, (50. KKITIMI sll'I'LKMKM AL AKCl'MKNT. 433 t imtion, li;i\ tiie «:iMi<'liisi(tii (»t' tlic war. And tlioiiji;h tin; tt'iins " piratos " aixl " IH'ivattM'rs" have born nvoly applied to tlicsn vessels in many of tlio jMiltlie and other documents of tlie United States, th(! former term was (iiily used as a vituperative or ai'j;unjentative expression, in aid of the objections of the I'nited States to the reco^^nition, by foreijjn J'owers, (it tlie belli;ier«'nt character id" the Confederates. Neither ('aptain SciiHMes, of the Ahibama, nor any oilier oflicer or seaman en;ia<;('d in the iiiival seivi(M' irate by any politictal or «>ther author- ity of tlu', I'nited States. And with respect to tln^ denomination of ■privateer," a juivateer is a vessel employed by i)rivat(^ peisons, under I'tters of manpui from a belli;:ierent I'ower, to make captures at sea for ilicir juMvate Ixun'tit. Nouc^ of the v«'ssels in question, at any monuMit mI their history, can be pretended to have had that character. iniflifx afi'iisiii' ( IIAI'TKI! ni.— On TlIK SI'KCIAI- rate cruisers, are tiicts which ou{;ht surely to be hehl conclusive aj;ainst any argument of tlie United States ayainst (Jreat JJritain fouiuleositions that the belligerent character of the Confederates ou;^ht never to have been recoy;nize»l, and thai impartial neutrality was itself, 111 this case, wrongful. J^et those propositions be rejected, and their mvii repeated acts in taking advantage of such supplies (sometimes largely in excess of the limited quantities alh>\ved by the JJritish regu- lations) are conclusive proof that the United States never, during the war, held or a<;ted upon the opinion that a neutral State, allowing coal ti) be obtained by the war-vessels of a belligerent in its ports, whether with or without any limitation of (piantity, was guilty of a breach of iioutrality or of any obligation of international law. Tiiat such supplies might be given, consistently with every hitherto n'cognized ride or princii)le of intermitioual law is abundantly clear. Chancellor Kent, in his commentaries, iirst lays down the rale against using neutral territory as a b:ise of warlike I'lierations, as that rido had been understood and acted upon, both in (Ireat IJritaiu antl in America : It is ii vii)ljilii>ri of iiciitriil tt'iiitory lor a bclli^jcitMit ship to take licrHtivtion within I, in (Milci- to i-ariy i|.|tlii'!i (ire not » itliiii tli»' nd*' iiH 1*1 iio) iHiiiri iii-iiti.il tt'rnluiy ii-« a li.i»«? of upt-nttiMiiM, t34 SI ri'I.KMKM ARV .\R' II-> At pjiK" l-^^ ''♦' '*♦'*.>■'* '• TliiTr is no <'\t'i'|)tion to llir riilf, tlmt every voliintttiy •■iitrniii'f into nentml t< rifory, willi liostile |inr|io.si>N, is aWsolnlely nnlawinl. Tin* iit-ntriil lionler nnitit mtt Ur ime*! iiH II hliclti'i- tor initkin^ |)!'*>|)iii'iitioiiH to reiittw tlii> tittiick : iinil, tlionirli llic nrn trill is not ol)li(;i-aNMiip^ and sat'et.v to tin- loirsiiin^ piti'ty, In* oiiulit to eanse liiin to depart as soon as possilile, and not permit liini to litt Wy and watrli in^ opjiortnnity tor tiirtlier eontest. 'I'liis would be inakin^; the neutral counliy dii\ ijiie I'l iii|>! . do ce territoire reste IVane de toute mesure on nioyen de jjuerre, tie run des In lli-. rants eontre I'aiitre. ("est une olt]iH;ation |iiMir ehaeun des lieili^rerantsde s'en ah>ii'ii i <''est iinssi un devoii' pour ri'.lat nuutre d'e\i^;er eetttt ibiiHlentiou : et e'est aiissi |iiiiii lui nil devoir d'y veiller et d'eii mainteiiir rol»ser\ali(Ui a reneontre de <|ui (|ue n ^ii Aiiisi il appartieiit a I'aiitorite i|ui eoinmamle dans les lieiix iieiitres oii des naviio In 1 lijjeraiits. soit de ^jiierre, soit de eomnieiee, out et<- revns, de piemlie les iiiesiin •< ii. cessaires poui'<|Ue I'asile aecordt' iie t(Uiriie |ias eii niaeliiiiatioii hostile eontre i'liii i!i'< lielli^t'iallts ; (loiir eiil|ieelier specialemelit iju'li ne devielllle Ull lieu d'oil les li:itilMi'iit> de guerre (ui les eorsaires siirveilleiit les navires enneinis p (•oiuliattre, et les ea)iturer lorsiiu'ils seroiit p;ii\eniis aii-dela de la iiier terrilcuiiili I'lie de ees niesnres coiisiste a eiupeelier la sortie sininltiiiiee des navires appai'leii;ii* tiip tnre, an inoyeii de ses einliareations. iin hatimeiit i|iii st^ troiive en dehors des lilllitl^ de ees eaiix, ee Itatiment ii'est pas de hoiiiie prise : liieii ijiie reiii])loi de la I'orce n'lii' pas «'ii lieu dans ee eas, siir le territoire iientre, m'-aninoiiis il est le it'-sultat de riisin.! de ee territoire ; et iiii tel iisojje pour des desseins liostiles n'est pas perniis.- The above iiassajjt's supply tlio obvious ami siiflicipiit oxplaiiatioii oi tlie woiils " base of naval operations." Neutral territory i> .,v''ij\'',.'r,ir \'h";. not to be usetl " in ortler to earryoii hostile operations IVoin " ""''""" • tlienee," or " as a shelter for nuikino^ })reparjiti()n8 for attack:' (Kent.) No aet of hostility is to eominenee or ori}>inate! there. "Chip tares made by armed vessels stationed in a river of si neutral Powei', oi in the month of his rivers, or in harbors, /or the pvrpose ofi;ir)rlsliuitli' riyhts of irar/rom that rirer or harbor, are invalid;" (IMiiilimme.) h i« not to be made a plaee " d'oti les batiments de j^iierre snrveilleiit It'^ mivires ennemis pour les ])onrsnivre et les eond»iittre et les eaptiin'i. lorsqu'ils sont parvenus an tlela de la mer (erritoriale ;" (Ortolan.) It is not to " servir de station atix batiments des rui.s.sanees belliui rantes ;" (IletVter.) It is not to " servir a tendrt? des embi'iehes a I'mi tl»'^ iK'Higi'titnts ;" (Ilantefeuille.) JJellifierent ves.sels are not to station tlii'in selves or to eruise within it, in order to look out for enemies' ships, "iii eore (pi'ils sortent de letir retraite jwur aller les atta(pier liors les limito de la juridiction nentre." (Ibid., and IMstoye et Duverdy.) The phrase now in tiuestion is a short expression of the prineiplo tliat neutral territory is not to be u.sed as a place from which operations oi naval warfare are to be carried into etfect; whether by single ships, or by ships combined in expedition.^. It expresses an accepted rule of in ternational law. Any jurist who mio-ht have been a.sked whether iieiiti:il ports or waters might be used as a base for naval operations, would liavr ' Soo also WhL'aton'.s " Kleiueiits," (Lawrence's edition,) p. T": and Ilaiiteteuille, vol. ii, p. '"i: (': " Doreclio Interiiaeional." ii : I'istoye nt iJnverdy. vol. I. p. 1<»S. ,1-0, IJRITI.sIl «l IM'LKMKNTAL AKl.l MKM 435 «i (|in' I't iii|il ■ III <|l'S 1)l'lli'^' ,»• s'l'ii ali^li'iii . 'est aii.ssi |iiiiii ijiii line If M'li. (Ics iiaviio liil CS lllt'SlllfS II'- ••(iiitn- I'liii i'.'- til Ics liiitiiiii'iil^ poiirsiiivii' fl li' iH'i- tenitmiiil'' n's ai»imrt<'iiiiiif ins nil llflivc. im I'ttc station itttiir 's sont aiissi ill'- (iix iK'iitri'sciiii liois tlfs liiniti'^ df la lone ii";iii siiltat tie I'lisin;'- 'iiiiis.- fully oiitor a lu'iitnil port, iviiiiiiii tlicrr, supply ImtscH" with piovis iiimI otluT iMMM'ssiiiios, H'piiir (l;uuii{>«'s siistaiiu'd liom wtMi' aiiU tear. ie|ilit> under- stiMMJ. None of these writers (pu'stion — no writer ot'atithor- h.m.." V,'. u,''.'.'.' ity lias ever <|iiestioned — that a bellijjerent eriiiser mi;;;ht la'w lilllS i.r ill battle, replace (if a sailinjy-ship) her sails and riy:;xinj,', renew (if a >t('iiiiier) her stock of fuel, or repair her en;j;ines, repair botli lu'r sleam- iii;' and her sailinj-" power, if capable (as almost all ships of war now are) oriiiivi^'atin}>' under sail and under steam, and then issiu; forth to4;oiitiniU' luT cruise, or (like the Alabama at CherboiU};) to attack an enemy. 'Mis \ sont admis a s'y pritcurer h-s vivres nc essain's ft a y faire les n'pari;- lidiis iiulisj)ensables ]>our repreiulre la mer ct sf lirrcr w ctmtended for by the ., ,, ,,„m,..m„i I'liited States, it mij^ht be made to compreheml almost ,',i, ';.'', V.'.-.'/t I,!!.' hich a belli iser had tak ivory possible case in wnicn a oeiii«;erent cruiser nadtaivc advantajje of the ordinary hospitalities of a neutral pmt. It would be III the power of any belliuereiit to extend it almost indelinitely, so as t(» lastoii unexpected liabilities on the neutral. Does it, tiien, make any '!» litted for meiThandiso and war, and applicable to either, was lawful ; but. if it were of a nature solely appliuublo to war, was unlawful. i % ■'f ii 430 Sl)'|'LK.MBNTAI{Y \li'(;l MKNTS A.N'h STATKMK.VTS. T!it Iviih's ol l'r«>.si) si)«>a'v i'ov tlicin- H. i',.-.,,i. n . >l>lij,^itti(>ii previously iin'iiinbcnt upon tli«' I'liitcd Stiiics ii\ •"""""•■■ iii(«*iiiatioiiiil law. Tlicy were as follows : 1. 'I'ln' (.riii'miil iirii'.iiiii ami I iiiiijiiiiiiii !>{' vcsm'Is in tin' |»iits ol' iIm' I'liiti'd Sl:iti>li\ iiiiy of the ln'llint-ri'iit purtifs I'nr niililiirv scr\ ici'. oUriisi vc tir ilrlViisisi-. is (1it||i,.J| niilawrnl. ■J. l^>|iii|>iii!'iits of iniTiliaiil-vtssi-Is liy <'illii'i of ( hi' In lli^i'iciit piirtics in i li. |i(iiiv ot \\u' I'liitcd Stall's, iviirclv /'or ihc airoiiiiiiodatioii nl' tlii'iii as siidi. j.s (Iri'iiiiil Ijju M. '.'. I'liiiiiiiiii iil-< ill Ihr fioi Is of llir I'liilril Stiilfs of (■(■ssiln of inir in Ihi iniiiiciliali' sviri,, of till- f!oi\ riinii ill of i.nii ol' Ih inUiiji rviil i>iirlic>-. irhidi. if dour lo ollii r nnxrln, irmilil ]., of (I diiiihlliil iiiihiyr, ti.s liiiini iiiiiiliiiihlt litliivlo (•niiiuinT or iror, ore Uininil Imrlitl : I'M . |il t liosr u liicii shall iia\ <' iiiadc |itl/.('i»l' I In- sulijccts. iicuplc. or |iii>iM'rfy ol' Kiani-,., coiliilii; willl llh'ir |iri/.<'S into I lir liofts nl" llic 1 'llitcil Stales. ])llisilail( to tlic m'\i i; fcciitli Arlii'lc ol' our Treaty of Coiiiiiieiee Mitli I'lai 1. I'.i(n.iiiiii iil'< ill III! polls of ilic I'nitiii Sliilix, liy iiiiy of the |>aities at wai wii': liauee. of 11 '^1 Is filliil I'or iiiiiiluiiiiUst mill irnr, irlnlliir icilh tr ii'ill>oiii iiiiiimixsiiin^ iiliiili urc dnii'il'iil ill lliiir iKiliiii IIS hiiiiij oiipHcolih lilliir lo idiiniiirn or ic. fjiiiiiniii Ills of anil of lln nssfls of l-'riiinr, in tiie ports ., nia\' law t'nlly enu.'iee oi- enlist Iheir own s'llijecis (U' citi/ens, not hi'ii i; iiiiw'i ilanls(d' tile '."niteil Slates. eNy a wai-stcaniff of a Itclliocn'iil Ptiwci in a licntli-.l poff was pet reel ly !awfiil. Siiniiai pi'ii!<'i|>l('s will be fonml in all tlic ix'st aiitlioiitics ot" iiiliMii;i t,ional law, aiiplicablc lo the asyliiiii ami hospitality Mhicii the ships ot waf of a L».'lli;4«'i"cnt may ivccivc in niMiti-al ports without a \ iol.ttioimi neutrality. tSome of those authorities are referred to in tlieiiulc.i; foot of this pauc' In accorilanee witli tin se principles, the .Vets of Conon'ss of 1 7!M iiinl isi-S prohibited, in section -I id' t!u' forinei and s(>ctioii .mi; the latter Act, the, " increase or iinonicntation of tlictonv (d' any ship of war, crniser, or other armed vessel whKM. at the time of her arrival within the I'liited Stato, was a ship of wiii. crnisi'r, or armed vessel in tlie service of any fofcio-ii IM'incc. vVc. ^ l(liii>,' to III'' tuhiihir III' llii i/ihis (>/' sitcli fi'ssi t. nr III/ cli(iniiiuii thus H. \.I- ..I c /li/ hoKif! of lurl'or ifUiiJ< of liinirr rolihir, or hi/ llir idliNlion thrntu a/ n <(liiijniiciit .soil III iijiiiliriililr lo inir." Ill like manner th ISritish l'"oreiiLfiiICnlistmeiit .\ct ol ISP.I, hv st'rii'Hi ikr iiriiH'ii f iii,-t(i>i'iit Kt t s, |>rohii>ifed IIm* " increase or anoiiieniLation of the wiir I'orce of any shi|, <iplomatie de la .Mi r, " (Itli edit ion,) vol. H. !■■ ysti : Hctfter, "Droit, Inlernalional." ( ISerjison's t rans'alion. ) v\ I 111, iind no'c ('; 27(1; i'liiido, " Kh'in. del hereclm Inlernaei'mal, I'.fJ icnt, " (JoinmeiUaiies. vi p. liS; Wheilton's " lllemcldH," ( Lawrelici ,) p. 7'.'U ; llailtefenillc, " I (loils et l|i'*"" <1< H jNations neiUrcs," vol. i, p. HIT: < al vo. " | teiecho Inleinai ioiial," \ni.''l ; I"'" " Law of Nations," vol. ii, p. 4W. I'S. a'v for tlit'iii- «'(l StilU'S u\ |Ut'''l Sl.ili -. I,\ si Vl'. i-^ (ll'iMllili tics ill lli< ]M)ri^ is (Icfiiuil l:i\\ iiuiiiiiriuli sirri,, !•( nxrlx, il'iiillit !'< III' ill'' )/' (/ iiiiliivr "ii/iN as iiicnliimii! I'l iinr 'I'rt'iUy wii'i tlicirioiiiiii;: ini" of llif for. ;;iii;i- not lii'ii 'X iiili:''' with l'i;uiii' 'I'll- ml Hull's. ;ni\ 'it'iil IViwcr 111 h tht' s f iuttMiKi- till IS I it ;| \ iol.ltlOll 111 lill till' llOti'.i; ; DflT'.lhiH'! ltd stu-tii»ii •'' "' )|" the Itinv Vl'SSl'l wliitii. II 11 ,;i s 'niifi- liip t>t \\;i! \r.. '': tlv \ii;ini(l III"')' Ihi'irti) «/ r.hMTISlI Sli'lM-KMKNTAI. AKMllMKNT 4;{7 liti'il J\iii;j,(lom or any ol' llcr Majosty's doMiiiiioiis, was a sliip of war. iiiiisi'r, or armed \ cssi-l in the servic*' of anv forci"!! I'rincc,"" i^c, />// mhliitii fit the iiiimhcr <>/ llie i/uns of nurli rr.sscl,nr hi/ chanfi'nuj those on lidiiril for other umis. or hi/ (he (uUfition of mu/ cijuijimeiit for icor."' No person in citlirr «'i>!intry ever iina.uiiu'd that, tlicse proliihitions \MHilil l»e inlVin^t'd by allow in;;' foreijjn Urllijicrcnt stcani- II. lllH.T.wl iW r-% I ,'i ti J 1 II 11 Mssfls to coal lii'i'ially enabled to continne their crnises and warlik«; operations, l>y nicaiis of snpplies of coid so reeeivcil, (however ^ii'cat in (piantity,) than iliiU siiilin;;-ships of war are enabled to continue theii'crni.ses and warlike ii|ii'rations by substantial and extensive rei»airs in neutral ports to their liiills. masts, sails, and ri;4';;ini«', when dama.Ljed or«lisabIed, or by unlim- •nl supplies of water and otlu'r lu'eessary jirovisions for their cn'ws. It was not by (Ireat Uritain only, but etpially by l-'rance, Uia/.il, a..d iillicr countries, that this view as to supplies of coal to Coidcderatc wsscis in neutral jiorts was acted upon throu;;hout the war. In tlu* litter already quoted of the i!ra/.ilian Minister, SerM)r Taques, to Mr. Wi'lih, on the subject » i 'he Sumter, (ilth J)eceinber, 18(}1,) he wrctte : Tlif liitspitalit V, tli ■\tri Iril III till' sti-iiiniT SiiiiiUM- ilt Miiiniiliaiii, ii5 the tcriiir III uhirli it was iiirsi'ii(l\ alti'i w :inls ;;ivcii to tlir lVi;;att' I'ltwiialaii. iiivulvcs no iric;;!!- Iiiity, reveals no ilis|Misit ions olVensive to tlic I'nited >(ales, Jt remains to l;no\v .iliitluT. in tile e.\ereise ol'llii iiosiiitalily, the ri;;lits wijeii lestrict the eomnieree ol ■ iitials \v illrsl ill! •ither l> imi-reiit were t ra'isjrres.sei 1. Tliis 1 oint illVolveH (lie wliole tiiin, l»eeaiis«' Mr. W I'tili lia.ses liis arj;iinientatioii and lii.s eoiiiplaint.s on tlie eoii- ■iiiirtioii whieli lie };l\('s of eoiitraliaiHl of war as lo )Mt-eoal. He. in.sists stroiijily, as pi;nf men," it is no more inteiuleil to take away or limit tlii'n.i;lit of ii neutral State to permit the coal in^jj of steamers belon<>in,u tiillie war scrvic(M)f a bellioerent within neutral waters, than to take I'Aiiy tlv ri;;ht to jiermit them to receive provisions, or tiny other f tl"'' iilltioll,) Vii , II.!' Iind m''i' ]nl•nl;n■i^■^ J 1 (roils ( Id," s^ -'V I'MTi'ise of her own undotibted riyht and discretion, as an iiii'ii(l(>id lUMitral Si)verei;;ii, and not by virtue of any antecedent iiitiTiiational obli;;'ation : that no belli <;<' rent Power could claim, under iliosc mles, any {j:reater benetit a;;'ainst the otluu' belli;;erent, than that lilt' lilies themselves should be acted upon without partiality towards ^'itliiT of the conteiKtiu''- parties ; that the limitation of the luiantitv of fwi-.H'"''' ^'* '*'' ■'plied to the ships of war of the belli;4;«'rents, in liritisli Its, by these rules, was not absolute and umiUidilicd, but was tsubjecl ('.'ii'iij » }v : 4:;s SI ITLKMKNTAKV AI{(JI MKNT.S AND STATKMKNTS. to tlic t'xi'iciso of a powor j;iv«Mi to tlit? Executiv*' Authorities of tin various JJritisli i)o.ss(;ssioiis to onlarge that limit by special ])erini.ssioii. when they shoiihl, iii the exercise of a bona jUlv discretion, see cause tu idii*:ibl In tlif ihm'ltul.-. 1. Itult- Inr tiit'Tprf t » t m |iiiI>Ih- ruiiM'iif ;uiit tn'iilH'^, The two questions last considered (that of tlu^ supi)osed obli<;ati()iiiM ,. i„„„.rtaM I Great Hritain, under the First IJule, to sei/.e or detain siuh vessels as the Alabama or the Florida, when they cauu'iiitii ]>ritish ports as duly commissioned public ships of wanii the Confederate States, and as to her supposed obli<;atiiiii. under the Second Rule, eitln'V not to jtermit at all, or by an cxiid su|»ervision to limit, tlu^ coaling of Confederate steam-vessels of \v;ii in British ports) involve ]ioints of such j;iave importance as to the])iiii ciples of constnu'tion to be a[tplied to those l{ules lor the iMirposc ni the i)resent controversy, that some further };eneral observations on tliiii subject seem to be imperatively called for. Amonj; the rules for the interpretation of Treaties, laid down l»,v \";i! „. tel, (Articles L'(il-'-.')l(),) are f(uinwin;:: 1.1 (1.) Siiu'c tin- liiwfiil iiit<'r]ir('tatii>ii ol' a t.n > ict i)ii;;lit In l.iiii only t(» tlu! ilis<'ovcrv of llic tlioiif;lits nf the iuit>:Tal nilc of nil iiitcrprfiMlions. It iiarticiil.irly serves to lix the ncnsi- <»!' icriiiin t'xpri'ssions tlir si^iiilic:itioii of wliidi is not snllicifiitly ilfti-rniiiicd. In virtiii' ()ttlii> rule Wf should t;d\i' tiiosf cxprfssions in the most fvtrnsive scnsf. \\ht'n i* is i»r()l);iliir that. ht> \\ ho sjiraUs has h;id in his vii-w csciylhinj; pointed out in this extiii>i\r sense; ;nid. on the eiinliaiy, we on;;ht to eonliiiethe si^iniliciilion, if it ii|iiie;iis ih:ii the author liiis hnnniled his thoii,i;hts l»y what is eoniprehi'iided in t he more liiiiitnl sense. (Alt. -JTH. ) {'i.) In the interprelatioM of treaties. jia(ts, and inoinises, \vt- onj;ht not to deviut. from the eoniinoii use of the lan^iiiajie : at least if we liaxe not very stnnm' rcMsoiis I"; it. In all liMiniin ;ill';iii's, where there is a wfint of cortainty. we on^lit to follow piulM Jdlity. It is e■. an expression in eonimnu use is the iden whieh eiislom h;is allixed to tli:»t expii>>iii It is. then. A i^ross iiuihlde to ;ilhx II jiarlienlar sense to a word in order to elndc tli I rile sense id' the entire expression. (1.) When we niallifestly see wllilt is the sense tlnil ii;;rees with the intent imMittll' Contraeliii};- I'oweis it is not iierniitted to Inrn their words |o m eonliiiiy iiMMiiiii;!. The intention, siillieieiilly known, furnishes the tine matter of the Conveiilinii. I'l what is iiereeived and aeee)iteresnined that he who hns employed n word captihle of iiiiiny il i fen-iit si^rnitications has taken il in Iliiit which ;i;irees with the siihject. In pn'!""' tion !is he employs himself on the mallei in (|iiestion the terms proper to cxpni-s in* fhon;;lits present themsehesto his mind, riiis ei|ni\ocal word could, then, eiil\ ntM N'r!«. lUilTlslI M'lM'LEMKNTAL AU(;LMKNT. 439 liorities of tin al ])ennissi()ii, 1, sec cause tn partially iictc'd tliout any eon- uv evasion oi shown (wliicli •f any l)c'lli;i;t>i I'itizeiis of tin JAIJI.K T(i Tin, d obli^i'ntioii ni or (U'taiii siuli tlioy camciiitM iliips of wanii »sod ol)li]i;iitiiiii, r by ail cxad vessels of Will i as to tlu'iuiii The iMuposc ii! vatioiis on lli;ii I «lo\vii by \ ill ig: t on^lit I" k'lhl r aiitliors el' tli;i' • \vli;;t wan |iroli:i ii;;ly. This is til'' (• st'iisc of ccftaiii 111 virfnc (iltlii- t'li i* is pi'oliiiliii III this I'Xtrlbilr it, aitiu';ii> ilii" till' iiiiirc liiiiiti'' it not ti) ii> I " t(i t'liUow invlu tnliin; to fii>tiiiii iiiint('ii I'l (1 I hat r\|in'>siii r.h'r to <'lui!i' li If iiitcntiiiii .>t'tli' oiitniry iiI'MMMi: lie ('ot'ivciition,"! thcTrcaty i- '' aiiist the tiini on that oiiulii ' 1 1)!.' to the siil'ji'ii iiit('riii"tatii>ii,t» \-.Ts ill a 'fri'iity lahh' of iiiiiiiy '' ijcct. In I'l"!'"' |M'r to fXlHcTS l!> il.th.'ii.oiilyiiii" isflt' ill the sfiisf jiioiicr to (!.\iti-<'ss the thoii^^lit ot" him wlio iiiaki's use o»' it ; iliat is, i; the snisf a;^reeahle to the siihjeet. (Alt. •i^t».) iCi.) Kvery iiiteipretatioii tliat h'ails to an ahsmdity oiioht to lie re.jeeted ; or, in .itiier words. \ve slioiihl not }j;i\e to any jiieee a sen.se from wliieh follows anytiiin<;' .ilismd, hnf inteiiuet it in siieli a niamier a.s to avoiil alisiinlity. As it eaimot l>e jire- .uiiiiil that any one desires what, is alisiird, it (;annot he siqiposed tliathe who speaks iiiis inteiiiied that his words sjionld lie understood in a sense iVoiii which that alisiinl- ity I'ollows. Neither is it allowahle to jU'esiime that he spoits with a. serious .'let; idi' what is shameful and unlawful is not to lie presiiiiied. We eall ahsiird not only that wjijcli is ]iliysieally iiui»ossihle, hut what is morally so; that is, what is.so eoritravy to ;i:;lit reason that it cannot he attriluited to a man in his rijfht senses. * * * riic rule we ha\i' Just nieiitioiied is alisolutely ileee,•^sary, and ou<;lit t appointed or ]iromised ; in short, from the imjiossihility of enterin;; into this im- uiiiise detail. Wo etui only make laws or Treaties in a laiii afterward ; and hesides, the expressions havi; a loice, and sometimes even an eiii iiely dilVereiit sij;iiilicati'»ii, a''cordin;i to the occasiiui, ilicir coiiiiero]ioseil. is one of the must certain means of estalilishiii^; the. ;nie sense; and lireat attention oii^lit to he paid it. whenever it is reipiired to explain luiliscure, e(|iiivocal,an(l uiililication of them to a partieiil.ir casi'. ( .Vrt. ".i-'i".) ihM We use th'' restrictive iiiteipietation to a\i)id falliiij; into an ahsurdity. * • ♦ rill' same method ol' interpretation takes place, when a case is presented, in which tli<^ i.iw or Treaty, accoiilin^' to the riiior of the tern is, leads to soinethiiie unlaw fill. This 'Xi'i'ptiou must then he maile; since nohodv can ]iromise to ordain what is unlawful. .\rt. ',",1:5. ) ill.) When a ease arises, in which it would he too prejudicial to any one to take a CA or iiioinise aeeordiny; to thi^ ii;;i)i of the terms, a restrictive interpretation is also .I'll iiscil ; and v,e except the rcsi;nied. with rea'-on, that neither the li'il'ilatiire. riu' the Conlractii:;;' Powers, ha\e intended to exlcmi their rciiulatioii to '\lM>0|'ll 1 = atiii ami that tliev t liemselvi iild h |ilcseli;ed tllcinselvcs. (.\rl. "JKI.) •1' i.ct tis i.pply (licsi^ principles to the interpretation oi' the Utiles of the I'lcsent T caty. The Uritish interpretation of the latter part ;, ,,,„,i,..„„„„, „f '•f the lirs' If'tilt', which makes it appliciible only to the i»re- ll;;;:;^;;;;;;^^^^^ w'liiion of the departure from llritisli Jnri.sdietion of ve.sHels V;:',l,l.^";;,■Jlt,'^^^^^^^^^^^ "ver which IJritish jnrisdietion h:nl never ceased or been " >"^-' 'lispln'cd. anil whose w arlikc ehara<'tt'r rests onl\ in an (as y<*t) nnex- '•'•uted intention orpnrpo.se, is aj;reeable to the tifth, sixth, eighth, ninth, iiiKl tenth of the foreyoino" priin-iplcs. The .\ iiicrican iiitei-pret;ition, fiFi i T-Jpirr- .ii^i If^ P*-: 1! 'fl*" r - 140 SUPPLK.MKNTAUV AKUl'MEMS AM> sTATKMKXTS. ice lo- is: I'.t wliicli would oxteml it t<» vessels (;oiniiif(, as publie ships of war o! rlw ConllMU'iatos, into British waters, without any notice beforehand tliar they would be either exeludee made to embra<'e, ollends ajiaii the same, ami also a;.^linst the tenth ]>rinciple. The Ibitish inteipretation of the wonls '' the lenewal r)r aupnient, tion of military supi)Iies or arms," in the latter part of the s«'cond Jtnli Avhich a)>plies them to au}»inentations of the warlike tbrce of belli^itic vessels, tlie same, or tjiistletu ffcncris, with those which were forbitldi i by I'resident Washington's Jvules, and by the Jlritish and Ameriia': Forei^iu-Knlistment Acts, is in harmony with the secortd, third, liliii, seventh, ei<«;hth, and ninth of the forejioiu}^' ]>rincii>les. The Aiui-ricaii interpretation, which would extend them to su])plie8 of articles, such a> coals, whi(!h, accordinj; to the nized and acted ui)on by all civilized natioii>, (notably by (ireat IJritain and the United States,) were never vet deemed unhiwl'ul, and from the sujiply of which, in neutral ])orts. it would be hij^hly ])i(>judicial to two great maritime I'owers, such as tlif two Contracting;' Parties, to ilebar themselves in <;ase of their beinu in jjaged in war, in the present days of steam imvigatiou, otVends a;^aiii- the same i)rin(!iples, an«l also a}>aiust that numbered 11. The force of these objections to the American interpretation of tli< three Ivules is j^reatly increased when it is borne in niiml. first, that (rreat liritain a{?reed to their beiiip: retrosijccr ively api)li(Hl to the decision of" the (juestions between tin two countries arisino^ out of the claims mentioiuMl in Article 1" of tlif Treaty, those beino- the claims "growiu}; out of acts committed by tlii several vessels which had j;iven rise to the claims <>enerically known a- tin' Alabama Claims." Down to the date of the Treaty no claim hav mj.'; out of acts committed by sliip> of this des.ription oi'ly; and, in a^ieeini-' to the terms of the lfiile.it j.;,l uny claims in view which wci f;round*d 'ijly Oil supplies of oamI to Coni'eder;ite vessels. A r<'tn' spective eni':ii' this ^ori • mnot. witln ut Ji comph'te departii!'' from al! the i)rinciples «>! Histice, i>e »>nlar<>ed by any uncertain or i necessary im])lication. The I'nitecl States h,%v "ipressly dcclar-d, in their Case, that tlif> consider li takiii;^' a difVen'Mt '^lru!^'"^Vr!!: !^-'' vii'W of the other liiih's, has also cxin'cssly dcclaicd, in her ""'""'•■ (oiniter (3ase, that she too ref^ards the s'o(M)ntl Itnle as in no way enlar;:- \\i' supplies of eoal in liritish ]>orts dnrin;;' the war, was in accordance with the views of international law, ;ipplical>l( to tliis sub- ject, which had Ix'en previonsly annonnt-ed and acted upon by all the liijrliest political and Jndi(!ial authorities of that country. Thus it is made quite apparent that the construction now sonjiht to be jdaced by llie United States upon this second Rule is at variance with tlu' real in tciition and nieaninj;' «>f both the ("ontractinu' Parties; and therefore with the 1st ami Ith of the ]uinciples extracted iVotn N'attel, as well as with the others already specilied. J)Ut further: not only did (Jreat Ibitain consent to the retrospective ;ii;i)lication of those Ifides, upon the footiu'n' foriuerlv ex- plained, to the determination of what she understood as m- i "the claims j«eneru!ally kmnvu as the Alabama (.'laims," I.'.VThV ri',r"!'K.'.T.'. ;;T()win!n (Mit of acts committed by i)articular v«'ssels whi(;h '•'-" had historically given risc^ to that desiiiimtion, autl of no other kind of claims; not only did the two Contract ini;' l*arti(vs 10 observe these Jlnles as between themselves in fnturt' :" but they also agreed to "briiijithem to the knowleilge oH other maritime I'owers, and to invite them to ac('ede to them." They did not attempt to make a . IX KKPLV T(l TIIK SI'EriAL AKOrMKNT (IK THK COIN- SKL OK IIEII nUrrANNIC MAJKSTV. SKK I'kOTOCdLS X\|| AND XVIII. if* AlKilMKNT OK Mil. KVAHTS. At the Con/ncnrr hrl'l nit the 'tth diiif o/ Ainjit.st Mr. I'rarts atl^lnssnl Ihr Trihumil as/nllincs : 111 tln' comsr (d tlit^ doIiluMJititms of tin* Trilmiiiil it lias si't'iiu'd f Her JJiitannic ^la.jcsty for the elucidation of those ptunts in the consideration of the Tribunal. Under that invitation tlic eminent t'Oiinsel for the IJritish (loviMiiinent has i>resented an arfiuiiiciii which distributes itself, as it seems to us, while dealiiij'' with the thii'c lioints sufi'/icste*!, over a very general examination ol' the Arj;iiiiu'iit which has already been present«'d on the i»artof the United States. In aviiilinj,' ourselv»'sof the ri^^lit, under the Treaty, of replyiiij;' to this special iirjiument upon the points named by the Tribunal, it has been ;i Jiiattt'r of some embarrassment to determine exacttly how far thisdisciis sion on our j>art mi;;ht i)roperly ^o. In one sense our deliberate! Judj; ment is that this new discussion has really added but little to the views or the Argument which had already been presented on behalf of the IJritish (iovernment, ami that it has not disturbed the i)ositions wliicli hail been insisted upon, on the part of the I'liited States, in answer to the |>re\ious (liscussions on the part of the Uritish (iovj'rnment. cnii laiiied in its ( 'as«'. Counter Case, and Arjiumeiit. Ibit to have treated the matter in this way, and left our previous Ai- yunu'iit to be itseli" such an answer as we were satislied to rely upon ii' the new «levelopments ol contrai\ views that weri' presented in tlii- sjiecial ar;4'uiii/'iit of the llritish (ioveiiiineiit. wor.!;! have seemed lo ;is sume loo c<»nlid<'iitly in favor of uinent of the eiijiiunl Coun>»l. \N'e shall ciideiivoi. thcn'ttae, to present such views as seem to us useful ami \aluable, and asttiid in their {••eiieral bearing' to dispose ol' the dillicultics and counter propositions opposed to our views in iIm' learned ('onnsel's present criticism upon them. MR. EVARTS SI'lTLKMICNTAL ARfJIMENT. 443 (liliK'iit Tilt' Aniericiiii Ai-^jfiuiu'iit, pn'siMiU**! on tli(^ l."»th of .liun', ok lu'ariiij;' upon tlicKo tliroe points now nndcr discnssion, Iia time, and place, ami circumstances that <'alled for its exercise. Never- tlieless, the general tiier nation, the I'nited States, but oidy as a question of its duty to itself, in the mainteminee of its neutrality, and to its own laws and its own peoph', in everting the, means placed at the service of the • invernment by the KoreignlOnlistmeii! Act for controlling any clforts ;i;:;ainst the pea< e and dignity oltiie nation. We had supposed, and have so in our .'vrgnnient insisted, that all that lung debate was concluded by what had been settled by ilt'tniitive conv<'ntion between the two nations as the law of t'"! tliis Tiii>umd, npcm which the eon«lnct and duty of (Jreat Ihitain, ami the claims and rights of the I'nited Slates, were t(» l>e ad- JiKlged, ami had lu'cn distinctly expressed, and aiit lioiitatively and linally established in the Three Ifnles nl the Treat v. nil- it..i.- ti'ii.i't tti ili.pir iM>- Ih'j itiil'.-. exiiru'iiril. licfore umlertaking to meet tlie mor(i particular inquiries that are t( 'le disposcil of in this Argum«Mit, it is proper that, at the outset, we should take notice of an attemi)t to dispaiage the I'tlicacyof those liules, the source ol' their authority, and tlie nature of their obligation ui)on (in-at I'.iitain. The lirst five s«'c- tions of the special argument are devoted to this consideration. It is "'iiid that the only way that these liides come to be important in i>ass- iiig, judgment n[)on the eondu(;t of (ireat iJritain, in the nnitter of the f'^ 441 ^[•I'l'LKMKNTARV ARUIMKXTs AM> STATKMENTS. i.- felr. claims of the UiiittMl JStiitcs, is by tin* coiisoiit <>(' Ilcr Miijcsty tliiit. in (;iiliii;: tlio (|ii4'stioiis l)ctvi>«'ii tlu* two coiiiitrics iuisiii^' out of tln-sf rhiinis, tlir Arhifnitors slioiilil iissiiinc tluit, diiriii;;' tlu' course of tlicsi- triiiisiictiiuis, Her Miijestv's < Jovernineiit liail lUMlertiikeii t() Jut upon the ]>riiuti|)l('s set foitii in th(>s(> lliih's, aixl in tlieiii atinoiineed. Thiit re(|iiii'es, it is said, asa ])iiiieipal eoiisi(h'rat ion, that tlie Tril>unal shonM determine whjit the law of nations on these snhjeets would have been it these Kides had not been thus adopted. 'I'hen, it is ai'u'iu'd that, as tu the i»ropositions of duty covered by the Jirnt K'ide, the law of uatidiis did not impose them, and that the obligation of art of (ireat liritain, arost- under the lU'ovisions of its donu'stit; h'^^islatitu), umh'r the provisions (it _the Forei^^n I'iidistnu'ut Act, under a jjfeiieral oblijration by which ;i nation, haviuf^' assijjned a rule of <'omluct tor itself, is anuMiable for it> proper and e(|iial i)erformanc(^ as between and toward the two bellijuc rents. Then, it is ar<;ued that this assent of the llritish (lovernment. that the Tribunal shall re^riirdthat ld under an international obli^^ation to ])erfonii the Hnles in that regard, but simidy as an a of their l-'orei^iulCnlistnient A(^t, duties which were ecpuvalent in tlicii construction of the act to what is now assijiued as an internationnl duty; ami this argument thus coiu'ludes : Wlion, tiicicforc, ll.T Majc-st.v'H ({(ivt'iiiiinMit. li\ tin- sixth iirticic of the 'I'lcaty m ^Va.shiii>;t<»ii, ii;;rt't'tl tliat tlif Ailiitiators hlmiilil assume tliat Iter Majesty's (hivci?] inciif 1iaoii the construction whicli they themselves jilaced upon tin |iroliibitions of their own municipal law, according; to which it was coincident in siili- stance with those Rules. — (Jlrilisli Sptrinl Anjiimiiit, p. :{SSI.) Now, w»> may very brielly, as we thiidc, dispose of this suoocstion, and of all tho intluences that it is appealed to to exert throuohoiit the t;ourse of the discussion in aid of the views insisted upon by the leariicd Counsel. In the tirst ]>lace, it is not a correct statement of the Treaty to say, that the ttbliji^ation of these JJidcs, and the responsibility on tlif ]»art of (Jreat liritain to have its conduct Judj^ed accordiufj to those Utiles, arise from the assent of ller IMaJesty thus expressed. On tlif contrary, that assent (romes in oidy sid>se(HU'ntly to the authoritative statement of the liides, and simply as a (piali lication attendant u]>(>ii n reservation on tho i)art of Jler Majesty, that the ])reviou8 declaration shall Jiot be esteemed as an assent on the part of the British (hnrrn mcnf, that those were in fact tho principles of the law of nations at the time th(! transactions occurred. The sixth article of the Treaty thus dtitermines the authority and the obli«»:atioii of these Rules. 1 read from the very commencement of the article: "In deciding: tlu' matters submitted to the Arbitrators they MK. KVAKTS sll-rLKMKMAL AK(iUMi:NT. 445 *.. i. [y that. Ill t of tlicsc «' (>r tiicsf I act upon •nl. Tlii.t iial slioiiM ivr lu't'ii if that, as tn of nations aiii, then •• tluif Uiilr. ii'c, a duty liich callcti tion of thi- ll r('si»()iisi. tain, arose ovisioiis (it y \vhi«'li ii able lor ii> wo bell !};«'■ ivi'nnnciit, le ]H'rt'oriii Hulcs were )IIS(Mlt thilt to lu'rlorm icy had nil ])rovisioii> iMit ill tlu'ir Itoniatioiiiil lie 'rrcaty i>\ sty's (iovri'ii- ilcs, (llidimii I liiw, wliii li iiciit WiiH not iiliict \>- iilxiiijf wliicli iinu'iit of tin- ceil upon till ideiit in suli- astioii, ami lo-hOIlt tlH' lie loariKMl the Troatv lility Oil the jf to those I. Oil tlic thoritative ant upon :i lechiratioii sh (hnrrii- lions at the Ity ami thf leutot tlic lators they sliall be yoveriuMl liy the following; tiire»' Kiihs. w hidi are afj^reed upon l»y the llijih Contract iiiju; l'arti«!sas Ituh-s to Ih* taken as applicable to the case and by such principles <>i' Interiiational Law iittt inconsistent therewith;"' and then the LMiles are stated. Now, there had b»'»'ii a debate lK'tw«'en the diplomatic representatives of the two (lovt'inir.eiits, whether the «liities i-xpresscd in those liiilcs were wholly of iiiti ('national obli;;ation aiitectMlcnt to this a<:reeiiieiit of tlie parties. The I'liited States had from the beninniii;; insisted that they were; Oreat ISritain had insisted that, in regard to the outfit and e(|uipinent of i»n itiioninil ship from its piuts, there was only an oblijja- lioii of municipal law and not of international law; that itsdiity con- coiicernin*;' stub out tit was wholly limited to the exj'ciitioii of its Kor- eij-iilOnlistiiu'iit A(^t ; that the dischar^ic of that duty ami its n'sp(uisi- hility for any »lefault therein coiibl not be claimed by the I'liited States iis liiatter of international law, nor upon any Jud^^'meiit (ttherwiso than of the j;eiieral duty of a neutral to e.\e(Mite its laws, whatever they im^^ht be. with impartiality lu'tweeii the belli;jf<'rents. To close (hat debate, and in advance of the submission <»!' any lijiation of tin* law jjoes, seem to us to admit <»f no debate, and to be exposed to not the least uncertainty or (huibt. I>ut in order I hat it miohi not bean imputation iilioii the (lovernmeiit of (ireat Kritaiii, that while it presently a;(reed that the duties of a neutral were as these IJiilcs <'\pi('ss them, and that these liiiles wv.n' applicable to this case, that a neutral nation was Itound to conform to them, and that they should ;:overn this Tribunal in its decision — in order that fnmi all this there mi;;ht n(»t ai'is(> an imputation that the conduct of (ireat Itritain, at the tim(> of the ti'aiisactieen at vari- anc(^ with these Kulcs,) would be, subject to the charoc of a variance with an acknowledo-iiuMit of th«> Rules then prescntl\ admitted as bind \uii, a reservation was made. What was that reservation ' tier Iti'itiiniiie Miijesty lias eoniniaiKleil Iut lli;i'!i ('Diiiniissiniiers ami I'li'iiiixiteii- tiaries to (leelace that iter Majesty's (ioM'cimieiil eaiinot assent to tin- lorc;foiiiir K'liles as a stateineiit ot' |>i'iiiei|>les ot' iiitei'iiatiiiiial law vvliieli weie in I'uree at tlie time when the elaiiiiN iiieiitioned iiiAcliele I arose, lint that lleiMa.jesly's (Hi\eriimeiit, in order to eviiiee its desice ol° slii'iiy;tlitiiinjr tlie iVieiidly lelatiinis lielwcen tlie t wo eonnli'ieN, ^iiiil of iiiakin;r salist'aetory |ii'o\ isioii lor tlie fiitnce, a;;rees tlial, in deeidiii;;' tlie (|t(es- tioiis Ix'tweeii the two eonnlcies arisiii<;' out SI PPLEMKNTARY ARGUMENTS AND STATEMENTS. V <{ I m WliHt lK' Treaty, tiu'ie is uothiiijn" wiiatever iu this projiositiou of the llrst Jivt- seetious of tiie new special ar^junu-ut. If there \v»'re anything; in it. ii wouhl 'fin to the ruptur*', ahiiost, of the Treaty; lor the hiumiaj-e i> ])hnn, tiie nuiti\e is dechired, the foree in future is n«)t in dispute, iiiid. for th<^ consiih'ration of that toree in the future, the sanu> f(U'(;e is to lit- applie<1 in the Jud<;nH>nt of tliis Trihiinal up l)iudinx autlnuity of these Kuh's is to leatl in tin' sense of lliis v<'ry eonipli»'at«'d, sonu'what unintellij;ibh', proposj tion of tlie l(>arned Counsel. ('on\pare his words with the declaration of the l>iudin<> authority of these Itules, as Kules of International Law. actually found in the Treaty, andjutl;ie for yourselves wlu'ther tlu' twit forms of expression are equivaleid and interchan;;eal>le. Can any one iina;;int! that the United States wouhl li.tve a<;ree«l tliiii the const riuM ion, in its application to the past, was to be of this niodilieti. uncertain, optional character, while, iu tli'^ future, the Itules were to be authoritative, binding Uules of the law of uations ! When the IJnitctl States had given an assent, by convention, to the law that was to yov ern this Tribunal, was it intended that that law sluudil be «*onstruiMl. as to the ])ast, dilferently from what it was to be <'onstnu'd in referencf to t\w future.' 1 apjirehend that this learned Tribunal will at on(!«' disnnss this con sideration, with all its important intluence uptin the whole subseipn>nt. arguuuMit of the enunent (.'ouusel, which an attentive exanuiuilinoii ot that argument will disclose. "NVith this pr(>position falls the fuither proposition, already met in our former Argument, that it is material to go into the ic giou of debate as to what the law of nations upon these '""" subjects, uow uiuler review, was or is. So far as it falls within the range covered by these K'ules of the Treaty, their provisions have coiichuled the controversy. To what juirpose, then, i)ursue an in (piiry and a course of argument which, whatever way in the balance ol your conclusions it may be determined, cannot alVect your Jiulgnient ei your award .' If these Kiiles art! found to be «!onformed to the law el nations in the i)rinciples which it held antecedent to their adoption, tin- Ivules cannot have for that leason any greater force than by tlu'ir own simple, unconfirmed authority. If they dilfer from, if they exceed, it they transgress the requirements of the law of nations, as it stood ante cedent to the Treaty, i»y so much tlu' greater force does the convention of the jiarties recpiire that, for this trial and for this Judgment, these JkUles are to be the law of this Tribunal. This argument is hinted at ill the Counter Case of the Ibitish (Jovernmeiit; it has been the subject of .some public ritain. IJut the most authoritative expression of opinion upon this point from the press ot that country has not failed to stigmatize this suggestion as briiiginj; the obligation of the ]iules of this Treaty down to "the vanisliin.u point."' At the close of the s)»ecial argument we iind a general presentation Si. It. p,.imr, . of canons for the construction of treaties, and son e g( ih val 17"IHmM^'!rrl•^.'t','''; observations as to the light or the controlling reason iniilei •""'"''• which these Ivules of the Treaty should be cou.sti'i h1. These suggestions may be briefly dismissed. ' Loudon Times, Fc1)rnaiy, IH/'-i. , H"» riir thf Tril.ii MR. KV.MM.S sri'l'LK.MKMAI, VKCilMKM. 117 iss this (.'Oil- sul>,s(M|n('iit, iiinatinoit oi ll (u'Kiiiiily would Im' a very ^'fnit n'proarli to tlu'sc nations, wliirli had «l«'lil)«'ratt'ly tixi'd upon tdive propositions as oxpirssivr of tlu' law of nations, in their JntlKnn'nt. for tln> purposes of this trial, that a resoit to general instiuetions, for the purpose of interprelati(ni, was ne<'essary. Kh'ven canons ol interpretation diawn Ironi N'attel are presented in onler, and then several of them, as the ease suits, ai'«^ applied as vain ahlc in elucidating^ this or that point of tlM> Kides. Uiit the h'arned Counsel has onntted to hriu};' to your notice the lirst and nntst ;;eneral rule of \att»'l, which, beiny once understood, would, as we think, dis jtciise with any <'onsid«'ration of these suhordinate «'anons whi«'h N'atti'l lias introduc<>d t(» be used only in cas(> his lirst ;;'eiH'ral rule does not ap ply. This first proposituin is, that "it is not allowable to interpret what iias no need of interpretation." Now these llulcs of the Treaty are the delibeiate and careful expres- sion of the will (»f the two nations in establishin^i' the I, AW for the ^fov- tTiunent o\' tiiis Tribuinil. which the Treaty calls into existcin'c. 'I'hese Itiilcs need no inteipretati«>n in any jicncral sj-nse. rndoubte«lly there may l)e phrases wlinh may ren to this case, by the learn»'d (.'onnsel, seems veiy wide from what to us ap- pears natural and sensible. The aid which he seeks under the {^uidaiu'e of this rule is from the abstraati(m and to the performance of obligations, these considera- lions furnish the resort, if any is lu'cdcd. whereby this Tribunal should Nftt^k to determine wliat the true meaninj;' of the lli^'h Contracting- Parties is. Now, as bearinji' upon all these three topics, of (buMliliii'ence. of treat- ment of ol1endin.ii cruisers in their subse;ainst the .sovereign thus prosecutiu};' his war there was raised a nuiritimo warfare. The bellij>erent itself, thus prosecutinj;- this maritime warfare ajjainst its sovereij^n, confessedly had no i>orts and no waters that could serve as the base of its naval operations. It had no shipyards, it had no founderies, it had no means or resources by which it could maintain or keep on foot that war. A project and a pur- pose of war was all that couhl have origin from within its territory, and I > i I 1 ¥ IMAGE EVALUATION TEST TARGET (MT-3) /. {./ ,,v W^,_ 448 SlPl'LEMEXTARY ARGUMENTS AND STATEMENT.S. im ' I' ; !■.;•' '^- ]}■■ ft ■!! J;.,.:. I?a the i)ocuuiar.y resources by which it couhl derive its supply from mm- tral nations was all that it coiiUl t'liriiish toward this uuiritiine war. Now, that war having' in fact been kept on foot and having resiiUed in great injuries to the sovereign belligerent, gave «»ccasiou to a ositi()iis of the two nations. Great JJritain contended during the course of tlu; transactions, anendent of this construction of the second clause. The second clause of tliat Itule is this : " And also to use like diligence to prevent the departure from its jurisdiction of any v»\ssel intended to cruise or carry on war as above, su<;h vessel having been specially adapted in whole or in part within such jurisdiction to warlike use." J * n MR. EVARTS' SUPPLEMENTAL ARGUMENT. 449 It is said that this second clause of the first Rale manifestly applies only to the onfjinal departure of such a vessel from the British Juris- dictiou, while its purposes of unlawful hostility still remain in intention merely, and have not been evidenced by execution. If this means that a vessel that had made its first evasion from a British port, under circumstances which did not inculpate Great Britain for failing to arrest her, and then had come within British ports a sec- ond time, and the evidence, as then developed, would have i-equired Great Britain to arrest her, and would iiave inculpated that nation for failure so to do, is not within the operation of this llule, I am at a loss to understand upon what princijile of reason this pretension rests. If tlie meaning is that this second clause only applies to such oii'eiuling vessels while they remain in the predicament of not having acquired the protection of a " commission," that pretension is a begging of the question under consideration, to wit, what the effect of a " commission" is under the circumstances proposed. I do not understand exactly whether these two cases are meant to be covered by this criticism of the learned Counsel. But let us look at it. Supposing that the escape of the Florida from Liveri^ool, in the first instance, was not under circumstances which made it an injurious vio- lation of neutrality for which Great Britain was responsible to the United States, that is to say, that there was no such fault, from inat- tention to evidence, or from delay or inefficiency of action, as made Great Britain responsible for her escape ; and supposing, when she en- tered Liverpool again, as the matter then stood in the knowledge of the (rovernraent, the evidence was clear and the duty was clear, if it were an original case; is it to be said that the duty is not as strong, that it is not as clear, and that a failure to perform it is not as clear a case for inculpation as if in the original outset the same circum- stances of failure and of fiuilt had been apparent ? Certainly the proposition cannot mean this. Certainly the conduct of Great Brit- ain in regard to the vessel at Nassau, a British port into which she went after her escape from Liverpool, does not conform to this sugges- tion. Bat if the proposition does not come to this, then it comes back to the pretension that the commission intervening terminates the obli- i.'atioii, defeats the duty, and exposes the suffering belligerent to all the consequences of this naval war, illegal in its origin, illegal in its char- ;icter, and, on the part of the oil'endiug belligerent, an outrage upon tlie neutral that has suffered it. Now, that is the very question to l)e determined. Uncpiestionably, we submit that, while the first clause of the first Rule is, by its terms, lim- ited to an original equipment or outfit of an oft'euding vessel, tlie sec- ond clause was intended to lay down the obligation of detaining in port, mid of preventing the dei»artiue of, every sucli vessel whenever it should come within British jurisdiction. I omit from this ])resent statement, of course, the element of the effect of the " commission," that being the immediate point in dispute. 1 start in the debate of that question with this view of the scope and etlicacy of the Rule itself. It is said, however, that the second clause of the first Rule is to be 'luiilified in its apparent signification and api)lication by the suppljnng 11 pbrase used in the first clause which, it is said, must be communicated totlu^ second. That qualifying phrase is " any vessel icltich it has rea- mahlc (jround to believe is intended," &c. Now, this qualification is in the fi st clause, and it is not in the sec- 29 c ■» ,i||^-4#j 450 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. Krt'.-ri...rih *' rc.it'wniitil*' to ticlifv*.-.'" Olid. Of course this element of having " reasouiible gi'ouiul lu to believe " that the otfense which a neutral nation is re- on the sea, and to be a claimant of hospitality, it is a cruiser, on the principles of international law, (by reason of its guilty origin, and of the necessary consequences of this guilt to be visited upon the offended neutral,) for whose hostile ravages the British Government is responsible. What courtesy, then, does that Government owe to a belligerent cruiser that thus practiced fraud and violence np its neu- trality and exposed it to this odious responsibility 1? Why does the offending cruiser need notice that it will receive the treatment appro- priate to its misconduct and to the interests and duty of the offended ueutral ? It is certainly aware of the defects of its origin, of the in- jury done to the neutral, and of the responsibility entailed ui)on the neutral for the injury to tlie other belligerent. We apprehend that this objection of courtesy to the guilty cruiser that is set up as the only ob- stacle to the exercise of an admitted power, that this objection which maintains that a power just in itself, if executed without notice, thereby becomes an imposition and a fraud upon the offender because no denial of hospitality has been previously announced, is an objection which leaves the ravages of such a cruiser entirely at the responsibility of the ueutral which has failed to intercept it. It is said in the special argument of the learned Counsel, that no au- thority can be found for this exercise of direct sovereignty on the part of an offended neutral toward a cruiser of either a recognized or an unrecognized sovereignty. But this after all comes only to this, that such an exercise of direct control over a cruiser, on the part of an of- fended neutral, without notice, is not according to the common course of hospitality for public vessels whether of a recognized sovereign or of a recogniz 2d belligerent. As to the right to exercise direct authoritj"^ on the part of the displeased neutral to secure itself against insult or intiusion on the part of a cruiser that has once offended its neutrality, there is no doubt. The argument that this direct control may be exercised by the dis- pleased neutral without the intervention of notice, when the gravity And nature of the offense against neutrality on the part of the bellig- erent justify this measure of resentment and resistance, needs no ia- <■»* i I 454 SUrPLEMENTARY AKGUMENTS AND STATEMENTS. V|iSt,- stance and no authority for its support. In its nature, it is a qncstiou wholly dependent upon circumstances. Our proposition is, that all of these cruisers drew their oriftin out ot the violated neutrality of Great liritain, exposing that nation to ac- countability to the United States for their hostilities. Now, to say that a nation thus situated is required by any principles of comity to extend a notice before exercising control over the offenders brought within its power, seems to us to make justice and right, in the gravest responsi. bilities, yield to mere ceremonial politeness. To meet, however, this claim on our part, it is insisted, in this special argument, that the equipment and outfit of a cruiser in a neutral port, if it goes out unarmed (though capable of becoming an instrument ot offensive or defensive w^ir by the mere addition of an armament) may bo an illegal act as an offense against municipal law, but is not a vio- lation of neutrality in the sense of being a hontile act, and does not place the offending cruiser in the position of having violated neutrality. That is but a recurrence to the subtle doctrine that the obligations oi Great Britain in respect to the first liule of the Treaty are not, by the terms of the Treaty, made inlernational obligations, for the observance of which she is responsible under the law of nations, and for the per missive violation of which she is liable, as having allowed, in the seuse of the law of nations, a hostile act to be perpetrated on her territory. This distinction between a merely illegal act and a hostile act, whicli Acts do :, ^^ ^ violation of neutrality, is made of course, and depends laiumMi""!. MwraiTy wholly, upon the distinction of the evasion of an unarmed ""' '"""""" siiip of war being jn'ohibited only by municipal law and not by the law of nations, wliile the evasion of an armed ship is prohibited by the law of nations. This is a renewal of the debate between the two nations as to what the rule of the law of nations in this respect wa.<. But this debate was finally closed by the Treaty. And, confessedly, on every principle of reason, the moment you stamp an act as a violation of neutrality, you include it in the list of acts whicli by the law of ua- tiORS are deemed hostile acts. There is no act that the law of nations prohibits within the neutral jurisdiction that is not in the nature of a hostile act, that is not in the nature of an act of war, that is not in the nature of an application hij the offending belligerent of tlit neutral territonj to the purposes of his war against the other belligerent. The law of nations prohibits it, the law of nations punishes it, the law of nations exacts indemnity for it, only because it is a hostile act. Now, suppose it were debatable before the Tribunal whether the emission of a war-ship Avithout the addition of her armament, was a violation of the law of nations, on the same reason, and only on that reason, it would be debatable whether it were a hostile act. If it were a hostile act, it was a violation of the law of nations ; if it were not a violation of the law of nations, it was not so, only because it was not a hostile act. When, therefore, the Kules of the Treaty settle that de- bate in favor of the construction claimed by the United States in its antecedent history and conduct, .and determine that such an act is a violation of the law of nations, they determine that it is a hostile act. There is no escape from the general proposition that the law of nations condemns nothing done in a neutral territory unless it is done in tlic nature of a hostile act. And when you debate the question whetlier any given act within neutral jurisdiction is or is not forbidden by the law of nations, you debate the question whether it is a hostile act or not. Now, it is said that this outfit without the addition of an armament is not a hostile act under the law of nations, antecedent to this Treaty. *i ''0: ■ ;nt8. MR. EVARTS' SITI'LEMENTAL AROl'MENT. 45rj t is a (luoistiou r origin out ot uatioii to ill,'- )W, to say that mity to oxtt'iid iglit within its ivest responsi- iii this spocial a neutral port, I instrument ot 'nianient) may : is not a vio- and does not I ted neutrality, obligations oi ire not, by tbo ;lie observance md for the per id, in the sense her territory, ^tile act, whicli e, and depends of au unarmed pal law and not p is prohibited ;e between the is respect wa.s. confessedly, on as a violation the law of na- law of nations he nature of a xt is not in the eutml territortj law of nations lations exacts |l whether the janient, was a [d only on that let. if it were it were not a ie it was not a settle that tie- fd States ill its ;h an act is a a hostile act. law of nations is done in the ^stion whether jidden by the itileactoruot. an armament o this Treaty. Th'* neutral wlutsft Mfutrnlity luift lit-en \ ii>l:itcd IS iiiidcr nu (iMiu-itinn *)i' i-uniity 111 tlif \ i(il;ttur. That is immaterial within the premises of the controversy before this Tribunal. It is a hostile act against Great Britain, which Great Britain Sir Alexander Cockiiurn. " Do 1 understand you, Mr. Evarts, to say that .such au act is a hostile act against Great Britain ;'■' Mr. Evarts. Yes, a ho.stile violation of the neutrality of Gre.at Britain, which, if not repelled with due diligence, makes Great Britain responsible for it as a hostile act within its territory again.st the United States. This argument of the eminent Counsel concedes that if an armament is added to a vessel within the neutral territory it is a hostile adt within that territory, it is a hostile expedition .set forth from that territory. It is therefore a violation of the law of nations, and if due diligence is not used to prevent it, it is an act for which Great Britain is respon- sible. If due diligence to prevent it be or be not used, it is an ortense against the neutral nation by the belligerent which has consummated the act. A neutral luition, against the rights of which such an act has been committed, to wit, the illegally fitting out a war-ship with- out armament, (condemned by the law of nations as settled by this Treaty,) is under no obligation whatever of courtesy or comity to that cruiser. If, under such circumstaiices. Great Britain prefers courtesy and comity to the ott'ending cruiser and its sponsors, rather than justice and duty to the United States, she does it upon motives which satisfy her to continue her responsibility for that cruiser rather than terminate it. Great Britain has no author- ity to exercise comity and courtesy to ^hese cruisers at the expense of the offended belligerent, the United States, whatever her motives may be. Undoubtedly the authorities conducting the rebellion would not have looked with equal favor upon Great Britain if .she had terminated the career of thest. cruisers by seizing them or excluding them from her ports. That is a question between Great Britain and the belligerent that has violated her neutrality. Having the powers, having tiie right, the question of courtesy in giving notice was to be determined at the I'ost of Great Britain and not at the expense of the United States. But it ceases to be a question of courtesy when the notice has not been given at all, and when the choice has thus been made that these cruis- ers shall be permitted to continue their career unchecked. Now on this question, whether the building of a vessel of this kind without the addition of armament is proscribed by the law of nations, and ])roscribed as a hostile act and as a viola- tion of neutral territory, (outside of the llules of the Treaty,) which is so much debated in this special argument, I ask attention to a few citations, most of which have been already referred to in the American Case. Hautefeuille, rts cited upon page 170, says : Le fait de constniire nu batiruent de guerre pour le conite SUPPLEMENTARY ARGUMENTS AND STATEMENTS. M , «■ ^5' m m w^ ;s'i ' inipoHC iUKssi u co iiiAnio dtat nentrc iiiio <5troito obligation, cello do iie pa« permcttrc, colic d'oiiiiiorlior, activoinont an boHoin, rciiii>loi tlo co tcrritoiro i)ar uiio «1oh i»aili(SH on au prolit do I'lnio doH parties bolligf^raiitos dans uii but bostilo ii I'aiitro partlc. Aud tlii.s very question, the distinction between an armed vessel and an unarmed vessel, was met by Lord Westbury, in observations made by him, and wliieh are (juoted in the American Case at page IS."). Ho said: There uiis one rule of ((induct which undoubtedly civili/ed nations had ajjrccd to observ*!, and it was that the territory of a neutral should not be the brso of uiilitarv operations by one of two bellijy;ereuts against the other, lu speaking of the basu di operation:^, ho must, to a certain degree, differ from the noble earl, (Earl Russell.) li, was not a question whether armed ships had actually left our shores; but it was ;i question whether ships with a view to war had been built in our ports by ono of two belligerents. They need not have been armed ; but if they had been laid down and built with a \\v\\ to warlike operations by one of two belligerents, and this was Uiiow- iugly permitted to be done by a neutral power, it was xiuquestionably a broach of iioutraltiy. Chancellor Kent, in a passage cited by the learned Counsel with aj) proval, sj^eaking of the action of the United States as shown in the rules of President Washington's administration, (which rules are also subsequently quoted with approval in this Argument.) says, (vol. i, I)age V22 :) The Government of the United States was warranted by the iaw .md piactico oi' nations, in the declaration made in 171);5 of the rules of neutrality, which were partic ularly recognized as necessary to be observed by the belligerent ])owers in their inter- course with this country. These rules were that the orighinl arminfi or vquippbtfi of wv- »ehin our jiortu by any of the poivers at tear, for miUtary tivrvm; icu>s nvlauful ; ami no mch rcsnel ua>i entitled to an anylum in our iwrts. Ko vessel thus equipped was entitled to an a.sylum in the ports of tlio nation whose neutrality had been violated. The Tribunal will not fail to observe that these principles were applied by President Washington to cruisers even of an independent nation, recognized as a sovereign, It was the cruisers of France that were under consideration. But the propositions of this special argument, and the course actually jmrsued by Great Britain in according its homage to their flag, placed these in snrgent cruisers on a much higher and more inviolable position than it is possible to concede to cruisers of a recognized sovereign. In truth, such treatment accorded to such cruisers all the irresponsibility of pi- rates, aud all the sanctity of public ships of a recognized sovereignty. It accorded the irresponsibility of pirates, because they were exempted from all control, and there was no Government behind them to be made responsible for them, to be resorted to for their correction or restraint, and to meet the resentments of the offended neutrals in the shape of non-intercourse, of reprisals, or of war. The action of Great Britain, under this doctrine of comity and notice, as applied to the cruisers of this belligerency, really exempted them, from the beginning to the end of their careers on the ocean, from all responsibility whatever. How long coidd such conduct toward Great Britain, in violation of her neutrality, as was practiced by this belliger ent, how long could such violations of the neutrality of Great Britain have been exercised by belligerent France without remonstrance, and if thfit remonstrance were unheeded, without reprisals, followed finally by war? Why was not such recourse taken in respect to these cruisers, to the power behind them? There was no power behind them. I ask, also, in this connection, attention to 1 Phillimore, pp. 399 to 404, and, especially, to a passage extracted from the case of the Santissima Trinidad, commenting upon the case of the Exchange, which last case is cited at considerable length in the argument of the eminent Counsel. wmm MR EVAKT8 SUrPLEMENTAL AIIOUMENT. 457 H ; but it was w Kow the Exchaiifje settles nothing, except that when the political authority of a (roverninent has recojfuized belliffereuey, the e.ourts will not exercise j'lrisdictio i over the vessels althoiijijh soverei}j:iity has not been conceded as well. The only case in the history of our country in wiiich the political au- thority was called upon to deal witli a cruiser that had derived its ori gin in violation of our neutrality was the case of a i)ublic ship of France, the Cassius, orijyinally Les Juineaux. The legal report of this case is copied in full in the Appendix of the Hritish Case. It never came to any other determination than that France, the recognized Government of France, was the sponsor ior the Cassius, ami it was on the respect shown to a sovereign as well as a i)ublic belligerent that tiie disjmsition of the case, exempting the vessel from judicial. process, was made. Sir llouNDELL Palmer. "The vessel was restored." Mr. EvAUTS. ]5ut it was oidy after her character as a war-vessel had ceased. Sir KouNDEi.L Palmek. "It was the Government of the United States, by its executive power, that dire(^t«d the sliip to be restored." Mr. EvARTS. A detailed history of this case, legal and political, will be found in vol. vii of the American Appendix, pp. 18 to 2.'), iu Mr. Dana's valuable note. It will there be seen that the occasion for our Government to deter- mine its political or executive action never arose until after the deter- mination of the judicial proceedings and until after the vessel had been thrown np by the French Minister, who abandoned her to the United States Government, nor until after she was a worthless hulk. Sir liouNUELL Palmer. "Am I not right in saying that the Presi- dent of the Executive Governmeirt of the Un-ted States gave notice to the French Minister that the ship was at his disposal T' Mr. Evarts. After it had been abandoned, after it had ceased to be a cruiser capable of hostilities, and after the opportunity for its further hostilities had ceased. Lord Tenteruen. "But the war still continued.'' Mr. Evarts. But, I mean, after the hostilities of that vessel oame to an end. And permit me to say that this condition of things between the United States and France, during the administration of the first President Adams, came substantially to a war between the two countries.^ ' a passage from Mr. Dana's note, already referred to, puts this matter in a very clear light. As the Cassius was taken into judicial custody, within twenty-four hours of liei arrival, and remained in that custody until after she had been disarmed and disman- tled by the French Minister, and formally abandoned by him to the United States (loverumeut with a reclamation for damages, the political department of the United States Uoverument never had practically belbre it the question, what it would do with an armed foreign vessel of war within its control, which had, on a pievious voyage, l)efore it became a vessel of war, and while it was a private vessel of French citizens, added Avarlike equipments to itself within our ports, iu violation of our statutes for the preservation of our neutrality. When it came out of judi(Mal custody, it was a stripped, deteriorated, and abandoned hulk, and was sold as such by public auction. Tlie only political .ictiou of our Government consisted iu this : It refused to iutorfero to take the vessel from the custody of the judiciary, but instructed its attorney to see that the fact of its being a bona fide vessel of war be proved and brought to the atten- tion of the court, with a motion for its discharge from arrest on the ground of its exemption as a public ship, if it turned out to be so. What course the Executive would have taken as to the vessel, if it had massed out of judicial custody before it was abandoned and dismantled, does not, of course, appear. And that is the only luestiou of interest to international law. — VH American Appendix, p. 23 ; Choix de Pieoes, (tc., t. ii, p. 726. M i t 45H HUri'LEMKNTARY AKGUMKNTS AND STATEMENTS. ■iMi Now, it is said that the application of this hccoihI clause of the lirst n„M.pprir„i„i,iynf liul« of the Treaty, and this demand that detention or «x. im «'mM"R!%,l"'''n; cluslon sluUI bo exercised in respect to cruisers on their *'""''• 8ub8er the use of Hritmli [Kirts ixH basee ot' uii- t rutionf. f A. ^ iMAy mwm MR. KVARTS SlI'l'LKMKNTAL AR(il MKNT, 45 i> the law of nations according? as ilicy liavo relation or not with facts and acts wliicli, collectively, make up the use of the neutral ports and waters ;ia"the bases of naval operations" by belligerents. Accordinjjly, the arffunient of the eminent Counsel does not stop with so easy a (lisposi- tion of the subject of coaling'*, but ])roceeds to discuss the whole ques- tion of base of operations — what it means, what it does not mean, the inconvenience of a loose extension of its nieaniu}^ ; the habit of the United States in dealing? with the (piestion both in acts of Government and the practice of its cruisers ; the understanding of other nations, jriving tlie instances arisiii}? on the correspondence with Hra/il on the ,sid>ject of the Sumter; and produces as a result of this in<|niry the (lonclusion, that it was uot the intention of tlie secontl Kule of the Treaty to limit the righto/ (mylum. In regard to the special treatment of this subject of coaling provided by the KegulatioJis established by the JJritish Government in 1802, it is urged that they were voluntary ri^gulations, that the essence of them was that they should be fairly administered between the parties, and that the rights of asylum or hospitality in this regard should not bo ex- ceeded. Now, tliis brings up the whole (piestion, the use of neutral ports or waters as a "base of naval operation;." which is proscribed by the second Rule of the Treaty . You will observe that while the lirst Kule ai {dies itself wholly to the particular subject of the illegal outfit of a vtfm'l which the neutral had reasonable ground to believe was to bo niployed to cruise, ct vet., or to tlie detention in port of a vessel that w; m whole or in part adapted for war — while the injunction and duty of the first Itu^e are thus limited, ar,i? ho violation of it, and the responsibility (consequent upon such vio- lation, are restricted to those narrow subjects, the proscription of tlie second Rule is as extensive as the general subject, under the law of na- tions, of the use of ports and waters of the ncuitral as the basis of naval operations, or for the renewal or augmentation of military supplies, or the recruitment of men. What, then, is the doctrine of hospitality or asylum, and what is the (loctrine which prohibits the use (under cover of asylum, ti„ d„,,rinp of under cover of hospitality, or otherwise) of neutral ports and "'*'""' ' ""»"''"^' ^ waters as bases of naval operations ? It all rests upon the principle that, while a certain uegree of protection or refuge, and a certain peace- ful and innocent aid, under the stress to which maritime voyages are exposed, are not to be denied, and are not to bo impeached as unlawful, yet anything that under its circumstances and in its character is the use of a port or of Avaters for naval operations is proscribed although it may take the guise, much more if it be an abuse, of the privilege of asylnm or hospitality. There is no ditt'erence In principle, in morality, or in duty, between, neutrality ou land and neutrality at sea. What, then, are the familiar I'ules of neutrality within the territory of a neutral, in respect to land warfare ? Whenever stress of the enemy, or misfortune, or cowardice, or seek- ing an advantage of refreshment, carries or drives one of AnMn«y i, w en the belligerents or any part of his forces over the frontier {'"Viri'Tnd'.LTs into the neutral territory, what is the duty of the neutral? 'i"«^"»" It is to disarm the forces and send them into the interior till the war is over. There is to be no practicing with t'ds question of neutral terri- tory. The refugees are not compelled by the neutral to face their enemy; they are not delivered up as prisoners of war; they are not surrendered to the immediate stress of war from which they sought mm '^w-'"-" |ii" |):!^' ji^i'- p-ii* p'"' H ■ : •fJ I 460 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. risUt a biisf nrhort- tile o p'M- I : i i> n f* : what it i-i. rs. MR. EVARTS' SUPPLEMENTAL ARGUMENT. 461 .I'a ral territory leir relations icent history ;o asylum^ or igwar"? Tlie quivaleut ot icli a neutral jnse of sbip- $ of ordinary 3 voyage and I to a port or ;r actual and efore 1 ai)i)ly u commercial and the cou- in the service is, by the use liat are really . by the prac- re not under- ous, and it is I is not to be :e commercial lU to concede is contraband commercial f nations as and of war. it purpose of ',ii cruisers, as >ns, from any imercial deal- is not the ibe this com- T the neutral ;he bases of nr that resort ion and that le belligerent naval opera- leutral ports ibited by the a neutral for diligence has of "the base lied upon by iS and waters iirther. The Qcellor Kent of the rule. an ambush for itself in neutral waters, cannot lie at the mouth of a neutral river to sally out to seize its prey, cannot lie within neutral waters and send its boats to make captures outside their limits. All these things are proscribed. But they are given as instances, not o{ flagrant, but of incidental and limited use. They are the cases that the commentators cite to show that 3ven casual, temporary, and limited experiments of this kind are not allowed, and that they are followed by all the definite con- sequences of an offense to neutrality and of displeasure to a neutral, to wit, the resort by such neutral power to the necessary methods to punish and redress these violations of neutral territory. Now let us see how we may, by exami)les, contrast the nsylum or hos- pitality in matter of coal or similar contributions in aid of navigable capacity, with the use of neutral ports as a base of naval operations. I will not trespass upon a discussion of questions of fiict. Tlie facts are wholly within your judgment, and are not embraced in ,„„,, ,,„, ,,( „,^, the present argument. But take the coaling of the Nash- «"''^'"' ville. The Nashville left Charleston under circumstances not in dispute, and I am not now considering whether, Great Britain is or is not respon- sible in reference to that ship in any other matter than that of coaling, which I will immediately introduce to your attention. The Nashville having a project of a voyage from Charleston, her home port, to Great Britain, in the course of which she proposed to make such captures as might be, intended originally to carry out Mason and Sli- dell, but abandoned this last intention before sailing, as exposing these Commissioners to unfavorable hazard from the blockading squadron. This was the project of her voyage, those the naval operations which bhe proposed to herself. How did she prepare within her own territory, to execute that project of naval warfare ? {She relied substantially upon steam, and in order to be sure of going over the bar, under circum- stances which might give the best chance of eluding the vigilance of the blockaders, she took only two days' supply of coal, which would carry ber to Bermuda. The coal was exhausted when she got there; she there took in six hundred tons. Sir Alexander Cockbuen. "I believe, Mr. Evarts, that the figure six afterward came down to live." Mr. Evarts. For the purpose of my present argument, it is quite immaterial. Mr. Waite. " It was subsequently proved to be four hundred and fifty tons."' Mr. Evarts. Very well. She had no coal, and she took four hundred and fifty tons or more on board to execute the naval operation which she projected when she left Cbarleston and did not take the means to accom- plish, but relied upon getting them in a neutrel port to enable her to pursue her cruise. Now, the doctrine of rvhiche forctk, or of refuge, or of asylum, or of hospitality, has nothing to do with a transaction of that kind. The vessel comes out of a port of safety at home, with a supply from the resources of the belligerent that will only carry it to a neutral port, to take in there the means of accomplishing its projected naval operations. Aiid no system of relief in distress, or of allowing supply of the means of taking the seas for a voyage interrupted by the exhaus- tion of tbe resources originally provided, have anything to do with a ' ase of this kind. It was a deliberate plan, when the naval operation \^as meditated and concluded upon, to use the neutral port as a base of naval operations, which plan was carried out by the actual use of neutral torrito* v as proposed. Now we say, that if this Tribunal, upon the facts of that case, s'lall ■'/'I ' I ''■' ri| !■! :i: u ', I' t ur: ,u'- I 4fi2 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. lind that this neutral port of Bermuda was planned and used as tho base of the naval operations, projected at the start of the vessel from Charleston, that that is the use of a neutral port as a base for naval operations. On what principle is it not If It is true that the distance of the projected naval operation, or its continuance, makes a diflference inprin- eiple as to the resort to establish a base in neutral territory or to obtain supplies from such a base ? Why, certainly not. Why, that would bo to proscribe the slight and comparativelj' harmless abuses of neutral territorj-, .and to permit the bold, impudent, and permanent application of n(!Utral territory to belligerent operations. I will not delay any further upon this illustration. Let us take next the case of the Shenandoah, separating it from any ,„„,^, „,„,„ inquiries as to culpable escape or evasion from the original 5,.enamioiLh. pQ^j; of LivcTpool. Thc projcct of the yhenaudoah's voyaf,'o is known. It was formed within the Confederate territory. It was that the vessel should be armed and supplied, that she should make a cir- cuit, passing round Cape Horn or the Cape of Good Hope, that she should put herself on reaching tl^e proper longitude in a position to pur- sue her cruise to the Arctic Ocean, there to make a prey of the whaling fleet of the United States. To break up these whaling operations and destroy the fleet was planned under motives and for advantages whicb seemed to that belligerent to justify the expense, and risk, and perils of the undertaking. That is tlie naval operation, and all that was done inside the belligerent territory was to form the project of the naval oper- ation and to communicate authority to execute it to the oflBcers who were outside of that territory. Now, either the Shenandoah, if she was to be obtained, prepared, armed, furnished, and coaled for that extensive naval operation, was to have no base for it at all, or it was to find a base for it in neutral ports. It is not a ifliantom ship, and it must have a base. Accordingly, as matter of fact, all that went to make up the execution of that operation of maritime war was derived from the neutral ports of Great Britain. The ship was thence deliver J and sallied forth Sir Alexander Cockburn. " But that was not known to the Gov- ernment." Mr. EvARTS. I am now only showing that this occurred as matter of fact. The question whether it was known to or permitted by the Gov- ernment of Great Britain, as the Chief Justice suggests, is of an entirely diftereut aspect, involving the considerations of due diligence to prevent. The ship, then, was furnished from neutral ports and waters. It resorted to Madeira to await the arrival of the Laurel, which, by con- cert and employment in advance of the sailing of the Shenancale, the project of a belligerent in maritime war, which sets forth a vessel and furnishes it complete for war, plans its naval operations and executes them, and all this /row neniral ports and waters as the only base^ nnd as a suffioient base. Melbourne was the only port from which the Hhenandoali received anything after its first supply from the home ports of Great Britain, and it finally accomplished the main operation of its naval warfare by means of the coaling and other refitment at Melbourne. Whether it could rely for the origin of its naval power, and for the means of accomplishing its naval warfare, upon the use of neutral ports and waters, under the cover of commercial dealings in contraband of war, and under the cover of the ])rivilege of asylum, was the question which it proposed to itself, and which it answered for itself. It is under the .application of these principles that the case of the Shenandoah is supposed to be protected from being a violation of the law of nations, I -'n A. ■'•- 1. 1 M 1 mt^M ■ ■'^i i 1 464 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. if W'' which prohibits the use of ports and waters of a neutral as a base of naval operations. I do not propose to argue upon the facts of the case of the Shenandoah, but only to submit the jfrinciples on which they are to be considered. Sir Alexander Cockburn, "1 wouUl like to ask you, Mr. Evarts, whether your i)ropositiou involves this: That every time a belligerent steam-vessel puts into a neutral port for the purpose of getting coal, and then goes forward upon her further object of war, that there is a violation of neutral territory. I just want to draw your attention to this point. What I want to understand is, what difference there is between the ships of one nation and the ships of another nation, as regards thin matter of coal. Would the principle of your argument apply to the ves- sels of other belligerents?" Mr. EvARTS. Of course it is to be applied to all belligerents; and when the case arises for complaint, it is to be judged in view of all the facts and circumstances, whether it falls within the license of hospitality, or whether it is a resort as to a base of operations — that is to say, whether the whole transaction, in all its features, amounts to a concerted and planned use. Sir Alexander Cockburn. "Planned by whom?" Mr. EvARTS. Why, planned by the belligerent. Sir Alexander Cockburn. "A ship goes into a neutral port without intimating its purpose or disclosing whether it belongs to one bellig- erent or another." Mr. EvARTS. Take the case of the Nashville. Lord Tenterden. "Take the Vanderbilt." Sir Alexander Cockburn. "Well, let us take that case. She goes into a neutral port, and wants coal for the purpose of going forth agahi on her mission of war; no question is asked. The ship, I grant you, comes with the object of getting coal for the purpose of going out on her errand of war, and, in ont sens<^. uses neutral territory as a base. But the neutral knows nothing about the course of the vessel or its destina- tion, except he takes it for granted it is a ship of war. How can he ho said to allow the territory to be made a base of operations, except so far as it applies to the ships of a belligerent?" Mr. EvARTS. It does apply, but 1 have not said that this alone ren- dered the neutral responsible; 1 have merely laid down tlie facts. The magnitude of the operations, and the complete- ness of their relations to the base of supplies, ilo not alter the application of principles. After all there is left, or course, the question of whether you have suffered or allowed these things, or have used due dilif/ence to prevent them, and upon the discussion of that subject I shall not trespass. Sir AL15XANDER Cockburn. "But that is the very question." Mr. EvARTS. But that question could not arise until it was deteruiiiiod whether the belligerent had, fl.s' matter of fact ^ made the neutral port a base of operations. All that 1 have said has been intended to show that what was done by these cruisers did make the neutral ports a base, just as much as if a shallop was stationed at the mouth of a neutral rivei', and sent out a boat to comnnt hostilities. In either case, the neutral is not responsible, unless it has failed to exercise due diligence. But there is this further consequence carrying responsibility, that when the neutral does not know of such an act until after it has been committed, it is }tH duty to resent it and to pn^vent its repetition, and to deny hospitality to the vessels that have consummated it. Now, these questions can certainly be kept distinct. If the fact is not known, and if there is no ThfiqiirMnoriof liic UHR of the ntMitral l«)rt uH a ba>»t^ ol u\- t'rutionH Ix'itiK '■wtah- li:*licd, tlH're ntiKiirjM l)i« inquiry wlii-tlur the mnitntl di.lordid iiiilexercis»> du*- diU< St'iice to prcv'iiT it. 'i.,.. If". ^ MR. EVARTS SUPPLEMENTAL ARGUMENT. 465 )ncertcHl and SiM'li iiro('t'"flirie:< nrp not nit're ilpaliiiu III (-(int iviliiuid of vviir. want of due diligeiuie, tbcn tUe neutral is not in fault; if tlio facts are afterward known, then the cruiser that htis coniinitted tiie violation of neutrality is to be proscribed, to be denied hospitality, to be detained in port, or excluded from port, after notice, or without notice, as the case may be. The question then arises whether a nation thus dealt with by a bellig- erent, and having the power to stop the course of naval operations thus based, if it iwirposely omits so to do, does not make itself responsible for their continuance. I do not desire to be drawn into a discussion upon the facts which are not included in the range of the present argument. I now am simply endeavoring to show that the illustrations of Kent and Stowell, taken from navigation and maritime war then prevailing, do not furnish the rule or the limit of the responsibility of neutrals in respect of allowing such use of naval bases, nor of the circumstances which make up the prohibited uses of neutral ports for such bases. I proceed to another branch of the subject.' It is said that the concerted setting forth of the Laurel from the ntiu- tral port, to carry the armament and the m'unitions of war and the officers and the crew to be combined outside the neutral jurisdiction with the Shenandoah, already issued from another port of the same neutral, is only a dealing in contraband of war. 1 deny that such a transaction has any connection with dealing in contraband of w^ar. It is a direct obtaining by a projected cruiser of its supply of armament, munitions, and men and oliicers from a neutral port. There may be no fault on the part of the neutral in not preventing it. That will depend on the question of "due diligence to prevent," " rea- sonable ground to believe," &c., &c. But the principle of contraband of war does not protect such a transaction, and that is the only principle that has been appealed to by the British Government in the discussions of this matter to justify it. The fiicts of this vessel going out were known Sir Alexander Cookburn. " Not until afterwards." Mr. EvARTS. The law of nations was violated, your territory hales applicable to sup. posed facts. If the principles were conceded I would have no occasion to deal with questions of fact at all. The learned Chief Justice has very satisfactorily, certainly to us, pres- ently expressed certain legal o])iuions on this subject ; but I must say that they were not entertained by the Government of Great Britain and did not control its action. I think that the proofs before the Tribunal can be easily referred to to confirm the position I have taken as to the legal doctrine held in Eng- land in reference to this subject of the base of operations. In contra- diction of that doctrine we now insist, as our Government all througU the war insisted, this is not dealing in contraband of war ; it art of the United Kingdom or ot Her Majesty's dominions, but in •>! near Angra Bay, part of the Azores, part of the Portuguese dominions. No otleusi'. therefore, cognizabUs by the laws of this country, appears to have been committed by the parties engaged in the transaction alluded to in the attidavit. From Lord Russell's communication of this Tveport to the American tewas thafu obliged if you MR. EVARTS' SUPPLEMENTAL ARGUMENT. 467 tlie American Minister, it will be seen that the accepted opinion of the Government was, that such operations could not be interfered with, and therefore would not be interfered with. That maj' bo a correct view of the Foreign-Enlistment Act of Great Britain, and hence the importance of reducing the obligations of a neutral nation to prevent violations of international law to some settled meaning. This was done by convention between tlie High Contracting Parties, and appears in the Rules of the Treaty. Under these Rules is to be maintained the inculpation which we bring against Great Britain, and which I have now discussed, because tlie subject is treated in the special argument to which I am replying. The instances of neutral default announced under the second Rule are made penal by the law of nations. Tliey are proscribed by the second Rule. They are not pro- tected as dealings in contraband of war. They are not protected under the right of asylum. They are uses of neutral ports and waters as bases of naval operations, and if not prohibited by the Foreign-Enlist- ment Act, and if the British Executive Government could not and would not prevent them, and that was the limit of their duty under their Foreign-Enlistment Act, still we come here for judgment, whether a nation is not responsible that deals thus in the contribution of military supplies, that sutlers ship after ship to go on these errands, makes no effort to stop them, but, on the contrary, announces, as the result of the deliber.ation of the Law-Officers, to the subordinate officials, to the Minister of the United States, to all the world, that these things are not prohibited by the law of Great Britain, find cannot be prohibited by the Executive Government, and therefore cannot and will not be stopped. That this was the doctrine of the English Government will be seen from a letter dated the 2d of April, 1.SG.3, of Lord Russell, found, in part, in vol. ii, American Appendix, p. 404; and, in part, in vol. i, ihkl.^ p. 590 : But the question really is, lias tLere been any act done in Enj^land botb contrary to the obligations of neutrality as recognized by Oreat Britain and the United States, and cajxible of being made the subject of a criminat pronevtilioti f I can only repeat that, iu the opinion of, Her Majesty's Goverunieut, no such act is specified in the papers which you havo submitted to me. # # * # * « * I, however, willingly assnre yon that, in view of the statements contained in the intercepted correspondence. Her Majesty's Government havo renewed the instructions already given to the custom-house authorities of the several British ports where ships of war may be constructed, and by the Secretary of State for the Homo Department to various authorities with whom he is in communication, to endeavor to discover and obtain leg.al evidence of any violation of the Foreign-Enlistment Act, with a view to the strict enforcement of that statute whenever it can really be shown to be infringed. It seems clear, on the principle enunciated in these authorities, that, excei»t on the Kionnd of any proved violation of the Foreign-Enlistment Act, Her Majesty's Govern- ment cannot interfere with commercial m1)l<> (\\io I'iiiloption s «'aux de la puissatico lunitre 'h.'iawofnatio..». rize comes within the Jnrisdiction of tin* mii. tral, he is authorized to take it from the ort'endinj; belligerent by lorce and release it. What course rohibited the augmentation of the force of a fighting-vessel of any belligerent from the contributions of the ports of the neutral 1' The fourth chapter of this special argument is occupied, as I have already suggested, with the consideration of the true inter- pretation of the rules of the Treaty, under general canons of criticisuj, and under the light which should be thrown upon their interpretation by the doctrines and practices of nations, 1 respectfully submit, however, that the only really useful instruction that should be scmglit, or can be applied, in aid of your interpretation of these rules, if their interpretation needs any aid, is to be drawn from the situation of the parties and the elements of the controversy between them, for the settlement and comj)osition of which these rules "were framed ; and this Tribunal was created to investigate the facts and to apply the rules to them in its award. The whole groun»l of this controversy is expressed in the firmest and most distinct manner by the statesmen on both sides who had charge of the negotiations between the two countries, find who could not mis- understand what were the situation and the field of debate for api)lica- tion to which the higji contracting parties framed these rules. And ■what were they i Why, primarily, it was this very question of the va- rious forms of contributori' aid from the neutral ports an, iu which he distinctly juoimses to the Jlritisli (lovernmeiit, in repfard to the claim of the United States in this controversy, that the rebel coun- sels have made CHrcat Ihitain "the arsenal, the navy-yard, and the treasury of the insurjjent Confederates." That was the controversy between the two countries, for the solution }f which the Kules of this Treaty and the deU'oerations of this Tribunal were to be called into action ; and they are intended to cover, and do cover, all the forms in which this use of ( I reat Britain for the meauH and the oi)portunities of keepin;^ on foot these nuiritime hostilities was practiced. The first rule covers all <|uestions of the outfit of the cruisers themselves ; the second rule covers all the means by which the neutral ports and waters of (Ireat JJritain were us(ul as bases lor the rebel nuiritime operations of these cruisers, and for the provision, the renewal, or the au;;inentation of their force of armament, munitions, ami men. Jloth nations so agreed. The eminent Counsel for the IJrit- ish Government, in the special arj^ument to which I am now replying", also agrees that the second rule, under which the present discussion arises, is conformed to the pre-existing law of nations. We find, however, in this chajtter of the special argument, .another introduction of the retroactive cjf'cct, as it is cal'ed, of these lUiles as a reason why their interpretation sliouhl be diffV'rent from what might otherwise be insisted upon. This is but a re-appearance of what I have already exposed as a vice in the argui ent, viz, that these Kules, in respect to the verj' subject for which tliey wore framed, do not mean the same thing as they are to mean hereafter, wiien new situations arise for their application. Special methods of criticism, artificial limits of ap- 1 'cation are resorted to to disparage or distert them as binding and uiihoritive rules in regard to the ])ast conduct of Great Britain. Why, you might as well tear the Treaty in pieces as to introduce and insist upon any proposition, wliether of interpretation or of application, which results in the demand that the very controversy for which they were framed is not really to be governed by the Kules of the Treaty. The concluding observations of this chapter, that the invitation to other powers to adopt these Kules as binding upon them, contained in the Treaty, should discourage a forced and exaggerated construction of them, I assent to; not so much upon the motive suggested as upon the principle that a forced and exaggerated construction should not be re- sorted to, upon either side, upon any motive whatever. I now come to the more general chapter in the argument of the learned Counsel, the Jirst chapter, which presents under forty-three „,,;,„ „rs,, r. sections a very extensive and very comprehensive, and cer- !,';;,'';,'';,',; Amin,«"l tainly a very al^le, criticism upon the main Argument of the "' "'" L".tea.^iau». United States upon " due dil'gence," and upon the duties in regard to which due diligence was required, and in regard to the means for the performance of those duties, and the application of this due diligence possessed by Great Britain. Certainly these form a very material por- tion of the Argument of the United States ; and that Argument, as I •lave said, has been subjected to a very extensive criticism. Keferring the Tribunal to our A ^ument itself as furnishing, at least, what we suppose to be a clear a d intelligible view of our propositions of the grounds upon which tl ay rest, of the reasoning which supports them^ I- I i m 474 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. m •1. 1 . I 1 im--^ Bm'' of the authorities which sustain them, of their applicabilitj^, and of tlie result which they lead to — the inculpation of Great Britain in the matters now under judgment — we shall yet think it right to pass under review a few of the general topics which are considered in this discussion of " due diligence." The sections .i-om seven to sixteen, (the earlier sections ha\ing beon The prerogative of ahcady cousidcred,) are occupied with a discussion of what thecro«u. r^YG supposed to be the views of the American Argument on the subject of prerogative or executive power, as distinguished froju the ordinary administration of authority through the instrumentality of courts of justice and their procedure. Although we may not pretend to have as accurate views of constitutional questions pertaining to the nation of Great Britain, or to the general principles of her common law. or of the effect of lier statutory regulations, and of her judicial decisions as the eminent Counsel of Iler Britannic Majesty, yet 1 think it will be found that the criticisms upon our Argument in these resj^ects aio not, by any means, souiid. It is, of course, a matter of the least pos- sible consecjuence to us, in any i)osition which we occupy, either as ii nation before this Tribunal or as lawyers in our Argument, whether oi not the sum of the obligations of Great Britain in this behalf under tlie law of nations was referred for its execution to this or that authoiity under its constitution, or to this or that ollicial action under its admin- istration. One object of our Argument has been to show that, if tlie sum of these obligations was not performed, it was a matter of but little importance to us or to this Tribunal, where, in the distribution of admin- istrative dutj', or where, in the constitutional disposition of authority, the defect, either of power or in the due exercise of power, was found to be the guilty cause of the result. Yet, strangely enough, when, iu a certain section of our Argument, that is laid down as one iiroposition, we are accused by the learned Counsel of a petitio princlpU, of begging the question, that the sum of her obligations was not performed hy Great Britain. With regard to prerogative, the learned Counsel seems to think that the existence of the supposed executive powers under the British Con- stitution, and which our Argument has assigned to the prerogative of the Crown, savors of arbitrary or despotic power. We have no occa- sion to go into the history of the prerogative of the British Crown, or to consider through what modifications it has reached its present con- dition. When a free nation like Great Britain assigns certain functions to be executed by the Crown, there does not seem to be any danger to its liberties from that distribution of authority, when we remember that Parliament has full power to arrange, modify, or curtail the prerogative at its pleasure, and when every instrument of the Crown, in the exer- cise of the prerogative, is subject to impeachment for its abuse. The prerogative is trusted under the British Constitution with all the in- ternational intercourse of pe.ace and war, with all the duties and responsihil ities of changing peace to war, or war to ])eace, and also in regard to all the international obligations and resjwnsibilities which grow out of a declared or actual situation of neutrality when hostilities are pendinft between other nations. Of that general proposition there seems to be no dispute. But it is alleged that there is a strange confusion of ideas in our minds and iu our Argument, in not drawing the distinction be- tween what is thus properly ascribable to extraterritoriality or ad extra administration, what deals with outw'ard relations and what has to do with persons and property within the kingdom. This prerogative, it is •insisted, gives no power over persons and property within the kingdom MR. EVART8 HUl'PLEMENTAL ARGUMENT. 475 ^"Wi ■W of Great J3ritain, and it is fnrtlier iusi.steu tluit the roreigu-Eulistmeut Act was the whole measure of the authority of the Government, and the whole measure, therefore, of its duty, icithin the Tilngdom. It is said the Government had uo power by prerogative to make that a crime in the kingdom wliieh is not a crime by the law, or of punishing a crime la any other manner than through the courts of justice. This of course is sound, as well as familiar, law. ]iut the interesting question is, whother the nation is sui)plied with adecpiate legislation, if that is to furnish the only means for the exercise of international duty. If it is not so supplied, that is a fault as between the two nations; if it is so supplied, and the powers are not ])roi)erly exercised, that is e«iually a fault as between the two natit)ns. The course of the American Argu- ment is to show that, either on the one or the other of the horns of this dilemma, the actual ct>ndu('t of the Uritish (iovernment must be im- paled. AVe are instructed in this special Argument as to wha<^, in the opinion of the eminent Counsel, belongs to ]>rerogative, ai'.d what to Judicial action under the statute: but we find no limitation of what is in the power of Parliament, or in the ])ower of adnjinistration, if adequate parliamentary provision be made for its exercise. JJut all this course of Argument, ingenious, subtle, and intricate as it is, finally brings the omiuent Counsel around to this poi'it, that by the common law of Eng- land within the realm, there is power in the Crown to use all the execu- tive authority of the nation, civil and military, to prevent a hostile act towards another nation within that territory. That is but another uaiue for prerogative, there is no statute on that subject, and no writ from any Court can issue to accomplish that object. If this is undoubtedly part of the common law of England, as the learned Counsel states, the argument here turns upon nothing else but the old controversy between us, whether th'^se acts were in tlie nature of hostile acts, under t!ie condemnation of the law of nations as such, that ought to have been intercepted by the exercise of prerogative, or by the power of the Crown at common law, whichever you choose to call it. The object of all the discussion of the learned Counsel is con- tinually to bring it back to the point that within the kingdom of Great Britain, the roreign-Eulistment Act was the sole authority for action and prevention, and if these vessels were reasonably proceeded against, imder the requirements of administrative dutj' in enforcing the Foreign- Enlistment Act, as against persons and property for confiscation or for punishment, that was all that was necessary or proper. Sir Alexander Cockburn. "Am I to understand you as a lawyer to say that it was competent for the authorities at the port whence such a vessel e8ca])ed to order out troops and command them to fire T- Mr. EvARTS. That will depend upon the question whether that was the only way to compel her to an observance. Sir Alexander Cookbt rn. " I put the question, to you in the con- crete."' Mr. EvARTS. That would draw me to another subject, viz, a discussion of the facts. But 1 will say that it depends upon whether the act she is engaged in committing comes within the category of hostile acts. Sir Alexander Cockburn. " But taking this case, and laying aside the question of due diligence. The vessel is going out of the Mersey. l)o you say as a lawyer that she should bt. tired upon f Mr. EvARTS. Under proper circumstances, yes. Sir Alexander Cockburn. " But I put the circumstances." Mr. EvARTS. You must give me the attending circumstances that '«*-' M^ vi;- l^i'V f ^i ■ 1 li'i rVii. ' ■■-: !.;^. tr rr^i- 1 I'! 476 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. 'Ii^ .! *,' ' lii If'"?*'' ii ^ show such an act of force is necessary to secure the execution of tlie public authority. You do not put in the element that that is the only way to bring such a vessel to. If you add that element, then I say yes. Sir Alexander Cockburn. " She is goin,? out of the port. They know she is trying to escape from the port. l>o you, I again ask— do you, as a Lawyer, say that it would be competent for the authorities without a warrant, simply because this is a violation of tlie law, to fire on that vessel F Mr. EvARTS. Certainly, after the usual preliiuinaries of hailing her, and firing across her bows, to bring her to. Finalljs if she insists on proceeding on her way, and thus raises the issue of escape from the Government, or forcible arrest by the Government, you are to fire into her. It becomes a question whether the Government is to surrender to the ship, or the ship to the Government. Of course, the latvfulnesH of this action depends upon the question whether the act committed is, under the law of nations, a violation of the neutrality of the territory^ and a hostile act, as it is conceded throughout this argument, the eva- sion of an armed ship would be. In section sixteen of this argument you will find the statement of the learned Counsel on this subject of the executive powers of the British Government in this behalf: It is impossible too pointedly to deny the truth of this avssuinption, or too pointedly to state that, if any military or naval expeditious, or any other acts or operations ol war, agaihst the United States, in the true and proper sense of these words, had been attempted within British territory, it would not have been necessary for the IJritisli Government, either to suspend the haheas-corpiis act, or to rely on the Foreign-Eulistiiieiit Act, in order to enable it to intercept and prevent by force such expeditions, or suiii acts or operations of war. The whole civil police, and the whole naval and militaiy forces of the British Crown, would have been lawfully available to the Executive Guv- ernment, iij the common laiv of the realm, for the preveutlou of such proceedinj^s. This is the law of England as understood by the eminent Counsel who has presented this argument. Given the facts that make the eva- sion from the port of Liverpool of the vess ' proposed a violation ot the law of nations — because it is a hostile act ugaiiist the United States, and exposes Great Britain to 'res[)onsibility tor the violation of iieii trality — then, the situation has arisen, in the failure of civil means, tlie failure of remonstrance, of arrest and of bringing to, for firing into the vessel. For certainlj^ if we have authority to stop, we are not to have that authority met and frustrated by the persistence of violent resist ance to it. It certainly makes very little difterence to us whether this authority ot the executive to use fll its forces for the actual prevention of the occur- rence of these hostile transactions within the realm is lodged in what he calls the common law of Great Britain, or is found, as we suppose, in the prerogative of the Crown. Nor do I understand this argiunent, throughout, to quarrel with the proposition that an armed ship that should undertake to proceed out of the port of Liverpool would be ex- posed to the exercise of that power ; and> of course, if the proper cir cumstances arose, even to the extent to which it has been pushed in answer to the questions put to me by one of the members of the Tri- bunal. For, if the Queen is to use all her power to prevent a hostile act, and if an armed vessel is, in its evasion of a port, committing a hostile act, that power can be exerted to the point of firing into such TIP rs. itiou of the b is the only en I say yes. port. They ;aiu ask — do } authorities e law, to tire hailing her, he insists oii vpe from tlie [•e to fire into to surrender he lawfuhu'sn committed is, ' the territory, iient, the eva- itement of tlie of the British MR. EVARTS' SUPPLEMENTAL ARGUMENT. 477 jveign-Enlisti peilitiourt, or sucli aval tuul military he Executive Guv- roceetUiiK'^- vessel, if necessary, as well as of merely exerting the slightest touch, if that proves snflicient to accomplish the object.^ Sections seventeen to twenty-live are occupied with a discussion con- cerning the preiientive powers and punitive powers under the legislation of Great Britain as compared with that of the mt'[^T,mwHr"ofe^l. United States. Wliile there is here a denial that the Brit- '"""""""• ish Government ever put itself upon a necessary confinement to the punitive powers of that Act, or that that Act contains no preventive power, or that it contains not so much as the Act of the United States, still, after all, I find no progress made beyond this : that the preventive powers, thus relied upon and thus assei'ted, as having origin under, and by virtue of, the act, are confined to the prevention that springs out of the ability to punish, or out of the mode in \vhich the power to punish is exercised. Nor will the text of the Foreign Eidistment Act furnish any evidence that it provides any i)ower for the prereiition by law of the evasion oi such a vessel, except in the form ot prosecution ibr confiscation., which is one of the modes of punishment. And when this Foreign Enlistment Act was passed in ISlO, it was thus left unaccompanied by any execu- tive power of interception and prevention, for the reason, as shown in the debates, that this interceptive and preventive power resides' in the prerogative of the Crown, and could be exercised by it. This will be seen from the debates which we have appended in Note B to our Argu- ment. In comparing that law with the preceding act passed in 1818 by the American Government, the debates in Parliament gave as the reason for the lodgment of this preventive power in the Executiv^e of the United States, by the act of Congress, and for its not being necessary to lodge a similar preventive power in the British Crown, that there was no prerogative in America, while there was in Great Britain. To be sure, when one of the punishments provided by law is a pro- ceeding in rem for confiscation of the vessel, if you serve your process at a time and under circumstances to prevent a departure of the vessel on its illegal errand, you do ettect a detention. But that is all. The trouble with that detention is, that it is only a detention of process, to ' It would seem to be quite in accordance with the ordinary course of Governments in dealing with armed (or merchant) ships, that refuse obedience to a peaceful sam- raous of sovereignty to submit to its autliority, to enforce that summons by firing into the contumacious ship. In " Phillimore," vol. iii, pp. 231-4, will be found the orders of the British Govern- ment in the matter of the " Terceira Expedition," and an account of their execulaon. f'aptain Walpole " fired two shots, to bring them to, but they continued their course. The vessel, on board of whicii was Sahlanha, although now within point blank range of the Ranger's guns, seemed determined to push in at all hazards. To prevent him from effecting Ids object, Captain Walpole was under the necessity of firing a shot at the vessel, which killed one man and wounded another." (P. 232.) The eighth article of the Biazilian Circular of June 23, 1863, provides for the neces- sary exhibition of force, as follows : "8. Finally, force shall be used (and in the absence or insufficiency of this, a solemn and earnest protest shall be made) against a belligerent who, on being aotified and warned, does not desint froM the violation of the neutralitij of the Emjnre. Forts and vessels of war shall be ordered to fire on a belligerent, who shall," &c. (7 Am. App., p. 113.) Indeed, there is no alternative, unless the solution of the difficulty laid dow'a by foggberry is preferred : " UooBEUUV. You are to bid any man stand in the prince's name. " Watch. How if he will not stand f " DftouKUUY. Why, then, take no note of him, but let him g ) ; and presently call the rust of the watch together, and thank God you are rid of a knave." [Shakespkare, Much Ado about Nothing, Act iii, Sc. 3. ■.,!♦ ■ ■ M ■ f. ■■■■ ' ■^&- 1- ■' ! i i I' • J ■ t w ■ I ! i I i '. 1 ".«.:: 14 ' I 1^ It 478 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. brinjj to issue and to trial a question of private right, a confiscation of the ship, which is to be governed by all the rnles of law and evideuce^ which are attendant upon the exercise of authority by the Crown, in taking away the property of the subject. It never was of any practical importance to the United States, whether the British Government confiscated a ship or imprisoned the malefactors, except so far as this might indicate the feelings and sym- pathy of that nation. All we wished was, that the Government should prevent these vessels from going out. It was not a question with us, whether they punished this or that man, or insisted upon this or that confiscation, provided the interception of the cruisers was ef- fected. When, therefore, we claimed under the Foreign Enlistment Act or otherwise, that these vessels should be seized and detained, one of the forms of punitive recourse under that act would have operated a detention, if applied at the proper time and under the proper circumstance^i. Confiscation had its place whenever the vessel was in the power of the Government ; but it was only by interception of the enterprise that we were to be benefited. That interception, by some means or other, we had a right to ; and if your law, if your constitution, had so arranged matters that it could not be had, except upon the ordinary process, the ordinary motives, the ordinary evidence, and the ordinary duty by which confiscation of private property was obtained, and that provisioit was not adequate to our rights, then our argument is that your law- needed improvement. But it is said that nothing in the conduct of Great Britain, of practi cal importance to the United States, turned upon the question whether the British law, the Foreign Eidistment Act, was applicable only to an a/rmed vessel, or was applicable to a vessel that sh juld go out merely prepared to take its armament. How is it that nothing turned npoii that question ? It is so said because, as the learned Counsel couteuds, the Government adopted the construction that the statute did embrace the case of a vessel unarmed. But take the case of the Alabama, or the Florida, for an illustration, and see how this pretension is justified by the facts. What occasioned the debates of administrative officers ? What raised the difficulties and doubts of custom-house and other otB- cials, except that the vessel was not armed, when, as regards both of these vessels, the Executive Government had given orders that they should be watched? Watched! watched, indeed! as they were until they went out. They were put under the eye of a watching supervision^ to have it known whether an armament went on board, in order that tlien they might be reported, and, it may be, intercepted. The whole administrative question of the practical application of authority by the British Government, in our aid, for the interception of these vessels, turned upon the circumstance of whether the vessel was armed or was not armed. Under the administration of that question, they went out without armaments, not wishing to be stopped, and, by pre-arrang:e- ment, took their armaments from tenders that subs.'qiiently brought them, which, also, coidd not be stopped. Certain observations of Baron Bramwell are quoted by the learned Counsel in this connection, which are useful to us as illustratinji the turning point in the question as to armed and unarmed vessels. They are to this effect, and exhibit the British doctrine : A vessel fitted to receive her armatncnt and armed, is a vessel that should be stopped under an international duty. This amounts to an act of proximate hostility which a neutral is bouiul to arrest. Baron Bramwell held that the emission of a vessel armed is, uii- IP 'S. nflscatiou of id evideuce^ le Crown, in ited States. prisoned the gs and sym- iment slionld tion with w% upon this or isera was ef- I Enlistment letained, one re operated a circuniHtancefi. power of the rprise that we or other, we \ 80 arranged y process, the iary duty by that provision that your law- bain, of practl istion whether ible only to an go out merely r turned upon lusel contends, e did embrace .labama, or the [is justified by iitive officers? and other otli- Igards both ot llers that they jy were until lig supervision, in order that [l. The whole ithority by the these vessels, armed or was they went ont y pre-arran-'\ ilv (particularfy under the special emphasis of the third Itule) !:pmJ".r,'i,'r'"cv'.-m' u " to prcvcut " thc occurrence of any of the infractions of the law of nations proscribed by the Kules. There are two propositions in these llules. Certain things are as- signed as violations of the law of nations, and as involving a duty on thc part of a neutral Government to prevent them ; and besides in ami toward preventing them, it is its duty to use due diligence. In regard to every class of alleged infractions of these liules, there comes to be an inquiry, first, whether, in the circumstances and facts which are as- signed, the alleged infractions are a violation of any of the duties under the law of nations as prescribed by those llules. If not, they are dis- missed from your consideration. But if they are so found, then these Rules, by their own vigor, become applicable to the situation, and then comes the inquiry whether Great Britain did, in fact, use due diligence to prevent the proscribed infractions. It is under the sections now under review that the learned Counsel suggests whether it is supposed that this general requirement of the use of due diligence by Great Britain is intended to cover the cases of vessels like the Shenandoah and the Georgia, (which it is alleged the British Government had uo reasonable ground to believe were meditating or preparing an evasion of the laws or a violation of the duties of Great Britain,) or the cases of these tenders that sui)plied the Georgia and the Shenandoah and the Florida and the Alabama with their armaments and munitions of war — it is under these sections that this discussion arises. The answer on our part to this suggestion is, that the general means of diligence to keep the Government informed of facts an'i enable it to judge whether there was " reasonable ground to believe" in any given case, and thus enable it to he prepared to intercept the illegal enterprise, are required in cases that the Rules proscribe as infractions of neutrality. I will agree that under the first clause of the first Rule the duty is applied to a vessel concerning which the Government " shall have rea sonable ground to believe," &c. Under the second clause of the lirst Rule, this phrase is omitted, and the question of " reasonable ground to believe" forms only an element in the more general question of "due diligence." Under the second Rule also, the whole subject of the use of the neutral ports and waters as a base of naval operations is open ; and, if there has been a defect of diligence in providing the officers ot Great Britain with the means of knowledge and the means of action, to prevent such use of its ports and waters as a base of operations, why. then, Great Britain is at fault in not having used due diligence to pre vent such use of its ports antl waters. That is our argument ; and it j seems to us it is a sound argument. It is very strange if it is not, autl if the duty of a government to use due diligence to prevent its ports iustructious having been given to subordinate otticials, yet we look in vain, thrDiigL j the proofs of the British Government, for the text or date or circulation of these in- stnictions. As for the rest, we find nothing in the instances cited, in which apefiilif i information happened to be given in regard to this or that veasel or euterprise, which contravenes our general propositions of fact, in this behalf, or t;*e influence of waiitoi due diligence on the part of the British Government, which we have drawn from those j facts. is- rs. f this Tieaty of dilisence i{r which the that a viola- 'ther, in their due diligence e third Ilule) ictions of the hings are as- ing a duty on besides in ami 3e. In regard ■e comes to be which are as- le duties under , they are dis- nd, theu these ition, and theu e due diligence e sections now p it is supposed ;ence by Great le Shenandoah jrument had no ring an evasion Q,) or the cases Ihenaudoah and id munitions of !S. The answer of diligence to judge whether 'case, and thus ie, are required .ility. [lule the duty IS shall have rea- ,use of the lirst souable ground [lestionof "due ibject of the use rations is open ; g the officers ot lus of action, to .perations, why. fiUigence to pre Qumeut ; and it 'if it is not, aud jrevent its ports Illation of these in] Id, in which a\>m}i( Ir enterprise, wlucli Influence of waut oil > drawn from t\io^ MR. EVARTS' Sl'ITLEMENTAL ARCil'MENT 4S1 ('()nil':iii-rtit fi f twrin llii' -Intiitf iirilii' l\»" n:itio:i-. and waters from being used as a base of naval operations does not include the use of due diligence to ascertain whether they were being, or were to be, so used. It was a fault not to use due diligence to prevei'.t the ports and waters of Great IJritain from being used as a base of naval operations, or for the augmentation of force, or the recruitment of men. And to admit that it was a fault, in any case, not to act where the Government had cause to believe that there was to be a violation of law, and yet to claim that it was no fault for the Government to be guilty of negligence in not procuring intelligence and information which might give a ri'ason- iible ground to believe, seems to me absurd. This, indeed, would be to stamp the lesser negligence, of not applying line diligence in a particular case when there was "reasonable ground to believe,*' as a fault, entailing responsibility upon a neutral Govern- ment, and to excuse the same Government for the systematic want of due diligence Avhich, through indifference to duty and Aoluntary ignor- ance, did not allow itself to be placed in a position to judge whether the iironnd of belief was reasonable, or whether there was avy ground at ;dl for its action. The lesser fault infers that the same or greater re- sponsibility is imputable to the greater fault. The sections of the special Argument of the learned Counsel which are occupied with a comparison between the practical efticiency of tbe American and of the English Acts, and in wh' the propositions of our Argument, in this regard, are quesiioned and commented upon, will be replied to by my learned associate, Mr. Cashing, in an argument which he will present to the Tribunal. It is enough for me to repeat here the observation of our Argument, that tbe true measure of tlie vigor of an act is its Judicial interpretation and Its practical execution. AVe do not intend to allow ourselves to be in- volved in discussions as to the jn'opriety of this or that construction of the Engli.sh act which reduced its power. The question with us is, what were the practical interpretation and exercise of the powers of that act, •'comi)ared with the practical interpretation and exercise of the powers of tbe Neutrality Act of the United States ? The propositions of our Argument seem to us untouched by any of tlie criticisms which the learned Counsel has applied to them. We, lijthtly or Avrongly, have interpreted our act, from its first enactment to present time, as giving authority to the Executive of the United [■itates to ini:erce[)t, by direct exercise of power, all these prohibited eu- tirprises at any stage at which he can lay his hands upon them, for the I parpose of their prevention. The correspondence produced in our jiroofs, allowing the action of the PLxecutive Government on all the occasions I in which this statute has been required to be enforced, will indicate that, 1 Whether it has been successful or not in the execution of the duty, the •ioverument has recognized the duty, the Executive has undertaken it, hud all the subordinates have had their attention called to it, in the pDse and to the end of prevention. All subordinates have, as well, al- ways been stimulated to the duty of keeping the Executive, from time jtotime, fully and promptly supplied with information to secure the etM- rient execution of the law. Aud it is not improper, perhaps, for me Ijiere to observe, thac my learned associate, Mr. Cashing, and myself, iviiig been called upon to execute this statute in the office of At- Itorney-General of the United States, we can bear testimony to its vigor pd its efficiency, in the every day action of the Government. It is Hmitted to and not questioned, and produces its effect. Whether the i'overnment of the United States, possessing that power under and by 1;^ :>» 31 c • JS . t ■. '.- '},*• -.) %^ % a - '-,'' ., ;!i \ •-^''- i' #. ■^?»ft W-Wm I ( ii'! i i I IHti?. I'f*: 482 SI ITLK.MKXTAKV Al{(il MKNTS AND STATKMENTS. iiutboi'ity of tlie stJitiito, litis always been successful or iu)l, or lias ;il. wa.v:s used due diligence in its exercise, and whether it is accountable to this or that nation for a faxdty execution of its duties of neutralitv. are tjuestions which this Tribunal cannot dispose of, and they are only remotely collateral to any discussions properly before the Arbitrators. Sir Alp:xani)i:u Cockhurn. "If you are argninji^ now upon tluu point, Mr. Kvarts„explain this to me. By the last English Act ol' 187(i. the Secretary of State has jwwer, under certaiu circumstances, to order a vessel to be seized, and then it is provided that the owner of sucli vessel may make claim, not so release, then the vessel remains subject to the continued exei cise of Executive control, under the same motives that tirst inducedit, Sir Alexander Cockburn. " Would not the President, in the or dinary practice of things, direct that the matter should be submittii! to judicial determination T Mr. EvAR'j'S. This Executive interception carries no confiscation. It merely detains the vessel and the owner can apply for its release, giviiij; an explanation of the matter. But the Executive may say, " I am im | satistied with your explanation ; if you have nothing* else to say, I \vill keep your vessel :" or he may send it to the courts to enforce its coii tiscatiou. Sir Alexandj:b Cockburn. " Which does he practically do ?" Mr. E VARTS. lie practically, when not satistied to release it, usuallv , sends it to the court, because the situation admits of that disposition I of it. Under the Act of the United States, there is the same actual terception by the Executive which your Act of 1870 Sir. Alexander Cookburn. " Under our Act the Executive lia.^ ihJ discretion ; it must send it to the courts." Mr. Evarts. Under our Act, we trust the Executive for a proper c\ | crcise of the oflScial authority intrusted to him. In the American Case, some instances of the exercise of this powtij on a very considerable scale will be found. ( Page 12G of the Freutli I translation.) The documents explaining these transactions are col j lected at length in the Appendix to the American Counter-Case. Sections 38 to 41 of the ipecial argument call in question our \w\ ■th. i,,M.i.>, .1 sition as to onus prohandi. It is said that we improimll "'""' ui;dertake to shift, generally, the burden of proof aud nj «jnire Grej;t Britain to discharge itself from liability by artirmativir MK. i:\ AIM'S .SUI'I'LEMENTAL AKtUJMENT. 4.s;; F,' M lit the .sliil> shall proof ill all cases wlioro wo chargo that the acrt done is within the obli- ij'atiou of the Three Kiiles. This ciiticisni is enforced by reference to a fiise sirisinff in the public action of the ITnitcd States under the Treaty of 17!>4 with (Ireat Jiritain. I will spend but few words here. The propositions of our Argu- ment are easily understood upon that i)oint. They come to this : that, whenever the United States, by its jiroofs, liave brought the case in liand to this stage, that the acts which are complained of, the action and the result which have arisen from it, arc violations of the require- ments of the law of nations us laid down in the Three llules, and this action has tak?u place within the jurisdiction of Great Britain, (so that the principal fact of accountability within the nation is established,) then, on the ordinarj' })rinciple that the aftirmative is to be taken up by that party which needs its exercise, the proof of " due ddigence'" is to be supplied by Great Britain. How is a foreigner, outside of the (iovernment, uninformed of its conduct, having no access to its delib- erations or the movements of the Government, to supply the proof of the icioit of due diligence ? We repose, then, upon the ordinary prin- ciples of forensic and judicial reasoning. When the act complained of is at the fault of the nidion, having been done within its jurisdiction, and is a violation of the law of nations for which there is an accounta- l)ility ])rovided by these Three llules, the point of determination whether due diligence has l>een exercised by the authorities of the coun- try to prevent it, or it has liappened in spite of the exei'cise of due dili- ieuce — the burden of the proof of "duo diligence" is n])on the party charged with its exercise. Let us look at the case of the Elizabeth, which is (juoted in section 41. It is a long quotation and 1 will read, therefore, only the conclud- ing part. It will be found on page 50 of the French translation of the special argument. The (juestiou was as to the burden of proof under the obligation that Jiad been assumed by the United States: The \troiniso wasrontlitiouiil. We will restore in all those cases of coni)>laiiit where it shall be established by sutticient testiiiiouy that the facts are true which form the liasis of our promisi! : that is, that the ]trop«'rty chiiiued belongs to British subjects: that it w as taken either within the line of .jurisilietional iirotection, or, if on the high Mjas, then by some vessel illegally armed in our ports; and that the property so taken liiis been brought within our ports. By whom were these facts to be proved / Accord- iiii^ to every principle of reason, justice, or eiiuity. it belonu;s to him who claims the 'lonetit of a promise to prove that he is the person in whose favor, or under the eir- 1 iimstances in which the promise was intended to operate. A carefid perusal of this passage is suflicieut to show that thaj'ucts here insisted upon as necessary to be proved by the claimant are precisely cquivjilent to the facts which the United States are called upon to prove iu this case. The facts, as 1 have before stated, bring the circumstances of the claim to the point where it appears that the responsibility tor the injury rests upon Great Britain nnkus due diligence was used by the Government to prevent the mi.schievous conduct of the subjects itr residents of that kingdom which has produced the injuries complained of. In the absence of this due diligence on the pare of that Government. the apparent responsibility rests undisturbed by the exculpation which the presence of due diligence will furnish. The party needing the ben- efit of this proof, upou every principle of sound reason, must furnish it. This is all we have insisted upon iu the matter of the burden of proof. Iu conclusion of the first chapter of this special argument, the em- inent Counsel, at section 43, takes up the " Terceira af- Mr," and insists that if Great Britain, iu a particular situation for the exercise of duties of neutralitj', took extraordinary measures, it 1']\c Tfrcfira iifta i 1 ■'■t^- .-..-« ■ ">'-:i"i |; ■i» ■ '■' ; 1 •fil 484 SUPl'LEMKNTAUV ARdUMKNTS AM) STATE.>H:XT8. I ■ '1- .tit. (Iocs not prove that the Government were under oblifjation to tal. ^ tit- Name measures in every .similar or comparable situation. We referred to the Terceira att'air for the purpose of showing that tin- Crown by its prerogative 2w«-vf««'(? authority for the interception of en. terprises originating within the kiugdom for the violation of neutrality. The question, whether the Executive will use it, is at its discretion. The power we ])rove, aiul, in the discussions in both Houses of ParliamcMit. it was not denied, in any (piarter, that the power existed to the extent that ice call for its crcrcise iritltin Britinh jurisdiction. The question in contro versy then was (although a great majority of both Houses voted nffainst the resolutions condemning the action of the Government) whether, in the waters of Portugal or upon the seas, the Government could, m itii strong hand, seize or punish ves.sels which had violated the neutrality of Great Britain by a hostile though unarmed expedition from its ports. The resolutions in both Houses of rarlianient received the siii- port of only a small minority. Mr, Phillimore, however, says the learned Counsel, expresses the opinion in his valuable work that the miuority were right. Sir Alexanoeu Cdckiiukn. " I confess 1 alwavs thought >(> myself.'' Mr. EvARTS. But the point now and here in discu.s.sion is, what Wfiv the powers of the Crov n .cithin the limits of British jurisdiction, and it is not necessary to consider who were right or who were wrong in tin- divisions in Parliament. AVhat all agreed in was, that the fault charged upon the Government was the i.ivasion of the territorial rights o{ another nation. But we cited the Terceira ati'air for the additional purpo.se ofshowin- the actual exercise of the power in question by the Crown in that ease. This was important to us in our argument ; it justly gave support to tlie imputation that the powers of the Government were not diligently exei cised during the American Kebellion in our behalf. AVhere there is :i will, there is a way ; and diligence means the use of all the faculties necessary and suitable to the accompliishment of the i>roposed end. Now, in conclusion, it mu.st be apparent that the great interest, liotli in regard to the important controversy between the High Contracting Parties, and iu regard to the principles of the law of nations to be here established, turns upon your award. That award is to settle two great questions : whether the acts which form tlit subject of the accusation and the defense, are shown to be acts that are l)roscribed by the law of nations, as expressed iuthe Three Kules of the Treaty. You cannot alter the nature of the case between the two nations, as shown by the proofs. The facts being indisputably established in the proofs, you are then to pass upon the question whether the ontfit of these tenders to carryforward the armament of the hostile expedition to be joined to it outside of Great Britain is according to the law ot nations or not. When you pass upon the question whether this is a violation of the second Kule, you pass upon the question, under the law of nations. whether an obligation of a neutral not to idlow a hostile expedition to go forth from its ports can be evaded by having it sent forth in parcels. and having the combination made outside its waters. You cannot so decide in this case, and between these parties, without establishing by your award, as a general proposition, that the law of nations proscrib ing such hostile expeditions may be wholly evaded, wholly set at naught by this equivocation and fraud practiced upon it; tj^at this can be done, not by surprise — for anything can be done by surprise — but that it can m NTS. Ill to tal. ^ tic (wiiig that till- [•ccptiou ofcii- of neutrality, iscretion. Tin- Parlianioiit.il lie extent tliat ^tioii in eoiitrc J voted (({/((inst it) wlietlier, in lit conUl, witli tbe neutrality itioii from its ieived the sui. lys the learned t the minority s thoiij;lit ^0 1 is, what wen- uliction, and ii wrong ill tin- e fault charj-vd orial rights of >08e of showing u in that ease. support to tlic liligently exti ere there is a I the faoultit's posed end. ; hiterest, botli :een the Iligli inciples of tlic award. That ivhich form thf le acts that aiv le Kules of tlK' ween the two ly establi.sliotl Ither the onttit tile expedition to the law of lolation of the Iw of nations. [expedition to |rth in parcels. Tou cannot so Itablishiug by |ions proscrib- set at naught can be done, lut that it can MR. EVART8 SlI'I'LEMEXTAL AHca'MKNT. 4S5 lie done openlif and of ripht. These methods of combination outside of the neutral territory may be resorted to, for the violation of the obliga- tions of neutrality, and yet the neutral nation, knowingly sutfering and ]»ormitting it, is free from responsibility ! This certainly is a great ques- tion. If, as we must anticijiate, you decide that these things are proscribed by the law of nations, the next question is, was "due diligence" used by (Ireat Brit.ain to jirevcnt them * The measure of diligence .ictually used by Great Britain, the ill con- sequences to the United States from a failure on the part of Great llritain to use a greater and better measure of diligence, are evident to all the world. Your judgment, then, upon the second question, is to pronounce whether that measure of diligence which was used and is known to have been used, and which produced no other result than the maintenance, for four years, of a maritime war, upon no other base than that furnished from the ports and waters of a neutral territory^, h the measure of "due diligence," to prevent such use of neutral territory, which is required by the Three Rules of the Treaty of Washington for the exculpation of Great Britain. ['rraiisliition.' ] v.-ai{(;l:mknt ok mi arcumknt ok sik PROTOCOL Will.) . CISHIN(;, IN KKKLY TO THI-: SI'KiMI. IIOINOKLL PALMKII, Ai:(a ST r.. is|-:i: t?H'!t Mr. PlJESlDKNT AM) (JKNTLK-MKiX OV TIIK TrIHI'NAL : W«* an ;i],. piouchiiig', iis J hope at least, the eiul of these h)ny(lel»ate.s. The two Cioveinnieiita had presented their Cases and Connter ('u>c>. supported by vohuninous dociunents. They had also presented tiuii respective Arjiiinients, tlie whole in eonforniity with the stipulations ot the Treaty of Washin<;ton, (Articles 1\' and V.) Thus the reynlar ar.nuinents prescribed by the Treaty have Ito^'u closed. iXow, at the request of one of the honorable Arbitrators, the Tribnual havS requested from Knalaml, as it had the ri<.'ht to do, e.\i)lanatioiis uii certain definite points, nanudy : 1. The question of due dilij^ence. generally considered. 2. The special question as to the effect of the comuiissions held liy Confederate ships of war entering- British ports. 3. The special re8ented in the French text as shown in the uote. .tv have Ik-om MK. (is|IIN(iS SI'I'I'LKMKN'I'AL AK'(il MKNT. -ts' yiy two rolh'nj^iM's liavo niscMssod fully tln' second iiiiil tliinl points. SL-airel.v have tliry Irlt ni«' a ffw wonis to say on tliesnhjcrt ol'tlic tlisl point. In fact, the task wliicli lias drvolvctl on inc is nn rely that of summing; lip the (incstion, and adding some special oUservations. I vontni'D to address the Ttilninal in Ki-ench, in order to econonii/e Its i)re(!ions time, and to readi the (-lose of the discussion as soon as l»()ssil>le. For this ohjeet I willinjily sa(!iiluu' all oratori<'al pr«'tensions : I en«leavor to make myself nmlerstood : that is all I as[»ire to. TIIH '3ncc or rcasoiiabh> iiire. And the Counter Case quotes and adopts the following- passage, (page :-*, note:) t1 '■■f I ichons. je To^im iv losscdoos par Its Hcuter Ics points us est faite : c;u lovrn iu the note. Mos denx collogues viennent do discnter aniplement lo second et lo troisiome pointj*. C'est a poiuo s'ils m'ont laisso (inchiuo cliosc a dire i\ I'ognrd du premier point. En effet, co u'est «ino la charge do rcsumer la (question et d'aj outer (inolqnesobserva - lious spdciales qui m'est dovolue. J'ose lu'adresser an tribunal jn fran^ais, afin d'economiser son temps procionx ot il'arriver au plus tAt a la clAturo des d«5bats. Dans ce but je sacrifie volontiers toute lueteutiou oratoire; j'essaie de uie faire comprende; c'est tout ce ijue j'anibitionne, LA QCESTIOX DES DUES DIUGEXCES. Maiutcuant il s'agit do la fiuestiou des dnos diligences traitoo d'uno manii-re g>'U(5- vale. Que vent dire cotte phrase? Est-co f|UO le tribunal domande unolcfon thooriqne de lU'ofesseur snr les dues diligences ? Jo no lo crois pas. I'ne telle discussion serait par- laltemeut oiseuse pour les raisons suivantos : 1. On a ddjil discutd a satidtd cette question thdoririue. La Grande-Bretagne Va dis- (utiSo trois ibis, dans ses mc^moires et son plaidoyer, ot olio s'est donndo douze niois I'litiers ponr y rMechir et accuniuler des argninonts et doa citations pour I'instrnction till tribunal. Nous, au nom des Ctats-Uuis, nous n'avons pas dr^penso taut de paroles, luais nous avons dit tout ce qii'il dtait dans notro dosir et uotro voloute de faire savoir iiux honorablos arbitres. 2. Les deux jiarties ctaient d'accord quo la ((uestion thooriqne no moritait pins lenr attention. "Lo gouvernement de sa Majesty?," dit lo contre-momoiro britanniqne, p. 5*4, "ne 'i'est pas impost uno tilche (pii a d6jou<^, i\ ce qu'il croit, I'habilete des.jurisconsultes do tons les temps et do tons les pays ; il n'a pas chorchtS il ddBner avec une provision ap- proximative, en dehors des circonstances sp^^ciales i\ un cas particulier, la -.lesure do *t' bliritain in his discussion of the question of the difference, if any exists, according t(i international law, between the duty of neutrals with regard to armed ves.sels and their duty with regard to vessels equipped for war but not yet armed. ,,j,, •>■■;.( ! '• Du reste," a dit un .juriscousulte oiuinent de France, «|ui examine la nuestiou an point de vuc de droit privc, "Du reste, soit iju'il s'agisse d'une oldigation de doniui on de faire, la prestation des fautes est, dans la ]>rati(iue, a peine uu(; (juestion de droit. Le point de faite y est toujonrs dominant, qiiand il n'y est pas tout." (Larouibii'ic, "Thf'orie et pratique des ol)ligations."' tome i, p. 417.) L's conseils des fitats-Uins out ropoudu, en acceptaut la doctrine de la firaudo- Bretagne, couime suit: "Nous souimes d'accord avce les considerations qui termiuent le coutre-nionioirc Initanniqno sur cettc question de la diligence suHisante, pour laisser les arbitres ,iny;or Ics faits dues aux cas et aux objets spdciaux do ces regies. I'our c(^tte deruiere considin^, within its jiuisdietion, of nny vessel wiiieli it has leasonable ground to biditive is intended to cruise or to carry on war against a Power with wliieh it is at peace; and also to use like dilijuence to prevent the departure from its Jurisdiction of any v;'ssel intended to 1 raise or carry on war as above, such vesstd haviuy been specially adapted, in whole or in i)art, within such jiu'isdiction, to warlike use. Note the three first conditions clearly laid down by the Rule, — " the litting out,'' (which has been omitted, without sutticient reaso.i, in the English translation,) " arming," " or equii)ping." Note also the two following ii88age8 suivants : '■ 11 reste une question de la plus grando importance, li savoir, la renpoiisahiUte (Vmi ''«' par rapport aiix acte» de ses citoyens, laquelle implique le devoir d'uii neutre d'eui- J " j Si 1 I "5 ', 490 SrPPLE.MENTARY ARGTMENTS A\D STATEMENTS. ii \' Um; !;^ £111(1 ship.s of war iHsuiiij-' from her sliores for tlie sorvit-i' of a liellifforoiit. thoiiyli -H' h iirn>.iinciits were furnished aiul .ships \verec(|nipj»etl, luiilt, aiiil sent witliont the Isi.nw ]. elf^e and contrary to the onh'rs of her GovernnuMit. » * X ¥ » * • It is a maxim of <>on(nal law, that so far as forei<>n States are eoiicerned. the w,!', .,1 the snbjeet must he eonsidered as bound uj) in that of his Wovereif^n. It is also a maxim that eaeh State has a rij^ht to expei-,t from another the ohs(i\ ain c of international obserA .itiotis, A\ithout regard to Avhat may be tlio nuiuieip;ii intiiiis which it possesses for ;nforeiii<:; this observance. The act of an individual citizen, or of a small numberof citizens, is not to be imp u.d V ithout clear proof to the Government of which they are subjects. AGovernment may by kuotflcdne aiul fre\ ent from the eommissidii „( an injury to a foreign State. A Government is juesumed to be al)le to restrain the subject within its teiiiniiv from contravening the oblij^atifms of neutrality to which the State is bonntl. A State i» prima facie responsible for whatever is done within its jurisdiction ; lor it nmst ho pni. which are acts of actual or meditated hostility toward a nation with which th(iitain now affirms that all these expressiuiis of Sir Robert rhillimore must be considered as limited to the ease ot ;ni armed vessel, or of a militarif, and not a naral c.rpediilon. I deny the possibility of such a distinction. It has no foundation in the words of the author. I appeal in that re.* I'.i , ; Justify the conclusions of the Counsel of (Ireat Britain, because thu iniii- ciples laid down by vSir Robert Phillimore are of general application. and comprise all possible cases. Take any duty whatever of due diligence to be fulfilled on the part of a neutral (lovernment toward it pecher que des arniements et des vaissoaux de guerre sortent de ses ports pour le m i- viced'un belligerant,<|Uoifpm ces arniements aieut etc founiis, et les navires constrnit*. eiiii territoire, do eontrevenir aux obligations de la neutralit(* qui lient I'etat. * * I'n (Stat ent prima facie lesponsablo do tout ce (jui so fait dans IV'tendiu il' sa juridicticm, car il doit Hre 2^re'sHmv capable d'empocher on do punir les otfenses tciii- mises en-defil de ses froutit'res. Un corps politi(iue est, par cons('(pnMit, responsaW" ilt ^ actes d'individus qui sont des actes d'liostilit<) otfective on prem6dit(^e contre uiif 111- tion avec laquelle le gouveruenieut do ces individus d(^clare cutretenir des relatitJiis d'amiti(5 on do neutraliti^.'' Maintenant le conseil do la Grande-lJretaguo pn'^teiid qne toutes ces expression'- li • .Sir Robert Phillimore sont cens('cs devoir i-tve borucfes au cas d'un vaisseau ani"' > ■ guerre on d'une expedition militairc et iion navale. Jo nio la possibilitf? de cette distinction. EUe ii'a aucun fondement dans les paii>it> do I'auteur. Jo men rapporto il rapprdciation des honorables arbities. Mais, eu snpposaiit que cctto distinction soit bien foude'e, clle no justifierait pn.'- conclusions di! c(mseil do la (iraiide-Bretague, parce(iuo les princip(!8 (^rionc«^s paiMi Robert Phillimore sont d'uno ajiplication gi^m'^rale et compreunent tons his cas pi- bles. Pronons un devoir des due.* dilig(Mices (inelcoiuiues a reniplir do la part (i'lin gouverucmeut nentre envorw un gouveriKiiuent boUigt'rant, et alors, dtins oe cm-. >"i i .f^ ^Pii MK. CUSHINCiS SUPPLEMENTAL ARGUMENT. 401 10(1, tlU' wi'.l Ml »t U)bi' iiiii' Urd tlans los p!iri«lf> m bt^lligereut Government, and then, in that case, Sir Robert Philliniore rolls us in what manner and according- to what principles the neutral Government should act. It must fulilll its international obligations •'without regard to what may be the municipal means which it posses- ses for enforcing them." JNforeover, " a Government may by Inowktlge and sufcrance, as well nshy direct permission, become i2s,i)oim[b\o for the acts of subjects whom it does not prevent from the eonmii.ssion of an in- jury to a foreign State."' Such is the thesis, on the subject of due diligence (jcnerniUj considered . which the Counsel of the United States have constantly maintained, and which Great Britain has constantly contested in her Case, Counter Case, and Argument." Now, the duty which is incumbent on Great Biitain is defined by the rhree Kules, and we have the right to consider the general nuixims of Sir llobert Phillimore in the light of these liules. This is what we have ilone in our Argumen.t. THE LAIUD KAMS. But we hasten to see what the Counsel of Great Britain has to say concerning the quotation we have made from a speech of Sir Jtoundell Talmer on the subject of the " Laird Hams." I beg to call the attention of the Tribunal to the words of the speech itself: I do not hesitate, [siiys Sir Ifomitlell Palmer,] to say boldly, ami iu the tiue ol' thi: "Duutry, tluit the (Government, on their own rcxpon^iihility, detained theni. riiey were prosecntin};' inqniries which, thouj^h imperfect, left on the v,. lys ..rsn nun. mind of the Government strong reasons for believing that the result !',',ilui'ii','ria'i!U' ' might prove to be that these ships were intended for an illegal purpose, mil that if tliey left the country the law would be vicdated, and a great injury done to a friendly Power. The Goveviimenf did not neize the nhips ; they did not hy any act taki possession of or interfere with them ; but, on their own responsibility, they gave notice to tiie parties interested that the law should not be evaded nntil the pending inquiry ^llould be brought to a conclusion, when the Government would know whetlier the iiKpiiry would result in affording conclusive grounds for seizing tl e ships or not. Iiobcrt Phillimore nous apprcnd de (luello nianicrc, et confornK^ment i\ (ptels principes, le pjouvernement neutre doit agir. II doit reniplir ses obligations Internationales, sans avoir 6gan\ ace quo peuvent etroles nioyens municipaux qu'il i)os8t"^do pour les t'aire observer." De plus, " un gouvernement imnt, itur connaissancc at toh'ranee aussi I'ioii quo pur 2>enni88iou rfi>a7<', deveuir responsable de ses sujets, qu'il n'ompecho pas de riiiiiiettredes domm/iges il un ^tat efcronger." iV! o ■■st la these, iiu sujet des dues diligences traiteea d'nne manivre f/ene'rale, quo lc> ■iiifi";| ' des I^^tats-Ui is out coustammeut soutenue, et que la Grande-Uretagne a cou- ■"i i,i i':nt combattue dans ses nnSmoiros et son plaidoyer. yi: i fjuant, le devoir qui incombe h la Grande Bretagne est d<5fini par les trois l''<; er nous avons It droit do considorer les uiaximes generates de Sir Kobert I'hi- •.■!or' u la luniiere de ces regies. C'est hi ce que nous avons fait dans notro . 'j'''. \ .. i.F.s i.AiiU) i:ams. Mais nous avons hate de voir ce quo le conseil de a Grando-Bretagne vent din- lonceruant la citation que nous avons fiiic d'uu disccurs do Sir Rouiulell Palmer a piopos des ■ Ijaird lams.'' J'appello l'attev\tion du tribunal sur les mots nn"mesde ce discours: "Jo u'hesito pas," dit Sir Jlonndcll Palmer, " a dire hardiment et a la face du iiay.-* '[uo le gonvernement. sous na jvopre niponsabilite, les a detenus. On poursuivait une t'liquct'i qui. quoiqu'lkiparfaite, laissaitihms I'esprit du gouvernement do fortes raisons lo croiro q'l'ou parviendrait ik constater «pnj ces uavires dtaieut destines i\ nn but ■CKia!, et quo, s'ils qnittaient lo pays, la loi serait viole'oet un grand pr<^judiee cause k J 'rssanco amie. Le gouvernement n^a pan mini le^narires; il n'a rienfait ponrn'rn I vi XT m pour h'H nrreter, niais, sous sa responsabilite, il a jircvenu les parties itf lessees quo ^„ loi uo seruit pas dliuUiO jusqu'u ce ([uo l'enqu»*'te comnicneee fftt termiudo, et jns(iu'a CO quo le gouvernomont sftt si I'entiuete reussiruit a titablir des laisons sullisantes pour uutoriser, oui on non, la suisio des navires. i J*l,llkl 492 Sl'PPLEMENTARY ARGUMENTS AND STATEMENTS. •'' U '. m?. If any other great crime or mischief were in progress, couhlit he donhted thiit tho Clovernment would ho jiistitied in taking stejis to prevent the evasion from .jiistioooi The person whose conduct was under investigation until the completion of theiii(|iiiiy .' In a criminal case, we know that it is an ordinary course to go hefore a magistrate and some information is taken, of a most imperfect character, to justify the acciisiul's connuittal to prison for trial, the i)risoner heing remanded from time to time. That course cannot he adopted in cases of seizures of vessels of this description. The law- gives uo means for that, and therefore it is that the Government, on their own respon- sihility, must act, and have acted, in determining that what had taken place with re- gard to the Alabama should not take place with respect to these ships ; that tlioy should not slip out of th.i' Mersey, and join the navy of the belligerent Power, coiitraiv to our law, if that were the intentif/n, until the inquiry in progress should be so fai brought to a conclusion as to ouable the Government to judge whether the ships were really intended for innocent purposes or not. The Government were determined that the inquiries which tliey were making shoulil be brought to a legitimate conclusion, that it might be seen wlu^ther those inipiirio resulted in evidence, or uot, of the vessels being intended for the Confederates, and that, in the mean time, thej'^ would not permit the ends of justice to be battled by the sudden removal of the ships from the river. It is impossible that the case of the Government can now be brought before tin- House; but the Government have acted under a serious sense of their duty to tlieiii- selves, to Her Majesty, to our allies in the United States, and to ccerj/ othev nation with whom Her Majesty is infricndshi}) and alliance, and with ivhoni questions of this kind may be UubU hereafter to arise. Under a sense of that duty, they have felt tliat this is uot a question to be treatfil lightly, or as one of no great importance. If an invasion of the statute law of the land was realh I out to take i)laco, it was the duty of the Gf"'ernnieut to use al! possible means i 'in the truth, and to prevent the escape of vessels of this kind. to be used against dly Power. The sentiments ^ ipressetl in this speech do honor to the man and tlic statesman. Here, at hist, we recognize the hniguao-e of an enligliteued conscience, and of a lawyer equal to his high duties, instead of the ex . ^^ ! ri: tr '' ''Si tout .autre grand crime on mefait <^tait en train de se commettre, pourrait-oii douter (jue le gouvernemont ne fut justifit5 a prendn^ des mesures ))our enipeehei d'ocha]ipcr a la justice tonto persoune dont la conduite serait sous le coup d'uiie t?n(|uete jusfjuVi ce que cette en(|Uete fftt terminee ? Dans une cause criminelle, m)\\> savons . Et c'est aiusi, par consf^ciueut, our empecluM le conp iriiiH' criniinelle, ni)u> )n proeede a uiu use en prison en a ditt'ercute." tre snivio dans pas les nioyeiis. •osponsabilite, ii 'Alab. bonti a nne con- iltimeuta dtaieut MK. CrSHIN(iS SUI'I'LEMENTAL AROUMEXT. 4'J gitime renqnete it k prouver,oni 11 n'iv pas vouln les uavires des lambre ; mais le k'oirs envers liii- re nation avcc i/iii ce genre }>eiu-ent estion it traitor nent I'intentiou ervir de tons le.i e vaisscanx des- le, et i\ rhomnie d'nu jnriscon- blosscsqui reiu- puses and weaknesses with which Lord Kasscll'scorrespoiulenee is tilled. Kvery word of this memorable speech is worthy of consideration. Here, it was the Government which acted on its own responsibility, and which detained the suspected vessels. It was the Government which gave notice to the parties interested that the law should not be evaded, and that the vessels should not leave the JMersey until the pend- ing inquiry should result in proving whether or not these vessels were intended ^)r the confederates. It was the Government which must act in determining that what had taken place with regard to the Alabama and I add in parenthesis, with regard to the Florida) should not be re- peated with respect to these ships. And the Government acted under a serious sense of its duty to itself, to Her Majesty, to the United States, and to every other nation with wliich Her Majesty has the same rela- tions of amity and alliance as with the United States. It must be remembered that, in conformity with the advice of Sir Roundell Palmer, the (irovernmeut had already instituted regular Judi- cial proceedings against the Alexandra and the Pampero. And it was the Government which acted, prompted by the sense of its duty toward the United States. AVhat a contrast to that which the (lovernmeut did not do in regard to the Alabama and Florida! The Government had thrown on Mr. Adams and on Mr. Dudley all the cares with reg.ard to the Alabama and Florida; refusing to act on its own responsibility, it had disdainfully inviteut how de tained ? The context clearly implies that they were detained by means of a notitication on the part of the Government to the builders and to la saisie, ot pareils a conx iiu'oii avait it'olanii's de Mr. Adams of dc ^ir. Diidleja rejranl de la Florida et <1< VAhihaiiia .' Noii, anciine de <;es prccantioiis u'a oW- i)rlse. Mais li- ifouvorneiuefit a ordouiio iiiii' einjiit'te soinblable a cejle que Mr. Adams I'avait priti tl( faire pour la Florida ot a dotouu les "rauis,"on attendant le resuitat do ren<|iioto, "atiii do 30 sorvir do tons les nioyous possibles pour constater la verit<'' et pour enipt'cln i lovasiou de vaisseaux destiui'-s a attaciueruue puissance amie." Voici les dues diligenees onc, pour etablir jusqii'a l'evidt?nce la pins absolne qno le gouvernoment angliih n'avait pas employt' les dues diligences, dans le cas de la Floiida et dans celui di I'Alabama, il sutlit de noter ce que le gouvernoment a obstindment refuse, on certainc inent iidgligd. de fiiire relativement a ces vaisseaux, et ce qu'il a fait activeniout et di sa propre initiative relativenieut anx "rauis."' la comparaison amime forcdu' "it nut conclusion qui est a la charge de la Grande-Brctagne. Et Sir Hugh Cairns avaiu j)leim' uiout raison de dire a cette occasion: "Ou le gouvernement doit souteuir qu'ils avaient dtd detenus. Ilr^itore cette declaration. Dans un autre discours, il est vrai, en parlant de I'Alexandra, il dit que Ic goii \ ernemeut croyait de son devoir de saislr ce navire ou Mtimcnt, selon Ja procedure im- posde par les lois de la douane. (Argument, page 15.) ^taient pa^ coutextv pari (111 ^m MR. Cl'SlIIX(i« SUPPLEMENTAL AK(JUME\T. 4!):» lo,s moveus possi tilt' pvetendotl owners, no doubt aecoinpaniod by coriespondiny ohUms afUliessed to tlie oJlicers of the Customs. The Counsel of (ireat liritain loudly and positively atlirnis that tlie means adopted on the resiwnsibility of the (loveiniiient, that is to say, by the spontane«ms action of the ^Ministers intrusted with theexeeutive power of the Crown, were i)erfectly legal and eonstitutional. We, the Counsel of the L'nited States, are hapi»y to be. on this [)oint, of the same ojtinion as the Counsel of (Ireat IJritain. lint in that case due diligence was not exereise«l with regard to the Florida and the Alabama. The eonseciuenee is inevitable. in the extract from »Sir Jfoundell Palmer's speech on the subject of the Alexandra, 1 tind an esxpression which strikes me. He says : '• You cannot stop the ship by going before a magistrate: ic must be done upon the responsibility of the Covernment.*' llow ? It must be done upon the responsibility of the Clovernmeut. Then the otBcers of the (Customs were laughing at ^Ir. Dudley, or else they willfuUj' deceived him, when they rcommended him to begin legal proceedings on his own (Dudley\s) responsibility. Then, moreover, when Lord liussell asked Mr. Adams for evi«lence, the latter was en- tirely right in replying that he had neither the power, nor the means, of instituting legal proceedings in Pingiand. Then, too, the Government totally failed in its duty of diu> diligence with regard to the Florida and Alabama. or THE ro\v]:K8 of the (*uo\v-x ix England. riie Counsel of (ireat IJritain endeavors to re])ly to the arguments ol tlie United States with regard to the powers of the Crown, ,, ,. „, ,,, .. by raising loud cries of arbitrary i)ower. and violation of """' the laws and constitution of Englaml. Let us understand one a)Jother. lOither Lngland ]»ossesses the means (It ))reventing, within her territorial jurisdiction, the belligerent enter- prises of unauthorized individuals: or else she does not iwssess them, riiere is no escape from this dilemma. -■luvenieineiit. mix coiistructtMirs ct iiux jjvctcinlus proprirliiii't'^. sans (Umte avtic des mdris eoiT«!S))oiulant.s adioHSt's iiix ofHcieis do la doiiiiiif. 1,0 eouseil de la Giaiidc-lJrotagiie fittiniie, lianteinout et jtositiveinent, <|Ut! les nioyen.-s ailoi)t*''sson.slare.spon.sabilitiMliiyonveiiiei«t'iit, — c'est-a-dire, par loiiioiiveiiitnit spoil tain- ilex iiiinistres dopositaircs dii pouvoir ex(''cntit" de laConioiint', — I'taifut ))arfaiti'iiient li'gaux ct constitutioiinels. Nous, coiiseiis des Etats-1 biis, iKms soiiuiil's hemeux d'etre. ^ciiis ec rapport, dti iiu"iue avis i|iie le couhpII de la Uraiido-lJretaj'iie. Mais alors ou n'a pas pratiiiiie les dues diligtMices an siijet du la Florida et de I'Ala- liaiiia. La consoqiieiioc est iiiovitablc. I'ansrextrait du discours de Sir Koundell Palmer, an su.jet de FAlexandra. ,je tronvc line phrase qui me frappe. II dit : '• ^'ous ne pouvez pas Tarri'ter eu allant cbez uu iiiiigistrat ; il faut que cela se passe sous la respousabiliti' dn gouvernevieiit."' Comment? j7/a«< quo cela se passe sous la responsabilito du golivernement ! Alors li-s orticiers de la donane se sout moqnes de Mr. Diutley, ou bieu ils Font sciemment rroini)e, quand ils lui out reconiniaude de connnencer des poursnites jndieiaires sons sa iivfipre responsabilito, a lui, Dudley. Alors aussi, quaud Lord Russell i demande des preuves a Mr. Adams, celui-ci avait mille fois raison de repoudre qn'il n'avait ui le pon- voir ui los nioyens d'intenter ties i>oursnitK possede pas. On ne pent pas t^cliappei a ce dilemmc. 49G 81TPLEMEXTARV ARGIME:-7TS AND STATEMENTS. 'i '■ ¥ Ohiifrnt in us i in- i>o?4«mI Ity I n t «■ rn 1 1 ioli;tl liiw ii.4 lll^•tlM U'lMllfd tVoiii 1IMIIU * ilial law. If slie ])os.sessea those moans and does not exercise them, slie is Witiit- in}? in the due dilij^enee of the Treaty. If she does not possess then), in consequence of the impediments sh,. has aUowed her Jurists to impose on her, and if she has fjone so iar ns to abdicate all real national sovereignty, she is still wanting in the due diligence of the Treaty. As is well said by Vattel: "If a sovereign who could retain his >ui,. jects in the rules of justice and peace sulfers them to ill-treat a nation. either in its body or members, he does no less harm to the whole nation than if he ill-treated it himself." As rhillimore says: " Each State has a right to expect from auotln r the observance of international obligations, without regard to what may be the munici])al means which it possesses for enforcing its observance." As says Dana, on the subject of the law of the Unitiil States : Our obligntion arises from the law of nations, and not from our own statutes, ami i> measured by the law of nations. Our statutes are only means for enabling us to jxr- form our international duty, aiul not the affirmative limits of that duty. Wi- an- :(^ much responsible for insufficient maehinery, when there is knowledge and oiiportimity for renu'dying it, as for any other form of neglect. Iiuleed. a nation may be said to 1>V more responsible for a luglect or refusal, w hieh is an imjierial. continuous act, and ^fcn- eral in its oi)erjition, than for neglect in a special case, which may be a fault of suli- ordinates. Such is the recognized law of nations. TheConn.sel of (heat Britain admits it. Then what is the use of a dissertation on arbitrary power.' The Counsel appears to assert that what is done by any Governnicnr beyond the provisions of a irriften Ian- is arbitrary. I understand this notion when si)eaking of a really constitutioinil Government, like Italy, Brazil, Switzerland, or the United :u,m'''<.V .V!^V,'■'l'.>l, States. In those countries the executive fanctionarics. Kingr, Emperor, President, no matter what the title, iunl IT1 'I >1'^ Si elle pos.>iede ces nu)vens et ne les exerce pas, ellc mani|Uc anx din-s diligciK i- li:; Uaitd. Si elle ue les possede i»as, a i-atiso des entraves (|u'elle a ])i'ruiis a ses h'gi.stcs dc I:.: imjtoser, et si elle en est arrivce au point d'abdiM - nient des obligations internationales sans f-gard a ce que peuvent ttre les nioyi!i> municipaux qu'il possede pour les faire observer." Comme le dit Dana, a propos des lois des fitats-Unis : " Notre obligatioiT nait du droit des gens et non de nos ))ropres statuts, et c'e^r lii droit des gens <)u'elle revolt sa niesure. Nos statuts ne sont ''r. dehors des provisions iViine loi vcrite est I'arbitraire. Je comprends cette idee (piand on parle d'un gouveruement ri'ritablcmviit constitii- tionnel, comme I'ltalie, comme le Br<58ii, comme la Suisse, comme les Etats-Unis. V:iv-^ ces pays, les fonctiouuaircs execntii's, Koi, Empereur, Pri^sideut, u'importe le titre, et MR. GUSHING S .SLTPLEMENTAL AROUMKNT. 497 hIi'.^ is Want- liincnts nIk- ti so tar as »• ill the due lin his >uli- at a nation, iholc nation roai aiiotlni ;hout re^anl lOSSCSSCS t'oi' ■ the Unit'd statutes, ami i^ jliiig us to i>ii- ity. Wi- aic :i' iu"(l oiUMiitunity ay l)t' **iOli>-' ■ Itie les nioyt".:- hits, et c"e»t .lu 1 lie nous uietti ■ lativt'S tie ti- <1<- (ne, (luauil uon^ lout autre <;e'i"- I'uno neglij!;eiK«; dc geueralit"- |i peut inovtiiii 'ailmet. A!"i-' riuelcJUiine <"■'- |/cmt'ii< const iti!- its-lJuis. D:>'!^ Tortc le title, et ksfoiictiouuaires loj^islatifs, out chacuu leurs devoirs et lenrs pouvoirs tractSs d'avance I'ar nil pacte national oerit. ^M, (luaud le (/oiiviriicmviit, — c'est-a-dire, la totalite des lioiivoirs uatiouaux, — agit, it ayit conforiiK^ment au paete, a la constitution, et j»ar I'in- ttiuiediaire des fonctionnaires 8i»<^cialenient d^^sijjnds d'apres la Constitution. Mais oil iiouverla constitution de I'Augleterre ? rersoune n'ignore (juo co qii'eu Augleterro on aiipelle "la constitution" n'est que I'enseniblo des actes Icgislatifs, des coututnes, des usages, et des traditions reconnues, et de I'opiuion publique du royaunie. Pour I'ad- miiiistration executive, il y a la Couronue, represeutc^o par ses ministres rosponsables, Hii dans ces derniers temps se sont arrogd le titre de "gouverneiuent;" il y a le Parle- nicnt, qui fait des lois ot qui controle les ministres et, par eux, la Couronne ; 11 y les iiibunaux, qui iuterpretent les lois i^crites et (jui intiirpreteut aussi les coutnmes, les "Mges, les traditions ayant force de lois ; et, pour I'opiuion, il y a, ma foi, lesjoiirnaux Je Londres. Maiutenant, les ministres, en Icur qualit<1 de fondds de pouvoir de la Couronne et du I'arleinent, ddclarent la guerre, eoustatent la belligdraiice (^trangere, concluent des tiuitos, reconnaissent des dtats nouveaux, entin, surveillent et dirigent les rdlations txtf^iieuresdu royaulne. Est-ce li\ de V arbitral re f Je le nie. C'est la loi, qui s'est «^tablic par tradition, pr<5- cisenient comme se sont etablisrexistence du Parlement, le droit de primogeniture, les privilc^gesde la pairie. Mais I'acte d'une d«?claration de guerre par la Couronne, ou la conclusion d'un trait<^ 'I'lelconque, trouble profondcment les intdrets particuliers. Parmi les raoiudres de ses ftietH, serait celui d'imposer des entraves h la sortie des vaisseaux marcbands des ports 'lu royaunie. Cependant, dans cette controverse, ou nous invite h croire qu'il serait ofiitraire de faire ddtenir provisoireraent un vaisseau niarchadd pour les fins d'une 'iniple enquete motiv^e par des soup^ons sur la lart of that direction, as has been done in other con Htutional countries; but as to assuming it entirely, that would be diili- cult in the present state of Europe. 1 honor I'higland. The substance, and even the forms of the institu tions of the United States are borrowed from the nu)ther-country. We are what we are, first of all, because we are of Jiritish race, hmguiiKC. religion, genius, education, ami character. I have studied England at Iionie, in her Colonies, in her establishments beyond the seas, and, above all, in her magnificent Indian Euipire. She is rich, great, and powerful as a State, not, in my oj)inion, because of the subjection of her ^Ministers to the scrupulous and daily criticism of the House of Commons, but in spite of it, as I remember to have heard said by the late Lord Palmer ston. It is not the strong, but rather the weak side of her Government, as one sees, moreover, in tlie p.res«Mit controversy. It is not worth while, therefore, to deny to the Crown executive powers necessary for the peace of the kingdom ; nor, in the ])resent case, to raise cries of arbitrary power, in the face of the admitted omnipotence, that is to say, of tlie absolute despotic power of Psirliament, whose real force tends every day to concentrate itself more and more in the House of Commons alone. Such a Constitution, so undefined, continues to work, thaidcs above all to the practical good sense of the English people, to their wholesome respect for traditions, to their special talent for government, to their praiseworthy national pride, and to the elasticity of thfir political forms, which allows of every one being received and placed i 'i the govern- inni thefiowii, fairs. It may a in otlier con ,vonl(l hv tlilli- of tlic iustitn- country. Wi- ace, lantiua^if. ?i\ Enjiland at L'as, and, above t, and powort'ul f her Ministers nnnions, bnt in 3 Lord rainier ;r Government, ot worth while, ry for the peace es of arbitrary i to say, of the tends every day inions ah)ne. :, thanks above their wholesome •nme'nt, to their thf'ir political edi'ithejforeni- cnpire, is dis- lie, abolir I'lioif^Aito he I'otat, conlistiui'i [ionsiutormitiouaks .,— c'est-iVdire, aiix [iiiic! partie de iitte lis tiuaut itserinio- Itlesfitats-Uiiissniit l)oid yarce (lue nous \e caractere bntan- I ses dtablisseuieiits |l.; est riclie, gramle. 808 ministres a a L iiiais eu dfiint tli' llinerston. Ce lu'st Be voit (lu teste tlaiw lironne ties poiivoiis [cvieriiraibitiaiif, jsolii (In I'arleiucut. plus dans la seule ler, grace surtout a" Witioiis, i\ soil goiii' J8ticit6 lie ses foinies lar (lea (lualitos cim- 1 >IK. CUHIIINOS SUl'l'LKMKNTAL AKGLMKNT. 499 Thus liberty and order are reconciled. Hut liberty and order equally ie(|nire tliat tlie public peace should not be disturbed by the intrigues 1111(1 mercenary interests of individuals for wane of a little re[)re8sivo power placed in the hands of the Crown. Parliament in its omnipotence mij»ht easily have remedied the defects of the municiiial law if it had chosen. It has since done so. JJut it did not do it in proper time, and this it is whi«!h constitutes a failure in the duo diligence of tln^ Treaty. America, on the contrary, has several times done this at the right moment, in the interests of her friendly relations with (Jreat Jiritain. THE RUSSEAN SHIPS. The Ilritish Counsel ([uotes and approves the oi)inion of the liiiglish .liulges given in Fortescue's lleports. They were of opinion ,, f ,|„^ ,i,„. "that the Crown had no power by law to prohibit the build- "'"""" ing" of ships of war, or ships of great force, for foreigners in anj' of His Majesty's dominions." (P. 18.) Two Judges had given this opinion in 1713; other Judges (it is not said how many) gave the same opinion in 1721. The vessels were built for Russia, and contrary to the remonstrances of Sweden. In 1713 there was open war between Kussia and Sweden. It was four years after the battle of I'ultowa. Charles XII had taken refuge in Tur- key, and the Sultan was in vain endeavoring to persuade him that he ought to return to his own States. The Elector of Hanover, who had become King of England, had Just taken part in the spoliation of Charles XII. Kussia had conquered Finland. In 1714 the Itussians burned and destroyed the Swedish fleet oft' the Island of Aland. If it is true that the Czar had had vessels of war built ill England, there is no doubt that the -e vessels contributed to the vic- tory of Aland. Conclusion : that in 1713 the interests of the Elector of Hanover I Aiiisi se tioiiveiit cs la liberty* et I'ordrc. Mais la libeit*^, autaiit quo I'ordre, Jemaiule ((lie la i)aix publi(iiio iie soit pas troubl(?e par les intrigues et les iutt5rets merceuaiieN des iudividus, faule d'uu pen de pouvoir i(^pies8if couti(^ aux mains de lu Courouue. Le I'ailement dans son oninipoteuco aurait bien pu reni^dier aux d^-faiits de la loi nuHiicipale, s'il I'avait vouln. II I'a fait depuis Jors. Mais il ne I'a pas fait eu temps utile, et c'est la ce (jui constituo un mauqiiement aux dues diligences du tiaitoint. Dans le i)reniier cas, il y aiiiait (ii. j en 1713, violation nianifeste du droit des gens. Done, il y a lieu de croire ijiii' as vaisseaux n'ctaient pas armds en guerre. Le rapport parte " den elats dc xa Majeste." Quels t^tats ? L'Angletorre ? .J'en douto. Or, supposous quo, depuia 1713 justpiTi la loi de 181'J, il n'y ait on en Anglettire ancune loi, aucun pouvoir coercitif, capables d'einpecher dans ses ports la construction, I'dquipenient, I'arnienient et I'expdditiou des vaisseaux de guerre destines a couibattre i contre un otat ami et alli6 de I'Angletorre. Alors, durant ce grand dix-hnitiemo siecle, et durant on ne salt conibien de sii'clts I antdrieni's, I'Angleterre aurait v privee jusqu'au point d'annihiler tonte souverainetd nationale, et de faire de rAiigii-j terre la comjilice involontaire de toutes les gnerres maritimes de I'Europe. I Par con8*S(iuent, j'dcarte de la question les opinions rapportdes par Fortescue. Jc| n'ai pas h p6n6trer ce mystfere ; mais assurduient il y a un my&tere ; et je prie Ich arl bitres de vouloir bien consnlter les nombreux avis coutraires rassembl<58 dans la notej (B) annexde auplaidoyer des Etats-Unis. T^^ MU. CUSHINCiS SUPPLKMENTAI. AROUMENT. 501 [)ns rcportod by y, but as.sun'tUy <;oo(l as to coll- ! (li) juniexeil to LAMS or FOHEIGN COINTIJIEH. Tlie IJiitisli Case liud aninncd tliat tli(^ irnitctl States and (licat IJritaiii wore the only two countries haviuff nuinieipal laws ,„„„„„„,„,. , titt<'d to secure the observan( e of neutrality. In reply to "f"t,.r.nn„ir,^». tliis assertion we have (pioted and eoniniented on the laws of various forei{;n countries, and the observations of jurists of those countries ; and these (luotations prove that such laws exist everywhere throughout Kiirope and America. The IJritish Counsel disputes this proposition on the ^rouiul of the kerity of nmst of these foreif^ii laws, and of the imperfect Judynu'ut of a Netherlands statesman, witliout closely exaniininjif the text of these laws, or the commentaries of native jurists which establish their true nature. Ill this the IJritish Counsel misapprehends the characteristic quality of all the laws of these countries, I mean their brevity, when compared with the laws of Great Britain, and of her imitators, tho United States. In all the laws called " neutrality laws," of whatever country, there are two principal objects : first, to defend the national territory against any encroachment on the part of foreigners ; and, secondly, to prevent iiulividuals, whether natives or foreigners, from committing on their own authority acts of hostility to foreigners on the national territorj-, wiiich might expose the State to a declaration of war, or to reprisals ou llie part of another State. Such are the provisions of many codes ; as, for example, those of France, Itiily, the Netherlands, I'ortugal, Spain, and Belgium. It is obvious that these provisions of the jienal codes of the different countries of Europii comprise the same subject, and have the same objects as the English and Americai law ; omitting, however, the details of procedure. But in France, in Italy, and elsewhere, the rules of pro- cedure are to be found in the codes of pro(!edure, and it becomes useless and inexpedient to repeat these rules with regard to each article of the penal code. ivis des deux ju^'i'^ jrre ! J'en doute. i)i:.s i.Dis i>i;s I'AYs lait.vNtiKit.s. Lc iiK'moiie do la Cjiraiide-lJretaKi>»^ .avait a(Tliiin(^ (ine le.s I^tats-Uiii.s ct la Graiide- ISrctajfiK! soiit les deux seiils p.'iy.s qui aioiit des lois iminicipaleH propres a assurer I'ob- Mivatioii de la iioiitralite. Eii rosponso a cetto assertion, nous avous cite et com- meiite les lois de divers pays etran^fers et Ics observations des Juristcs de ces pays ; It ces citations doniontrent hi.s, ci'tto loi owt loiiijiiciiioiit ooniinoiitoe i)ar dos ociivains iV.iiivais d'lino aiitoiit>' iucoiito.st«'^o,Dallo/, Chauveau et llolii', Bonrgnij^uon, Caiiiotet autie.s, iiui tousalmiiddiit dans la s«'Uso do iiotro plaidoyor. Tout cehi .se tionvo «!aii.s Iok pieces justifiuativo .ijinoxees a notre contre-meiuoire. Et nous y iivous ajoutt'^ uue consultation dn I'm M. Ikniyor ipii deuumtre (HU! ces articles du code franvais s'ap|di(|uent a certaiiK"^ meuees des confedeics en France au sn.j»^t fitats-rnis, tr. frauvaise, p. 490.) A I'appTii do cette conelusi()u nous avons citd des dc^cisions des tribnnanx' franvais. II en est do nieuie pour I'ltalic! : nous avons citi'" dts coinnientatcurs italiens a rapimi ilenotre pro)K)sition ; et ces couinientatenrs, en explitinant leur propre loi,adojttoiit lr< conclusions ties conuuentateurs franvais. On retrouve les nienies idoes dans ies conuuentateurs espajjiioLs et portuj^ais au siijtt :{, .ui').) ('esniiii- nientateurs raisonnent aussi bien (pie nons, e« me senible, au sujet dos exiK^ditim^ luilitaires et des corsaires. Je we convois pas cos allures dodai;'ueuses au siijet - I those wliich French trans- )f the Trench imentators in cphiining their ors. ;»se coinineuta- (les. AVc cite B hi Soma, for [\son as wcil as nis and priva- the subject oi knowledge, all usive and abso of Swity-erland ; detinitions of lUMitrnlito. U; code pt'ual i'riiii- joii- . . |i,ais d'uno autont' ,(jiii touaaluimlciit i'ii-ecs jnstitii;iilivi'> DUMultation r'' •outro-nu'iiioin! tit- (mnaiix frai(v»i^- . Js italieiiH a I'iipi'i" |,vcloi,a()rtii}j;aiH a\i sti.jft [ nt.ur hi roitiij;:tt- l,:j, r)7t).) t't'Hit.m- let (los «)xi.<'-.', the use of force, complaints addressed to forei;;n (jioverniuents, or any other means, in order to meet s<»me particular occiir- rcnctt. I can well believe it. AVlunc there is a will the means are not want- ing. The British Counsel Is mistaken wlicn he maintains that the United States do not understand these laws, so clearly commented on by the writers referred to, and a])i)liod by courts of law and jurists with ;it least as much Ic nnlng as the corresponding laws of England. As for Switzerland, we have collected in our evidence valuable docu- )•' 'Its showing the zeal and good-will with which that Bepublic nuiin- tains its neutrality in the mitlst of the great wars of Europe. I beg also to refer to the explanations of the law of Switzerland by the l'\'deral Council, on the occasion of the Concini affair, to show that the Counsel of Great Britain Is utterly mistaken in his appreciation of (■afej;i>:ic sont idiis compreheusives et plus coniplete'S quo celles des lois d'AiijjIeterre, [iibi Hti/ini, p. r/.M.) I'armi les jdecos annext'es au iiK'nioire briraiiuii|ue, il y a deux lettres qui donnent ii ii'tlt'chir. Sir A. ]'ap;et, ininistre aujjlais en Tortiiffal, i^n accusant reception d'uno depecho dii ministnt d't'-tat poitiii^ais, ajoiite: "II y a lu'-aiinioins un imint sur leiiuel le p)uverneiuent d<'sa Majcste desire beancoup iwoir des renseis ])ro('eilures criniinclles. l.'iuploi de hi tbrce, les plaintes iidresscH's aiix j^ouvernenients etrangers ou trantrcs ii: t.eiis pouvant umcner qiudquos firconstances ]»artieulieres." •I(t le ciois bien. l^a (u'l la voloutt^ se troiive, les moyens ne mau(|U(tnt ]>as. Ltt conseil se trompii qnand il soutieiil i|Ue les Ktats-lnis ne coinprenuent i>as ces lois foiiunentees si claireiuent i>ar 9.) Maiuteuaut, j»i nui rapporto aux houoral)li'8 arbitivs ; qu'ils juj^eut efc docideiit iis do I'Angleterro sont vrainient plus constitutioiudlos ([uo oellos tie I'ltalio, puj, mais rintention (jni preside aux actes. I. a tloctriue est txi)Oseepar Ihuia, eonune suit : "Quant ii la prei»aration de navires dans notrejm ' lietion pour des actes d'hostilite, ultericurs, le criterium que nous invoi|uons n'l'st p. ■ teudiie et le caractere des pr<^- paiatifs, mais rintention ([ui preside aux actes particn! 'IS. Si urn- |>trsonne accom- jilit ou tente d'accomplir nn acte tendant a ces preparalils d.ins I'inti ntion (|ue le navire soit emidoye a des actes d'hostilite, cefto personno est coupabl. uis quon ait • ;;ard a Tachevement des pn^iaratifs ou an degre auquel ils peuveiii avoir etc pouss. ■«, et iiuoique sa tentative n'ait en rien fait avancer I'achevement de ces pi< paratifs. !■ itur- iiir des materiaux dout il doit etre fait usage, en connaissance do cause et avec int<-n- tioii, constitue un delit. Cost pouniuoi il n'est jtas micessairo de demontrer que li iiavire etait arm<^, ou "^tait, ,ius((u'a un certain jtoint, ou a n'im|)orte qiu'lli « i>o(|ue avantou apres I'acte itu-riniine, en etat de conimettre des actes d'lutstilite. "On n'a point souleve de litiges relativement a la reunion des mati'-riaii (iii, pris i'^nliinent, ne peuvent servir a des actes d'hiistiliti', mais <|ui, rcMinis, constilnfut des instrunients d'hostilite ; car rintention couvre tons les caa et fournit le criterinin de la oui|)ubilit^'. Pen ini|)orte on la reunion doit avoir lien, dans tel endroit ou dans t<-l autre, si les actes commis sur notre territoire, — eux des conscils des J^tats-l'nis, M. Kvarts et moi-meme, avoiis admiiiistn'' le Ih'-partemeiit de $ t a- 506 SUPrLEMENTARY ARGUMENTS AND STATEMENTS. li I 1 r ' i 14 t *13 ' tho JJt'pjiitinent of Justice, and we have so personal aknowledfjeof this law that we also can speak authoritatively on the subject. 1 aftirm that the interinetationof this law propounded by the British Counsel is ab.so lutely ietati()u revue do la loi porinauente. II s'ensuit iuimero los cas, de dates diverses, oil d s avonturiers se sunt soustraits a la loi .aniericaiuc. Nous avous protostc dans notrc plaidoyer, ct nous pcrsistons i\ protester, contro '^*in MR. n ,SHI.\(J S SrPPLEMKXTAL ARGL'MKNT. 507 3(1^0 of til is aflinn that iisel is ab.so- (l States. Act ofl s;5s, . That Act rmcd, ^vh('n )eUeve that s against u tcrprotation built u]) by ri'esii)arel and furniture, and all materials procured for the piiriiose of iMiuippin'i, are t\)rftnt. In rases of Muspicion revenue ollicers may detain vessels, and parties may bo retiuired to <;ive security against the hostile eiiii»loyinent ; and the President is allowed to use the Army and Navy or militia, as well as civil force, to seize vessels, or to compel oHendiii}; vessels, not siibjt^ct to seizure, to depart frcuii our ports. What vessels shall bo rerjuired to dejiart is left to the judj^ment of the Execu- tive. (Ar<;ument of the l nited States, p. 1(58.) A single example is sutlicient to give an idea of the admitted extent of the i)owers of the President. Spiiii was having built, in the shipyards at Xew York, thirty gun- boats, intended to operate against the insurgents of the island of Cuba. lie to protest, ix questions lej^ales, qui surj^issent de temps en temps dans I'appliea- tiou de la loi. Ct;» questions sont, sans d(uite, analognes aux questions qui se jtre- M'liteut em Angleterre. Malheureuseiuent la loi anu^ricaine, d'emplt>yer rarmt^e et la marine, ou la milice, ainsi quo les forces civile.s, ])t)ur saisir les navirt»s, ou pttur contraindro les navires coupables qui ne 8t>iit pas sujtsts a la saisie a sttrtir de nos ports. II est laiss'- a la dis- crt^tion de J'ext^cntif de .jngt>r ipiels sont li;s navires dont on iloit exiger le dt^part." il'laidoyer amiuicain, p. ISoU.) I'll seul cxemple suttit pour donncr une itltn; de riHendno rectuinue des pouvoirs du IVsident. L'Espagne faisait ctmstruire daiw les chantiers de New York trente ennonnit>rcs tlestindes a optMer ct»ntre les insurgt^s i le do Cuba. C'etaieiit des vaisseaux iniproprea ^^ I 508 .SUPPLEMENTARY ARGUMENTS AND STATEMENTS. They were vessels unfitted for long voyages. They were not armod and had on board neither cannon, nor gnn-carriages, nor any otiior engine of warfare, ^^'ar existed dejure, if not de facto, between Siiaiu and Peru. The Minister of Pern, in the United States, lodged a eoni- plaint on the snbject of these gnu-boats. Ue did not pretend that they were intended to operate against Peru, since they could not round Cape Horn. Jjut he asserted that if used to guard the coasts of Cuba, tlicy would free from that service other vessels, which uuglit thus attack Peru. The President admitted this argument, and ordered the detention of the whole thirty vessels, until Spain and Peru had settled their ditfcr- ences through the mediation of the United States. JURISDICTION OF THE TRIBUNAL. A questioii ;>v diligence presents itself with regard to an erroneous decree of a Coii t of Admiralty of Nassau. I lay down as principle that the Government which institutes legal proceedings, and submits, without appeal, to an erroneous decree, has not the right of pleading tliis decree as an excuse for subse(pient wrongs belonging to the same class of facts. It is, in my opinion, a double failure in the due diligence prescribed by the Kules of the Treaty. I abstain from discussing this (piestion. But I affirm that the erroneous decree is in no way binding. This, indeed, is evident. Furthermore, and above all, I affirm that the decree is in no way binding on an international Tribunal. The principle is laid down and sufficiently discussed in Kutherlbrth's Institutes, an English work of merit and authority. Wheaton and other writers adopt also the views of llutherforth. The (piestion was raised by the English and American Commissioners nominated to carry out the stipulations of Jay's Treaty. The following a (1aux, jusqu'a co qno I'Kspafjno ot lo Pi'moii oussont r<''glo Iotus dilloronds, fjraci' a la lui'diatitiU dos fltats-Uiiis. I » ( ; .iniiniCTION DU THMUXAI.. I'no f|uestif>n dos dlligonces so prosonto an sujot d'un docret orroud d'uuo cinir d'aniirautode Nassau. .le pose on priucipo <|U0 le gouvonioniout qui intouto dos ponrsiiitos Judiciaires, ot qui so souniet, sans appolor, a un df-crot orroiu'-, n'a pas lo droit d'allojiuor co ib'cict pour excuser dos torts ult<^rieurs ajtpartouaut a la nienie olasso de faits. (J'ost, Jo iii»is. tiiillir donbleuient aux duos diligences proscritos par los roj^los du traitii. Jo m'abstii'iis do discuter cotte (puistiOn. Mais j'attirnie que le di'^cret errouo no lie on uucuuo nianiore. Cola, du rosto. ost ("vident. De plus, j'anirmo surtout que lo docrot no lie d'ancnno nninioro un trilmiiiil iutcrnational. Le principe so tronve <^nouco ot snftisannnont discnto dans les Instituts do Kiitlicr- forth, ouvrage anglais do ni<^rite ot d'autorit*'-. Wheaton, ot d'autres ocrivaius d'autorito, onx aussi, adoptent les vues do Kiithcr- fortb. La rpiostiou a ^U' soulovoo par los coniiuissairos anglais et auK^ricains, iioiinius pour statuer snr dos stipulations dn trait*' dit de Jay. La circonstance suivanto i'>t MR. CUSHINGS SUPPLEMENTAL ARGUMENT. 509 in circiiinsi nee is reported in the memoirs of Mr. Trumbull, one of the Secretaries of that Commission. It appears that, being in doubt, the Commissioners consulted the Harl of Loughborough, then Lord Chancel- lor. The latter decided that the Commissioners, in their capjicity of an international tribunal, possessed complete jurisdiction to revise the de crees of any munici))al tribunal, and to decree compensation to the Government injured in its interests or in those of its subjects. The Commissioners acted accordingly. I conceive that such is the jurisdiction recognized in the case of private claims by numerous international Comiuissions wiiich have since set in England and America. |,| CONCLUSION. lu erroneous Rutherlbvtirs I have now treated some of the questions argued l)y the Counsel of Great Britain, solely to relieve my conscience. 1 do not think they are of a nature o exercise ]>reponderating inttuence on the conclusions of the Arbitrators. Tlie Kules of the Treaty are decisive in all the questions raised by the United Sti^tes. Jf those Kules are the true expression of the law of nations, as 1 .mu convinced they are, well and good ; if they exceed tlie law of nations, they necessarily constitute tbe conventional law of the Tribunal. The interpretation of the municipal la'vof England is of little moment. Of still less moment is the interpretation of the law of the United States. The laws of other European States are of no iuiportance whatever. The conduct of the United States toward Spain or Mexico, or even toward Great Britain, is not here in question. There is but one single question, and it is this : Hns England failed or not in the due diligence rel>oitoe (laiis les iiioinoiics do M. Trniiibull, I'mi tics (sccrotaires do ri;tti\ coiiiiiiiHsitni. 11 parait quo, dans lo doute, Ics coniinissaires out consnlto It; Coiiite de Loiij^hbonmj^h, Uruiid chaiifflicr d'alors. Cohii-ei dorida inio lew coiiimi.ssaiics, en leiir (pialite de tribunal international, possedaient une juiidiction complete pour reviser les deerets (I'lin tribunal municipal ■.i.'e' ,510 SIPPLEMENTAKY ARGUMENTS AND STATEMENTS. I- (Jreat Britain, still more so than totlu"! United States. In conse(|U('«ce, we await, with respect and submission, but also without uneasiness, the.jiul<;nient of this au};ust Tribunal. C. CUSIIING. NOTE. In case the Arbitrators should think it worth while to study the sub- ject attentively, we refer them to the following; documents, which clearly l)rove the spontaneous activity of the Executive at all times to i)reveiit equipments and expeditions in contravention of the law of nations, at- temi»ted in the ports of the United States: I. — Cvunter Caw of the Vnilid Sinks und Ji>piu Do. (1« ;i(i Mr. Monroe to Mr. Gli-nn ',i\ Mr. ( ilenn to Mr. Monrot' :v,{ Mr. Hnsh to Mr. McCnlloch 41 Mr. McCnllocli to Cuptain licanl 4;{ Do. «lo. 4.'> Mr. lujjersoll to Mr. Adams 4?* Mr. Kobbins to Mr. Adams .^):i Mr. Monroe to Mr. Fish ;V Mr. Wirt to the J'resident ;> Mr. Swift to Mr. McCnlloch (Vi Mr. McCnlloch to Captain Heard (i^ Do. do (lit Mr. McCnlloch to Eientenant Marshall T'i Mr.McCuUoch to Captain Daniels ri2 portance ponr tontes Ics nations maritimcs. et snrtont ponr la (Jrande-Bretagne jdiis encore (|ne ponr les I^tats-Unis. En conse(|nence, nons att<.'ndon8 avec respect et avec sonuussion, uiais aussi sans inIonroe 1.') Mr. McCnlloch a Mr. Monroe W Mr. Monroe a Mr. Glenn 31 Mr. (ilenn a Mr. Monroe '.\o Mr. Kush ii Mr. McCnlloch 41 Mr. McCnlloch au Capitaine Beard 43 Mr. McCnlloch au Capitaine Beard i-i Mr. lugersoU a Mr. Adams 48 Mr. Bobbins , W Mr. Munroe i\ Mr. Fish ;> Mr. Wirt au President .V Mr. Swift a Mr. McCulloch <>■.' Mr. McCnlloch au Capitaine Beard (>:( Mr. McCnlloch an Capitaine Beard 6i' Mr. McCnlloch an Lieutenant Marshall *' :u •x\ 41 4'.! 4.'. 4e :>:! r.w fif c.-i ra C.'.t 7-2 ri2 le-Bretiigne pins c respect et avet; buiiiil. C. Crsiiix Mr. MeCiilloth to Mr. .liieksoii HtJ Mr. MeCiilloch to Captain Webster H7 Do. do. HfJ ])i). do. h;» Mr. Adams to Mr. (ilciin IM Mr. MeCiilloch to ('ai»taiii Webster 'M; Uo. do. UKt Do. do. ^ 10') Mr. Steriiiig to Mr. Williams KM! Mr. Graham to Commodore MeCauley , 1(I7 Mr. Fillmore to (Jeiieral Hitelicock los Mr. Conrad to General Hitelicock 101» Mr. Uavis to General Wool lir> Mr. Cnslung to Mr. Inl Mr. I'reston to Captain Tattnall :m Mr. Preston to Commo Mr. (irabam au Commodore MeCauley 107 Mr. Fillmore au General Hitchcock 108 Mr. Conrad au Gen«^ral Hichcock 109 Mr. Davis au Gt'iidral Wool 115 Mr. Cusbing it Mr, Inge 115 Mr. Cushiufr a Mr. MeKeon 118 Mr. Cushing au President 110 Mr. Cushing a Mr. MeKeon :{48 Kxpeditiou de Walker 3C0-:{68 Mr. Cl.ayton j\ Mr. Hall 374 Correspondance de MM. Clayton et Hall 378-382 •Mr. Hall a Mr. Clayton 387 Mr. Clayton t\ Mr. Hall 391 Mr. Preston au Capitaine Tattnall 394 Mr. Preston au Connnodore I'arker 397 Kajiport du Commandant Newton 700 Mr. Meredith aux receveurs des douanes 418 ! Proclamations di verses 704-711 Corre8|toudance relative aux vionitors 425-440 (.'tirrespondance relative a la Florida 441-452 (H., Amt ! H ■ I i III 512 HITPI.EMEXTAKV AUGUMEXTH AND STATEMENTS. II. — CorrvHiHmihiice niat'nr to Ihc Affuii-t of Cuba hi the l\iiijVmh Siii>i>lvnn!iit lo Ihv (.'outilrr Cane of the United Slatvx. TIic SpiniiMli };iin-1tniits t.Vj- Is;, The cam? of tlin Oricntiilis :{-t; The CiiHC of tlin K. K. Ciiyler I'i-lC Mr. H«!iTon to Mr. Hrowiiiii^ 17 Mr. E varts t<» Mr. (Joiirtiicy 'j'i Mr. Fish to McHMrs. I'iorrcpont .iiul IJiirlow ...♦ ' ;h Do. do. Ill:', Corrcspondeiice of MessrM. I'otcMtail, Davis, Milledgo, and Iltmr IDT-Ili; II.— Comxjiuiiilaiae nlaliir our affmres de Cuba (Jntii k HiippU'inent en anglain nu rinitre- iiiemoire dm /■.'latn-L'tn-i. Los canoiiiiii'rcs ospiijjnolcs , 'l.')4-i"-lt; Mr. Herron a Mr. Urowiiinjj; 17 Mr. Evarts a Mr. Courtney •,'•,» Mr. Fisli i\ M. Pierrcpoiit ft Mr. Hiirlow- ' It- Mr. Fish a M. I'icrreiMnit ft Mr. ISarlow iD.t Correspoiidaiitf df ilM. Totfstad, Davis, Miliedijo ot Hoar 107-11(1 ..I. to the (.'iniiitri ^F" VI.-RKPLY OF MR. VVAITE, ALKJUST S, TO THE ARGUMENT OF SIR ROl'NDELI. PALMER, UPON THE SPECIAL QUESTION AS TO SUPPLIES OF COAL IN BRITISH PORTS TO CONFEDERATE SHIPS. (SEE PROTOCOL XIX.) ughi'm (III cinitir- The •' special question as to supitlies of eoal in British ports to Confeder- itte sltipn,''^ iieceHsarily iiivolvos jui ♦'xaiiiinatioii of the tacts and circum- stances uniler which i)erniis8ioii to take such supplies was {^ranted. It is not contended by the Counsel of the United States, that all sup- plies of coal in neutral ports to the ships of war of belligerents, are necessarily vi(>lations of nt'utrality, and, therefore, unlawful. It will be siillicient for the i)uri)oses of this controversy, if it shall be found that (Ireat Britain permitted or sujf'ered the insurfjonts " to make use of its l)ort8 or waters as the base of naval operations aftsiinst the United States," and that the supplies of coal were obtained at such ])ort8 to facilitate bidliyerent oi)erations. 1. All naval warfare must, of necessity, have ujion laud a '' base of operations.'" To dejuive a belligerent of that is equivalent to depriving him of the i)ower to carry on such a warfare .,.„„ ';'i!!.V„'!,,',"i"rl, successfully for any great length of time. Without it he cannot maintain his ships upon the Ocean. 2. A " base of operations'' for naval warfare is not alone, as seems to iic contended by the distinguished Counsel of Great Britain, sec. 3, chap, iii, of his Argument,) " a place from which operations ot naval warfare are to be carried into etfect.'' It is not, of necessity, the place where the belligerent watches for, and from which he moves against, the enemy ; but it is any place at which the necessary preparations for the warfare are made ; any place from which ships, arms, ammunition, stores, equipment, or men are furnishe*!, and to which the ships of the navy look for warlike supplies and for the means of efltectiug the necessary repairs. It is, in short, what its name im- plies — the support, the foundation, which upholds and sustains theoper- iitions of a naval war. This was the doctrine recogni/ed by Earl Itussell on the 2.">th of March, 1802, three days after the Florida g:ot out from the port of Liv- trpool, and while the correspondence in reference to her construction iiud outfit was fresh in his mind. In writing to Mr. Ailams, at that time, in reference to complaints m.ade of the treatment of the United States vessel of war Flambeau at Nassau, in the month of December previous, he used this language : On tl)« Dthor hiuul, tlie Flaiiibcaii was avowfilly an armed vessel in the service of the Federal Geveinuieiit. She had entered the port of Nassau, and had remained tliere tor some days, without any apparent necessity for doin;f so, and the authorities had not Itecn informed of the object of her visit. To supply her with coal mijjht, therefore, '"to facilitate her bellijjerent operations, and this would constitute an infraction of the iioiitrality prescribed by the Queen's prochunation of the 13th of May last. (Am. App., vol. i, J). :J48.) •'). This ''base of operations" must be within the territory of the bel- liserent or of his ally. A neutral which supplies it violates „ ., , „ , liis neutrality, and may be treated as an ally. A bellig- 33 c ' iU;tl t'Tr.'.Mfy. ■1 M 1 1 1 * J I $ I 4 -t , % -! * lyj' t' yiixl Ifi^ P^F m 'f% » ill ' '' *v t 'm '■ ' m 1 .'i 1 ■'■■ 1 ■ ■ i If 1 1 if] I'l il J if iri (}■■ r)i4 SITI'LKMKNTAUY AKCiUMKNTS ANI» STATKMENTS. crent using without pennissiou tli'i territory of a ncutnil lor such ;, purpose, coinmitH an ott'ense against the hiws of neutrality, and subjects himself to the forcibhi expulsion of his ships of war, iuid lo all other means of punishment and redress wliich may Im! recpusite Uw the vindication of the ott'ended neutral sovereign. 4. After the end of the summer of 1801, the insurgents never had any available base of operations for naval warfare within tlic „.. ..Id. im,. .Mih... limits ot their own territory. J*rom that time lorward until the end of the contest, the United {States maintained a blocktade of all the insurgent jiorts, which was recognized by all iicntral nations as lawful, and was .so far effective as to prevent any vessel of war (unless the Tallahassee and Chickamauga, with perhaps some other small ves.sels, .should be excepted) from using these ports as a base for hostile operations upon the sea. No supplies for such operations were ever obtained there, nor were any reiniirs eftected. It is true, the Na.shville escaped through the l)h)ckade from tlu' jiort of Charleston, but when she escai)ed she Mas in no condition for war, and within three days was at Hermuda in want of coal. After there taking on board a full supply, she was enabled to make her voyage of eighteen days to Southampton. The Florida ran the blockade iiiwitnjs and reached Mobile, where .she was detained, more than four months, by the naval forces of the United States. At the end of that time .she ell'ected an esca[ie, but with onlj* a short supi)Iy of coal, for within ten days after her escape she appeared at Nassau "in distress for ^\ant of coal." After having been fairly set upon her crui.se from Nassau, .she not unfrequently remained at .sea two months and more without renew iug her supply. 5. This was at all times known to the British (iovernment. The block- ..reniHnt 1,-11, v {hIc wbs thc subjcct of frcqucut correspoudeiice between JMr. "'" Adams and Earl Kus.sell, and was acknowledged to be autli- ciently eflective to bind neutrals. 0. i»y depriving the insurgents of the use of their base of naval operations at home, the United States obtained a (Iccided and important advantage in the progress of the wai. Tl was a war, on the part of the United States, for the suppression of a wide-.spread rebellion against the authority of the Government. At the outset, the power of the insurgents appeared so great, and their organization was so complete, that, in the opinion of the Britisli Govern- ment, it was proper they should stand before the world and be recoj; nized as beligerents. The territorj', which they claimed as their own and sought to control, embraced a large extent of sea-coast, well sup- plied with ports and harbors, available for all the purposes of commerce and naval warfare. In fact, it embraced two out of the live navy-yards of the United States, and a port at which extensive preparations had been made for the establishment of a sixth. The people of the States not in rebellion, but remaining loyal to the Government, were a commercial people, and largely engaged in naviga- tion. At the commencement of hostilities, the insurgents proclaimed their intention of making war upon this commerce. To prevent this. and to keep such ports as were in the possession of the insurgents from being used as ba.ses of the operations for such a war, the United States at once determined to establish and effect their blockade. With the superior power and resources under the control of the Government, it was able to accomplish this work ; and before the insurgents could supply them.selves with ships of war, their ports were closed against all effective optjrations from their own territory as a base. 'I'll.* iiil\i.iit;iK."« .i( til"...' iH.ln 11. til.- riiitfil Stuti- IWP'l MM. WAITES SUrrLKMKNTAI. AkCU'MKNT. 515 howiu. "i-was HiHKi'iitN tit nlilitirt tH'Mlnil lernlory. This advantaj;*; was one the United States had tlie ri}?ht to retain if witliiii their power so to do. No neutral nation eouls AND STATKMENTS. i:; . ! : : ■ iljK ■Wi Wlit-iioiil thf.V WITI* vv ithnnl :i I JiritJiin, under coiitractH for tlistt imrposc made directly with the iiisiir gent aiithoritieis. All this was known by the British CJovernnient, l(>ii;> before either of these vessels, after completing their armament and receiving their coiunnssions, ai>peared at Jiny of the ports of the Kiiiute(l. Tiic indivi crime against IJiitisli municipal law, made themselves subject to tlif ]>enalties of thai law. The authorities of the insurgents, who i)r<)iiiot('(l the crime, subjected themsehes to such n)«'asures as (irc-it IJiitaiu uw^ht see lit to ad()i)t in onler to resent the wrongs mUicteti on her, an(l to cause i.;;r sovereignty to be respectted. IL'. When these vessels were upon the sea, armed aru.1 titted lor Wiii. the in.*: ugeuts had advanced one step towards inovidiii;; themselves with the means of prosecuting a war against the commerce of the United States; but they neei»ssession of the advantages tlan JKul gained by i\ successful blockade. The gr'at dillicnlty to be over come v,as the sup])ly of coals. To no nation could this fact be nioiv apparent than to (Ireat Britain, the tlagof whose nmgnitlcent imvv \vii> at that time almost const'nily alloat in all tl»'' princii>al seas of tlif world. l.». (Jreat Britain had the undoubted right, upon the discovery oi these offenses couiuiitted by the insurgents against her municipal laws, and of their violations in her territory ol the laws of nations, to exclude by force, if necessary, the vessels, in this uianuc placed upon the seas, from all the hospitalities usually accorded to naval belligerents. ii\ the ports and waters of tlic kingdom. This was the jironipt decree of Brazil, when her liosi)itality was abused by one of these vessels. (Brit. App., vol. i, ]>. lit).'}.) Tiie Coiiiisci of (ireat liritain jnak<' the same orders. It. In this way (Jreat Britain might, to a great extent, have prevent«'tl the consequences of tlie original ciime connnitted witliin her own jurisdiction. It was her duty to use ^\ne diligeiiti' in her own ])orts and waters, jind, as to all persons within her jurisdiction, to prevent tln> departure of su;ha vessel Irom hertcrri tory. If, notwithstanding her diligence, such si vessel was constnictcil within, and de})arted from, her (U'i'^diction, then good faith toward i uation with which sIm' was at p« -e requiresi that she should, as far .i> possible, curtail the injnrioes c( nsevent. Slu^ owed no comity to a nation Miat had abused lu'r hospitably. She was under no obligations to open lni porta to a belligerent that had violated her neutrality. No belligcn'Mt hail tlu' right to (Umami the use of h» r jiorts for the accommodati'»n •'' his shi[)s of war. It was a privilege she could grant or not as sIh pleased, and if in this respect she treated both belligerents alike, ncitlici liad tlu' right to convplain. .\n trder which exchuled all guilty ol ''-n riwv totftlit li:n tiiM-u I'Vrludfd liui Itriltdl pnifx. In-.- u'j.ild haw |tn'Vtiit".l tin* iiiiu ri»'« Whlih tidjnwed. ' '»" fs TS. Mil. WAITK!-' SUI'l'hKMENTAI. AKiil'MKNT. fyll ith the iiisiu- rnment, loiif; maineut ami of the Kiiifj known bcton" liotlu>r (iiTiil Histnictioii 01 ocuiiuf? tlu'iii, 'aim, and siih iHjmttHl. The iniinittiMl this snbject to tilt' who ])roMiot(Hl liritaiu uii<;iit 1)11 hi'i", and to titti'd lor Will . irds inovidiii;: a war a,i;;aiiisi ley noi'ded on*' I, and that \va> vonld still, to a dvantajios tlu'.\ ilty to be over s tact be 111 or.' ticout naw \\a> ipal seas of tli'' lu; discovery oi its aii^ainst liei her territory ol f necessary, tlif he hospitalities ,1 waters of the jhospitalit.v w;is ) Tiie Couusf' (Jovernnient ti have ])rev('ntt'tl fnnn>itted witliii' |se dne dili^'oin''' persons witliin K I froinherterri was eoustriu'toi! faith toward.! dionhl, as fiU .i^ law fnl act wIik'Ii to a nation «li:>' lioJis to open Imi No belli^'ori"!! •coninJodrtUoiiol jt or not as slu' Inrs alike, neitlio! lall 'iniltv of f'"' K,iiae offense would have operated alike on all who were ^-uilty, but would not lisive included the innocent. !."•. Tlie United States had ttie li^ht, as they did, todeniaiulofGreat HritJiiii, that she should uae all means within her power to avoid the consequence of her failuve to prevent the use of n..M'"",tV,r''if r'n'" her territory for these uniii>vful purposes. ^Vs has been I!,',,! ,''i,.,-.' '.i i,T'i^"'. setni, the insurgents eonimenced in Great Britain their vio- iiitions of these particular laws of neutrality, ihey were tlagrant act. .. They were Jiccoiiipl!"^hed in spite of the United States, They were high oifenses a^fuinst tlie authority and dignity of the government of Great Britain, and, as Karl Russell afterward said, ''totally unjustiliable and manifestly offensive to the liritish C'rown." (Am. App., vol. i, ]>. i this lountry, that the Ministry ludd no common suiitinient, a'.id were 1»,) This <'(>ininunication, in «lue cour,se of busi- ii'-'ss, was reterred to the Gommissitniers of Customs, w ho, (mi the L*r)tli of tilt! same month, reported: '*That tin re wtnild be great dilliculty in as- wrtaining the intention of anv narties makinii' such a shim '.y P >P do not {ippiM'lieiid that our ollii^er.s would have :iny power of interfering with it, were the coals clearetl outward for ,soaie foreign ptnt in com- |iliiui(;e with the law. (lU'it. Apj),, vol. i, p, 2i;».) Thus the nnitter Hn(l"d. If then' was no power in the olllcers of the customs to interfere with the shipment of the coals, there certainly was ample power in the Gov- wiment tt) prohibit any otteiuling belligenMit vessel from coming into the porta of (Jreat nrittdn to receive them. That, if it wouM not have 518 SUPPLEMENTARY AROlMExNTS AND STATEMENTS. m ! :' t It ' ^ iirt'it Itritniii ntiintecii tlif us il» piirt» hy Hi stopped the oftending: vessels entirely, might to some extent have em- bairassed their operations. Again, on the 7tli of J)eceniber, 1803, IVfr. Adams submitted to Kail Knssell evidence of the existence of a regular oflice in the port of Liver- pool for the enlistment and i)ayraent of British subjects, for the purpose of carrying on war against the ritain I'rom tlie commencement was such as to encourage the insurgents, rather than di.scoiua to the use of her ports anort, at Jamaica. on the 20th of January, 18(5,'j, nearly six months after her escape from Liverpool, and after a laj>se of mucii more time than was suilicient t(» notify the most distant colonies of the olfense which had been connnittod by her, and of any restrictions which the (iovernnuMit at home had seen tit to ))lace upon her use of the hospitalities of ports of the Kingdom. No such luitice was ever given, nor was any such restriction ever ordered. Tlu^, Alabama went to ,Iamai( a lor the reason tliat in an engagciiit'iit with the llatteras, a United States naval vessel, she had received siicli injuries as to make extensive rejjairs neces.sary. This engageinent took place only twenty-live miles from a honu^ port, but insteacl of attemptin^j to enter it, and make her rei»airs there, sln' sailed more than lil'tecn hundred miles to reach this port of Great liritain. In doing this she had sailed far enough, and spent time enougli, to have enabkMl her to reach any of the ports of the insurgents; but tiie blockade i)revente(l her entering them, and she was compelled to rely upon the hospitalities of neutral waters. At Jamaica, she was permitted without objection to make her repairs, and to take in such coal and other supplies as slie re quired for her cruise. She was treated. Commodore Dunlop said, as any United States nmnof-war would have been treated by him. On the ^oth of the same month (January, 18t>3) the Florida appeared at Nassau short of coal. Although she was only ten days from a home port, she was permitted to supply herself with coal and other necessa ries. On the 24th of the next month she again appeared at liarbado.s. "bound for distant waters,'' but she was in distres.s, and unless j)erniit- ted to repair the captain said he would be compelled to land his men and stri[) his ship. Notwithstanding her past ottenses, i)ermissioii to repair and take on siipplies was granted. These were the first visits of any of the offending cruisers to Briti.sli waters. They were substantially their first visits to any ports ol a neutral nati(m. The Florida stopped for a short time at Havana, ou hei way from Mobile to Nassau, and the Alabama was for a few hours at Martinique ; but at neither of these |>laces did they take on any coal or make any rt^pairs. Thus the nation, whose authority and dignity had been so grossly MK. WAITKS SUPPLEMENTAL AR(iLMENT. a II) Mit have em otteiided in the construction and outlit of these vessels, was the tirst to grant them neutral hospitalities. From that time her ports were never dosed to any ijisurfjeut vessel of war; and permission to coal, i)rovis- ion, and repair was never refused. It is said in the British Counter Case, p. US, that, during- the course of the war, ten insurjjent cruisers visited Jiritish ports. The total iiuni ber of their \isits was twenty- five, eleven of which were nmde for the purpose of eJlectin}; repairs. Coal was taken at sixteen of these visits. The total amount of coal taken was twenty-eijiht hundred tons. Tlie number of visits made by thes<» cruisers to all tiie ])orts of all other neutral nations during the war did not exceed twenty. So it ap- pears that the hospitalities extended by (heat J>ritain in this form to the insurgents were greater than those of all the world beside; and yet more serious ottenses had been committed against her than any other neutral nation. They required repairs at about one-half their visits and coal at about two-thirds. The average supply of coal to vessels of the insurgents was one hun- dred and seventy-live tons. Because, therefore, the insurgents did make tiseof the i)orts of (Jreat Britain : those ports to Confederate ships were in violation of the neutrality of (rreat Britain, and rendeied her respot»sible therefor to the United States. M. R. Waitk. I ! ii ■! ii ■ H (iV ^li: i! : ^.. VII.-ARGUMKNT OF SIR KOUNDELL PALMER ON THE (^liES- TIOxN OF THE HECRUITMENT OF MEN FOR THE SHKNANDOAH AT MELBOURNE. Her IJritaiuiic Mjijcsty's (Jouusel, being porniitted to otter soiiu' further observations in explanation of the facts as to the recruitiueiit of men by tiic Shenandoah at Melbonrne, as to which there api)earey its Representatives in the Colony of Victoria, " pennittted or sulfered" the use of its ports or waters by the Shenandoah for this purpose, if not directly, at least by the want of due diligence to prevent such recruit- meut, and (2) that the recruitment so msule was an augmentation of force necessary to enable the Shenandoah to ettect the captures for which Great Britain is sought to be hehl responsible, and without which those cai)tures could not have been nuule, and was in this way a ciirth of .Fanuary, ist»r», and the next day she was visited by Captain King, Xav:il Ag«'nt on board of the Bombay, who found that her crew (it is pr«'sumed inchuliiifi otticers and petty olUcers) then consisted of seventy men'. Of these seventy, about twenty-three appear to have soon afterward ontaneous promise to "observe" Her 3laj- esty's '* neutrality."' Care was taken to ascertain, by a i>roper survey, what repairs wt'ie necessary; and, while allowing them to be made, the Governor {'M\ February, 1.SG5) ordered a strict supervision, and daily reports, by tbe KritiHh App., vol. i, p. 4iKI, - Il»i(l., pp. r^-i'-i, .'■.57, una f>71. ''LiiMitcniint Wiulddl to Governor Darliiij;, .liiniiary '2.'), lHr>.'». liritiHli App.. vol. i. i> .".(Rl. HRITISH AKCiTMENT SHKNANDOAM. o21 w^m wiiv 11 iiir"ct niuai'v, isairs at once reported,"' Tliese orders were strictly acted upon. On the; 7th February leave to land " surplus stores'" from the Shenan- doah was refused, under the sidvice of the Attorney-General ; and, on the same day, Captain Waddell was informed that " the use of appli- auces, the property of the Government, could not be granted nor any iissistaiHie rendered by it, directly or indirectly, toward ettecting the repairs of the Shenandoah.''^ So matters stood, the most scrupulous and anxious IWid.. vol. 1. pp. , «UI8. Thi^ Huine aH to Hupplics. 77. KritiHh App., vol. i. i>. r)17. 522 SUPPLEMENTAKV AUGIJMKNTS AM) 8TATEMKNTS. it ! >'■ I I' I w •n r! ji I I- t ■■ I sliipp«>ointed to certain detinite means, viz, transshipment from another vessel, (the Eli Whitney being nanu'd.) as those by which tlie recruitment was intended to be made. The (jiovernor in Council on the same day took these Iteports, and iilso Consul lilanchard's letter of the 10th February, and Williams's allidavit, into consideration. The Law-OOicers of the (Colonial Government had alreaose with which it has l»een made, was most i)roperly refused.' A warrant having been issued for the apprehension of one of the men, saidtobeon board the Shenandoah ami passing by the name of Charley, Mr. Lyttelton, Superintendent of Folice, went on the l.'Uh February on board the ship to execute it, but was met by the objection of the i)rivi leged character of the vessel as a public ship of war. Captain Waddell was then absent; but on the next day, the Itth, when Mr. Lyttelton returned, he repeated this objection, adding: I i>h'(l;fe you my word of honor, ms an offiiTr and a ycntltman, tliiit I buv<; not any one on board, nor hare 1 rngaijed any onv, nor iriH I irliilv J am lint." ^ The (lovernor then considered it right, since Ca})tain Waddell refused to permit the execution of the warrant on board the ship, to suspend the permission which had been given for her repairs, and to take care that a sufficient force was in readiness to enforce that order of suspeii -sion. This was done, by a public notice, on the sanie day, (I4th Febru ary, 18G."».)'' Captain Waddell thereupon remonstrated by letter of that date." The execution [he said] of the warrant wiw not refused, as no such person as tlic one Hpecified wan on hoanl ; but permission to ifarch the ship wiis refused. * " Oiir Shipping; Articles liuve been shown to the Superintendent of rolice, .Ml stran- gers have been sent out of the shij), and two vommtHHtoned officerx wvri' ordvred to Hiarch if any mch hare been left on board. They have reported to me that, after making a tboroiKjh search, they can find no pemon on board except thone who enteied thin jMrt an part of the com- plement of nwn. I, therefore, an Commander of the nhip, repreitntiny my Government in lirit'uih watern, hare h inform hin Eicelleney that there are no pernonn on board this kMii except those whose names are «ii my Shipping Articles, and that no one has been enlisted in the serrice of the Confederate States since my arriral in this port : nor hare I, in any woij, riolaled the neutrality of the itort. » Hritisli App., vol. v, p. Ti^S. • Ibid.,p. :V>1. ''British Appendix, y * Ibid., vol. I. y>. 524. \T)1. V, pp. 7H,7y. f'Ibid., p. r.*'.. •Ibid., p. t>4l IJRITISU AKCIUMEXT SHENANDOAH. r>23 ivi- not any one On the next day, ho\vov«;r. (tlie l.ltli,) certain men wlio had been on board, as described in Williams's antl Madden's aflidavits, left the She- nandoah, fonr of whom, beinjLf observed, were captnred on landin*;; iiiul amun<; these was C^harley, for whose apprehension the warrant had been issned. An officer of the Shenandoah was seen at the ;;an}^way of the ship, apparently directinj? the boatmen who took those four men on shore; any him that they were thus proved to have been on board on tiie two jirevious days, when their ]>resence was denie\ii- conininnii'iition arv no {tiirt of tliis vo.ssfl's <-i>ni])l«-- iiient of nn'n ; tlwy inrc (U'tcilvd b>i the xhipn jiolicc, after all xlraiiyerx tnrc rfiiorlnt mil of the rcxHvl, and Ihei/ ireiT onlvrcd and mTii tnil of the rrnnel hi/ thr xhiii^x inilicv iiHiiudiali'lii on their dincorery, wliich was after my letter liail lieen (li.s[)atehe*l informin<; his l-^xeelleiiey tlio Governor tliat there were no .such jiersons on board. Thexc nun irire Inn witlnnil my knowledf/e, and I hare no donbt eon properly lie eulled xlownn-ayx ; and xnth theij nuinld have remained, hat for the riijilanve of the xhip'x pnt in no way can I l»e accused, in truth, of being cognizant of an e, ;i- sion of the Foreign-Enlistment Act.-' In the depositions of Williams and ]\[adden, taken before the magis- trate on the IGth February, it was stated that certain of the subordinate nflicersof the ship (not Captain Waddell) were (iogni/ant of the presenc*' of Charlej' in the forecastle of the ship; but these statements were Jiot contirnied by the other witnesses; and no similar evidence was given as to the rest of the prisoners. ' The particular officers of the Shenandoah, as to whom these statements were made by Williams and Madden, pub- lished on the same day in the Argus, a ^Melbourne newspaper, declara- tions, signed with their names, most positively denying all the statements afl'ecting them ; and one of them, Acting-Master Uullock, said that he had been otten asked by persons on board if they could l)e shipited; and liad invariably answered : " Wc van .shij) no man in this port, not eren u fionthern citizen.'^ ^ This was the position of matters when the I7th of February arrived : the reports of the detective officers had preceded, not followed, the in- vestigations with respect to the men alleged to be actually on board for the purpose of enlistment, and the solemn and repeated «lecIarations and promise of Captain W'addell, on the word of a gentlenum and an officer, confirmed by the declarations of the other officers of the ship. The Eli Whitney had been strictly watched. No further definite infor- mation had n'ached the (loverunnmt, who believed that all the men who hjid been secreted on board the Sheiuindoah had a<;tually left the vessel.^ Mr. Mc('uIloch, the Chief Secretary of the (rovernment, and Mr. Harvey, the Minister of Public Works, expressly so stated in the Debates of the Legislative Council of the 15th and l(»th February, the British App., vol. v, pp. 527, :A% r>4.'>, r>75>. "■ Ibid., pp. f)4.'>, GW. ' Ibi«l., pp. 5:17, 54.'>. * Itritish Appendix, v«d. i, pp. .W-aJH. It n|»pearH fr. p. (51. i 524 Sri'l'LEMEXTARY AR(JI MENTS AND STATEMENTS. u w ill < i\, latter iiiiiiistor sayiiifr, (l.jth rcbniaiy :) ' " It was now known thai scv eral uicn who .shipped in Ilobtson's Hay had escaped, in addition to tlic four who were captured." And although, on the 17th February, (on sul Itlanchard again requested attention to the statement containetl in the aflidavits originally sent, (and in certain other attidivits of persims who were also produced as witnesses against the four prisoners,) tluit there had been, at the dates when those witnesses left the vessel, ten or more persons on board under similar circumstances, (the witnesses speaking with wide variations as to the number;)- this was not incon sistcnt with the belief of the (iovenunent that all such persons had nt- terward left the ship, especially as, in the depositions of the same wit nesses before the magistrate, (except that of Williams in one case, on cross-examination,) no mention whatever was made of any such otlici persons; which was also the case on tln^ subsecjuent trial, in Marc'.i fol- lowing.' It is further to be remembered that on the 17th February the prosecutions against these four men (who were not trieending. As matters then stood, however unsatisfacttiry some of the circiun stances might have been, it would be very ditlicult for any candid mind to draw a sound distinction between the position of ('aptain Wadtleil with respect to the men alleged by him to be " stowaways," and that ot Captain Winslow, of the United States ship Kearsarge, with respect to the sixteen or se>enteen men taken in that ship from (^neenstown to the coast of France.' If Captain Winslow, as a man of honor, Wiis properly exoiu'rated, upon his own solemn assurance, from responsibility for that act, in whicli some of his subordiiuites must have, to some ex tent, participated, and as to which his own conduct on the French coast. before he sent the men back, was certainly not free from indiscretion. can it be imputed as a want of due diligence to the (lovernment of Mel- bourne (whose good faith and vigilance had otherwise been so man! festly proved) that, although not entirely satislied with Captain Wad dell's (lemeanor or conduct, they accepted the solemn assurances of not one, but several oflicers, of the same race and blood, and with the siinie claims to the character of geutlenuMi as the oflicers of the United States .* In the nu^norandum sent home by Lord Canterbury on the (ith of November, 1871, signed Itythe gentlemen who were the Chief Secretary. Commissioner of Customs, Minister of Justice, and Attorney-Ceneral ot the Colony when the Shenaiuloah was at Melbourne, it is thus stated: While file Siii-iiinuli):ili was in jxn't tia-ie wert' iiiiiiiy vajjtiie rninors in circ'iiliitiini that it was the inleiif ion of a niiinlicr of nn-n to sail in her ; but alllioiifih the polite un- IhorilicM made tirrn fjrrtioii to tiscrrtoiii tin- truth of ihi'xe niiiiorn, yet (with the ox('e]ttic)ii of the four men allmletl to) notliinfjsnllieicntly detinite to .justify ciiniinal proceediiij;'' eoidd be aseeitainetl ; iiuhcd, at the best, these iiunors Justilied iiothin<> mori- tliiiu Miispieion, and lallxl oiitij for that iratvhfiilnenn irhirh the Hon'nimi'iit cxcrcixctl to Ihr fiitlcl vxti'iit ill itHjMtnr. It was not until after the >iUi''iiaudoali had left the waters of Vk- toiia that the (ioviTnuH'ut re«tivt'4.'», .'ifi-^, r)7l. 4; particularly pp. 429, 4:.').' p. \'i\. ••Il)i«l., vol. V, ]>p. lyo. I'Jl. ^ Ihitl.. vol. i. p. .'i.'il. r)26 Sri'l'LKMENTAKY ARGUMKNTK AND STATEMENTS. I. if If' li I- tr who hail been employed in coaling tlie Slienandoali, went on board iici on the niornini; of the 18tb, just as sbo sailed, under pretense of ^rct- ting paiil for tbeir work, and did not return. So far, intpiiry seems to have been made as to the occasion for tbeir going. They went by day light, and the occasion alleged was credible and lawful. Other nieii were taken ott' in boats between o'clock y*. ni. and midnight on the ITtli. from the Sandridge Kailway IMer; their numbers were variously re. ported. According to the information obtained by Detective Kennedy. chieHy from Itobbins, there were five boats employed ; according to that of Superintenilent Lyttelton, about 40 men were in the scnth near the j)ier, and three other boats went olV with eiffhteen men. There was (according to the boatmen) an oflicer of the Shenandoah standing on the pier. Constable Minto, who was on duty at the pier at !) j). m. on that evening, "observed threes watermen's boats leave the i)ier and pull toward the Shenandoah, <'ach boat containing about six passengers," and saw a person in j)lain <;lothes, whom hi^ believed to bo an ollicor ot that ship, superintending the en)l>arkati(ui. He was succeeded on duty by another constable, named Knox, who, on Minto's return at midni;;lit. told him that, "during the absence of the police-boat, (which had pulled oil", as already stated, into the bay,) three or four boats iiad lett the ]>ier for the Shenandoah, containing in all about twenty passen- gers."' lJesid<'s these, it appears that one otlicer (Blacker) Joined the Shenandoah, from a ship called the Saxonia, under iii^lit Movcriil pcrsoiis (MitltijivorcMl to liiid uw, to ^ivt' iiiformatidii ol' Mic ■ihi|)iiiiMit of men for Hiiid vossiil. (hir llohhitiH, a mantcr Hli-rrdoiT, foiiiui mr at 11 u'clork /). m., antl iiilbniit'd iiim tliat. Iioat-loatls of iiicii with tiM-ir In^rKa^c. wirt; leaving tlif wliarf at Saii, as a irood snltjoct, was lioniid to inform tlirm of any violation of law that canto iindor his not lor, whi«;h ho promisod to do. " * " On tilt) IHth of I'V'bruary tho aforesaid Mr. Itohhins oalhtA at tho C'oiisulatc, ami informod iiutthiitHix l>oat-loads ; who informs nn; that ho saw sovoral boat-loads (if ninn with ln};^a<{o go to said vessel winio lying in tint bay ; and that ho also saw Kubbins go to tho police. It is manifest, from all the foregoing evideiuH', that Kobbins did not go to the police till after mitlnight on the 17th February, when all tlu^ men in (piestion had already been sliip[>ed. Arul, if the nature of what was being done was at the time clearly manifest, it might have been ex- pected that some interference by the police would have been previously invited by the American Captain Sears, who witnessed the dep.irture of so many boats full of men. J{obbins, in his atlidavit of the 2lHt September, 1871, does not undertake to say more as to the number of men who were shipped than this: "J know that several men, residents of this port, went on board the Shenandoah in this ])ort, as addition to lier crew, ami went away in her," naming two individuals who did so. rie also there says, " I reported to the water-police at Williamstown" (i. e., on the opposite side of the bay, where their station was) "the shipping of the nu»n, but they said they were powerless to interfere without directions from the head authorities in Melbourne."' At that time the recruitment of the night in question had been fully accom- plished. It is .submitted, that nothingcan more plainly establish the good faith and zeal, in this whole matter, of the (lovernment of Victoria, than the resentment whi(!h they inunediately manifested at the breach of Captain Waddell's honorable engagement and at the violation of Her Majesty'.s iieutrjility which had thu.s taken place. A resolution was at once passed to refuse all further hospitalities to the Shenandoah in the event of her return; and information was prom|>tly given (February 27, ISO"*) to the (iovernors of all the neighboring lUitish Colonies that they might adopt a similar course.^ With resju'cl to Tetnple's affidavit, its only bearing is upon the tjues tion what number of men were shipped by the Slienandoah at Mel- bourne, and whether those were, or were not, British subjticts. Apart 'British App., vol. i, p. ^t^y'i, -'Appendix to United iStates ('ounter (.'ase, p. llKu Mbid,, p. bH7. * lUitish Appendix, vol. i, p. .Mi."i. Brr 528 .SiriM'LEMENTAKV Al{(»UMKNT.H AND STATKMKNTs, Hi' Ml ^i i I i. 1 ; I « ii I r^ m from iiiiy (>\friiiNi(; coiiHriiuitiun wliicli it riiiiy We coiisidcnMl to rcccivi' from inort! trii^ttwortliy (iiiurttTH, no rcliaiK;^ can bo placed uiioii tlii> truth of any word spoken by thi.s man. Ho in proved' to have otVtM't'd, in tlio caso of Captain Corbett, to jrive ovidence then admitted !»> Iiim self to be willfully false ; and in this very atlidavit he states sevenil flu };rant falsehoods, which he must have well kiuiwn to be such, as to en tertainnM>nts allejfed by him to have been ^iven on board the Sliemui doali, not only to other olllcers of the Colonial Governuient, but to tlir (JroveriHU" of Victoria, Hir Charles Darlin;:;, himself : ami also as to as sistan(!e in like luatMUM- allej^:ed by him to have been ;;iven to Ciiptain Waddell, in the lepairsof the ship, by the(iovernment Surveyor at Mel bourne.- What Temple says is, that when the Shenandoah left Port Philip she had on board " some tlfty or sixty persons as stowaways, all IJritish sal) Jects." Jlis means of knowledffc as to who were, and who w«'re not, really liritish subjects, do not ap])ear, and cannot b(> assumed. In the list ap]M'nded to his atlidavit, tli.> composition of the crew, when the sliip arrivee stated. \\\ that list it is made to appear that she then had twenty-four oflicers. and thirty petty otlicers and men, who were ritish, and six American,) who joined her at Melbourm^; and thirty-eifiht men, obtained from tin; «*rews of vessels raptured sul)S(' (piently to lu'r departure from Melbourne. -'Some fifty or sixty" thus became, even on his own showin};, reduced to forty-four. Jt is submitted that nothing: is adtled to the credit or widyht of Teni pie's evidence, on these i)Gints, by the remarks made upon it in (lover nor Darlinfj's dispatch to Mr. Cardwell of the Hist March, 18(»0 : ' IJavinjf oxprcsscd to yon in my dis|»ixt(!ht :., U: wliifh yon refer, my l»eliof'tliat (iiii tain Waddell liud, notwithstandinf; IiIh honorai.i'i protestations, Hajjiaiitly violated the neutrality ho was hound to ohserve, in the shipment of Dritish citizens to serve on Itoard his vessel, I have read withi>nt surprise, hut with ({ee|» rej^ret. the lonj; list nl iiauies furnished hy Air. Temple, uhUh complctvly jyroict that tli'm hilitf ic((s iimlly J'oiimkd. The (Jovernor, without goin^ into any exact computation, was(!ontent to take the statement of a man whom in other respects he proved in the same letter to have sworn to deliberate untruths, as sufficient to con tirm his own fjeneral belief, jneviously formed and expressed. If Teui pie is not a trustworthy witness as to details, this cannot make him so; the original grounds of the Governor's own belief remain, as they Merc before, a far better source of information. With respect to the affidavit of Ebenezer Nye, of the Abigail, (United States Appendix, vol. vii, p. 93,) he says nothing of his own kuowledjje, but simi)ly reports information said to have been given to him, alter May, 18Gr>, on board the Shenandoah, by ^Ir. Ilunt, the master's mate of that ship. Even if there Mere nothing else by which to test the value of such miscalled evidence, it >vould plainly be of no value. Hunt is here represented as saying that " forty-two men Joined the Shenan- doah at Melbourne ; that some of them came on boanl when she first ar rived; that the United States Consul protested against their joininfT, and the Governor finally attempted to stop them, and to search the ship ; but that Captain Waddell would not allow the .ship to be searched, though a number of recruits Mere then on board ; that the (iovcriioi' was then about to seize the vessel, but that Cjiptain Waddell by his ' British App., vol. i, pp. 710,711, and 72H. Ihid., pp. <>!»<;, T'.'l. audT'ia 'Ihid., p. 723. ^fmm BRITISH AKCil'MKNT SHENANDOAH. r)29 hid., p. 723 llriinu>Hs, uiitl throats to leave tlic sliip upon the (roveriior'H huixls, and to return and reitort the matter to his (}overnment, obtained her re- hnise." The Tribunal knows, from the eontemporanoous documents, wliat wore tiie real faets, of which this is a (garbled anr of men on board, intendinji^ to take them to sea and eidist them in nolation of the u'ellestahlinlied ralen of International Law.'"' Either Mr. Ivbenezer Xye's memory after six years confounded things elsewhere wad with Mr. Hunt's representations, or those representations must have had in them, as his "('ruise"its«ilf has, a large element of "ro- mance." Whatever view may be a«lopted, Mr. Nye's atlidavit really ;i(l(ls nothing to the original evidence, from which aloru^ the truth on this subject can be ascertained. Let it, however, be supposed that the statements of Temple, and of Hunt, according to Nye, might be accepted as accurate ; that, in all, forty two or even forty-lour men were taken on board tin; Shenandoah ;it or from Melbourne. The Shenandoah had lost, at JNlel bourne, one orticer and twenty-three men out of those who constituted her crew when she arrived there, (being the nuu), or the greater number of them, wiio had previously joined her from captured vessels.) IJy this assumed addition her number of oHicers when she left was the same, and her i'oinplement of men was greater by about twenty only than when she arrived in the colony. If sucli an addition (supposing it were deemed, contrary to the effect of the whole evidence, to have been imi)roperly "siittered" by the Colonial Government) were deemed a sulHcient ground lor holding Creat liritain responsible to the United States for all her subsequent captures, it seems impossible to escape frotn the conclusion tliat if the Kearsarge had gone to sea, and made captures with the sixteen or seventeen men on board whom she shippemn% n.l fi3() sn'PLEMKNTAKV AliGI'MKNTfS AND STATEMENTS. ei I I Ih'siTtsts, hi'iiiw with a coniplcnu'iit of otticin's and men certaijiiy uo{ liu'iior tl.aii tliat wliiv )i itMiiiMiMMi in hor at iMt'lboip im', at'tei* all tin* dc- .sortions which took jdaco. thoiv, anil botoic any now enlistments. V«.t, with that limited number, she bej;an a series of tsaptnies •, and, as she ma«U' thes«' eaptnres, slie inereaseil lu(r <'rew snc-eessively from tlu' ves- sels taUen--tii« Aliiia, tlu' I>. (Jodfrey, the L. Stacey, the Edward, iiiid I lie Snsan. 11 she had left Melbourne withoni any reeinitment what- ever, hIu' would, have been i!» «|uite as j>oo day <»i lu-r leavinjii' INnt I'hilij', (i.Sth 3'ebruary.) ("onsid IMaii- chard, who had theii received all the inbu'nnition which Uobbins and others couUl j^'' (^ him as to the niunber of www taken on board dariii;; the preicdin^: nijihl, wrote thus to Mr. MclMierson, the Am 'riean Wrv I'onsulat ll if she ha. the nati(U!, in one of whose eohunes this recruitment of men mot .shown to be a pro.vimate cau.se oi any htss whatever) took place, is to be held resi>onsd)le t I'inally, it is ri question on svhi<'h it is now abmit to lon<; been dead. To hold per.sonal communication with the olin-iais. te obtain Irom tiu'Ui renewed e\|>lanatious and niterro^ate them on po)ni> of detail, has beeu impossible. To exp«'<'t that the ISritish (ioveiineeii! should be abi" to state with exactness every nu'asureof pre(;aution then adopt»'d. and < ry order uv instructi«>n orally j^iven by the polid authoiities of ti;e (';»'ony to their subordinates, and to aci-onut for ainl explain every circumstance as to which a doubt nniy be sufiffc sr.Ml. would be unrea.sonable in the hij^lu • t de^iree. Nevertheless, the (li»\ ernnu'ut of lier Maji'sty has, with an openiu'ss, fidlness, and preei.^ioi: which it believes to be eidirely witluutl exaii.ple in the history of inter natiiund controversies, plaee«l before the eyes of tin' Arbitratcns evii) fact, every direction yivi'n to its olllceis, every a<'t of the iioveruor 1 1 tl.'e ('olo iv and his<'oniU'il, which could be j^athered from the record^ Uritiah Appeudix, vol i, ji. 617. "'J^W'! IS. BRITISH AKUIMKM .SHENANDOAH. 531 [;crtai;il.v not ■r ill! tlu' (Ic- IlKMltS. Vt't, ; iuul, as slu' ['n)in tlu> \»'s- Kdwanl, aial litnuMit wliiit- letr 1 )i'.st'itas. )iil«l lit) luorc whaliiiji' sliijis ) Consul I'.liin- 1 iiobhiiis ;ili«l boanl (Jaiiii;: Liu 'ii<*a>i Vice , (M)uiinn' tilt r<'. h yt't t(» . lUMI (iiot slitiwii ,'. is U) he ln'M I, hut in tlif wi ^ in ji«'U»'iiil. till' ) tin' ji^MU'ial im 't«'ri;ii If. icvv'U years ii;ii' n (;ivat Uiil;iiii. till' Colony, lui^ I the oinciiils. ti' ' tlMMii on |K»int> lish (iovi'inii'oii' (Hnuition tlit'ii olivf pv I by tlni 1 a(;r«»nnt for ami liy \w sunt^isn-il. liieU'ss, tlic <•«►* oil and i>n'('i.';i lu.siory of intfi Irliitrators I'voi) J in' (i;ov<'nioi' of till! Colony or of tlio Houn^ s and synipiithies of the |)eople of the Colony, • feelinj^s whi(rh, in a free eoininunity, no (iovernnieut attempts to con- trol,) there was, t'roni lir.st to last, on the part of the Colonial Govern- ment, a sincer*' and anxious desire to a«ihen^ strictly to the line of neutral duty. It is a narrative of renewed and e«nitinued ]»reL'antion.s, renewed and <'ontinued from day to day (iurinjj; the whole time that the crui.ser remaine*! in the waters of the Colony. No rea.sonable per.son can doubt that any increase of the Shenandoah's armament, any aug- mentation of her crew, was a \\\\uwn to be untnu!. Whether, (Ui these facts, (Jreat IJritain is to be «'har^ed with a failure rent nation is entitled to found a <'laim a<<:ainst a neutral, and that cla*m a (ti'inand for iiKJemnity a<4;ainst losses sustained in war in which the iti'Utral has u(» |>art or CMU'crn. It is not (MMilined to maritime wars. It extends, anil may be applied, at the will of the bellinevent, to any art which a neutral (lovei-nineiit is under any i'e^ni/.i'd I'.ili^jatiiui to endeavor to prevent. Is it lU'cessary to point out tliat s' eh a decision will certainly prove a fert le pie(;edei!t ? Tliroujxhont t!ie whoh^ of this controversy (Jn^at Iliitain has steadily maintained one ihin^' — tli it, before a heavy indemnity is exacted from .1 neutral nation for an allei^-ed violation of neutrality, the faets charfjjed should, at any rat*', be proved. This is demanded alik»' by the plainest I'DMsiderations of expedie icy and by the most element iry principles of justice. If this Trioiinal decides tint, in a , AND MKMORAXDl M AS TOTHKl'NLlSTMEiNTSKORTHESHKNANDOAHATMKLBolKNK. I MU. TkESIDKNT AND GKNTLKMKN of THK Till UUNAh : Tile incscnt discussion lias its orijjin in tlu' (Umbts expressed at tlu^ last nn'ctiiij; dm tlie subject of the number of men enlisted for tlie Shenandoah at .Mel bourne. J'reviously to the expression of those doubts, all the nieiiibei.. of the Tribunal in succession had announced their opinion on the points involved in the ;;eneral question of tli<^ responsibility of (Ireat Hiitiiiii with rejjard to the prizes made by the Siieiian(h)ah after her de[)arture fnuii Melbourne. We have prepared a Memoraiulum, which pioves con';lusively the correctness of the statements of Temple, the perfect agreement between his statements and those of Nye, w iio, in support of these same state ments, produces the evi«lence of Jlimt, an otii<'er of the Slietiaiidoali. This Memoranilnm also ad«lu<*es the declarations of other witin'sscs. which coiitirni the evidence of Tenii»le, Nye, ami Hunt. In fact, it is beyond doubt, — 1. That the Shenandoah enlisted at least forty-three men at Melbourne. This number is indet'd now admittetl by Sir Ikoundell I'almer. 2. That the Shenandoah {hat the six oi- seven others who, it is ■issert«'«l, were dis- char};»'d at .Melboiiine, were also piisoners of war. It follt)Ws that the stren<;tli of the crew of the Shenainloah was in creased by lortv-thiee men. :l; (•nSKin ATIONS ADHKSSF.KS Af IIMIM NAL l'AI{ M. < iSIIINO. SV No.M HI ("ONSKIL l»i:s r/l'ATS-INIS. I.K -JI AOl'T K','. K'P MI-.M( HtANDlM SIK Li:s i:nuoi.i:mi:nts vovm lk suknanixjah a Mi:i.i»(Hiii\K. MoNsiKiu IK riiKMDi'.M, Mkssik.i Its HIT Titiin NAi,: l-ii (!is<'ii,sMioii iictiirllf asoii uri ^{inc iliiiis li'H(liiiit('N('\|irinH'sIiii's(l(- lailcniirrc Hi'iinccan Miijct ilii ^7^//';•(•(lt•^^t•lm■tlt•lll^llI^ i|ii(' 1<> SiKMiiMMloali a fails a Mclli(iiirni'. Avaiit iri'iiii'ttri' ri's tloiilcs, ions Irs itit'inlin "< (III trilMiiial, I'liM apirs rantri-. avait-nt aiiiHinct' Iriii' i>|iini(iii a I'l'^ranl iI<>h poinis riiiii jiris ilans la ijucstion nt'iii'ialf (U* la rcs|i(insaltilil<' (l(< la (iraiKlr-Mn-ta;;!!*' an suji'l ilf> |iris('H lailcH par Id Slicnanduali apn'H son (i<'pai't iitif, Jiis(|ii*a I'i'vidfiicc, rt'xactilinli' tir> floi'laratioiis (|c 'r»'iii]ilt', ic part'ait accord cntic ncm di'darations ct, r'cllcs dc Nye •■! <|ui, a Tappni dc cch nicincs declarations, prodiiit Ic tciMoi^na<;c iW llniit, oHicicr ilii Shcnaiidoali. Co nn'inoirc I'ait vaUiir aiissi Ics dt'claration.s d'antrcH It'-nioins, cjiii cmi- liiiiicnt Ic fcinoijriianc dc 'I'crnpic, dc N\<' ct dc limit. En cH'ct il est liois dc dmilc; 1. (/lie Ic Sliciiandoali a t'xnCtV' an nioiiis -V.^ lioninicM a Mclhoiirnc. Cc cliillrc f"! adiiiis aiijoiii'd'liiii, niciiic par Sir Honndcll rainier. 'i. Que Ic .Sliciiandoali i.'a licenci*' a Mellioiiriie i|iic 7 lioniincs dc son ci|iiip:ii:i'. i|noi<|iie i:{ aiilrcs Taieiit (|iiitt(^ : niais i|iie <'eH IK I'-laient i\v>* priNiiniiicis '. (|iii lie faisaiciit point partic dt^ I'l'iiiiipafic. ct il y a lien dc (mire (pie les li on 7 aiiln - (pK^ I'oii i>r(''teiid avoir licenci('-s a .Mellioiirnc. claieiit aiiNsi dcH ]iriHoiinicrs dc (iiieirc. II N'eiisnit i|n'il \ cut iinc aii^nientatioii de \\\ lioiiiiiics dans rcD'cetil' dc l'i'<|iii|iiiu< tlu Slieiiundoali. Vr "^m AN5KKICAX AK(JUMKNT SUKXANDOAII. r)3,^ ;». That tlie word "wmmfH" employed by Nye ntcaiis " siiilois," in ad- «liti(>n to wlioiii tluTO. wen' oti board tluiSlKMiandoali, accord iii}; to Xyc's own account, sixty or lllty-Hvc other jM'rsons, otli(H»v.s, lircincn, &c., in conformity with the iiarrativt' of Teniple and Hunt. 4. That without the re enfoi«'enient of lier crew elfectod by means ot these enlistments at Melbonrne, tlie Shenandoali <'onhl neither liavo continued her cruise, nor con.sei|uentIy have captured the American whalers in the North Pacific. "). That all this constituted a tlajjrant violation of international law, iuid even of JJritish niunicii»al law, in the o]Mnion of the (Jovernor, Sir Charles Darlinj;, himself. <>. Thiit finally, and above all, it constituted a manifest violation, on the part of the liritish anthoritii's, of the second Itule of the Treaty, which runs thus: A iii>iitriil (■(>vi-riiiiit>iit is hoiinil iini to ixM'init or HutlVr ««itIuM' lH>11i(r<>roMt to make use of its iiorts or waters an tin- Itant' of naval operations a;j;aiiist the otiier, or tor tiu*. |iiir)it>He or tint renewal or an;;nientation of military .siipplieH or arms, or tlio rcernit- iiicnt of men. The ('ounsel »»f (hvat llritain has just atldressed to the Tribtmal ob- servations, not mer«*ly with rejjard to the numlwr of men enlisted at Melbourne, but also on the subjtfct of the lejjal beariu}; of the (piestion of the.se enlistments as a thesis of the law of nations, or of that laid down by the Treaty. We frankly confess that we did not contemplate so witle a discussion. He therefore respe(;tfully bey; the Tribunal to inform us if the ncvi (|iiestions raised by Sir Houndell I'almer remain open before tlu^ Tri- liiuial. C. C'rSIIlN(5. thirteen wen- irre is reason idoah was in UANKIM SI i; •tiieileason '>ri (leselinMelliilil- L)ns les nieniln'^ (les points nnii rexactitnde il. [uioiiis. 'I"' '"" ;i. (^ni- Ic nn>t " nmmfii," employe jiar Nye, voiit dire '' niatclotK : " en «1elior>'. ."» antres litTNonnes, oOieiiM's, eliantlenrs, ft in'ne, le Slienainloali n'anrait pn ni eontinnei' sa emisiere ni, )iar eonse<|nent, eap- nner !es haleiniers ann-rieans dans le hant I'aeiliijne. .'i. (^ne, tians toni eeei, il y a en nm- violalion llaiiianti' dn droit d«»H ^ens, et nn"Mni^ ill- la loi miinii'ipale l)ri(aMnii|i\e, de I'avis nieine dn KiMivenn-nr sir Cliailes D.irlin;;, <>. t^n'eniin, et snrlunt, il y a lei niw violation nianit'este, de la pait des antmites tU', 111 (Irande-llri'taene, de la seeonde iey;le dn traite. reyrle ainsi einn/ne : "I II ^onveineiiient iientre lie doit ni periiieitie ni tolerer (|iie run di-s ltelli|;erants »i' scr\ e de ses ports on de ses ean\ eoinnie d'nne hase d'operalion iias ale einitre nn iiilre lielli^i rant : il ne doit ni peinietlte. ni luierer iion plus, i|ne I'lin des Welli;;eranls ii'iioiivelle on aii>;nieiii(< ses approxisiinineineiilH militaires, <|n'il se prociiro ties arines 'Ml liieii eiH'ui'e i|ll'il feerille des liiilnlnes." Maiiili iiant le raiide ltielau;ne \ ieiil d'adresser an trilninai des oltser- ;itii>u-i. iion-senleineiit a I'e^iaid dn ilnllh des einVileineiiis a .Mellif any of theerew of the Sea Kiiiffremaininf; on lui ; but the depositions of two persons transmitted by him in his dispatcli (Fllison, )). t.j.'j, and Allen, p. 47*.», lirit. App., vol. i) show that unv ollicer came out froiii London on tlie Sea Kinji>°, and that three of tla- crew of the Sea Kiny; remained on her. AVilliam .V. Temple, a sailor on board, jjives the next aeeount, in ;i deposition sworn to in Livi'rpool on thei lUh day of l>«'eembei', isv,:,. Jle };ives the names of two otlieers whoeame out in the Sea Kinj;- (Voni Lon«lon, of twenty-two oHIeers who Joined her fiom the Liiurel, nl ten petty (dlieers whoJoineined her from the same vessel, any tlic atlidavit of (Jeorye Sylvester (Am. App., vol. vi, )>. (JOS) that he iilsu eame out in the Laurel as a eomnnui sailor, and K-*t the Shenandoah at .Melbourne. II is name, therefore, should be ad«led to Temple's list. Assnminfj, what is unt> ft . (i(l"ii|iii' ff dfinifi' ariiva anssi >.nr If Lanit-l (uniMif iiiai« lid ft (in'il '(iiitta If Slifiiandoalin Mt'llionnif ; if se rait dfiif fnfiu'f mi nmn a a.jontfi' a la listf lU- Tfinplf. Kn sn|»pi).saiitf if ipii fst f vidfinuu- nt If fait, )|iic M. » JrattmH, siui i lo tf nne i'i(nipiij.'i'. a I'Dinpi'is Ifs ollii if IS snl>aitfrn«"v ^-s inat'-lots ft If.>» Uiffiin-M-H'wspoinitif is, il h'i'M^Ii aiifiiiif font laiilft inn fntn- ffs d ui>{!-i|iiatrf nlliri' is an Slifnandiiali, 'i'finplf Iiii fii di, di>»i' >->.;ij:t-dfii"-. .sunt ■!'. Sluiiiin- dnali. M. (iraltan dit i|nf dfs dix M'pt nialfln.'* dn 1, ihk-;, t v fv i ut iMii irfiitKiiiit pas dans ri''i|nipa;>f dn siicnjindna! ; Tfinpi*'. f ti a.if>«iti»tii .-i su n>«ff !i' iioiii df •'lylvf^lii. doniif Ifs iiiPiiis df sfi/i' nllififrs Milialtf i tn-s, iiiiit»->ni«i oi inffa'iif if ns-ponipifi^*. m''' niiittfifiit If l.aniil jMini s'linlianiiifr siii ic S|,i-n.i?>d())ih ft anssi df trnis niai'l"'^ -T^"""^"?^!, .^1 AMKKICAN ARiilMENT SIIKXAXDOAII. 535 AT MEL : ae(!oniU oi' 1 wlicti slic ,'t»nte('ii st'ii tliP <;ii'\v of >, 477.) n«' liii^on lifi". lis (lispatrli )\v that «>iit' tliivn of till- icoomitjn !» L'liilu'r, ISCm. \ Kiiifi from !U1V«'1, of tt'll soainoii iiiitl one. sciuuan ipcars 5)y tlic that he also ieiian*h>ali at IVinple's list. til, umler tlu' I, there is no < twenty-four ), twenty-two of seventeen ih." Teni\>l('. sixteen petty 1, and also of So far as tlie (111 intiiilni' ilo hiiitta If l-"),"'; (lUit. Kin;;. KiiiK i'l (hiiis s;i knivatli tl(> cf vaissciiu. l)i\ Caitc Mtiis Mi- ni aniviTciii Itiii'd , l-. (lU-)ilMi' Ic Sliiiiainloiil''' tcrnu' I i|lll|i:l'; hili'is, il n ii>i'' latrt'olli" i<"*="' It cni ircnli'ii'ii loiii .Iffivlv-i'i' lnH-i»t>iiiiii<'>"*- '1' Seji Kiiifi is concerned this acconnt is eontirrneil by Sylvester's attidavit. (Vol vi. Am. App., j). (1(K>.) The next aL.'lbouriie. which are thus stat»'d in the American Case: 'I'lii' iiiitliorof tlif Criiisc of llic Sli«Miaii
    • a1i says that ri>iirl<'i'ii wric ciilisiril in this way : ten IVoni thi- Aliiia aii Cml- ficy, oiif from tin- Susan, two from tlic Stat't-y, and otic from the Kdwaid ; in all twclvt". Here, ajjain, the trinin;^' discrepancy confirms the j>'eneral truthfulness of the recollection of each witness. According: to Hunt's account, she liad, on arrivin;;" in Melbouuie, lifty-live men all told. In Temple's alii- davit, with thcj adilition of Sylvester, we have the names of fifty four men, viz, twentytive otlieers and thirty men. Other corroboratiiif*' testimony sustains the truth of tiie statements. In the sixth volume of the American Appenolin, (paf^e tilo,) Scandall, (pajje (Mo,) Fonl, (pa«;e (512,) Scott, (paj>e OKi,) Lindbiiry, (page (J17,) Wicke, iiif'caiiioitMis-itoiiipii'is, (|iii (|iiitfrit>iit lo .Sea Kin;; dans It' iniino lint. Quant an St^i Kin;;, i-o <'oiniit<' fst conllrmt- par rtt^iV/ttrit df SylvfNttT (vol. ''. Am. .\pp., \. (W). I'll troisii-mi' it'cit. ilt- ct'l t'vi-nt'mfiit sf tiKiivf tlans mi livif iiititnli'- "('roisicit' dii Slifiiiiiidtiah " tM'i'it par lliiiit, run df sfsttflit'ifrsapri-s la Ini di; sa i'rt>isii'i-<>. ft piihlit- a l.ttndrf s f t a New Vtok fii IHOT. ]1 tht niif ltiist|irils t|iiiltfrt'iit It- l.aiirfl, il n'y avait I'll lout f n fait trollif it'rs ct tlf niatf lots tpif (|naraiitf-ilfii\. Iiommt's. iiioiiis ilt^ la mtiitit- tlf I't'tVi't'tif ii';;iilifr (( 'I'ttisit'i't' tin Slifiiamloali, p. •Jl, fiti- tlans If fas aiiii>rifaiiO. Ijf rt'cit ilt'tailh- df 'rfinplf aiiisi t'lnii^i'', tloniit- Ics iidiiis tlf t|iiai'aiiti'-ti'tiis )>frsoiiiifs Sf troiivant a Itto'tl, l.fs soiivi'iiirs df Irois ti'moins imlt'pi'iiilants stint iloiif siir 1 1- [itiiiit pri'stpif aliKiilnnifnt iilfiitiipifs. Nolls avttiis dfiix rapptirts tpiaiit an ni>m1ii'f ilfs litminifs iMiiult's fiitii' If tlcpart tin I.uiiffl «'t Tarrivt't' dii vaissfaii a Mt'll»tiiiriif : ils st- tiiMivtiil fxpniiifs ('iimiiif suit iliiiis Ic cas tlf r.\mt''i'it{iit' ; " J.'anffnr tlf la CruisiiTf dn SIii'iihikIimIi ilit iiiif tpiattn/f liniiiiiifs t'lirfiil finnlis th- hiniaiiif I'f snivatitf: tlis fiirfiit tiiis tie i'Aliiia ft 'In (iodlri'V, tlf ii\ tU' la Siis:iii ft iliiix (In Stai'fr. "'i'finplf tlans sttii (ilfiihiril, diiniif Ifs nonis df tmis homint's tirt's tit- TAIina, df tini| ilii (iodlVf.N, d'nn df la Susan, iU' dcnv tin Sfactr. ft irnii iW rr.ilnnattl, t'li tinit dim/f." Ifi t'lii'tti'f, la pftitf ditVt'ifiiff foiitiriiif I'f xactitiitif ties smivi'iiirs dt- iliaiiiif ti'iiitiin St'ltin lliint, If Siifnanditali a\ait fii anivant a MfUmiirnf. .">.'i huninifs ttnil foiiipri-. Ihiiis ratlidavit tlf 'rt'iiiplf, fii ajiintant Sil\i',>tfr. iitnis trmiviMis Its llt»m•^ dc .">."i litMiinifN, sitit '17> (itlifcis ('( no htimnifs. O'antri's tt'iiit»i;;iia;;fs fiirniliorant ff iix-f i, di'iiiniitrfnt la vt ritt' tlf i f s the lar.ilioiis. Kaiis If ti' Ntilniiif (If Tappfiitliff amt'iifain. sr trtniM'iil jiliisifiirs (ij/ii/d/'i/.'* th- pfi'- stiiiiifs t|iii tint tinitti If vaissfaii ,1 Mf Hionnii Hiat'kfll p. til.'.) till : " I'fiitlant trtiis iiiai' (H ttiiit If tfinps i|iif.j'ai ]iassi' a Imrtl tin vaissfaii, ilfs '.{."> hniniin's fin irno rom|i'Mant l'tt|iiipiiyf till tlif xapi'iir, il y in ait, ftc.ftf." II dt'flai'f aiissi, tpi'avff tpiatrf fama- niilis limit il ilttniif h-s nnms, ils eonsfiitirfnt, ptnir f s itf r il'i'tif |Minis, a sfr\ ir foinmc Idl^t'B ""'•«l'»t« siir If iiavii-f. l?olin (|i. til.'i), Fonl (p. lip'), Scandall (p. (»l.''i), Scott (p. lilt'O, 536 SUPPLEMKNTARV ARGIMENT.S AND STATEMKNTs. '>'! (psigp C'J.I,) ami IJcliiecke, (imge 0-MJ,) say the siiiiie tiling; in all twolvc persoiiH. Two of the names mentioned by IJiaekett are on Teinph-'s list of enlisted men. Adding ten to Temple's list, it makes i'l/ity, or fi\(> more than the nnmber given by lirackett as " about*' the crew. Adding it to Hunt's list it gives foityonr. An estimate derived in a roundabout way from the United States Consul at Uio de Janeiro, from the aceounts of masters of vessels eap tured by the Shenandoah, wlio had reached there on their way home. coMtirms the truth of these tigures. Jle says: "The following stale me^it in regard to the Shenandoah is made by ship-nuisiers who have been prisoners on board of her. • • • fc^ii,, iias forty three men, uearly all ICnglish, besitles the oHicers." These statements were made to (consul Munro by [)ersons who left the Shenandoah alter she had received the additions made to lier crew before arriving at Melbourne. We arejustitied in assuming that Hunt's and Temple's accounts rep resent the number of men she had on board on arriving in Meli>Mnrne. The next impiiry is how many did she lose there. roliceOttlcer Kennedy, of Melbourne, in his report dated rebruarv l.'i states that '' twenty men have been discharged from the Shenaudoali .since arrival at this port. (Brit. App., vol. 5, j). 108.) Temple gives us the luimes of two who were discharged, Williams and Jtruce, and says, in addition, " there were sonu; uumi who left the ship at IMelbourne, whose names 1 do not know.'' Sylvester says that he left at Melbourne. (Am. App., vol. G, p. GOO.) Hrackett gives us the mimes of himself, Madden, ami Flood, three in all. ISolin, Scandall, Scoti, Landberg, Wicke, and Berucke make twelve, it appears by the alii davit of Bruce (Am. App., vol. (>, j). CO.")) and of Colby (same, p. (107) that they also worked on the vessel as part of the crew, and left at Melbourne. Thus it appears that out of the twenty thirteen were pris oners who had been captured and forced to serve on the Shenaudoali, and who seized the first opportunity to leave the compulsory service. LaiidluT^ (l». fil7), Wicke (p. ('2^t), t>t Ik'ruckc (p. •5'20), dis«Mit la nl^IIu^ «'luwt', soit en toiil Tt-iiiplt; nous nvoiis 40, it'cNt-ii- tlirt- <'iiM| ilv pliiH (|iii^ lu noiiihri' «l<)iiii<'> par lirackett coiiiint^ ciniiposaMt a ixh pii" rr>i|iiipa);i-. Kii rajoiitaiit a 'a liHt*^ iUi II. ml, nous avuiiH 41, i|iii fst If (■liiiViv appiox iniatit'iloiMii' par !<■ ctMisiil iIon r.tat.s-l'iiiH a Kio .laiitii'd, d'apics li-s rociU ties inailrts (l«< \ai^Mriuix pris ]iar li> Sliciiaiiiloali, qui, en ciitriiiit cite/ v\\\, avaiciit |ias.-«- |iar ctttr vill«'. I.(< ('oiisiil (lir ; " l.i> rocif Niiivant i|iiant an Slifiiaiidnali a etc fait par iIch iiiiii tn'.s (Ic vaiNMfaiiv i|iii onl (•(('• prisoniiii-i'.s a bord de ce vaisst-aii * * II a 4'.\ lioiiinu's. pr«-M|iie tdiiH :iii;r|ai.H, untie les ollleieiH." ('e.> rt'eits tiireiit doniies an eoiiHnl Miinid parties (lersonnes i\ni avaieiit <|nitt<'- le Slienaiidtiali, aprrs ijii'll eiit an<;nient(' m>ii «M|ni)»a;;e, avant d'ai river a MellMniiiie. \i)ii> ponvdiis par eonst'iinent siippuser i|ne les eliilVres iiulii|n<'s par limit el 'reni))li represeiiiiul le iioiiilire des luiiniiies (|in' It! vaissean avail a l»onl en aiiiviinl .1 Mil tioiiriie. ('lierelu)iis iiiaiiitenaiit a ^;l\(»ir ediiiliieii il en |>eidit danscette ville. I.'t'itieier de jKiliif. KeiiiK d,v de MellMiiii ne. dans smi rappiirt dn \'.\ tV-viier, dei'liur ipi' vinyl lionnnes mil ete ren\ oyes dn Slu-nandoaii dipni.i son arrivee de den\ lioniiiies i|iii fnrenl renvo\ cis, Williams d Hriiet' : it 11 ajiiiit": " .j'ieinMe leiirs iKinis." Sil\ c^ter dit i|M'il iiiiitla le vaissi'an a M»-Ihoiirne ( Viii. App., mh (>, p. li'i'.'. ) IJraekel nmis doiiiie a\ee son iioin cenx de Madden et de I'lood, trois eii toil I ; llolin, Scandall, SiotI, Kainlltt'i^j. Wiektj el Hi riiike Jonl doiL/>;. II iiar.ul, d'aiiies les (qfidiirilH de Mnne ( .Vnt. App., vol. (!. p. 7]4Kt) et de ('(dhy ( id., p. t><*7). iiu'eus aiissi tra\aiilerent a hord dn vaissean roniiiie ineinlireH de I'l'ipiipax*' et le i|iiitt('i'eiit ;i Mell)iini'ne. Ainwi il parait .pie des viii^t liomnies, treue i-tjiit-nt des prisonnlers i|iii axaiei't ete olditri^s ile tra\ ailler et de s»t\ ir wiir le S|nMiaiid<*ti, jioiir I'-v iter niie piiin- tiou et (pi'lls Hui.sireut la premiere oeeaiioii de ipiitter ee mmv lee t'orei'. 'J AMKRICAN AKGUMKNT — .SIIENANDOAIF. .537 iill twt'lv*' 'inj»U?'s list •ty, or live v. Ailtlinp; tiHl Stati's t'sstils cup- wsiy lioiiu', s who have •three iiioii. were inuth' er she ha«l klelbonrne. fcountH rep MeU)ouriie. ■d Febrnarv Sheiiauiloali Villianis ami eft the siiip 8 that he h'lt us the names lUilall, Scott, i by tlie atli janie, p. <»U*) , and left at en were pris Shenandoali, ry service. \\i\ choMfi, soit I'll trouvout wiir l:i V4M1S -10, c'i'Nt-il l)siin» n ;»(■!( }»('■ cliiiViv ai»t»<)\ its tits iiiiiiliis pasMO piir •'•'•''■ liiit j»ui' . 11 i-oiiHul Miiuid t aii^jiiu'utt' Mill lllnnl ft TtMiivl' l:miv;ml ;i M' ' t'cVliiT. <1( . .\1>1'-. ^"' Ihidd, trnis til |ay«. 11 I'aiMit, ,,. t,(l7), iiu'ciix |t !.' tpiitti-niit :i prisonnifis M'" We have no ni(>aiis of positively kiiowin<; the circuinstames under which the others eidisted; bnt from the identity of result which will iiereafter a|>pear as derived from several independent sources, we think that they were not amonj;" the persons either referred to by Hunt or named by Temple as anion;; the permanent crew of the vessel when she arrived in Melbourne, bnt were, like the thirteen whose names we can <;ive, prisoners who had been forced into an unwilling service. We feel perfectly convin<'ed that, exce|>t Sylvester, no person was dis- charged from the Khenandoah at IMellH>uriie except persons enlisted trom captured vessels of the United Stat«'s against their own will. We next direct our inquiries to the niunbcr of eidistments made at Melbourne. (Jn the L'Ttli of Febrtiary, ]S(m, which was about a week after the Shenandoah left Melbonrne, and when the facts were tresh in his niintl, (Governor Sir Charles J)arlin^ said that the reports and statements anil li'tters from the chief commissioner of police in Victoria left "no doubt that the neutrality had been Jiatjranthj violated by the commandtM* of the Shenandoah," who had • • * received on board of his vessel, liefore he left the port on the 18th instant, a iisid, of the JWitish Appendix. In this report the detective states that live boatlomls of recruited men were seen to go on board the Shenandoah on the night of the 17th, one of which had ten or twelve men in it, of w liom two returned ; a::d that seven men had gone on board on the morning of the ISth. He concludes thus : *Mii preparing this report the detective has contined himself to facets; bnt it is stated that in all between sixty and seventy hands were shipped at tins port." The " facts " stated by the detective were true, and are supported by other proof. The rumors to which he referred were e\aggerate«l. NoiiH u'livoiiH HiicMii iiioyt-ii (In Havoir ]tnMitivi>iiioiit daiiH qii«>lli>H rirri>iistanci*s Ics antics H'«'iuV>lfHMit ; inais d'apri-s Ics n'sultats idi'iitiiiiu's, tt-ls i|ii'ils tlirivfiit di- plii- >i('tirs s«>iirccN iiitl<>|)i'ii(lantcH, t'oiiiinc imiiis If vitioiis (dii.s has, nous iiovoii.s ijiTils in- rui.saiiint pas partic dc cimix itidi(|.ii'n par lliiiil oii par 1'cinpl*t r(Hiiiii<> rotiipiisaiit i'i''i|iiipa};<' pniiiaiiiMit dn vaisscaii loisiin'il anivaa MollMniriii', iiiais I'tairiil, fDiiiini- ii's XVi'Vf.i' ditiit nous ponviiiis doniirr Ics iioms, drs pi'iHonnicrs ipii w airiit I'lc t'orrrs tit- lairc IT .service contrc Icni' ^rc. .Nulls souiiiics pai't'aitciiiciit coii\ aiiicii>. ((iTa part Silvester, ]ii'r>i>nne lie t'lit ieiivu\e 111 Slieiiaiidoali. a .Mcllioiiriic, <'\ccpti' des Ikumiiics eiiriiles cmitre Iciir ;:i<' dans des wiis-scaiix capiiiri's. .Nous iir Ic iioinlire dcseiiiiilciiieiits tails a Mel- 'llllllC. I.e 'JT tV'viier IHCc'i, mic seiiiaiiie einiroii a|ire«. le depart dn Slieiiamlnali de Mel- ''•iiinic, et alors ipie sa iiieinoirc «'lail eiK-ore traiclie. le ^oin einetir >ir Cliaries |)arliii); liiijara ((lie les rapports et Icttres dil coiiiiiiisMaire cliel' de polici- a " Xietotia lie lais- ■iiriit aiieiiii iloiitc ((lie la iiciUralite cut I'te \ iolei' d'niie iniiiierr lla;;raiite par lecoiii- iiiaiidaiit till Shciiandoali ipii * ** a\ait ri'i.ii a Imid de sun \ aissiaii a\'aiit deipiitler I'- iMUl le I- 111! iioiiilire coiisideralde d'lioinines desi ines a aiii;iiieiiier son ei|iiipaf;e.'' I'll it. .\|»p.. vol. I. p. .">(>.").) I.e ra|ipi>rt dont il est ici <;iicstioii, est prolialdeineiit lelui ({h I'oii troiivr a la |>aK<> IT dn voliiiiie ."> de ra|i|)ciidicc liritaiiiiii|iii-. I)ans ce ra)ipoit, h- thtirlin declaif ■iii'ciii(| liateanx reinplis d'hoiiiincs out i'to . iis se diri;;caiit .siir le Slieiiaiidoali pen. 'Uiit la unit till 17: I'liii tl'eiiv avail a liord di\ a doii/e lioinines, dont deux seals n-- vinniil, et (pie sept lioniiiies s'l'taieiit enilianiiK's Ic IH an matin. II ferniiiie uiiisi sill rapport : " Kii preparant cc rajiport, le f/(7('r//i'(' s'est lioriK- aux tails; inais I'ou lit i|ireii tout .soixaiitc a soixantc-di.v liormiics sc soiit eniUanpies siir <;e vaissenii, I 'l;iiis ce port." Les tails citt's par le dilrrliir Ho?it vrnis ct corroliorcs par d'autros prciives. Lch ''iiiits dont il parlait 1 taieiit ifxa^t'it's. Fr^H SI rri.KMKXTARY AKOl'MENTS AND STATEMENTS. V ■ I The author of the " Cruise of the SheiisuHloali " sa.vs that '* the sliips t-'oinimny had re(?eive(l a mysterious athliliou ot forty-tive men." (Cinisc of the Shenandoah, jj. 11. {, referred to in the Ameriean Case.) This would seem to he about the nundter seen by tlie deteetive's inloi tiiants. Temple jj:ives the names of thirt<'en petty otHcers, nineteen stMiiun. seven tirenien, and thre*; marines; in all, of forty-two persons who were reeruited at Melbourne. This aceount ajjrees nearly with Hunt's, iiml is ineidentally conlirnu'd by Forbes' atlidavit coneernin;^ Uunuin*;, Hv;iiis. and (Jreen, referred to in the American Case. Aceordin;; to the fi;ijures to l»e ^fathered from Hunt's narnitiVr, in various jiarts of it, the Shenandoah then had, after the Mclbounic ic eruitments were added, one liuiulred and one ollicers and men. AccokI iuff to Temple's aircount, she liati twenty-tive ollicers, thirty petty olVircis, twenty six seanuMi, nine firemen and tiiree marines; in all, ninetytliicc persons. The sli;;lit diserepaney may b«' aceounted for by the fact that Hunt, in his rapid nairative, makes no nu'Ution td" the discinn j^e of men at .Mel bourne. On the l*7th of May, the Shenandoah captured and burned the wiialt r Abijjail. Mr. Kl>enez«'r F. Nye, the master of the Abi;;ail, in an alii davit sworn to on the 7th of September, 1S71, says: '• The Shenauiloali at the time I was taken on board had a fidl complement of ollicers, bin was very much in want of seamen, havinjij only forty-live or fifty, not half the number she needed. The ollicers told nu> that her full coniple ment of oflieers and crew was one hundred and eijjhty-live, but at tliat time she had one hundred and live all told.'' It appears from Taz, Ho«lerick, Steven son, ant! ]{ossel, seamen. Accordinj; to the (^dcidations derived from Hunt's narrative, therefore, she should have had at that time, with this addition, 1Uur lie la irosiiro «lii 8li<-ii!iii<1oah dit <|in» " lV(|iiii»a;;«' avait rt'vu niic au;;- nieiitation iiiystt'riisu.s*- iiipit'rs i-t :t soliiats (Ic inariiif, fii tout V.\ Iioniine.s rt'ciriitOH a McllMHinic. Ci- n'-cit s'acronlt' asse/. a vet- cfliii ilt- Hunt ft m' troiiv*^ inridt-iniiu'iit rtinliniH- par Vufi- ilarit iKi Forln-s an snjet <\v iMinninji, Kvans ft (iiffii fitos dans If cas df l'Anifiit|nf. Sflon Ifs fliitlVfs (|nf Ton piMit n-f nfillrr ! Ifs eniulfiuf uts a Mflliouiiu-, 101 otliciii" ft niatflots. Sflon If K'fit df Tfuiplf. il avait '!'> oliiricis. ;i() oHii'lfrs Mnhaltfiiifs. "id niatfluts. ',' ft :t soldat.s (if inarinf. <■ n tout 'X\ lioniiucs. I>a ]»ftit«; dilloifnif jifut s'fxplii|nfr par If lait <|Uf Hunt, dans son ivrit laiiidc iir fait aufuin; nuMition dii I'fiivoi dfs lioniiufs a Mfllionrn*-. Lf '27 niai. If Slifuandoaii jtrit ft Inula If lialc inif r Aliijiail. M. EhfUfzor 1'. Nyf. If niaiti'f df lAln^aTl, dans nn «7/i(/((r(7 dn 7 sfptfinlnf 1"'71 dit : " Lf Slifnaiidi>;ili, i I'fpotlUf oil Jf fii.s pris a iHird, avait nn nonilu'i- coniplft d'otlicicrs niais niamiiia:! [)as.salilfnifiit df niatflots. tai- il n'fU avail ipif «iiiaranlf on tiniiuantf. pas la nioitu ilc CO <|n'il t'allait. lifs oHirifis ni'ont dit i|nf Ifur vi'-iitablf ftlfftif lioiniiifs.'' I II parait, d'aiiris r((/?((/((n7 ilo Tfiiiiilf. qn'apifs avoir <|uitt(' Mclbonriif, ft avatit l;ii oajitnif df rAlii;;aii, I'lMiiiipaK*' tut an;fnif nt('' par !"«■ iiiliauf liage 3 •JCi ni;iti'lt>ts, ; i)Ut eoiiil»ii> • consequent avoii Acconliii}; to Temple's account alie luul one liundred jiiul one such persons, of whom JUty-seven were ofliiiers and petty otllcers, and forty- tour were either seamen, marines, or firemen. This result coulirms the accuracy of Mr. Nye's estimates ami recollection in a striking; manner. After that time. Temple n'presents the iSenandoah as receivin<;f re- cruitments from captured vessels, as follows: one otilcer, twenty-one seamen, one fireman, and nine marines: in all, thirty-two peisons. He represents the vessel as arrivinjj at Liverpool with one hundred au«l tiiirty three persons on hoard. in an otticial report made hy (,'ai>taiu I'aynter to the rontroller-Geii- (lalofthe IJritish Coast (luard, dated Novend)er 7, 1Siitt'ii«'.v, liiilloi-k, lirowii, Miimoii, Hunt, Minor, C'olton, Smith, Howanl, (Juy, Lyncih, O'iSlu'ii, Alcotf ; 10 petty ortieorH : Morun, Wiirrcn, Hroii- nun. Hall, Crawfonl, WifjginH, F<;nn«*r, Grittith, Fox, JoncH ; 2 tireuien : MurHliall, llnw- linHon ; :{ Nt*auien : Siinptton, Rone, Oar — :{7. Came out in the Sea King — 2 officers : Whittle, Hutchinson ; 1 seaman : .Tones ; 2 lin-- mcn : Martin, Clark — 5. Knliated from captures made before arriring at Melbourne — 9 potty ofHoors: Rowe, Riiy- mond, VV»rt, Duw, Hanson, Taft, Hopkins, VVillianis, Jtnice ; :) seainon : Wav. Blacking, Fl(»y«l— 12. IHHchurged at Melbourne — 2 petty oOlcors : Williams, Bruce — 2. JCnlinted at Melbourne — I officer : Bhickar ; 13 petty officers : Dunniu);, Stronjj, Collery, .Tames, Spring, Burk, Exshavv, Glover, McLaren, Marl(»\v, Smith, Alexaiiiler, Cauniii); : 19 seamen : Collins, Foran, Keruey, McDonald, RiinHilale, Kilgower, Swanton, Moss, Fegan, Crooks, Siinins, Hill, Hutchinson, Evans, Morton, (Siff'oril, R:>ss, Williams, Sim- mons; 7 tireinen : McLane, Ihice, (ireen, Burges, Mullinoaux, Houtherlanil, Siiattoii ; :tmarin", i)ar la leftre du gouvenu-nr sir Charh^s Darling; <>", par h' rapport dn drteclirv Kennedy: 7", par Vo(liiliirit de Forhes ; H", |)ar Vaffidarit de Nye, le comniaixlant de rAhigai! ; St", imi le rapport tU\ eajtitaine I'aynter an coiitroleur general des gardes-cAtes ; 10", par lel'ait i|Uo le capilaine I'aynter ne jn'it n'ussir a en (Mintesttsr rexactitude, lorscju'll avait lt> raisons el les moyens de U^ tairc. Si Ton doit eroiie ee recit, 41? p(MHonnes recrut/(!s j\ Melhourne, en violation des tit • voirs de la Grande-Bretiigne coninie pnissanee neutre, s'eml»an|uerent sur le Slieiian- doah dansee i)orf : ce furent 1 offieiei', llJofficierssuhalternes, IShnatelots, 7 int^c anicifiis- pompiers et trois soldats de marine, et, sans exception, personne « : iSwiintoii, M-is!*. \Vil\iann, Sim- tihiiul, Shatttm ; itvomcta-. PaiU: Hawthorn, Sca- •rorv, Hill, iKai!;<.)",i)ai ,; 100, i»arl«li»" >ra- llH CO p<»>'t '"' , 1 1(! service a 1""'' I,. (Ics docuuiont> pris coiniiic iinc IX.-AIUiUMKNT OFSIU KOI NDELL PALMKK ON THK SIMCCIAL QUESTION AS TO THK LKiJAL EFFEirr OE TIIE ENTIIANCE OF THE FLOKIDA INTO THE POUT OF MOBILE, ()N TIIE RE- SPONSIBILITY, IF ANY, OF (;ilEAT BRITAIN FOR THAT SHIP. It iH important to consiiU'r tlie principle applirahh^ to tlie .s|i4'i'ial(;as(> of the Florida, after hIio had entered the Coiileilrrate port of Mobile, and there remained several montliH and (Mili.sted a new (new, befoir cruLxiny m' eommittin}; hostilities^ against the Nhippiiif; of the United Hta'.es. If tlie anteeedeiit eii(Uinistan(!t's, ap|)lieal)le to this vessel, are siu'h as (in tlie view of the Triluinal) tojnstify the eoii<;Iiisioii that any want of du«' ililigeiiee, in resjM'ct to her, can be imputed to (Jreat Britain, tlie ipies- tioii arises, whether hucIi want of duo diligence involves, as its Icgiti- iiiate eoii.sc«picnce, responsibility for her acts, in the viewof thefactthat •ilic never crniscil or coniHiitted any acts of hostility aj^ainstthe IJnitetl States until after she had been for u Ion;; interval of time in a('onfed- iinte port, and had thence issued as a duly commissioned ('onfederate (•miser, and in an altere«l condition as to her capacity for war. The facts which oc urred as to this vessel are really not distinguish able, ill princi)>le, from the t^ase of u shi|) of war transported from a I neutral to a belligerent country by a breach of blockade, manned and made capable of cruising for the first time in the belligerent (Country, iiiul afterward actually cruising fr<»m theiu^e. It is certain that the crew which was hire«l to sail with the Florida from Fnglaiid to Nassau, was not hired, and did not serve, for any purpose of war; it is e«pially cer- I lain that no sutlicient crew for 8U4;h ])urpose was obtained by her in the llahanias, or elsewhere within any Itritish possessi«>n.' She direparatioii liad been Jilready made within JSritish territory ; but she remained there liiiore than four months, from the 4th of tSei)tember, 180.'$, to th«^ ir)th of lamiary, 18(14.-' She there engage«l the crew which enabled her to go 10 sea, and to commit hostilities against the shipping of the United I States.-' On what principle would such a i^ase as this have been dealt with by |iiitornational law, it the question ha«l not been one of national respon- Mbility, sought to be cast upon (Jreat IJritain, but lia«l arisen uiuler the Ivoll-established rules applicable to neutral citizensconcerned in breaches ]i)t blockade, and in the conveyance of contrabainl of war to an enemy * |lf the direct agents in conveying the Florida into Mobile (supposing pile had been brought in by and under the charge of another Jiritish p) would not have been under any continuing responsibility by iiiter- liiiitional law, after leaving her there and returning to their own country, Ibw can it be said that such a continuing responsibility ought to attach Inpon the !i;ili<»n from whose territory she was sent out, merely for want jofthe u e 01 Uie diligence to prevent that transaction? Professor ' United States App., vol. vi, pp. 307, XM. ■ Ibid., p. ;m. i"i Brit. App., vol. i, pp. 117, ]'20-Vi2. w ■.%. w IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I Ui IM IIIII2 2 :■ m 11 2.0 1.25 1.8 U III 1.6 Photographic Sciences Corporation y m // ■'^V A^^. ^^^ :/. /A f/. ^ # Li>^ V ^-^ ^ v> .A C'^ .^ ^ ^^K # n WEST MAIN STREET WEBSTER, NY. 14580 c^*; cra-4503 I o42 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. ur ii > BUnitsclili, in his paper on tlie Alabama question, (" Kevne de droit international," 1870,) says, (page 473:) II lu^ faiit (railleiirs pas perdre de vne (^ne tons c<^s elVets desastivux soiit en iJiciiii) r lieu iniputablHS, nou pas an fjouvenienuMit anjilais. iiiais aiix cioisc-urs oiix-inciiics. I'ersonne n'accustMa le ff'*'i^'ei"neiiieiit anjj;lais d'avoir ^onin' niisHioii do dotrnii.' lis iiaviros dc coinmoice amt^ricains on d'avoir, par stw ajjisseineiits, tMitravt- on cniloin- niaf^c' la marine aniericaine. Co qne Ton i»ent Ini reinoclier a Iton droit, en .sniiposanr vonv(^s, CI! n'l'st L avoir (^(iniiit'ot •ur soi'tio di". sou iient un rapport 3(1 by intorurt- tral vessel to oyage. "The ! vessel fuvtbei' ill any part of i, p. 151.) As iuieiits," (Law- Scott, is, tliat the iijre to an (Mrmuv's . cannot j>eui'ridl.v in- ,ry to wait till tlic eyond that, if tlif oyage, the penalty e same learned 1(1, carried trom destination, in lere the retain return voyage, of the Uosalic learned author or, in order to siis- fnt of seizure. To Intiuues, would l)f Ljre cargoes of the [ininuicated hy tlu' Inearcr analogy lonsible for the I January, l'S(U. volume of Mr. . States, p.lTl)- or conclusion. , United States ^ war service of j Public,") which \ United States, [U less whether 3f her capiiires which she hail Uht into a port | Blllatachli. BRITISH ARGl.'MENT FLORIDA AT MOBILE. ;) 43 of the United States, was so disconnected from her ovifjinal illegal out- tit, by the fact of her having been at Buenos Ayres during the interval, as to make it proi»er for tlie Courts of the United States to refuse to exercise jurisdictiou for the purpose of restoring that prize to her original Portuguese owner? Ui»on the whole circumstances of the case tills question was determined iu the negative. Tlie material facts being that the Irresistible was built at Ualtimore, in all res[>ects, for purposes of war; that she there eidisted a crew of about fifty men, and took in a sutiicicnt armament for the purpose of the crui.se in wliich she was afterwards engaged ; that she went to Buenos Ayres, staid there only a few weeks, went through the form of discharging, but inunediately afterwards re-enlisted, substantially, the same crew ; obtained no new outfit or armament ; took a connuLssiou from the Government of Buenos Ayres to cruise against Spain, but sent hack that mmmmion on the very next day after leaving the port, when the officer in command produced a wholly different commission from General Artiyas, as chief of the '"'■Oriental Republic,^'' under which he proceeded actually to cruise. It was with refer- ence to this state of circumstances, (so different from the facts relative to the Florida at Mobile,) that Chief Justice Marshall held that this was a colorable, and not a real termination of the original cruise. The principle, (he said) is now finally settled, that jnizes made by vessels which have violated the Acts of Congress that have heeu enacted for the preservation of the neutrality of the United .States, if brought within their territory, shall be restored. The question therefore is, does this case come within the principle ? * * » >' ^* -V * Thin Court hnn iktit dirided that the offciixe adhcrcx to the irsncl, irhafcnr rhnin/cn uuiy havt taken plaee, aiideainiot hedepoxiled at the lermiiiatioii of the rniixe in prepay in [/for ivhieh it iruH eoinniitted; and, as the Irresistible nnide no i>rize on her ]»assage from BaltinH)re to the River La,riata, it is contended that tiie otiense wasritain and Spain were liable, under such circumstances, and that the liability of both was indefinite and unlimited till the con elusion of the war .' Will the Tribunal give its .sanction to such doc trines as these, not only without any aid from authority, but in opposi tion to all the light which is derivable from the reason and analogy of the doctrines of international jinisprudence, and of the jurisprudenec of the United States themselves, in other cases, which ought to be gov erned by similar principles ? The legitimate inference, from the analogy of the law as to breach of contraband, is, that any responsibility which Great Britain may have been under as the neutral State from which the Florida was introdiiced into Mobile, came to its natural end when (having previously committed no act of war) she was once at home iu that port, and became bona Ji(k incorporated, within their owu territory, into the naval force of the Con federate States. The legitimate inference from the doctrine of Chief Justice Marshall, in the case of the Crran Para, is, tliat having been once * ''.' BRITISH ARGUMENT — FLORIDA AT MOBILE. 545 be v.eve hold leaving Mo i the conclu- must be un- atteiise couM 3W ; it wjis in crew, and so [\ she had re al and incom- under circuin r diligence on vin be charged neiple involve titres made by some want ot oree whatever ^impossible it • force was the arge a degree [ns of offense I in a Spanish fities ; if, after the first time. hence to prey led that Great jeeu contended ircumstanccs. jd till the con ,u to such doc but in opposi |nd analogy ot jurisprudenee ght to be gov- bona fide received into Mobile, as her proper port, and having been there manned, and dispatched from thence for her subsequent cruise, an effectual line of separation was drawn, for all legal and international purposes, between everything which had occurred before she entered iato that port and everything which occurred afterward ; and that (no hostile cruising against the United Spates having taken place during the interval between her leaving Liverpool and her entrance into Mo- bile) Great Britain had no just cause for afterward refusing to her the ordinary immunities aud privileges of a duly-commissioned ship of war of a belligerent Power, cud certainly was not under any obligation toward the United States to do so, even if a different rule would have been applicable to such a ship as the Alabama, which was not dispatched for her cruise from any Confederate port. As bietween Great Britain and the Florida the case stood thus. Her acquittal at Nassau was conclusive, as a judgment in rem, so as to make it unjustifiable and impossible for any British authority afterward to re- vive against her the causes of complaint which had occurred before that acquittal ; and her subsequent reception of an armament at Green Cay, not being accompanied or preceded by the enlistment of any crew suf- ficient for hostilities, and not being followed by any warlike operations before her entrance into Mobile, though it was an infringement of Brit- ish municipal law, was not such an offense by genera international law as to call for or justify war or reprisals against the Confederate States, nor such as to adhere to the ship through all subsequent circumstances. The responsibility of Great Britain to the United States, in respect of this ship, could not exceed the responsibility of the Confederate States, I ill respect of the same ship, to Great Britain. RouNDELL Palmer. 35 c X.-REPLY OF THE COUxXSEL OF THE UNITED STATES TO THI- ARGUMENT OF HER BRITANNIC MAJESTY'S COUNSEL OX THK SPECIAL QUESTION OF THE LEGAL EFFECT, IF ANY, OK THE ENTRY OF THE FLORIDA INTO THE PORT OF MOBILH AFTER LEAVING THE BAHAMAS, AND BEFORE MAKING ANY CAPTURES. '; 'i The Florida, after her illegal outfit as a ship of war in the iieiitial territory of Great Britain, and the completion of her arraament, warlike munitions, and crew from the same neutral territory, took the seas undei a Confederate commission, and after an unsuccessful attemjit to add to her complement of men by violating the neutrality of Spain, slipped into Mobile by a fraudulent imposition upon the blockading vessels, which her British origin enabled her to practice. She was there imj)ris- oned four months before she was able to elude the vigilance of the blookaders, and she obtained there, it is said, some addition to the force of the crew which she had when she entered that port. Her captures i were made after she left Mobile, and a question of public law is now raised upon this state of facts, to this effect: " Is the responsibility ot j Great Britain to the United States for the depredations of the Florida relieved by this visit of that cruiser to a Confederate port under the cir- cumstances in evidence ?" The question assumed that, but for this visit, | the neutral responsibility for the acts of this cruiser would exist, and seeks to arrive at the significance, if any, of this visit in relieving tlie j neutral from such responsibility. The Counsel of Her Britannic Miij esty has discussed this question, and we now offer a brief reply to Ins Argument. I. It is said that a limitation upon a neutral's responsibility for the acts of a cruiser, for which the neutral would otherwise continue to bo responsible, may be found in the principle of the rule by which neutral trade in contraband of war and belligerent right to prevent it are regii lated. This rule is understood to be, that the belligerent right to inter cept or punish trade in contraband, carried on by a neutral, must bo| exercised during the guilty voyage, and that it-t termination ends the be! ligerent's redress and the neutral's exposure. The view which we take j of this suggestion makes it unnecessary to consider whether the more strict or the more liberal measure of the duration of the guilty voyage j is the proper one. It seems to us that it needs but little attention to the nature of tliisj struggle between neutral nght to trade and belligerent right to restrict j and defeat that trade, and to the solution of these conflicting an-l com peting rights which the law of nations has furnished, to reject the an alogy as valueless in the present discussion. Neutral nations properly insist that their trade is not to be surrendered! because of the war between the two belligerents. But they concede tliat j the belligerent Powers, as against each other, may rightfully aim at tbej restriction or destruction of each other's commerce. How far the bellig- erent may press against his enemy's commerce, which, in turn, is also! the neutral's commerce, and how much the neutral must acquiesce in m commerce being dealt with in its character of being also the eneiuy'sl AMERICAN APGUMENT — FLORIDA AT MOBILE. 547 .TES TO THE ISEL OX THE IF ANY, OF OF MOBILE, \\\Yi\m ANY ill tlie ueiitial anient, warlike the seas undei empt to add to Spain, slipped iading vessels, as there ini])ris- igilance of the ion to the force Her captures iblic law is now responsibility of , of the Florida rt under the cir- )ut for this visit, roukl exist, aiul in relieving tlie Britannic Maj •ief reply to his ) Insibility for the continue to bo which neutral I [-ent it are regu- it right to inter leutral, must be I ,11 ends the bel which we take ! lether the more | ,e guilty voyage] ^ nature of this \ right to restrict licting and com lo reject the an- J be surrendered hey concede that bfuUy aim at the liwfarthebelli}!;- in turn, is also ^ acquiesce iu m llso the enemy's' commerce, is the problem to be solved in the interest of preserving peace with the neutrals, and restricting the war to the original belligerents. The solution arrived at, and firmly and wisely established, covers the three grounds of (I) neutral trade with ports of the enemy under actual blockade ; (2) visitation and search of neutral ships to verify the prop- erty, in ship and cargo, as being really neutral ; (3) the interception and ondemnation of contraband of war, though really of neutral ownership and though not bound to a blockaded port. It is with the last only that we have to deal. There were but three modes iu which the consent of nations could dispose of this question of contraband trade. First, It might have been proscribed as hostile, and, therefore, criminal, involving the nation suffering or permitting it, or not using due diligence to prevent it, in complicity with and responsibility for it. 'This has been contended for as the true principle by able publicists, but has not obtained the consent of nations. Second, It might have been pronounced as free from bel- ligerent control as all other neutral commerce, submitting only to veri- fication as really neutral in ownership, and to exclusion only from block- aded ports. This has been contended for, but has not been accepted. The only other disposition of this contlict of rights and interests at all reasonable is that which has been actually accepted and now consti- tutes a rule of the law of nations. This limits the right of the bellig- erent, and the exposure of the neutral, to the prevention of the trade in contraband by warlike force for capture, and prize jurisdiction for for- feiture. Manifestly, the natural, perhaps the necessary, limit of this right and exposure, by the very terms of the rule itself, would be liayrante delicto or during the guilty voyage. To go beyond this would, in principle, depart from the reason of the actual rule and carry you to the ground of this trade being a hostile act in the sense in which the consent of nations has refused so to regard it. But, to adhere to the principle on which the rule stands and .attempt to carry its application beyond the period of perpetration, would involve practical difficulties wholly insurmountable, and encroachments upon innocent neutral com- merce wholly insupportable. How could you pursue the contraband merchandise itself in its subsequent passage, through the distributive processes of trade, into innocent neutral hands ? But, while it remained ia belligerent hands, it needs no other fact to expose it to belligerent operations, irrespective of its character or origin. Again, how can you atfect the vessel which has been the guilty vehicle of the contraband merchantlise in a former voyage, with a permanent exposure to bellig- erent force for the original delict, without subjecting general neutral trade to inflictions, which are in the unture of forcible punishment, by the belligerent of the neutral nation, as for hostile acts exposing the neutral nation to this general punitive harassment of its trade ? It will, we think, be readily seen that this analogy to contraband trade, as giving the measure of the endurance of the responsibility of Great Britain for the hostile expedition of the Florida, is but a subtle form of I the general argument, that the outfit of the Florida teas but a dealing in (ontraband of war, and was to carry no other consequence of responsibility I than the law of nations affijced to that dealiwj. But this argument has been suppressed by the Kules of the Treaty, and need be no further I considered. II. The criticism on the celebrated judgment of Chief Justice Mar- I shall, in the case of the Gran Para, does not seem to shake its force as authoritative upon the j)recise point under discussion, to wit, whether a visit to a belligerent port terminated the neutral's duty and responsi- 548 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. \P I r\ 1 ♦ bility in respect of a vessel wbich, in its origin and previous character lay at the neutral's charge. It is not profitable to consider the special distinctions which may be drawn between the facts of the Gran Para and of the Florida in this respect. If it is supposed that other circuin stances than the mere visit of the Florida to a Confederate port divested her of being any longer an instrument of rebel maritime war, furnished from the neutral nation, we fail to find in the evidence any support to such suggestions. Certainly, the fact, if it existed or was shown by any definite evidence, of the fluctuating element of actual hostilities, or navigation in the ju'esence on board of substituted or added seauien, does not divest the cruiser, its armament, its munitions, and its setting forth to take and keep the seas, of their British origin and British responsibility. These all continued up to the violation of the blockade, which they enabled the Florida to make. They equally enabled it to take and to use in the hostile cruise the enlistments at Mobile. Yet, if there be anything in the learned Counsel's argument, it comes to this: that the seamen enlisted at Mobile became, thereafter, the effective maritime war of the Florida, and the cruiser and her warlike and navi- gable qualities "suffered a sea change," which divested them of all British character and responsibility. This reasoning is an inversion of | the proposition, Omne principale ad se trahit accessoriuin. III. As a matter of fact, the evidence concerning what happened at Mobile by no means exhibits the crew with which tne Florida left Mobile as original enlistments there. The force she took from Nassau, aud which enabled her to make the port of Mobile, must have adhered to j her. All the motives for such adherence continued in full force, and in a port without ships or trade, and so absolutely closed as Mobile was, | there was no possible chance for them, as seamen, except to adhere to the Florida. The evidence does not contain any shipping articles,] either at Nassau or at Mobile, and the list made by, or for verification by, Thomson at Liverpool, in reference to prosecutions under the For- j eign-Eiilistment Act, was made only in reference to nationality and the l)lace where, within Thomson's knowledge, (who did first join her at Mobile,) he found them connected tcith the Florida. Very possibly a form of enlistment or engagement, as from Mobile as the place of departure, j if they could ever get out, for the purposes of wages or otherwise, may j have been gone through at Mobile, though it is not so proved. A pernsiil of Thomson's affidavit will show that it, aud the accompanying list,! relate only to crew dating on the cruise from Mobile, or from later recruitment, and that he imports to give no evidence that there were I not re-enliiitments at Mobile of her former crew, except in his own case,! or by incidental inference, perhaps, in some others. IV. The learned Counsel diverges, as it seems to us, from the point I open for discussion into a somewhat vague inquiry as to what shoultl be the consequences in respect of indemnity to the United States, from the responsibility of Great Britain for the violations of her obligations as established by the three Rules of the Treaty, if the Tribunal should! find Great Britain so responsible. We have considered this subject in our Argument, submitted on tliej 15th of June, and need not renew th.at discussion unless it is required! from us. Of course minute and artificial reasoning may attempt toj make out that the last man essential to a crew for navigation or fighting,! or the last rope or spar which she could not spare, was the guilty cause! of all a cruiser's subsequent depredations, and that all preceding! structure, fitment, armament, munitions, officers, and men, are absolved] from any share of the g lilt. This reasoning may point the wit of tlie AMERICAN ARGUMENT FLOKII'A AT MOr.ILE. 54i> proverb that " it is the last ounce that breaks the camel's back," but will uot go much further. The response is too itn mediate. What preceded is what gives the place and power for the casual incorporation of the new iitom, and the preceding preparations laid foundation for these casual [ind fluctuating elements of prosperous war, and therebj', as well as di- rectly, for the war itself. Again we have only need to repeat, ^^Omne principale ad sc trahit acccssoriumy The provisions of the Treaty plainly indicate what the responsibility for indemnity should be if the responsi- bility for fault be established. C. CUSIIIKG WM. ]\r. EVARTS. M. E. Waite. P""~ '■': i Ml t (-■ til r XL-ARGUMENT OF SIR ROUNDELL PALMER ON THE CLAIM OF THE UNITED STATES FOR INTEREST BY WAY OF DAM- AGES. 1. The question of the allowance of intoreist on the sums cluimcMl in respect of their alleged losses by the United States, is one of grave im- portance, both in i)riuciple and in amount. It has not hitherto been discussed, with any precision or fullness, by either party. By Great Britain this demand has been simply demurred to in i)riuciple ; it was thought premature to enter into any detailed argument on that subject until some liabilitj' should have been established, which would properly raise the question. The United States, in their Argument, presented on the 15th of June, have suggested (paragraphs 484-'5) some reasons why, if a gross sum is awarded, "interest" should be "awarded by the Tribunal as an element of the damage ;" but these reasons are very short and vague, and no attempt has been made to develop them in such a manner as to be of any real afpistance to the Tribunal. 2. It is necessary to bear in mind what it is which the Tribunal has power to do in this matter. Under the seventh Article of the Treaty, on finding that Great Britain has failed to fulfill any of the duties i)re viously mentioned, in respect of any of the vessels, the Tribunal " may, if it think proper, proceed to award a sum in gross to be paid by Great Britain to the United States for all the claims referred to it." If it does not award a sum in gross under this Article, the duty of examin- ing and of ascertaining and determining the validity of all the claims brought forward, and " what amount or amounts shall be paid by Great Britain to the United States on account of the liability as to each ves- sel, according to the extent of such liahility as decided by the Arbitrators,^^ will devolve upon Assessors, under the tenth Article. It may be that the Tribunal has power to decide, if it should think it right and just to do so, that on all or some part of the principal amounts of the losses for which Great Britain may be found liable, when ascer- tained and determined by Assessors in the manner provided by the tenth Article, Great Britain should further be liable to pay interest at some rate or rates to be fixed, which interest would, in that case, have to be computed by the Assessors, and would be included in the sum or sums finally ascertained and determined by them as payable by Great Britain. But it is indisputable, on the other hand, that, under the ninth Article, the Tribunal has no power to direct any interest to be paid upon any gross sum which they may think fit to award. It is one gross sum only, to be paid in coin within twelve months after the date of the award, which they have power to allow. The Counsel for the United States appear to be sensible of this, when they assume in the passage of their Argument already quoted (page 484) that "interest will be awarded by the Tribunal, as an element of the damage ;" the mean- ing of which evidently is, that they ask the Tribunal, when fixing the amount of the gross sum (if any) which they may award to be paid, to take into consideration, and to include in such gross sum, (among other "elements of damage,") some allowance in respect of interest upon the losses for which Great Britain is held responsible. BRITISH ARGUMENT INTEREST, 551 3. Wheu atteutiou is directed to the uatiire of tlie process by which ouly the Arbitrators can arrive ut any gross sum to be awarded against Great Britain, and to the materials or "eleinents'- available to them tor the purposes c.*' such an award, it will be clearly seen that they can- not, without ilisregardiny eyery principle on which the doctrine ol' interest ordinarily rests, make any sucli allowance. Instead of being "confornuible to public law," and " recpiircd l)^^- ])evnianent considera- tions of equity and justice," this demand can be demonstrated without diUiculty to be Just the reverse. The proots, however, of this pro[»()si- tion wdl l»e better undei'stood,if, in the lirst instance, we ascertain the rules of civil jurisprudence, ai)i»lical)le to the subject of int(!r<'st. 4. I'ulting aside those (tases in sviiich the lial)ility of an individual to pay interest rests upon an express or iniplie«l contract, or upon posi- tive legislation, it may be stated generally, that interest, in tlu! proper sense of that word, (;an only be allowed where there is a juiucipal del)t, ot li(pudated and asccrtaiiu'd amount, detained and withheld by the debtor iVoin tln^ creditor altnnish ne;;lip)nce, tortious, or I'randulent conduct. In tin; lirst cast! il is reeovcralijr as nuitter of law. In the secoml case it rests entirely in the pleasure of tlie jury, Ho then states the rules of the Eiijjlish law, that " all contracts to pa.N undoubtedly ^ive a ri^jfht to interest yW>wj the time when the i)rineipal / payment, and there is no contract, express or implied, that interest sliiiil he paid, the Kufflish ride, independent of statute, is, that it cannot Itc claimed." ' This latter ride does not appear to be adopted iu the greater nuuihei of the United States. "There is," saysMr. Sedgwick, " c(msideral)lcrtinlliet and contradietiou hetwcmtln English and American cases on this subject. But, as a general thing, it: may be said that while the triljunals of the i'ornier country restrict tliemsehcs gi^neially to tlmsf cases wlu^re an agnienient to jiay interest can be provt^l ov inferred, the couits of the United States, on the otbei' hand, have shown themselves nnirc liherall;, disposcil. niakhifi the allownme of inlercHt nuin' nvurUj lo dcpi'iiil upon thf. I'qnifij of the case, and not requiring an express or implied )iroi)iise to sn-itaiu the claim. 'V\n' leading dill'iMiiicv seems to growout of a different coufidcriitioii of tin* nature td" the nioiwy, Thi Jino-imn cases look upon the itiimfifas ihv .itcessarii hicidciil, the natural f/rowth, of the mniuii, ond therefore, incline to give it with the prineipnl ; while the English treat it as sometiiiug dis- tinct and independent, and only to be had by virtnt^ of some positive agreeuuiit." •' The American rules for the aj)plication of the principles recognized in their courts were thus stated by the Chief Justice of New York, iiiii case in which the whole subject was carefully examined : From an exannnatiou of the cases, it seems that interest is allowed: (1) Upon a special agreement; (2) Upon an implied prouuse to pay it: and this may arise iVoui usage between the p.irties or usage of a particular trade; (:{) When montij is withheld against the will of the owner ; (4) 13y w'ay of i)Uiushment, /or any illegal conversion, or hw of another's projjertij ; (,5) Upon advances of money.'' in Connecticut, similar propositions were laid down : (1) Interest will be allowed, when there is an expres.s contract to pay it; ("2) Such contract may be inferred from usage, special or general ; (:?) U'herethere is a contrail lo pay money on a day certain, and the agreement is broken, interest will be allowed by wuji of damages, as on notes, ttc. ; (4) When goods are sold, to he paid for on a day certiun. interest, in like nuiuner, follows; (5) Where money is received for the itse of another, and there is neglect in not paying it, interest follows ; ((1) U here money is obtained by fraud, '\n- terest is allowed ; (7) IVhere an account is liquidated and balance ascertained, interest brginn to run ; (8) Where goods are delivered to be j)aid for, not at a day certain, but in a rea- sonable time, and there is unreasonable delay, iuter'-st is allowed; (t)) But where thine are current accounts, founded on mutual dealings, and no promise to pay interest, in- terest will not be allowed.'* With respect to the fraudulent detention of money, the rule acted upon as to interest by the courts of America generally is the same with that which now prevails in the English courts of equity. " Wheje money ' '' Op the Measure of Damages, ' p. :J76. 'Page 380. ♦Page 380. rs. BRITISH ARGUMENT INTKREST. ')i')3 w iu the (.'oiut:* as a clmptt^i i lie says: ,• tli.sc()liiu'(;t('il . Ito oinitti'il ill illy, ti) usi' tile it iDi'iiKi part 1)1 ill' itliice l)y tlif : Jlr8l, wlieit' ii <> i)a\ it. or i)(; to jliiy r,)!' tile t, i.s iiii|iu<^til t(i I i.s rei'itvi'iiililr »i' tbojury. ti'af'ts lopaN •invliml (niijltt '.Jiiute time of iiitc'i'i'St shall it y "'((.V ii (lay certain. of another, and ltd byfrand, in- d, inierext bi-n'mn but in a ii'a- iut where tlieic )ay interest, in- le rule acted le sameAvith V^he-e mouey 380. 380. is* receive*! by a party who improperly detain.s it, or convert.s it to his own use, ho must pay interest." (i\ 378.) In all these cases, the money must be actually due, and the anu)unt liquidated, that is, ascertained and fixed, or capable of being a.scertaiiu'd by a mere process of computation resulting from known facts, of which actual indebtedness is the legal con.sequence. With respect to claims for interest on nnliquidatfd demands, the law of Great Britain and of the United States is the same. " It is n ^faoral rule," says Mr. Scilywick, p. 377, " tlmt iiitarst in not recovcrahk on ntiUqniduled dcmandu. In an action for not tleliveiing teas accordin}; to aurceinont, Judge Wasbington, at Nisi I'lius, said, ' /( in not aijrecahle to Iitjul princiiilm to allow interest on initiquidatid or contented claims in damagex.' 'The rule is well-cstabliHlie*!,' says Judge Parker, in tbo Supreme Court of New York, 'that interest is not recovera- ble on ninning or mili(iuidated accounts, unless there is an agreement, either express or implied, to pay interest.' So in x-Iassachusctts, it is said, that ' interest cannot bo recovered upon an open and running account for work and labor, goods sold, and the like, unless there is some contract to pay interest, or some u.sage, as iu the case of the custom of merchant.,, from which a contract may be inferred.' And so also, iu Texn«, interest is denied on an open account. So, in an action on a policy of inHurnnre, if the preliminary proofg are ho ragne that the claim cannot be computed, intercut in not allouable." At pages 385-387, Mr. Sedgwick considers another class of ca.ses, under the head of ^^ interest, when given as damages,^ i e., tbose in wbicli it is not given properly ^^ as inter est, ^^ under the con*-^. 1 of the Court, and "allowed or disallowed upon certain rules of law; ' l>iit "where it is to bo settled by the A'erdict of a jury,'' and "given more strictly as dam- ages." The cases in which this rule is applied ar'^ generally those iu which the property of the plaintiff has been wrongfully ttken possession of by the d^frudant: This is generally so in actions of tint, as trover or trospa'^H for taking goods, where in I est is allowed at the discretion of the jury. So in an action of trespass, the Supreme Court of New York said : " The plaintitf ought not to be ilcprived of bis prop- erty for years without compen.sation for the loss of tbo use 6f it ; ami tbo jury bad a discretion to allow interest in this case as damages. It has been allowed iu action.s of trover, and the same rule applies to trespass when brought for the rccorcry of property.' So in Kentucky, iu case of a fraudulent refusal to convey land; and so«leclared also in North Carolina in cases of trover and trespass.' It is to be observed that tlitf, action of "trover" here mentioned is a form of remedy under American and English law for the conversion by a defendant to his own use of the plaintiti's property ; and the action of " trespass" is another form of remedy, under the same laws, when a defendant has intruded, without right, upon the property of the plain- tiff. In all theca.ses here contemplated the liability to be mulcted in in- terest as damages arises out of the exclusion of the owner from the enjoy- ment of his own property, by the direct act of the person from whom the damages are recovered, and who, by reason thereof, haa himself ei.joyed (or, but for his own willful default, might have enjoyed) that benefit of the property from which the owner has been so excluded. The principle on which a jury ought to proceed in giving or not giving interest by way of damages was thus explained by the Court of New York : "In two actions against a master of a ship for non-delivery of goods, it was held iu l>ew York that the jury might give damages (/' the conduct of the defendant teas improper; i. e., ichere fraud or gross miscon- (luct'-could he imputed to him; but it appearing that sue a was not the fact, it was not allowed." ^ The principle thus thus laid down is in strict conformity with that 554 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. f . < m ;ji stated iu another American treatise of reputation upon the "Law of Negligence," by Messrs. Shearman and Kedfield : ^ 600. Exemplary, vliulictivc, or puuitivo damages can never he recovered in ac- tions upon anything less than groa8 negligence. Of this there can V)o no doubt. * * * It is often said that exemplary damages may be awarded for grtiss negligence. But it should be distinctly understood that gross negligence meana such entire want of care as to raise a presumption that the person in fault is conscious of the prob- able consequences of 7tn carelessness, and is indifferent, or worse, to the danger of injury to the persons or property jf others; and such appears to us to be the construction put tipon these words by the Courts, iu the cases referred to. It is only in cases of such 7'ecklvssness that, iu our opinion, exemplary damages should be allowed. 7. Let us now, with these principles of general jurisprudence in view, examine the circumstances of the present case, in order to see whether they present any just and equitable grounds or any sufilicient materials on which interest by way of damages can be included by the Tribunal in any gross sum which they may think i)rpper to award against Great Britain. 8. In the first place, this is not the case of a detention or delay in the payment of a liquidated debt or ascertained liability payable at a period which has elapsed ; there was, iu fact, no liability at all independently of the exercise of the judgment of Arbitrators upon a very novel, en- tangled, and difficult state of facts and public law. The claims made by the United States extended to many matters for which the Arbi- trators have found Great Britain not responsible. The decisions of the Arbitrators against Great Britain have been mainly founded upon the conventional rules of judgment first introduced as between the two nations by the Treaty of 1871, though agreed by that Treaty to be retrospectively applied j and there are, down to this moment, no means of ascertaining, by any method of computation whatever, the actual amount of the liability jiroperly resulting from those decisions. 9. The observations of Professor Bluntschli, in his paper on these claims, (" Eevue de Droit International," 1870, p. 474,) are material iu this respect : "A en croire," he says, "plusieurs orateurs et dcrivains amdricaius, il irait do soi que le gouvernement de la Grande-Bretagiie sorait oblig(5 de d^dommager au moins les particuliers, dont la propriety aurait 6t6 dotruite par I'Alabania, (ainsi que par la Florida, ou d'autres corsaires susdits.) A mou avie, ce point est loin d'«Ure entiere- ment Evident , et I'ou pourrait singuliferement se tromper, en se fiant trop au succos rdservd ii ces r6clamations privdes devant uu tribunal .arbitral. Si Tunion ne prend pas, comme Ctat, ces reclamations priv6es sous sa protection, et si elle ue ftiit pas con- sister dans leur «5quitable ap.aisemeut la satisfaction que les fitats-Unis out droit uC rdclamer de la Grande-Bretagne, dans ce cas, les particuliers intdressds n'out alt- solument aucune perspective de dddommagement. D'apres les regies du droit priv<^. ordinaire, leurs pretentions seraient tout-k-fait vaiues. NuUe part ils ne trouve- raient uu juge qui condamnerait le gouvernement anglais h payer une indemnity. * * * D'aprfes les observ.ations qui precedent, tout le debat se resume, non pas en uu litige entre des particuliers auxquels la guerre a cause des pertes, et I'etat de la Grande-Bretagne que I'on veut reudre respousable de celles-ci, niais en un litige entre la federation des l5tats-Unis d'un cAte et la Grande-Bretagne. Et ce qui fait Vobjet du litige, ce n'est pas un dommage materiel, mais la non-observation des devoirs inter- nationaux de la part d'un etat ami et neutrc. As there was no liability wljich could properly be called a debt, or in respect of which any interest could be due upon juridical principles, so (on the other hand) there was no iiroporty belonging to the United States or their citizens, of which possession was at any time taken, or any enjoyment whatever had, by Great Britain, her officers, or her ati- zens, or by any persons under British protection, availing themselves of that protection to maintain such possession or enjoyment. The words of Professor Bliintschli, already quoted iu a former argument, are here again material : BRITISH ARGUMENT INTEREST. 555 ilay in the at a period jpeudentlj' novel, en- aims made the Arbi- ious of the I upon the n the two ■eaty to be ;, no means the actual I irjiit do soi »er au nioins wi que par la .'tUre enticre- op au 8UCCCS ion ne prend 1 fiiit pas con- nis out droit 8s68 u'out al>- u droit priv<5 Is ne trouve- ) indemnit*^. r<^8ume, non rtes, et I'^tat s en u« litige 't ce qui /<"' devoirs inter- debt, or in inciples, so the United e taken, 01- or her 6iti- 111 selves of The words it, are here II ue faut, d'ailleurs, pas perdre de vae que tous ces effcts ddsastrfiux sout eu 'premier lieu imputables, iiou pas au gouveruoiueiit anj^lais, luais aux croiseurs eux-nieuies. Personne u'accusera le gouverueuient anglais d'avoir donn6 mission de dt^itruiro les uavires de commerce amdricains, ou d'avoir, par ses agissements, cutravd ou endom- mag€ la marine am6ricaiue. Cc que Ton pent lui rcprocher a bon droit, ^eu supposant que les fails cites i)lu8 haut doivent «Hre considers comme avouds ou prouvds,) ce u'est pas un fait, mais uue omission contre le droit. Sa faute ue consiste pas il avoir <5quip6 et appari'illd les corsaires, mais i\ n^avoir pas empCehe leur atmenient et leur sortie de sou territoire neutie. Jais cette/au/e n'a qu'uu rapport indirect, et nullement uu rapport direct, avec les ddprddatious rtSellemeut commises par les croiseurs. ' Great Britain did not make or authorize the captures by which the citizens of the United States lost their property; they were never brought within her territory, so as to make her answerable for them on the principle of reception; nor had she, or her citizens, at any time, any profit or benefit whatever, or any possibility of deriving profit or benefit from any of them. Nor is it supposed to be possible that the Tribunal can be led to attribute any want of diligence, with which, in certain cases. Great Britain may in their view be chargeable, to any such motives or causes as, according to the analogy of privutc jurispru- dence, would justify a jury or an Arbitrator in giving vindictive or penal damages. Every ground, therefore, on which (according to juridical principles) interest could be awarded as an element of damages, is wanting here. 11. Furthermore, independently of the facts affecting the nature and amount of the claims themselves, which will be hereafter referred to, there are other special considerations which, in the present case, appear to make it the duty of the Arbitrators, if they find Great Britain re- sponsible at all in damages to the United States, to mitigate, in the ex- ercise of a reasonable discretion, the amount of those damages ; and certainly not to intiame or aggravate them by the addition of penal interest. If the following arguments in the BritivSh Counter Case (p. 132) are held iusufticient to exonerate Great Britain from all liability, they must at least be admitted to be of great weight and pertinence, as against any attempt to push the doctrine of compensation and indemnity, in this case, to an extreme length : The whole responsibility of the acts which caused these losses, belonRed, primarily, to the Confederate States ; they wore all done by them, beyond the jurisdiction and control of Great Britain; wrong was done by them to Groat Britain, in the very in- fraction of her laws, which constitutes the foundation of the present claims. But from them, no pecuniary reparation whatever for these losses has been, or is now, exacted by the conquerors ; what has been comloned to the principals, is sought to be exacted from those who were, at the most, i)assively accessory to those losses, through a wroug done to them, and against their will. The very States which did the wrong are part of the United States, who now 8eel< to tlirow the pecuniary liability for tuat wrong solely and exclusively upon Great Britain, herself (as far, at least, as they are con- cerned) the injured party. They have !)eeu re-admitted to their former full participa- tion in the rights and privileges of the Federal Constitution ; they send their members to the Senate and the House of Kejiresentatives ; tht^y take part in the election of the President ; they would share in any benetit which the jmblic reve.iue of the United States might derive from whatever might be awardi^d by the Arbitrators to be paid by Great Britain. On what principle of international equity can a Federal Commonwealth, 80 composed, seek to throw u])<>n 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 jiolitical unity, and fnmi which it has wholly absolved those citizens ? The American U lion is not a single Bopublic, but is a Federation of States. The eleven States which joined the Southern Confederacy are also now joining in the present claims. Upon ordinary principles of I ' Page 47.'5. The italics in .tbis passage are in the original text. 5j6 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. m I jnstice, if Great Britain is held responsible for those claims, she would herself have a claim for indemnity against those eleven States; which in their external relations toward herself and other countries, are rep- resented by the Federal Government. If everything has been condoned to them by the Federal Government, and if their relations to th?t Gov- ernment preclude Great Britain from having recourse to them for the indemnity which would otherwise be justly due to her, it is surely im- possible to conceive a case in which there would be less justification for a discretionary and penal augmentation of damages, such as an allowance in respect of interest, in a proceeding for unliquidated damages, always is. Another argument, arising from the peculiar circumstances of the present case, and which has also a strong bearing in favor of a reason- able modification of the liability of Great Britain, and, at all events, against any aggravation of that liability by the addition of interest as an element of damages, is thus stated in tiie British Counter Case, (p. 132:) When any vessels, whether procraed from Great Britain, or otherwise obtained, had "become Confederate ships of war, the duty of repelling their hostile ])roceediugs by all proper and efficient means (like the rest of the operations necessary for the conduct of the war) devolved exclusively upon the United States, and not upon the British Gov- ernment. Over the measures taken by the United States for tiiat p'lrpose, Great Britain could exercise no influence or control ; nor can she be held responsible in any degree for their delay, their neglect, or their insniilieiency. Any want of skill or success, even in the operations by land, would have the effect of prolonging the period during which cruises of this nature could be continued. All losse'!, which might have, been prevented by the use of more skillful or more ouergetic means, ought justly to bo ascribed to a want of due diligence on the part of the Ciovevument of the United States, and not to any error, at any earlier stage, of the British Government. Caii^a proj-ima. lion nmot'i sjiectatiii: In support of this reasoning, various facts are referred to, at pages 138-140 of the same Counter Ca.se, which .show that numerous opportu- nities of arresting the progress of the Confederate cruisers were actually lost, through the remissness or fault (according to the judgment of their own official superiors) of the officers wlio ought to have performed that duty; and that the means employed by the Government of the United States for that object were on the whole inadequate for its energetic ac- complishment, ft would surely be of very dangerous example to hold that a belligerent power is at liberty (upon such an occurrence, e. g., as the enlistment of forty men of the Shenandoah on the night of her leav- ing Melbourne) to leave a vessel which has abused the hospitality of a neutral State, to harass the commerce of its citizens without the use of efficient means of prevention ; relying upon an eventual pecuniary claim against the neutral State for the value of all the subsequent captures of that vessel, w itli interest to the day of payment. 12. Even if it were possible that interest could be held due, on ac- count of delay of payment, in a case of unliquidated and unascertained claims of this nature, between nation and nation, it is obvious that the United States, and not Great Britain, are exclusively responsible for so much, at least, of the delay, as has been due to the rejection by the Senate of the United States of the Convention signed by Mr. Eeverdy Johnson and the Earl of Clarendon, on the 14th January, 18G9. (British Appendix, vol. iv, part 9, pp. 3(5-38.) That Convention provided for a reference to arbitration of all the claims of American citizens, arising out of the acts of the several vessels to which the present controversy relates. It was the result of a Careful negotiation, expressly authorized from the beginning to the end by the Government of the United States. Its BRITISH ARGUMENT INTEREST. 557 form was several times altered to meet suggestions proceeding from that Government; and no such suggestion was made, before the final signa- ture, which was not met by a practical concession on the part of Great Britain. If that Convention had been ratified in 18G9, a settlement of all these claims would have taken place either three or, at least, two years since. It was, however, rejected by the Senate of the United States without so much as the communication, at the time, of any reason or explanation whatever to the British Government. (British Appendix, vol. iv, part 9, page 10, adjinem.) No reason or explanation has ever been offered which can alter the significance of this fact, or make it reconcil- able with any conceivable view of justice, that, as against a Govern- ment which has never derived any profit or benefit, either directly or through its citizens, from any of the captures in question, the United States should claim interest for a delay due only to themselves. Great Britain, from the commencement of the negotiations between Lord Stanley and Mr. Keverdy Johnson in 18G6, was always willing that these claims should be settled by arbitration ; the difficulty (which appears to have originated in the suggestion by Mr. Sumner of thosc^ indirect claims, which are now excluded from the consideration of the Tribunal) was on the part of the United States alone. Can it be said that, if the delay, so caused, had lasted for twenty or for ten years, a claim by the United States for interest during that period could still have been maintained? If not, it cannot be maintained now ; whether the delay is twenty years or two years, can make no difference in principle. 13. All the foregoing reasons belong to the general equity of the case, and are independent of all the objections to the allowance of interest an an element of damages or compensation, which arise out of the particu- lars of the claims, and the impossibility of ascertaining or defining theui before this Tribunal. 14. The substantial claims (setting aside that of the United States for the alleged expenses of pursuit and capture) are those of the owners of ships and other property destroyed, and those of the insurance com- panies with whom the property lost was insured. The amount of both these classes of claims is stated in dollars of the currency of the United States at the respective times when the losses were sustained and the insurances paid. The value of the dollar currency was, during that whole period, enormously depreciated by reason of the war and of the suspension of specie payments in the United States. Its exchangeable value, as compared with the exchangeable value of the dollar in gold, during the period of specie payments before the war and also at the present time, was as 5,014 to 7,744, or, in round numbers, as 8 to 11.' All values of property computed in dollars of the forced paper cur- rency, during that period, stood at proportionally higher figures than they would have done during the time of specie payments. The pay- ment of all these claims,* so stated at their values in a forced paper cur- rency, is now sought to be recovered against Great Britain at the nominal value of the same number of dollars converted into gold at the present rate of exchange ; thus giving to every claimant a direct gain of above 27 per cent, by the difference only between the value of the dollar in which the losses were estimated, and the value of the dollar in which the payment is asked to be made. This gain is alone equivalent to the actual addition of interest, at the rate of G per cent, per annum, for four years and a half upon every claim. 15. With respect to the insurance companies, it must be remembered ' British Summary, p.68. 'Tlio exccptiona are few, and of no importance to the argument. 558 SUrPLEMENTARY ARGUMENTS AND STATEMENTS. ! '1 that, as against the losses which they paid, they received the benefit of the enormous war-premiums which ruled at that time; and that these were the risks against which they indemnified themselves (and, it can- not be doubted, so as make their business profitable upon the whole) by those extraordinary premiums. Would It be equitable now to re- imburse them, not only the amount of all these losses, but interest thereon, without taking into account any part of the profits which they so received 1 10. These remarks would hold good if an exact valuation of the claims were x'ossible ; but, before this Tribunal, neither an exact valuation of any part of these claims, nor any approximation to such a valuation, is possible. This consideration alone ought to be decisive against the demand of interest, as an element of damages, in any gross sum to be awarded by the Tribunal. When tliis is held to be admissible in private jurisprudence, the esti- mate or computation of the amount to be added for interest is always founded upon some appropriate evidence, by which the Jury or the Court is enabled to fix a definite sum as the value of the principal sub- ject for which compensation is due. Before interest can be computed, whether as a legal incident of a liquidated debt, or as an element in damages previously unliquidated, the principal sum must be known ; and this, not by conjecture, not by accepting, without proof in detail, the amount at which the interested party may choose to state his own claim, (almost always excessive and exorbitant, and, as a general rule, purposely so overstated, in order to leave a very wide margin for a profit after all probable deductions,) nor by any merely arbitrary modi- fication of that amount, but by such vouchers and proofs as, after the opposite party has had the opportunity of seeing and checking them, are deemed satisfactory. Where such vouchers and proofs are absent, or cannot be satisfactorily *ested, all foundation for an allowance of interest, as an element of damages, necessarily fails. 17. In the present case, not only is it altogether impossible to ascer- tain, either accurately or proximately, any sum which can be taken by the Tribunal as representing the principal amount of the losses, for which Great Britain ought to be held responsible ; but the figures which have been laid before the Tribunal on both sides show in a very significant manner what great injusVice m ght be inadvertently done, and how largely any just measure of compensation or indemnity might be exceeded, if the Tribunal were either to assume some amount, arbi- trarily fixed, as representing the principal of those losses, and then to add interest on that amount ; or were, without any such attempt at exactness, to swell, by some undefined and arbitrary addition under the notion of providing for interest, an award for a gross sum, founded on no distinct elements admitting of any computation. It does not re- quire much attention to the particulars of the claims to see that they have been intentionally so stated, as to leave not only a wide margin for all those deductions, which the criticism of Great Britain might prove to be necessary, but ample room, after every such deduction has been made, for a large and full compensation and indemnity, without any further addition whatever. The British criticisms cannot and do not attempt more than to cut off manifest exaggerations of those claims, either by demonstrating the inadmissibility in principle of some of them, {€. 0,000 $141,858. " The BocUngham. — The claim in the ' Original List ' amounted to $105,000, whereas the claim in the ' Revised Statement ' (p. 74) exceeds $225,000. This is also one of the vessels which we selected in our First Report (page 23) as a striking example of the exorbitant nature of sonje of the claims. There can be no doubt that the original claim was very extravagant, but in the ' Revised Statement ' it has been doubled by improperly adding the insurances to the alleged values. The Union Jack. — Iu the " Original List " it is stated that G. Potter, after deducting the amount received from the Atlantic Insurance Company, claims the sum of $7,584 • but in the " Revised Statement " (p. Ill) he claims the sum of $34,526, without making any deduction for insurances, although the insurance companies at the same time claim $32,014 iu respect of the amount insured by them ; and it therefore clearly follows that a sura, at any rate exceeding $26,000, is claimed twice over. ITie Catherine, — In the "Original List" the owners claimed about $45,000 {or vesseU and secured earnings, but made no claim iu respect of prospective earnings. Now, in the " Revised Statement," (p. 229,) there is a claim put forward of $35,329 for loss of vessel and cargo, over and above $31,676, the .alleged amount of insurances by the owners, which is also .at the same time claimed by the insurance company. In addition to this there is a claim for prospective earnings exceeding $19,600, so that the original claim of $45,805 has now grown to the enormous sum of $272,108, The Favourite. — She was a bark of 393 tons. In the "Original List" the Atlantic Insurance Company, as insurers and assignees of the owners, claimed for loss on vessel and outfit $40,000, which there can be little doubt w.as the full value. In the "Revised Statement" (p. 240) the claims in respect of the vessel and outfit amount altogether to $110,000. The master, iu the " Original List," claimed $1,498 for the loss of his effects; but now he claims for the loss of his personal property, $2,239, aud for loss of interest in oil and hone, $2,709. The Isaac Howland.— In the "Original List" the claim for prosjjective earnings was $53,075, but in the " Revised Statement " (p. 247) it has grown to nearly four times that sum, namely, to $196,158. Moreover, in the " Original List," the owners claimed $65,000 tor h\u]) and outtit, subject to abatement for insurance; whereas, in the " Revised State- ment," they claim the same sum, but protest against any diminution of claim hy reason of insurance obtained by them, although the insurance companies claim at the p.ame time the whole amount insured by them. The General Williams. — In the " Original List " the owners claimed $40,503 as dam- ages by the destruction of the vessel, over aud above $44,673, the amount of insurauccs received by them. In the "Revised Statement" (p. 241) there is added to the amount of insurances a sum of $85,177, the claim being in this manner all but doubled. There are also .added thf- following claims : A claim by tha owners for prospeottt^e earnings amounting to $lLd,807; a claim by the master for loss of prospective catch, time, and occupation, amounting to $20,000 ; a similar claim by the mate, amounting to $10,000 ; another claim of $30,000 for insurances on vessel and outfit; and finally, the sum of $16,000 for insurances by the oivners on the vesseVa prospective earnings. In„,this manner the original claim, which was less than $66,000, has grown to the sum of $406,934, and has therefore been increased more than sixfold. 19. One more subject remains to be dealt with. Tiie United States, in their Argument, (page 220,) have appealed to certain historical precedents. After stating, in a passage already referred to, (aud to which, it is hoped, a full and sufficient reply has been made,) that they conceive this demand of interest, as an element of damage, to be " con- formable to public law, and to be required by paramount cousideratious of equity and justice," they add: Numerous examples of this occur in matters of international valuation aud indom- uity. Thus, on a recent occasion, in the disposition of Sir Edward Thornton, British Min- ister at Washington, as Umpire of a claim on the part of the United States against Brazil, the Umpire decided that the claimants were entitled to interest by the same right which entitled them to reparation. And the interest allowed iu this case was (45,077 dollars) nearly half of the entire award, (100,740 dollars.) So, in the cactioii8. In like manner Sir .lohu NichoU, British (Joiumissioner in the adjustment of damage lintweeii the United States and Great Britain under the Jay Treaty, awards interest, and says : To re-iinbnrse to claimants the original cost of their pioperty, and all the expenses they have actually incurred, tofiilhcr willi itilercxi on the whole amount, would, I think, he ii just and adequate compensation. Tliis, 1 believe, is the measure of comj^ensation usually made by all belligerent uatious for losses, costs, and damages occasioned by illegal captures. *20. There can be no greater fallacy, and there i.s also none more liuniliar to the practical ex[)erience of Jurists, than this kind of general reference to precedents, which, when the facts are examined, hin found ro diifer from the case to which they are sought to be api>lied, in all or some of the most essential points, u^mn which the question in contro- \ors.v depends. Let us now examine these "examples" in their proper historical order, which has been inverted in the Argument of the United States. 21. The earliest in date is that of the claims under the " oay Treaty," /. c, the Treaty between Great Britain and the United States, signed at London, on the 19th November, 1794. That Treaty contained two Ar- ticles applicable to different descriptions of claims. The sixth Article was in these terms : Whereas it is alleged by divers British merchants and others. His Majesty's subjects, tliat debts to a co>isiderahh- amoinit, which were bond Jidc contyactcd before the peaee, still re- main owing to them hi/ c'iicens or inhabitants of the United Statcx, and that, by the opera- lion of various lawful impediments since the peace, not only the full rceorenj of the said (kilts has been delayed, but also th(i value aud security thereof have been, in several in- stances, impaired and lessened, .so that, by the ordinary course of Judicial proceedings, the Bri'ish creditors cannot now obtain, and actually hare and reeeirc, full and adequate compen- sation for the losses and damages which they hare thereby sustained; it is agreed that, in all such eases where full compensation for such losses aud dauuiges cannot, for -whatever reasons, be actually obtained, had, and received by the creditors, in the ordinary course of justice, the United States will make full and complete compensation for the same to the said (irdilors; but it is distinctly understood that this provision is to extend to such lo.sses nul^ as liave been occasioned by the lawful impediments aforesaid, and is not to ex- teuii to losses occasioned by such insolvency of the debtors or other causes as would wpially have operated to produce such loss if the said impediments had not existed, nor to such losses or dauuiges as have been occasioned by the manifest delay or negli- Ijiince, or willful omission, of the claimant. This Article having relation to dehts actually and hand fide due and payable by American to British subjects, and of which the payment had been delayed and prevented by legal impediments opposed to the re- covery of such debts by the policy and legislation of the Government of the United States, it is apparent not only that the claims, being liquidated, admitted of the computation of interest upon them in the most proper sense of that word, but also that they were such as entitled the claimants to interest upon the strictest principles of private juris- prudence, which here necessarily furnished the rule, the responsibility for these private debts being expressly assumed, on grounds of public policy, by the Government of the United States. The British Commis- sioners, under this Article (being a majority) accordingly decided, in the case of Messrs. Cunningham & Co., (18th of December, 1798,) that interest ought to be awarded "for the detention and delay of payment of these debts during the war as well as in time of peace, according to the nature and import, express or implied, of the several contracts on which the claims were founded." From this decision the American Commissioners, Messrs. Fitzsimons nnd Sitgreaves, on the 21st Decem- ber, 1798, recorded their dissent, their objections being most strongly urged with reference to the allowance of interest during the time of 36 c "■•1 562 SIJITLKMENTARV AKGUMENTS AND STATEMENTS. !f i!: -i ■i war; and, on the lltli Jann.ary, 1799, they followed up this dissent, and another protest made by them, in a different case, by withdrawing from the lioard and altogether suspending the proceedings of the Commis- sioners on that description of claims. 22. The seventh Article of the same Treaty provided for the settle- ment, by Commissioners, of two other classes of claims. The first class consisted of claims by citi/cns of the United States: Whevoas coiiiplaints liavo been nuulo by divers incrcliaiits and otlieiH, citizens of tlio United States, that, duiinj^ the. coniso of the war in which His Majesty is now cnjfaf^iuJ, they have sustained considerable losses and daniaj^e, bi/ vmmn of imynlar or illegal rap. turiHor coiidetnnatioiii of their rcsKcln and other froperty, undercolor of anthority or comminni '/iv from UinMajentii ; and that, fronwarionscircunistances beloiif^iiifij totliesaid cases, a le- qiiate couiiieiisation for the losses aiul daniaj^es sustained cannot now be actually cli- tained, had, and received, by the ordinary course of judicial ]troceedin};s: it is agreed that, in all such cases where adequate compensation cannot, for whatever reason, l)e now actually obtained, had, and received by the said merchants and others in tlu* ordinary course of justice, full and eomi)lete compensation for the same will be made by the liritisii (jovernmeut to the said complainants. But it is distinctly understood that this provision is not to extend to such losses or damages as have been occasioned by the manifest delay or negligence, or willful onussiou of the claimants. TIm) Commissioners appointed ''for the purpose of ascertaining the amount of any such losses and damages" were to " decide the claims iii ciuestion according to the merits of the several cases, and to Justice, ei{, and not restored pursuant to ^Ir. Jeflerson's let- ter, was, or was not, awarded. Assuming such interest to have been awarded, the reason is obvious. The values of these prizes were ascer- tained and determined by the Commissioners upon appropriate evidence ; and the interest (if any) was calculated upon those ascertained amounts. The engagement of the Government of the United States had made tho amounts so ascertained debts directly due to iireat Britain by the United States upon the footing of an express contract, from the moment at which the prizes, being within the power of the United States, ought to have been restored according to the tenns of IMr. Jelferson's letter, but were, "for particular reasons,'' purposely allowed by the United States' Gov- ernment to remain in the hands of the captors. Tliis was strictly a case of a debt due and of a willful delay and default in payment ; accord- ing, therefore, to ordinary juridicial principles, it was right that it should be recovered with interest. 24. The next in order of the historical precedents is that of the claims under the Treaty of Ghent. The following is the history of that case : During the war between Great Britain and the United States, in 1812-'13, the British forces took possession of certain private property (principally slaves) of American citizens. The first article of the Treaty of Ghent (1814) contained a positive engagement by Great Britain for the restitution of '* slaves, or other private property," so taken, which might remain in British possession at the time of the exchange of the ratifications of the Treaty. " In violation of this Treaty, the slaves and other property of American citizens," says 3Ir, Wirt, the American Attorney-General, in his opinion of May, ISl'tJ, now (pioted by the United States, " w ere carried away in the year 1815, and have been detained from them ever since. They have thus lost the use of this property for eleven years." ' In October, 1818, ditterences having arisen between the two countries on this subject, a Supplemental Treaty was signed in London, by the 5th Article of which, after stating that " the United States claim for their citizens, and as their private property, the resti- tution of, or full compensation for, all slaves, &c.," it was referred to the Emperor of liussia to decide between the parties, " whether, by the true intent and meaning of the aforesaid article (/. e., Article I of the Treaty of Ghent) the United States are entitled to the restitution of, or full compensation for, all or any slaves as above described." The Em- peror of Russia made his award, deciding that the United States were ^^ entitled to a full and just indemnif cation for the slaves and other prop- erty carried away by the British forces, in violation of the Treaty of GhcntJ'^^ A convention was afterward (July, 1822) signed between the United States and Great Britain at St. Petersburgh, under which commis- sioners of claims were appointed for the purpose of carrying the award of the Emperor into effect. Under this Convention, the Britisih and American Commissioners disa- ' opinions of tho AttorneyH-Geueral of the United States, vol. ii, p. 'S'i. ^The statement of the United States that tho Emperor awarded either" damages" or " additional damiigesiu the nature of damages from the time when the indemnity was due" is entirely <;rroneou8. Tho reference to tlie Emperor was only to determine a disputed question on the construction of the Treaty of Ghent. n 564 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. i. greed upon the question, whether interest ought or ougiit not to be al- lowed upon the ascertained value of the slaves, from the time when they were taken away in the manner which the Emneror of Russia had determined to be a viohation of the Treaty of Ghent. These conflicting views of the Commissioners were supported on each side by the law officers of their respective governments. Mr. Wirt, the American At torney-Cleueral, insisted " that interest at least was a necessary part of the indemnity awarded by the Emperor;" that, "without it, a just indemnification could not be made." '■ The first act of disposneision being thus established to be a wrong, is the continuance of it," he asked, " of that dispossession for eleven years, no wrong at all *. Is it consist- ent with that usage of nations, which Sir John NichoU recognizes, to redresH an act of 'wrongful violence by the return, at any length of time, of the naked value of the article at the date of the injury if'' And he states his conclusion thus : " Upon the whole, I am of opinion that the just indemnification awarded by the Emperor involves not merely the return of the value of the si>ecific property, hut a compensation ahofor the subsequent and icronfiful detention of it, in the nature of damages." (Opitiions of Attornevs-General of the LTnited States, vol. ii, pp. L*l), ,'31, 32, 33.) It is instructive, on the other hand, to observe the views upon the question of i)rinciple, applicable to the claim of interest, (independently of the construction of the Treaties, the Emperor's award, and the Con- vention of St. Petersburg,) which were expressed by the eminent Law- Officers of the British Crown. Sir Christopher llobinson was then King's Advocate, and Sir John Copley (afterwards Lord Lyndhurst) and Sir Charles Wetherell were Attorney and Solicitor-General. The King's Advocate (lUth May, 1825) thought that, on general principles, interest was not i>ayable. He referred to the same rules of private jurispru- dence, which have been stated in an earlier part of the present argu ment : Tlie luk'.s of law, so iar as tliiiy may l»c upplicablc to this ijucstiou, do not favoi claims of intert'st, except uiul»;r special circumHtau'*<>s, as in cases of a<;rcoment, ex- presseu or im)»lied, or of the possession and enjoyment of intermediate profits, or of injury, properly so termed, in respect to the tortious nature of the act, for which the compensation is to be made. He proceeded to illustrate these rules, from the laws of England and of the United States, and added : The principles of the General Law of Europe, as derived from the Civil Law, and adopted iu the several countries, ccurespoud with this exposition. " Interest of money is not a natural revenue, and is t)nly, on the part of the debtor, a punishment whicli the law inflicts upon him for delay of payment, (' nsura pecnniic quam percipinnis, iu fructu uou est, quia uon ex ipso corpore, scd ex alia causa est, id est nova obliga- tione.)' " Usura^ uon projiter lucrum peteutium, sed propter moram solventium infliguntur.'"' In the result he regarded the question as entirely depending upon the true interpretation of the Treaties and the Convention of St. Pe- tersburgh, and considered that these instruments did not support, but were, on the contrary, at variance with the claim. The views of Sir J. Copley and Sir C. Wetherell (lOth November, 1825) were in some respects diflereut from those of Sir C. Kobinsou. After referring to the First Article of the Treaty of Ghent, and to the Emperor's award as to its construction, they said : In the removal, therefore, of the slaves in question, this enj^agemeiit has been in- fringed, and the parties injured by such infriagemeut are entitled to compeusatiou. ' Domat, Tit. " Interest," lib. i, p. 121. 3 Ibid., p. 419. BRITISH AKOUMENT INTEREST. 565 to be al- no when issia had •ntiictiuK the law I'icau At y part of t, a just msscssion he asked, it consist- j^nizes, /<» I of time. Aud he I that the lerely the m tiLso/or damages." pp. L»o,;u, upon thf ipendently II the Coii- neut Law- heu Kins> t) and Sir Che King's BS, interest B Jurisprii- sent argil ilo not fa vol [leoment, <'X- pvolits, or oi n which the gland and il Law, anil est of money hment whicli eicipimus, in uova oblifja- nfliguntur.'" ' ding upon of St. Pe- ipport, but November, Kobiusou. aud to the has been in - oiupeusation. I V- 419. It must l»« ol)vioii.s, however, that th<< hare restitiitictn or p.aynn'nt of the value of the slaves, after an interval of ho many year- from the period nluii tlir>/ oiiijhl, aaordintj to thearting entirely with this precedent, it does not seem out of place to refier to some other forcible observations, nnido by Sir Chris- topher Robinson, in an earlier opinion given to the Briti.sli Government on the same subject, on JMarch 18, 1825 : The snbjcct of interest i)rosents a «inestion of considerable imiiortance and delicacy, and to which it will be dillicnlt to a])ply the analogy of rnles derived from leer cent, from the date of the loss, as the necessary result (in his judgment) of the liability of the Brazilian Government for the jmncipal amount. This decision, like those before examined, proceeded upon ordinary juridical principles. The Brazilian Government, by their officers and ' Dispatch of Mr. Fish to Mr. Blow, communicated to Bai-on Cotegipe on tho 28tli December. 1869. ^ mUTl.sl I AKO UM KM IM KKKST. ;g7 aoltlitH'H, liiid wioiif>;fiilly taken ])os.s('ssi()n of, and liatl, in t'llect, «lc- Htroyed, a United Htates ship witliin their jnrisdietion, >vhi<*li was enti- tled to their protection. For the inll vahie of the h)ss mo indicted nimu subjects of the United States, tiiey became inunediattily and directlj- responsible, as nuich as if they had seiziMl and detained the shij), under circumstances enabling;" them to restore it to its owners. Restitution of the ship itself bcin^; impossible, a full compensation and indemnity became act lally due, from the moment of the loss ; and the payment of this compensation and indemnity, thouj^h ])romptly claimed, was for many years delayed. The amount of the ])rincipal loss was ])roperly investi^jfated and accurately determined, and the interest given was accu- rately computed upon that amount. LVS. In every point of importance, with respect to the i)rinciples in- volved, this last precedent (like those which had pone before it) stands in absolute contrast with tlio present case. In this, .is in the earlier cases, (to sum up the whole matter shortly,) those elements were found to be present, which were Juridically necessary to constitute a rifjht to interest; and interest was accordingly given as a matter of strict right. In the present case all these elements are absolutely wanting; and, in- stead of them, others are present, the effect of which is not to support, but to repel, the claim of interest, even if the appeal is made, not to any rule or principle of public law, but to the exercise of a reasonable and equitable discretion. KOUNDGLL TALMER. XII.-REFLY ON THE PART OF THE UNITED STATES TO THE AR- GUMENT OF H2R BRITANNIC MAJESTY'S COUNSEL ON THE ALLOWANCE OF INTEREST IN THE COMPUTATION OF INDEM- NITY UNDER THE TREATY OF WASHINGTOX. I. tfi "\ ^^ Tlie question upon which the Tribunal is understood to have admitlod arffumeut on the part of Her Britannic INLajesty's Government is, " Whether, supposing a capital sum as an adequate measure of injury, in the judgment of the Tribunal, has been arrived at, the proper indem- nity for that injury involves the allowance of interest as a part of that indemnity from the date when the losses accrued to the sufferers (and as of which the capital of the losses has been computed) until the in- demnity is paid "? " We have had an opportunity to read the argument of Her Britannic Majesty's Counsel submitted to the Tribunal upon thi.s question, and now avail ourselves of the right under the Treaty to reply to it, so far as such reply seems to us suitable. I. It is important in reference to this question, as wo have hereto- fore had occasion to suggest in respect to other questions opened lor discussion by the Tribunal, to confine the argument within proper limits. By doing this in the present case, wo may very briefly dispose of mucli that occupies a good deal of space in the learned Counsel's argument. (fl) The question assumes that a method of measuring the injury to the United States, and the indemnity therefor from Great Britain, lias been adopted, wiiich takes account of the losses suffered is of the dates (actual or average) when they were suffered, and fixes an amount in money wliich, if then paid to the sufferers, would, in the judgment of the Tribunal, be an adequate, and no more than an adequate, indemnity for such losses to the sutlerers. Upon this view of the capital sum, in respect of which the allowance or refusal of interest thereon is in question, (and no other view seems admissible,) it is impossible to raise any other points for debate than the following : First. Is the delayed p.iyment of a sum which, if i)aid at an earlier date, would then be only an adequate payment, still an adequate pay- uient without compensation for the delay i There can be but one answer to this question. The earlier and the later payments cannot both be adequate, and not more than adequate, to the same obligation, unless they are equivalent to each other. But common sense rejects the proposition that a present payment of money and a delayed payment of the same sum are equivalent. They are not the same to the creditor or sufferer who receives the payment, nor to the debtor or wrong doer who nmkes the payment. Compensation for the dehay of payment is necessary to make present and delayed payments equivalent to each other, and each equal to the same obligation. It thus being clearly impossible that earlier and later payment should 1)6 equivalent, whenever, in fact, only the later payment can be, and is to be, made, it must draw with it the compensation for the delay in the nature of interest, provided it is intended that the parties should stand after the delayed payment as they would have stood after nn earlier payment. AMERICAN ARGUMENT INTEREST. 569 Second. It will be readily admitted that this necessary compensation for delay in payment of a snm, which has been computed as a. just pay- ment, if made without any delay therein, cannot be justly withheld, un- less there shall have been ssomo fault on the part of the creditor or suiferer whereby the delay of the adequate payment is imputable to him. We imagine that the principles of private law governing this question and justifying the refusal of interest for delay of payment all turn upon this, viz : that the debtor was ready to pay and the creditor was unwill- ing to receive. It is true, in addition, that the jurisprudence of Groat Britain and of the United States permits nothing but an actual tender of the suffi- cient sum, and a continued keeping of the sum good for payment on the part of the debtor, and a refusal to receive on the part of the creditor, to stop the running of interest on the debt. The other class of cases, in which the debt is frequently spoken of as not drawing interest, more accurately should be described as a situation wherein the transactions between the parties do not culminate in any obligation of one party to pay, or right of the other party to demand, until, as a part of those transactions, there has been an ascertainment of amounts, and a demand of payment. These are cases of mutual accounts, or of open demands, as yet un- liquidated. Until the eventunl creditor strikes his balance, or computes and demands his debt, there is no delay of payment, requiring compensa- tion between the parties. Third. There seems to be no other possible reason in the nature of things for refusing to add interest for delayed payment to a sum which was a mere indemnity, had it been promptly paid, other than a disposition not to giivefull indemnity, that is, an interition to apportion the loss. But this disposition, if it should be just, .;an hardly be said to raise any question of the allowance of interest any mt^re than of the allow- ance of principal. It will be all the same to the American suft'erer who fails to receive the full indemnity which delayed payment involves, whether the sum which is actually paid him is computed by the Tribunal as half his princi[)al loss with interest added, or the whole of his prin- cipal loss without interest. It is all the same to Great Brit.ain in making the iiayment, whether the reduction fiom a full indemnity is computed by refusing the full capital, and calculating interest on the part allowed, or by allowing the full capital and refusing all interest upon it. The tact that full indemnity is or is not given cannot be disguised. It will not be more than given because interest is allowed. It will not be any less withheld because the part withheld is withheld by the refusal of interest. II. If these views are correct it will be seen that, notwithstanding the very extended discussion of Her Britannic jMiijesty's Counsel, tin* real considerations which should affect the allowance or disallowance of in- terest in the computation of the award of the Tribunal lie within :• very narrow compains. [a) We may lay aside all the suggestions that interestonthe capital sum, as it has been adopted or shall be adopted by the Tribunal, should not be allowed, because the capital is or is like to be excessive, and interest would be an additional injustice. These ideas are put forth in sections 14, 17, and 18 of the learned Counsel's argument under two heads, (1) that the computation by the Tribunal of the capital will be excessive jpe>- se, and (2) that it will be excessive by adopting in coin values that are stated in 2)aper currency. 570 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. i > lu the first place, all this is not a reason for refusing intercHt, but for correcting tbo computation of capital on which the interest shoulu be computed. We cannot enter into any such riule jntlgment as this. AV^e are not invited to criticise the Tribunal's computation of the c«jijj7{(/ of the losses. We are not advised what that computation is or is to be. We have exhibited to the Tribunal evidence and computations beariuj;;- ni)on the just measure of the capital of the losses. If those should be adopted by the Tribunal, there is no danger of excessive indeoinity to the sufferers. AVe have also exhibited to the Tribunal the evidence and the reasons upon which we insist that the valuations given to property in the "Claims" as presented are to be paid in coin. AVe do not re- peat them here. But we iirotest against an attack, in the dark, upon the Tribunal's measure of the capital of the losses, under the form of an argument against the allowance of interest. (&) AA^e may also lay aside the suggestions prejudicial to the allowance of interest on the claims which, by subrogation or assignment, have been presented by the insurers who have indemnified the original suf- ferers. So far as Great Britain and this Tribunal are concerned, who the private sulferers, and who represent them, and whether they were insured or not, and have been paid their insurance, are questions of no importance. But it is worth while to look this argument in the face for a moment. Some of the sufiferers by the depredations of the Alabama, the Florida, and the Shenandoah were insured by American under- Avriters. These sufferers have collected their indemnitj'^ from the under- writers, and have assigned to them their claims. The enhanced premiums of insurance on general American commerce have, presumptively, enriched the insurance companies. Great Britain should have the benefits of these profits, and the underwriters, at least, should lose interest on their claims! It is difficult to say whether the private or the public considerations which enter into this syllogism arc most illogical. Certainly we did not expect that " the enhanced payments of insurance ^^'' which Great Britain could not tolerate, and the Tribunal has excluded as too indirect consequences of the .cts of the cruisers to be entertained when presented hy the merchants who had paid them, were to be brought into play by Great Britain itself as direct enough in the general business of underwriting, to reduce the indemnity on insured losses, which, if uninsured, they would have been entitled to. ((*) Equallj' irrelevant to this particular question of interest are the considerations embraced in section 11 of the learned Counsel's argu- ment. These relate (1) to the fact that the belligerent aid giv^eu by Great Britain, for which it is now to be charged as responsible, were given in aid of the reoels against the Government of the United States in their attempt to overthrow it, and that by the triumph of the Gov- ernment these rebels have been merged in the mass of the population of the United States. This idea, as intimated in the principal discus- sions of the British Case and Counter Case, has been responded to by us already, so far as it seemed to us to require response. (Argument, p. 479.) It certainly has no special application to the question of interest. The notion seems more whimsical than serious, but whatever weight it possesses should have been insisted upon before or while making the Treaty of Washington. The terms of that Treaty have relieved the Tribunal from any occasion to weigh this argument. But {2) in section 11 of the learned Counsel's argument it is insisted that the allowance of interest, as a part of the indemnity, should be affected by the circumstances of the failure of the United States sooner to cut short the career of the cruisers, for ^n hose depredations Great ■\^r\ AMERICAN ARGUMENT INTEREST. 571 Dritaiii is now held responsible. A plea to this ellect, based upon ottbrts of Great Britain to arrest, disarnr or confine these cruisers, and thus reduce the mischiefs for which it is held responsible, would have had some merit, lint, alas! the Proofs furnish no support for such a plea. As to the action of the United States, however unsuccessful, it will 1)0 time enough for Great JJritain to criticise it as inefficient when its Navy has atte»npted the chase of these light-footed vagabonds, which found their jirotection in neutral ports from blockade or attack, and sought remote seas for their operations against peaceful commerce. iiixt this consideration has no special application to the re8enting money that he has had aud, actually or presumptively, keeps and enjoys, or detains property whose profits he actually or presuuiptively receives and enjoys, do not apply. It is true, these yrccisc reasons do not apply, and they do not any more in a multitude of private cases, where, nevertheless, the indem- uity exacted for wrong-doing, or the payment required to make whole the creditor, involves the payment of interest. It has never been suggested that, when the injury coiisisted in an actual destruction of property, the wrong-doer was less liable for inter- est as a part of a delayed indemnity than when he had applied it to his own use, and reaped the advantages thereof. So, too, in matter of contract, the surety being liable for the debt, is just as liable for the interest as if he had received and was enjoying the money. So, too, where one is made responsible for the injury which his dog has done to liis neighbor's sheep, he pays interest for delayed indemnity just as much as if he wore their wool or had eaten their mutton. In line, the question in respect of contracts is, whether the contract expresses or imports interest, and, in respect of torts, whether indem- nity is demandable or is to be mitigated. If indemnity is demandable, it has never been held to be complete unless it included compensation tor delay. Besides, in this actual case, suppose that twenty millions of dollars are a measure of the indemnity that Great Britain should pay lor the capital of the losses suffered for which it is responsible. This means that, if that sum had been paid when the loss happened, the sutterer would have been made whole and the wrong satisfied. Instead of that adjustment having been made, instead of that sum of money I having then passed from the wealth of Great Britain into the hands of the sufferers, they have been kept out of it, and Great Britain has re- tained it. It is in vain to say then that the delay of payment has not left Great Britain in the possession of the money during the interval, I for the contrary is true. The lapse of time bar all the while been to the gain of the indemnifler ami to the loss of the sufferer, uules^i interest lidded corrects the injustice of delay. (ft) But it is said that the indeterminate or unascertained amount of these injuries precludes the allowance of interest on the capital that shall be finally ascertained. To us this seems no more sensible than to say that iaterest should not be allowed, because the date from which or to which 572 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. ♦ . it was to run, also needed to be ascertained before it could be computed. The problem before the Tribunal, as bearing upon this question of in- terest, may be very simply stated. The injuries for which Great Britain is to make indemnity, happened in the years 1SG3 to 1805. The Treaty of AVashington provides that the sum for their indemnity, as flxed by the Tribunal, shall be paid within one year after the award. What sum, payable as of this date, will be an indemnity for destrncr- tion of property occurring seven, eight, and nine years ago ? Manifestly, the question whether Great Britain should pay interest is an inseparable ])art of the question whether it is to make indemnity. (c) But it is said that for a certain period of time the United States are responsible for the delay of payment by Great Britain, and for that period Great Britain should be exempted from interest. This period is put as from the failure of the Johnson-Clarendon Convention, negotiated in London January, 18G9, but not ratified by the United States. If this means anything, it means that Great Britain, in January, 18(59, was ready then to pay to the United States the sum tliat this Tribunal shall find reason to fix under the Eules of the Treaty of Washington, and so notified the United States. The intervening delay, consequently, in the receipt of the money is chargeable to the United States. Thus put, the proposition is intelligible, but utterly unsupported by the facts ol' the case. Great Britain has never admitted its liability to the United States in the premises for a single ship destroyed by any one of the cruisers, nor is it pretended to the contrary. Of what value is it then to say, that if Great JJritain and the United States had been able to agree upon different and earlier arbitration there might have been an earlier award, and so interest should cease from a date when Great Britain was ready to accede to an arbitration upon certain terms which the United States rejected ? Certainlj^ the efficacy of this novel limitation on the runniiifi of Interest must date from the probable period of the award under the failing arbitration. Upon no reasonable conjecture could the connnis- sion of claims arranged by that convention have produced its award at all in advance of what may be expected from this Tribunal. We leave out of consideration, as wholly irrelevant, the suggestions that it was to the non-concurrence of the Senate of the United States that the failure of the previous attempt at arbitration was due. That arbitration failed because the United States did not ratify the con vention. But to give any force to this argument, it .should appear that the United States in the present Treaty have simply, at a later date, concurred in what they then refused. This is not pretended. Indeed, it is to the presence of the Three Rules of the Treaty of Washington as the law of this Arbitration that Great Britain seems disposed to attribute its responsibility to the United States, if, in the judgment of this Tribunal, it shall beheld responsible. We respectfully submit that there is no support, in fact or in reason, for this attempted limitation on the period of interest to the date of the Johnson-Clarendon Conven- tion. {d) The argument of the learned Counsel concludes with a criticism upon the cases under the Jay Treaty, and under the Treaty of Ghent. I jind the case of the Canada, as decided by Sir Edward Thornton, all ot which were adduced by us in our principal argument as pertinent on j the question of interest, (p. 220.) We must think, with great re- spect to the observations of the learned Counsel upon these cases, that their authority remains unshaken. We respectfully submit herewith aj AMERICAN ARGUMENT INTEREST. 573 statement, showing what computation of interest we sui»posc .onUl rightly satisfy the demands of the United States in this behalf. In conclusion, we may be permitted to repeat, in reference to this ele- ment of computation of a Just indemnity, what we have said on the general measure of indemnity : This principal question having been determined, if Great Britain is held rcsitonsible for these injnries, the people of the United States expect a jnst and reasonable meas- ure of compensation for the injnries as tiins adjudicated, in the sense that belonj^s to this question of conn)en8atiou, as one between nation and nation. (American Argu- ment, p. 225.) It is a matter of the greatest interest to both nations that the actual injuries to private sufferers from the depredations of the cruisers, for which Gieat Britain shall be held responsible, shall be fairly covered and satisfied by that portion of the award what shall be applicable to and based upon them. That this cannot be expected without an allow- ance of interest, is obvious. A recognized right to indemnity, and a deficient jnovision of such indemnity, should be the last thing to be desired as a solution of this great controversy between these nations. Wm. M. Evartss. C. CUSHIN(}. M. 11. Waite. NOTE TO THE KEPLY. Summary of the Amevican claims, ivilh interest at 7 per cent, addeil. Principal. Interest. Total. Alabama 16, 557, 690 00 4, 616, 303 93 3,663,277 46 $4, 740, 420 04 3, 257, 760 85 2, 123, 741 46 $11,298,110 04 Florida 7,874,664 78 .Shenandoah .... 5,787,018 00 14,837,271 39 10,121,922 35 24,959,193 72 In case the Arbitrators reject column 5, (loah, the total amount of claims will be — under the heading Shenan- Principal. Interest. Total. $14,476,921 39 $9, 615, 659 26 $23,993,189 65 (a) Interest is calculated a {b) It is calculated for the each cruiser, namely ; By tht by the Florida, for ten years eight years and five months. NOTE. bove at the ra true average 5 Alabama, for and one mon te of 7 per cei of time of th ten years and th ; by the Sli it. a year, e captures by two months ; enandoah, for 574 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. ALABAMA. Names of vessels. ^ ii ' Alert Altamalia IJeiij, Tucker . Courser Ellslia Duubar . .. Kate Cory Kiufjfishcr Lafayetto 2d Levi Starbuck . . . Nye Ocean Rover Ociuulgee Virginia Weather Guago .. Brilliant Chas. Hill Conrad Crenshaw Express (lolden Eagle .... Jabez Snow John A Parks Lafayette Lamplighter Louisia Hatch . . . I'almetto Rockingham S. Gildersleevo Wave Crest Amanda Amazonian Anna F. Schmidt. Contest Dorcas Prince Dunkirk (jolden Rule Lauretta ALartaban Olive Jane Parker Cook Sea Bride Talisman Sea Lark T. B. Wales Tycoon Union Jack Winged Racer Manchester Cbastelaine Emma Jane Highlander Sonora , Ariel .Instina , Morning Star P.-,^.^ 50 15, 519 90 88,724 8H 35, .572 SKI 02, 512 29 22,531 ()« 03, 330 20 82, 05(J 29 04,801 10 80, 700 70 8ti, 023 81 22, 830 02 65, .503 12 17, 090 04 107, 324 04 29, 7 29 ir. 76 81 02 12 04 04 30 31 03 Hrt 14 92 21 19 48 59 HO 73 67 o: 0(1 15 26 00 2(1 OH 00 07 Names of vessels. a "« o a o a 1— I !5 5^ o 3 A or*••••• .Sliulight iJarou do Castiiio. $88,025 00 11,245 00 1,500 00 March, 1863 .Se]iteiiiber, lb()2 October, 1862 6,-557,690 00 Add one-sixth iu order to increase the rate to 7 per cent o o n c- , -w 3 -- t- * = c 5 * sj'i' S V m -f C -^ w §.55, 4.5,5 75 7,421 70 9-2 50 4,063,217 18 677,202 86 4,740,420 04 The avcraja^e time for the computation of interest on the value of the property destroyed by the Ahabamais about ten years and two mouths. We have, consequently, the following comparative results : Principal. Interest at 7 per cent, for i ! years and «wo j months. Total. American Statement j $(!, 5,57, 690 00 British Statement 3, 267, 678 00 $4,740,420 04 $11,298,110 04 2,363,620 36 i 5,631,298 36 Whatever be the sum fixed by the Tribunal as a base for the compu- tation of interest, and whatever may be the rate that it decides to allow, the average time for the computation should be the same in all cases ; that is to say, ten years and two months. FLORIDA. S) ■ ■" c- !- « o S 3 s« +=-s •■^ /.I «. « ^2 2 gS"?..* fl V P >-• k)*^ o Golconda )5il69, 195 92 Rieuzi | 20,726 00 Ada 6,300 00 Elizabeth Ann 8, ()r)0 00 Marengo 7,746 00 Riifus Choate. 8,775 00 Wanderer I 8, 389 00 An<,'lo gixon ' 63,695 79 lAvon ! 183,851 40 F. Hoxie 1 115,155 00 llirecnland i 47,170 00 Southern Cross ! 79, 305 00 Willliitu C. Clark j 29, 5.56 91 Mary Alviua 20,445 00 July, July, June, June, June, June, June, August, March, March, July, June, June, June, 1864 1863 1863 1863 1863 1863 18 12,(i42 86 3,874 .50 5, 319 75 4, 763 79 5, 396 62 5, 159 23 38, 535 95 104, 795 29 72, 547 65 25,943 .50 48,772 57 16,404 0« 12, 573 67 576 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. • , I fn Name of vessels. s -a mm i 9 Aldebaran Clarence Cor . v. on wealth. . . . Crown Point Electrie Spark Henrietta Jacob Bell Lapwing M. J. Ccucord Red Ganntlet Star of Peace William li. Nash., Oneida Windward Estelle Zelinda Umpire Mondamiii Corris Ann General Berry George Latimer... Harriet Stevens... Byzantium Goodspeed , M.Y.Davis Taconv Whistling Wind.. Archer Ripple S;50,957 91 26, 177 50 470, r>;$3 .'58 4:r),073 00 498 00 24,925 00 42,925 00 35,.^>.30 00 35, 549 00 34, 485 00 35,918 48 49,831 33 51,925 00 63,240 51 43,218 30 18,604 00 39,622 00 12,594 10 4, 300 00 10,755 00 £ i a o.a.S « 5 iZ> ^ ^ 'S ^ -W a— 1; 0, o s o ■w gssg^-i ■^ hH Ci S i ;^.rs :. March, 1863 •319, 503 4-t May. 18(53 16,230 It;' April, 1863 294,083 4rt May, 1863 270, 365 26 July, 1864 257,601 7.^) April, 1863 45,973 (18 February . 1863 a67,96i lit; March, 1863 50, 4.53 :,:> March, 1863 67,974 (ill June, 1863 76,752 70 March, 1863 335,241 04 July, 1863 41,922 21 April 24, 1863 S94,905 TO January, 1863 14, 462 72 January, 1863 15,052 0(» July, 1864 23, 608 75 June, 1863 21, 8.50 0'^ Sept., 1864 19, 206 2t5 January, 1863 22, 070 40 July, 1863 21, 910 27 May, 1864 27,905 .54 July, 1864 28, .5.58 7.'. June, 1863 38, 892 91 June, 186:3 26, 579 25 No date. 11,441 46 June, 1863 24, 367 5:i No date. 7,745 37 No date. 2,644 .50 June, 13(53 6,614 32 2, 792, 366 45 ) 7 per cci It 465,394 40 3,257,760 <'■> 4,616,303 93 , Add one sixth in order to increase the rate to 7 per cent The average time for the computation of interest on the value of property destroyed by the Florida and her tender is (about) ten years and one month. The comparative results are : American Statement. British Statement. . . Principal. U, 616, 303 93 2, 635, 573 00 Interest of 7 per cent, for ten years and one > month. $3,257,760 85 1,860,263 60 Total. $7, 874, 064 7H 4, 495, 836 W Whatever may be the sum fixed ''^ the Tribunal as a base for the coin- putation of interest, and whatever may be the rate that it shall decide to allow, the average time for the computation should be t\e same in all cases, namely, ten years and one month. If or tUe coiii- shall deciik' It^e same in AMERICAN ARGUMENT — INTEREST. SHENANDOAH. 577 Names of vesHela. Abi{];ail Hrunswick ('atherine Congress Covington Edward Carey Euphrates Favorite (fcn. Williams Gipsey Hector llillman Isaac Howland Isabella Jireh Swift Martha Nassau Nimrod Sophia Thornton . . . Susan Abigail Waverly William Thompson. William C.Nye Pearl Almira Europa Gen. Pike James Maury Milo Nile Richmond Splendid , Australia Louisiana a* cs u o V a May, ISG.'J June, 1865 June, 1865 June, 1865 June, 1805 April, 1865 June, 1865 June, 1H65 June, 1865 June, 1865 April, 1865 .Tune, 1865 June, 1865 June, 1865 June, 1865 June, 1865 June, 1865 June, 18C5 June, 1865 June, 1865 June, 1865 June, 18()5 June, 1865 April, 1865 June, 1865 June, 1865 June, 1865 June, 1865 Names. S o -M a o a -t! |il(l0,.5:ll 7l> ion, 874 .50 in{,(i7o yo 177, .587 00 88, 802 50 72,047 70 lt6, 846 .'iO 169,693 44 li;i,U05 85 95, 457 75 125,620 80 157, :i06 50 205,951 00 159,987 00 107, 273 25 129, 779 02 181, 279 .50 162, 124 87 106,759 31 .56, 993 37 135, 655 25 180, 968 75 98,377 50 55, 685 50 >333,.5(»0 00 3,263.149 .55 • Second table. — Shenandoah. Claims. The vessels Edward Carey, Hector, and Pearl were cap- tured in April, 1865 $253,3.54 00 The Abigail was captured in May 100, .531 79 The other vessels were captured in June, 1865 2, 909, 263 76 Add 25 per cent, of the value of the whalers 400, 127 91 i Add i in order to increase the interest to 7 per cent 1 3, 66.3, 277 46 e s£ ii gf a » § «- i*- See table 2. Do. Do. Do. Do. Do. Do. Do. Do. Do. Do. Do. Do. Do. Do. Do. Do. Do. Do. Do. Do. Do. Do. Do. Interest. $127, 943 77 50,265 89 1,440,075 .56 202, 064 59 1,820,349 81 303,391 63 2,123,741 44 The average time for the computation of interest on the value of prop- erty (lestroved by the Shenandoah is nearly eight jears and five months. 37 c W-''- ■ If 'iw ' yit • ■ I. 'H 578 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. Comparative Results. Amoricaii Statoniont. British Statoiuoiit . . . . Principal. Interest at 7 per cent, for 8 years anil 5 months. Total. $:?, 00:^, -JT? 4(5 I *',M2:?.74l 44 S5, 737, 018 l»(l l,l71,4U4iJOi G'.M), L-'7 54 , 1, H()l, G.'il .^4 If the Arbitrators reject as double claims the claims for insuraiice iu column five, (5,) the American Statement will be as follows: Principal. American Statement $:?, 202, 0.'>7 4C) British Statement ' ■,171,4G4 00 Interest. Total. !|l,(n7,478 ;'.7 m), ls7 54 S4. 820, 405 8:! 1,8(51,051 54 Whatever may be the sum fixed by the Tribunal as a base for the com- putation of interest, and whatever may be the rate that it decides to allow, the average time for computation should be the same in all cases, namely, eight years and five months. ^^''UH!- I Total. ,787, OH '.)tt su ranee in Total. 4, i?'20, 40.'") AW l,^Gl,t351 54 for the com- ileoide.s to in all cases, XIII.-COMPARATIVE TABLES, PRESENTED BY THE AGENT OF THE UNITED STATES ON THE 19TH OF AUGUST, 18?>, IN COM- PLIANCE WITH THE REQUEST OF THE TRIBUNAL. « In accordance with the instrnctions of tlie Tribunal, the Agent and Counsel of the United States have caused tables to be prepared, show- ing the differences which exist between the statements of claims and losses submitted to the Tribunal on the part of the United States, for the estimates based on these statements which have been presented on the part of Great Britain. The claims i)resented by the United States are supported by sworn .Htatemeiits presented by those who possess the necessary information, and they exhibit in detail the items which go to form the sum total, and the names of all who have made reclamation, whatever may be the sum which the Tribunal may see fit to award. The claims on the part of pri- vate individuals thus computed, verified, and submitted, are supported by all the guarantees of their good faith and their validity, as well for their general amount as for the other facts concerning them which gov- ernments are in the habit of requiring, in such cases, from their own citi- zens. It thus appears that these computations show the entire extent of all private losses which the result of the adjudications of this Tribu- nal ought to enable the United States to make compensation for. In certain cases, however, there is reason to believe that more claim- ants 'than one appear for the same injury. In such cases the United States have impartially presented the statements of all the claimants, intending, when the proper time should arrive, to endeavor to show, from the evidence, what sum Great Britain should injustice be held to pay, by way of compensation for real losses, without prejudice to conflicting rights. We have done our best to prepare tables by which it seems to us that the Tribun.il must be enabled to determine with sufficient accuracy the amount of these double claims, if indeed any such exist. It is not easy to conform to those instructions of the Tribunal which require the preparation of tables which can be compared with those of Great Britain. While the American statement sets forth details, and furnishes the Tribunal with all the necessary means of making a minute I examination, vessel by vessel, and claimant by claimant, the British statement is a generalization based on certain facts which are taken for granted, and which exist, in the opinion of the authors, in the commercial I world. It is not therefore possible for us to present comparative views touching the various claimants in detail, or even touching the various I vessels destroyed by the cruisers. The authors of the British statement have classified our claims in so- I arbitrary a manner that we are forced to confine ourselves to a compari- son of the sums total contained in their classified tables. On our side, a knowledge of these sums total is reached by following the evidence, step by step ; on theirs by a process of reasoning. The two systems differ so widely that a detailed comparison is impossible. All that re- mains for us to do is to beg the Tribunal to refer to what has already been said on this subject in the American Argument. (American Argu- ment, note D.) 580 SUri'LEMKNTARY AROl'MENTS AND STATF.MEN'TS. ¥' ■f I I . i f^ \Vc iXiQ, tliercforo, forced to follow the British arrangement in order to compare the sums total, since it is impossible to compare our views in detail or according to any combitiation differing from that which is followed in their arrangement. Wo give their classification below : A. — Claims uriHitifj; from the capture of whalfTH or tisliinjj-vflsaolN. H. — 8iniilur clttiiiiH urisiiijj from vossels carryiiifj carpws compontMl of one kind of goodH. C — Similar claiinn ariwiiig from vohhcIm carrying cargoes coinposful of various kinds of goods. I). — Similar claims arising from vessels in liallast. E and F. — Divers claims which could not properly be placed in any of the aho\e categories. Before coming to special vessels we desire to call attention to three well-marked points of difference between the two statements. (a) The United States ask here, as they have already done in their memorial and in their argument, that the Tribunal should grant them interest on the sums which they may determine to regard as the extent of the original injurj', as a necessary and iiulispensablo part of the in- demnity due to them in consequence of that injury. This interest ought to be at the ordinary rate which prevails in the United States, where the damages were suffered and where the losses are to be indemni(ie«l. The interest should be computed from the time when the losses occurred up to the time fixed by the Tribunal for the payment. (b) In the American statement, especially in the claims arising from the destruction of whaling vessels, expected profits, or " the prospective catch," is included in the computation of damages. (See American Ar- gument, note D.) (c) According to the arbitrary assumption of the British statement, that the freight claimed by the United States in the name of their mer- chant navy constitutes ''gross freight," this statement rejects all claims for freight, while, in the absence of any evidence to the coutrar5', wo assume that these claims are for •' net freight." These three classes form in the sum total a great part of the dift'erences which exist between the two statements. In accordance with the suggestions of some of the Arbitrators we have eliminated from the tables the claims submitted in favor of whaling vessels for the " prospective catch," the amount of which would be $4,009,302.50 ; but we by no means intend to withdraw these claims, or to intimate that we do not consider them just. On this subject wc refer the Arbitrators to the note alluded to at the close of the Ameri- can Argument. Should the Tribunal share our views, the claims for in- juries suffered by these vessels should be proportionately diminished. In case it should not share our ^ ie^^ m, we should ask it to grant us, as an equivalent, interest at the rate of 25 per cent, on the value of the vessel and equipments. We have been obliged to trust to arbitrary estimates in regard to two subjects, because there is no sworn evidence in relation to them ; viz : ( A..) The pay of the officers and crews of the captured vessels. (B.) The value of their personal effects. We have every reason to believe that the sums total which we submit to the Tribunal are for the most part correct in substance. (A.) We calculate for each vessel of class A, whose burden did not exceed 300 tons, one captain at $150 per month ; one first officer at $100 per month ; one second officer at $75 per month ; one third officer at $60 per month ; one fourth officer at $50 per mor th ; four helmsmen at $40 each per month ; four helmsmen at $30 each per month ; and four- AMKUICAN TABLES. 581 B (lifferenct'S tecii men at $1*0 eacU per month ; ami wo calculatt^ onoi additional man at $20 per month for every lifteen tons in oxcohs of 300 tons. In the statements rehitive to the vessels dewij^nated under letter A, there is, in the annexed tables, a calculation of wages which exceeds the correct sum of $1L'0 per month for each vessel. The error is cor- rected at the end of the respective columns of each table, and the sum total is finally stated correecitied cases, from the (commencement of the voyage up to the time of the capture, and when the capture took place in the Atlantic Ocean, or when the capture of a vessel whose owner resided on the Pacific coast took place in the Pacific Ocean, they are calculated for six mouths additional ; for nine months additional when the owner resided on the Atlantic coast, and the cap- ture took place in the Pacific Ocean. This additional sum is to pay the expenses of the return after the caitture, and of the time passed on the way. (B.) In some cavsesthe officers or men have presented claims for the value of their persc'uil effects. We have submitted no claim for such persons in the general table under the name of each vessel. When no specijil claim is presented we submit a general claim, according to the following estimate, viz, for each captain $1,000; for each first officer, $750; for each second officer, $500; for each third and each fourth of- ficer, $250 ; and for each helmsman and each seaman $100 ; we consider thes>e estimates moderate. It remains for us to explain the annexed tables. The detailed tables contain six columns, numbered respectively 1, 2, 3, 4, 5, and G. Column 1 contains the items which form the sum total of the claims under the name of each vessel captured. We give the name of each vessel capt- ured, its burden and the claims which were presented in its behalf on the 15th of April. We add a statement of the sums which must be subtracted from the sum total, and of those which must be added to it, according to the rules which we have established. Column 2 shows the said sum total, without the " prospective catch," the " expected profits," or the " breaking up of the voyage." It embraces the sums which arc detailed in columns 3, 4, and 5. Column 3 shows the claims lor in- surance which are undoubtedly uot double claims. Column 4 shows certain claims for insurance, in regard to which the evidence is silent. It is possible that some of these should be deducted from the sum total of column 2 ; this can only be determined by an examination of the facts in each case. Column 5 shows still other claims for insurance, accord- ing to which the owners of the property insured claim, at the same time, full indemnity for their losses, without regard to the insurance em- braced in this column. It is for the tribunal to decide whether these claims should or should not be deducted from coluuui 2. Column C contains remarks. The decisions rendered by the tribunal, in relation to the Georgia, Sumter, Chickamauga, Tallahassee, Ketribution, &c., have necessi- tated a modification of the certificates of the Navy Department of the United States, touching the national claims, which certificates w ere pro- 582 SUrPLEMENTARY ARGUMENTS AND STATEMENTS. duced according to the provisions of the protocol accompanying: the treaty of Washington. (American Memorial, French text, page 3.) In the annexed tables this modification has been made by deducting from the sum total, submitted December 15, 1871, the expenses caused by the acts of vessels for the acts of which the TrilMuial has decided that it could not hold Great Britain responsible. The summing up shows the sum total of the claims now submitted on the part of the United States, including the " prospective catch," and the sums total embraced in the classified British estimates submitted in the Counter Memorial and in the Argument of Great Britain. .?f .»< }^ « •B.I I>> ■H( OJ no 0(1 OTt < q;) :5 'K.I I>>1 '«ll _) 1 IMJj < !0 -.1.1 ■r. •HI >J y •■ I « , ^^m AMERICAN TABLES. 583 a "T 5: i i — i a S I'^ul ^^lt>, t_ re o '^ > — _.a ?-^ .-^ si: = s,— ■*,>. i; — .a -0 t « £ « g ^ ! § « 1 « •-= B jS = JS -Sa— S5. iS-^Ft.*"--' i-r » 2S«*^ga«.t:i:g , = •7 = =.£7 5 ? = M M -- o •^;iiHMns'iii o JO jiino.i.m no uuniJ .ii<»qi ,;o noponpoj Auk jkui'bSi! X? 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X' tf t- "te "-- 4,1^ — It in o xo I* c sTt'" a a -■ a g =?o-. — X S? 72 = ^-»' c « c -■ 1 «« s in 596 SUPPLEMENTARY AK(;iMENTS AND STATEMENTS. m 1 m I •1 * I' ' ti ! ;l • 13 a _d ■♦J u o Y 1 •A ■aanv.! -riHni .JO jnnu.i.tv no Huinja j i I o i(°) J o iioijJiipa.i A'uu , js'iiiitSt! }8ajo.i(» Kja(i.\vo iiu ipiijAiiit'ooiitjjusaiJojHiuiBto! c: t. fB .2g.J3 •B 5° - n S O b R ti- . ■•s ^ w ■ .a o - = Se •j ^J V. r. 3 "■s 2is a g « rt o o . a 1 .2.1 1° r- D-! -Pn (Bjj a « _ j3 ♦- rt Hi •™* s •a = o - a.^ ^ = 2i£« S c; K u « a Si2 ■2-1- 5^5 2|£ •■=§ = •TO U >-. = oj a< S ""^ ua •l* J o ? -«-> V 5 0.0 >', z'. >^ « I •^ori.iosaaii.ttoaqj ' JO enitB|3 aqi ni popnpni su . j i>aaaiii«uo.i oij oj o.ih -V'aiu i [ 'jBunqiJX ai'jj oj pajiiimiiiH I gq o^ 'ujuu.iiitiui joj hiuiujo 'mtcp on 9>xnni siaiiAvo oqj I q;>iq.u ui tiJ8U9 ijU!|m|aiii I 'Hj'aii.uo aqj jo 68oi°ai!J oj ; i)u oq itiiuii qfiiq.u pmr I 'uuBiooqj III pajujtj .\'insd.iil I -\a oau q.)!iiAV jo Hjuiiomu oqj 'oaiibMiiMUi joj buiibj,') « ■.tt 0.1.1 JO sj.i.tjja {iiiiOK.i.'xI jiiiB Ha): -III 'hUI!«[J Ji> JllllOIllB iitjo.l. s o 2 •'■5 ?, » 2x.2 '^ ?■= ^ « «; « J a Up =. ^ O o o o 1 o o :: ;2 C 3 3 o o 1- 1 5 2 ■ ;5 X a. r- T - » •iT o I- "C H ~> -1 It 7t '" *** O O ' = 2 ■ - c 1 ■ ' o 3 1 • = O ss ■ - o ■:?i '■'•'I?, -r "irj 5»t- ■ ( - I'- ■ riffj t--^ '' %c' -r ■ »' ?^' : ~ ni -*> j > 2- ■ -i-^ ; ; ; : * ." -* • \ I 1 '7 -J ." *- is ■ • • i u .a = : c^ S • a s X ♦- "Z ' '- . '« I'r* *• /■2 Ij ;^ I "r; '■ it — is ^ o a ;i4 w 1 *^ z • w i- ll +-t c ^ *J 1-5 SVj «-« ( c •" ' s *^ a l^iil ! a a ■ a a III Wi t.'^ a ^H ~ 3 4-1 i«£. = - -f ir; *. ,-- 2 ^ f - iJ t) :j ' T. .i-- a f n C •a 1 111 S e -f i. t- r- 3; rt *-» -, ^ »*' - *^ U '1 ' J. -* OL. i* s: "*. ••IP i. i'r* ?-. S^a. ill IL vt £ <2 ;£ AMERICAN TABLE.s. 597 ■"f I Si 9 O 7> 2 =« — o o 4) i, a ^ V ^ 1 O -^ .^ C -— V ■/; u :j ;- « ta f: .«« rt — « ^ 3 1 rt r- 9; 1- ss 04 'i 9 X 2| 1-i=-^'^ •^ (^ £_ C ^ la M 5 * 2 1. fr* S . •» ^ /. |5 5?j|; 's _5 ♦- a r: is si i. — ^ re .- t. ;3i: a n 3 a '' K ac-i 3 ?. = <=• ■■; ■2|i C? X • i/ 31 JZ ^.2 2 P-.5 ^v. = 3 -'"^ i £ a « '^ .w c "3 »: ■= = £ ri-2=s.Sc "w ;, r J = = « a « s 3 <* - 5 f l-lll|li .= «: J = ;, i< «. ;. re A O -; Or C li C i ! c Ck i "A \s : S «r ii — e ; 13§ 1^ U ~ a ta^ r ■a rS •■" S3 ■ = c~ :~ is : ^"3 — yt:.= * = c a Ic 55 • r. o s s 1 fJJ ; " ■>f t3 c'a a -f'i III — are l-" — ~ ?l •y. 2 = Is I ■», o t- = a * • ,« *- -/. ■ -r £ a I I- u Z • S.* ill. -• •- *■ a ? «- i «-" i ' "■ * cr ^ ?.i i. >'. r 5 w » SJ 1 00 1 is 5 :^18 :« ■ ; o i c 55.H I?" a c b re is 4. •k> ::!d i) 98 SUrPLEMEXTARY ARGUMENTS AND .STATEMENT.S. a o '^ a S 3 03 a, (-« .a Si (!< «» . 2 =^ ^ ,1. — ts : .t: T O t « o o n. c. ~ 'A M,)iin.i |j!oi(i ,|(i uoi).)ni)aj JCuv I :)RiiiH^n ')8a)o.i(t sjauAio 9i{> I . qiiq.vi a!'(tout!JnHa!.ioj8[uiB[;)! I ';oa JO sjon^o i>t\% \ JO HiuiBin oi{^ ui popnpui bu | °l>9Ja|>!H(io3 oq o) o.iu i^oq^ ; jat(}3llAi Opiaop ({lAV tI»IIlAV ' '[Biinqux o'l> "4 poj^imqus i kiq 1^1 '.tjacaiisui .loj etnieiQ ' 'a.iaBJutint aoj i tniB{3 oil e?f«ni hjoiiaio' oi(\ qD(iU^ UI tidBBj /Jutpnpai I 'tiiau^o o\xi JO 8S0( oqi oi I psppu oq ^KUia q.itqAi pun 'luivp om UI pa;B}8 \'j8saad -xo' O.IB qoiqAV .jo K)iinonin | I oqj '.i.iHB.insui' .toj bihibj,') ' •.vv;u.i.(OH|.it>H.i pilIOH.I.xI pUl! H,>:illA\ !nlI!pU[.> ■ui 'Kiuii!!.) JO ;uuom«'iii}ox M ^.i a-* 3 : n i n t^ iB ;■* o At ^•« - H .• "■aE. s =■ « tit m o n s «.2 0,5 9^ O It 5 S '5 • ^.£ C B — ?s.s !•- " S * »j |S = i ss, ^^ bli J. c.= •3E.5 « a. t. il 1- 5 : 3" .3 - -i t»s -So _•■— c III if " "-; « 1.55 I,:* a, ui ■=-n £ fc s^ '■ a- 10 a- S " £■= 3 if — ss a ■pi AMERICAN TABLES. a s m t a a *•* ■c i^ o t a a a a. a & .3 a s T * 1 u a ® • ^ of .3»a ■S ® 3J=r 5S §1 i a i * = £. aoS a«= (R Ij w §2. a S* ?-■ ao u a b axi Is a 5 9 a I. cJ §i * re ^ -a.5 I. « ». — «i b. ;5g in I "3 9 I a X 2 — i'=7- — 4; r_ .a - a i a a si ax ~ 1. 1. a - K aft! "5 *< - 7 ti* ii if if a ■St s = a i. «, — '2 a is.- a 5 10 =s = ?5 !3 a iS i :?S /r't 41 ' .-a.: i = •/. Ul .>;?^ t?5 -> a *?- = 2-r 2 £— a "?— a ■>;2 1 af 1 a^ ■ 3 1 1 a n;-- ^ I?=i; _c 4) fc. ■■o ^ ^ ^ to 4 5f a, .iN »^ a. 5 Iw5 - S X r3 Sfi * Ss ?..^ ; 3 1-2 2 a ^2 a •^•t .- a TJ 1. ; a is a ^ a J = a 1.— aa a a * f If- — a — a 5? i-if r, . a I .- a 1- ■3 1.5 s:?i = . v« a S O r 2 f ^ iaf i-c a ir, V b '•■ L» -'*^ 5i 2 ,=5 3! '"> a. J, « ~ III . a 5. 600 SUI'PLEMKNTAKV ARGUMENTS AM> STATKMKNTH. i i I ■ a o o i M31II; •.insiii \n ^iiiio.iDi! HO smnij.) ' 4ti'll!DSH iK,1}(>.l>l K.I.MIA\(H>m I li:>li{AV Ul 'itOUlMUSIII JOJ KlUIUff), ■:)ou JO Riixi.wo oq; ,{« Kiunti.i K»ix III iMpupni BB iKM.tpJKIIO.) .iq iH SUB A'.HD .ioq)oi|jki itpi.i.ip \\i\\ qoiq.M '[BUiiqi.ix "'H "i 'l>->U!<»q>>B uq o; ojiiciUKUi .U)f Hiiiniu ' •lutBio on onBiii s.miiAVO oqj ! qrtiq.tt III HJKB9 :aii!piipu! 'tUttUMO l»\\ ,|(i Bso( oqj o^ pappv <«q 'iHiiiii qniqAV piiii 'lump »q) HI pa)ti)H A'ikso.iiI { •X3 uau i{3iqAV JO 8)nniiiu); i OIH 'OOUUlllHdl .I(>( StUIBQ I •^\it.l.^ JO s).>.)ii'> s 4 f; 'S =5 I 2 « I p." c «. >5 2 ci. -r = &■' .2 a "3 si ^■>- S" Co; ji o <- a If C i o s- 'A « ^ -AUM.I JO S).>,>1|,. ►j ' ICIlOK.I.xl pil)!K.)^IM\ olI!pil|.) , '?» ■^ I -111 'Niiiiiq.) JO ■}iiiionni'ii!}oj. o s ^ ij *■• ci V ts ?? ' 1^ s o 1 1 ?. 1 a n 91 O ill loo • »" I- « E 2 b i CI c-r Hi g^i-5^ ill -» c •= c.s il- -I ii-^ •? i ? 5^ ■71 ~ 3 •3 » «; u c . c -*■ « .- «.^h^ tf AMERICAN TABLES. 601 2 c s. •STf -5 ^2 . S . "•3 O O i :^ ^ n £ c 1-2 i? 2 — o c - c - "S ^ o S. s E = ill :. C — ; cc fc. ■— _ t -r'5 « 2 a^- = a '« i5 .5 = _• U c ^ c ^ w "r * — -5-C S O 4, g s T. s s T'i-t. ■«1 fcJ (k. '>r .*"-••<= « c'sc •■ o r 5 *r .= «♦- jS S 5, — >-»: = T -.« ^ o y lip ?! = ■* i ♦^ T T i^^^ i !* -• -C X c3 2'c« ?- « "t ?I H ch V; 5 t s s ;= 5 «- I ~ s i? :§ a? = 5 P JB c := i'« ill J •£5 :3.? i = - i a y r. SI tl •/. s t-*: •/:-=:: — V 15 i; tl fc"- i.sf Jit; C02 .Sl'PPLEMKNTARY ARGUMENTS AND STATEMENTS. o 'A CD ■•/3 1 o ■"•;■. e bis i 2 » lis •38 Sr ."•5 § I o vj!u.;w8ui JO >niioaaii noiniB,:- roqi JO iioitanpaj Aub 4S1 .i;3ii 4H3)Ojd HjauMo oq) i]o'n|.M. n; 03IIBJIIHUI .loj Hiiiivo « "JOll JO BJ3IIAVO a\\\ JO suiiep in\\ m itopnp -a; eu pajspisao.) oq oj o.iu A'o'q) jaqiaqAV opi.iap HT-^^ juunqiJX aqi qajqiv o^ P-ibS -aj iiiu'jnBiusut joj huiiui.) 'aaiiujiiHui .loj xa\e\3 on o^ibiu B.iauMo M\% qatqAv iii eaxB.i iluipiip -III 'ojaiijiu aq) jo sboi aq) o) poppB aq :)tiiuu qaiqAi piiB 'luiBp MW ni pa^ttjK AlKea,i(lka a.iB ii)iinoiHB as(tqA\ aann.iusnt .loj uniiBif) « •soSbA'oa jo (III Sni5iBo.i sasnoj pail OAijaadHo.irt A'l.uiul K)||OJ([ .ioj osoq] iiuipiqa -u( ?ou '>nq 'Riaansiii piiB K.ldHAVO JO a80l|4 "iiipni.) -Ill 'wmuqa JO iiinoniii ib|oj, « 3 55 s •e I' .=? : S 1-5 CS SI -r ■■5 00 Sri S s So 1'^ ot (ft ^ ■0 s?^- = I si 111 a s = IT '3 i a. T S< •2 *» tC " e" 5! i'S Si t" If ? I -;■= «S =5 a J - AMERICAN TABLES. 603 X 3 U ^•3 !Ji a. 3 7 •- S 4;^ 2 "E - .3255. I •s « S S- *^ 05 cB (T s s 1- s s 4 « ^- l«4> 5« ^ -=?« W^ S5> « bits ■SB 4< 1-2 § T O SS ■^ o 711- ■a-.X. " J 604 HIPI'LEMENTARY AUGIMENTS AM» STATP^MENT.S. i « ' 3 a o o u Or '.)JlltMIIK(lt .|o )iiii(i,),)i! no iiiini.i .i!<>i|i jo iio}|.iiip,>.i A'mi jmiiuSi! 480)(Mll K.MIIAVO till) l|.ni|.\V I 'ton .10 M.IOIIAVO oil) JO «impii» MW III i).t|m|.> I -III KU |I.M.Il>lKliO,l <>q O) .Mit I A'OIU .MIll.MJ.VV tH)I.).>l> HJ.W I [niiii({UX'»l> iriii|AV o) [uitfl -J.I iij' .•;>iiu.msii! .loj siuni[f) Mainuntjii! JOJ llin!|.> oil 0}|l!lll H.ldll.WO aijl i[.i!i{M III w.>iii?3 if ii!i>n|.> -III 'S.DUJttO Olll JO SKOl aiiJ O}' l>.tl>pu 3<1 JKliri 1|,)IIIAV 1)118 'iiin!p .)ii; III ))oil!)S .\'lK(i.).lSl!A'0A .|0 till Siii^lHO.itl A'q \)3wnna kossoi Jllll! .)A!)a<>llH' f»- SI .-^5^ Ti X 3 1-2 j; J /. XI «s ~ o i:-?: a a S *J .2 ■ri V, 4) ^.^ >..=" i=- U.*- *■? ^j: T. S i" r= S o p — p- ^ S !r S' Goa SUP['LKMKNTARY ARtJlMENTS ANl> STATKMKNTS. * In I" i. •! o S a o 2 o '.t.iiiuaiiHijj ,|ll )IIIH)0.1I! IIOMIIIIUp .111)111 ,)0 IUI!).)II|KM A'lIU )8tI|1!7U 4H3)U.I(l RIktII.UO ttql l[i>|l|AV HI iMIIII.IIIHIII .1()( HIUpiIJ ')IIU JO W.Dll.WII 0I() JO KlUll!|;> .)l|l III l>itl>UI.> -III MH (lO.l.ipiHIlOO oil **) ^'<" Ao'llJ .l.)l|)UI('.A 0|)!.>i))> iij.vv luiiiKij.ix '"D il.>!ilAi o-i iu'h~ -;i.i III ojiinaiisiii .loj t -III 'M.I.'tllAVO Ol|) JO HHo'l 0I|) o| )i,)|>\)ii uq iHhilt i(.)!i(AV pill! 'lilini.i 01|) lir IM4I!4K A'lNK.udXO 0.11! K4IIUOIIII! omii|A\ o.>iin.iriS'ii[ ,ioj 8miii|,) •Sfiouio.v JO tin Wii;5nij.i(i A'q (lutttiuj hokhoi puii o.vijiioiU'D.ul A'|o-iii*I K4||o.i(I ,ioj Oh'oi() Siiipni.) ■Ill 4011 4uq 'K.iojitBni piii! B.I0II.\V0 JO 0H0I|4 iiiitpii|.> •ni 'KiiiiiiiJ JO tunoiiii'! \e\oj. cf s s s w ■^ s *r 12 ».1 1- OL ■a. i p 'i to" ii s 1- v-S or -r GL 4- frl ffi I 1 •T Ml l-.i ii ss 10 « 3fe> ° 5 S « « C C8 St -■« S.I ten 5«.55 sn C u te 6 e<2 O Is 3ga2 B «« f C II C!t3 Ts a U «^ • c. 7. XtC- •S in i i ,S rl p,C- a J, o c — ^ fc t -^ C3 A ^- •1-2 1^ 111- if 2 > ■« i i >- cc. I tt. T J. o ? a A^ .£.'-♦-<- ^ o c 2t;r I Z^ ^ % (108 SI PI'LKMKNTAUY AROIMKNTS AND .STATKMKNTH. i.^1 M i ■A -/J \ il 8 M.llllt.lllHII) i ,)0 )nn<),i,>ii IK) Kiu;ii|.) .i!.ii|i ' [|i> iii)|)aii|(<).i Aim iNiipiifii ')H.>)jl(.VV I III .DIIII.ItlHIII ,IUJ HtltjUU '((III .10 Rlilll.UO oi|) JO )iiii]iii.> |>ii|.( ■III Nil |l.).|.l|)!HIII>.><)llJ.».III IIJAV iuim(|(.i,i,;tlll|llll.l ■III 'H.I»IIA\0 !l|.\V |iiiii 'iiipn.) oi|» III i).>Mi|H A'ltlH.Ullx.) .1.111 H)IUIOIIIU ilKIII|AV kl.MIIUIIKIIl .lll| Klllllll,) •S.»J)llA"oA JO (III fliiiTjii.uq .\(| p.miiii.i H,>K«cii piiii .ia!4'.m(1h(ui1 a'i.m ■ii; )(><> I"*! 'h.i.miihii! |iiiu S.l'lllA\0 JO .)S()l|| jfll![lll[.) -Ill 'siiiini.) .10 )iiiioiini imox I I ■S ^ .§■3 V5 3 n 2- y, S t S S.'^ c a ;,. J -.^ES 7 = c « c r.— s J\ ^' = is.= *- y< - I, !« O _ V = 1*" «r 2. •M (C3 «rf . o ^ a - *^ s ir^ y, % 7 «; gS (U o.g . u o I ts a .'..2S Si « 55 a 3 3 -a b(5 AMERICAN TABLES. 009 - -r - - •? ^' s - n * ' = .S a -3 — SB > ft. - s n ■•■ ' 3 -^ris = 33 = ~ i i — - — ? ?H ;,St3 " \. a ■ r: •= ~ ^'i tHtuUu % = s , 4* ;-5 « ir I-: " s 2S o ■J T I- B 13.2 H c — i=5 3.2 '- C ■«4 B O I. S ss '•. — ^ — -s 39 c :?« u o ZB 1.-= >^ If! I- O I-" o si s?" :3i : :a 1 15 ; s •« K9> a Bi-i'-' ^ B s a. 5* is ^ u « § '11 s H igf t Y ; s — VT ;|t: \r •*^ 3 . a. U : i 5 ' ^ > f ' 'am -^ : o c i I tin . R ^ o 1:5 s • Cw t ■ -I c ut a fe ♦- U*" - ^ * • — *" tf} o K i; ^ ' *• — a. ~i'H igi SSf 1«( ,1 ^ s B.E n' « B B i. Sc^'?' :bic" «S.2«T«?g^f:.! .1-. '•]•.'•,'• '•.'• 'i S S ^ S irt ift ?p 3 S -3 cs cs d A A :« s s a n s S: ■- k - 2 S at 1^ r. Z 1=1 f- B C bC i XIV -TABLES PRESENTED BY THE AGENT OF HER BRITANNIC MAJESTY ON THE lOTH OF AUGUST, 187:>, IN COMPLIANCE WITH THE REQUEST OF THE TRIBUNAL. E! ■ l' ., I HfcRi PRELIMINARY STATEMENT. Ill presontiiis; the siibjoine»i tal>lcs to tlie Tribunal, as required by the Arbitrators, the Agent of Her British Majesty iuis tiie honor to pre sent the following points as deserving their attentum : I. Great liritaiu should not be considered bound to inaive eonipensa- tion to the United States for the sum total of the losses occasioned by any of the cruisers in .egard to winch the Tribuiuil may be of the opiii- ioil that tliL e was remissness in the perfornuuice of duty on the part of Great Uritain. II. The following principles .should be observed in estinuitiiig the amount of compensation : A. All double claims for .simitio louses should be rejected : such, for ex- ample, as claims presented simultaneously by owners and insurance companies, simultaneous claims for loss of freight ami loss of chartcr- ])avty, and other similar claims mentioned on pages 10 and 11 of volume VII of the British Appeiulix, .iiul which amount tc a very considerable sum. B. Claims for pros])ective gross losses of wliplers shouhl be rejected, for the rcjisons stated on pages 12, 13, UO, and 157 of volume VII of the Appendix. It is, in'\'cd, not even attemi)ted to sustain these claims in the Argunu'ut of the United States; they should, therefore, be con- sidered as virtually abauv«oned. C It is impossible, for the reasons stated on page 1.? of the same volume, to admit the <;laims for gross acquired prolits without any of the necessary deductions. 1). Claims for f/ross freights of menjhant-vessels should be rejecteil. for the reasons stated in t.rteiiso nn pages 11, '~», 1(>, an«l 17 of the same Aolunu\ It will be seen that it is not even att' iijtteil to sustain them in the Argument of the United States, and they should therefore be con- sidcH'il as virt\iMlly abaiuloned. IC. Trofits which it was expected to gain on merchandise in the ports to which the vessels wero bouml jire not, for the reasons stated on jiage 17 of the same \olume, a proper subject of compensatu)n. y. Tlu' reasons stated on the pages afoi-esaid of the same volunu) ol the British Appendix, as well the Ihinlyestablished piinciph's of juris- prud<'nce, whicli are recognized \\. the couvts of the United States. England, ami otlu'r countries, ve(]uir", as a suitable means of compeii satiiig clainumts for tho loss of vessels, (Uitlits, [»rofits, ami freights, that they should.be allowed the full original value of these vessels and of these outhts at tho bogiiuiing of eacli voyage, and that they should, moreover, be allowed so much per ce-.it. of this valiu», t(»gether with a sum for wages, to bo calculate«l from tho beginning of each voyage up to the day of tlu^ capture, as has been stated on pages 13 to 17 and -'i to 29 of vohune VII of the Ai)penL1ANCE red hy thf nor to pre compensa- asioned by )f the opi li- the part of i mating the siuh, forex- vl iusuranee i of chartcr- 11 of vohnne considerable be rejected, 15 V 11 "of the these ehiin\s cfore, be eo:i- of the san\»' It Wont any of be rejecteil. It of the same Isustain them 'refore be eon- le in the p«»rts jtated on i>a}it' Lve vobune ol ]iplfs of jnris- fuited fc*tates. lis of eonJiK'ii and freiglds. Ise. vessels ami tliey sht)nici" to make a suitable deduction from these claims, in order to reduce them to the sum to which they would be reduced if they were referred to assessors, or to the sum to which the Government of the United States would reduce them, in case, a gross sum having been ullowed, this C'overnment were to distribute it to the claimants. IV. The necessity of this new reduction will appear from the follow- ing" considerations : A. The United States now admit that these claims have never been carefully sifted. It is hardly necessary lO call attention to the capital im]>ortance of this admission. J>. It has been clearly shown that the claims are exafjjierated, and th.it the statenu'nt of the claims contains very co'isiderable misci>lcu- lations. C. The information furnished by the revised statement of the claims is not suffici(!nt i > permit the value of the pr()i)erty for whi(;li compen- sation is claimed to be estimated with sufficient certainty. I). There h' an entire absence of the ordinary documents which mif^ht prove the value of the merchandise and freights, such as bills of lading, manifests, polieies of insurance, «S:e.; and, although it is asserted that these documents have been recorded at Washinjiiton, the (lovernmeut of the United States has never (!om])ared them with the claims. V. The amounts of the claims being tilmost always stated in i)aper money or pajier dollars, and the ninth article of the Treaty requiring that the compens^.ition should be allowed in gold, it is essential to estab- lish the velati^ e value of the paper dollar and of the gold dollar at the tiuie when thi^ claims were first prepared. It is evident, judging from the relative valiu\s stated in one or two of the claims, that this is a rep,ii'«'d o])enly and ex- pressly, and which are obvious to any one rea«ling tlie stat«'ment even cursorily. Table No. II gives a list of all the claims for gross ]>'()spective profits and gross freights in the caseof Ihe* .\labanni. Table No. Ill contains an analysis of the rlaims connected with whal- ing-vessels eai»tnred by the Alabama; a note has been ajtiiended ex- plaining the table. Table No. IV contains an analysis of the claims connected with n>er- ehant vess«'Is captured by the Alaba'ia. Table No. V contains a re('a|»itnlatn)n of the ])rovisional claims aneen aihled. The following are the cases in whiith d(mble claims or other unjust rlaims have been openly and designedly nnide in the statement. In almost all cases double claims are advanced tacitly or by implication. Some of these claims will be searched for and enumerated elsewhere. 612 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. Table No. I. — List of douhk thtimf. i 5 > c ."S UK 68 :■« ".U ni 111 115 •r(3 'J37 •i40 •J43 •J44 '-'47 ■J48 •JtlO ■-'41 17."> Name ol' vessel. Levi Starbiirk . Sea Lark K()('kini:liani. Sou liiide TalUinan ... F'lion Jack. Virffinia Martha Bniuiiwick. Edwaril Ktipliratt'.s . Favorito . . . Gipsey Hoctor Ilowlaud Isabella Nassau Niiurod S. Thornton . . Waver U\v W. Th'mipMoii. G. Williniiis.. . Golcunda Total. Amount $2.1, 350 1,000 2, 150 40, ■i.ilO r>4, .500 .50, 000 37,000 If), (km; 8,000 13, ;>50 34. 200 24,200 10. 875 !», 7.50 .50,000 ' 24,0U0 j 31, 875 ' 00, .500 ! 22, t>50 72, .5(MJ ' 28,000 27, 0.50 31,2.50 54,300 K), 34C I 25, 734 ! JifUiiii'kn. It Is admitted that this sum sliould have hocn deducted for insuraiici' received; it has, however, not been dedu<^ted. Sum whieli Ostjood &. C\>. admit that tliey received, but which tlie\ have not phieed on tlie credit side of tlieir account. m-i | Sum eiiuivulent to tl.5tt5 in gohl, which Air. iiollius admits tliat be received, but which ho does not place on the credit .side of tin' account, 'riiat is to say, twice $24,710, which sum it is admitted ouiiht to \>r ilr- ducted, but which lias been adde<1. Claim actually advanced twice l)y the ^nmo owners. Do.ibic claim explained on pa^e — of our first report. Kufub, Greene &. Co. refuse to place the sums received for iu.suraiic- on the credit side of the account. The owners acknowledge that they received this sum, but it is nn' placed on the credit side of their ac<-ount. The owners claim the full valne, witliout making! allowance for tli'' sums received for insurance, and the iusurauce companies claim it at the same time. The owners claim the full value, without iiinkin<; allowance for tli.' sums received for insurauce, and flie insurance companies claim i' at the same time. The owners and insuranc<* companies openly claim the .sums at ili.- same time. l»o. Do. Do. Till' neccssit.v of deduilinj; this siiiii is admitted, but it !.•< iu>t df ducted. Double claim, as above. Do. Do. Do. Do. Do. Do. Do. The sum of ^I4,ti73 has bei'ii added hen-, instead of bcinu ib'du[t<'d. Double claim, as aboM'. 8(ii», 400 Taiilk No. II. — Claims for grons frcifjiits atid vx^xcUd profits in the case of the Jlahama. c£ 8 13 an 2fi| 27 I 29 i Name of vessel. Claim for- Anionnt. llemnrks. .. . ^ Loss bv interruption of voyajie. #30,000 ■^' "' I Loss ot' probable catch ! 1 44, 8li« A ni'w cljiiin presented in tin' i • vi.sed stateuu'nt. Altanmha do 1!t,0in Amanda Loss of freiubt 33. IMIO The value of the freislit is nut ! distinguished from that of tlie I vessel. Amap.onian Loss on eharter-i)artv 11.000 . < 1 • w 5 Loss of lrei)ibt ' ti, 300 110.000 are also cininied as ad- -'*^"""^''""""''-- ) Insurance on charter-party 20, 1 MO vances for the owners of tlie ve.ssel. Benjamin Tucker. Loss of expected profltH 100,800 .See the original list. p. 434. UrillL-int Loss of freight j {Ij|;';;I,', '**'• Charl.w Hill do 1 1! 733 Contest do til, .5110 See the first statenieiil, A imv claim presented in tlii' revisid i I I stutement. imiTISII TABLES. Taiji.k No. II. — Churns for grona nceipts and expected profits, ,'i !H.I 110 It") III) 117 VIS Xanii' ol vcsMcl. Courser Claim for — L088 by intoiTUi>tioii of voyagt- Cronsliuw Loss of frcijjlit llorca» I'liiicc | ilo Dunkirk ; K. Duubar Loss by iutorrniition of voyagt' Kmnia I.uiu* Express < Loss of rharter-part V ' ' i LoNH of tho ( oiiiiuirisiun on char- tfi-iiarty. Loss of fri'ijjht, (at least) (roiih'ii Ka^lo (hi Gohlen Kiih", Loss Lafayette Loss of fi'eif;Iit Lafayette 'M | Loss of probable catch Lainplifrliter Loss of frei};ht Lauretta ' do Levi Starbiick Loss of freight and prospective i cateh. Louisa Hatih Loss of freight Manchester do Nora do Amount. Xyo ' Lr>Rs 01 frei;:lit and prospect I ve i catch. Ocean Kover do Oemiilgee ; do Olive Jane Loss of freight Parker ("ook ; «U) Ko<'kingham ' do Sea iiridi' do Sea Lai'k . Sonora . . .do Loss of charter-party. Starlight ' ("barter-party. Talisman Loss of freight T.ll.Wahs do Tycoon i do T^nion Jack do Virginia ' Loss of freight and prospective I catch. Wave Crest Loss of freiglit Weather (j age ; Loss by abandonuu^nt of voyago Winged Uacer . I Loss of freight. Total 1.87H, 4iW *!!), 84.'-. fi, Til !.->, 000 ;i, ICIli 8S, 200 20, 4;i8 i,:i24 .11, 120 30,000 f. 207 Ort, 402 •J, 408 42, 30fi lil, 2!>4 12,000 lK,il7H 4il, Hitfi 8,780 3,000 18i», 312 l.j, 000 l.->, 0(M) l.">, 000 30, 342 Ueniarks. 37, f on lti.-|, .'ilO 1.-., (too 1, t)2.'> 78, 128 21, 000 23, :m 33, 244 1,720 38, .570 1.1, 10,'i 33, 73!) 0,000 103, 050 4, 772 18,000 24, 000 A new claim presented in the re- vised stateuient. Claim increased in the revi.si'd statements. Tim value of the freight is not distinguished from that uf the vessel. Do. Do. Vessj'l in ballast. See tirsl re. port, p. 0. There is distinct ion made bet ween the value of the freight and thut of the vessel. .See the first report, pp. 23 and 21. There is distinct ion made between the value of the freight and that of tho vessel. New claim presented iu the le- viseil statement. The value of tho freight is not separated fnnii that of the ves- sel. -lie IVeialit is »"' |l from that ot tli'' Much more than tho total claim prepai.vl in relation to the Alabni'ia. The claims for expected prolits amount, for tlii^ thirteen whalers, to ^080,075, or to nioro than oue- elghth of the entire clain prepared in relation to the .Vlabama. r ff lo clirniicd a Ibc owners o [1 list. p. 4:'t- i tiM Itateiiieii I . A III .i| in the revisn 614 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. .'♦ ■a -^ 9 f H "O aj x S "a es « a O a a S a I. a CO a 2 I •2 I M £ a 6 "s U a I- 1- CO S ^i LT 9 in 2 i:? a S oi SI :-3 • s • o C. I- •r irt o O (Tl nB " : m fff-.- 'I (X. C9 (X) GU r- ^ o •-• t-l Ft s in n a-' * 00 2 S 1^ o> ■s 5: s? 1" 1-10 01 §iTlff« 5 1- I- I c M rt S2 ' I SJSif ^11 I 56 o S3 3 o £ i.-! o r- 1- t-i- •o3«A'oA J 9 q ni n ft SS! 9 n s ?! s •oSrtnrox a 8 55 S "* c? o CI § 'A a H e a o a .2 k o tl a ce •/J i< e a c4 I a 5 _2 51 •«»»Bjl «« 8 S S 3 S ^ S a BRITISH TABLES 615 ?! .rs I - « o If M O ? ^ o 5 t-i- *—■ s*s a ' S ': J3 *M w , y V . e 3 :.a a « s ^ i^ i _.^^ — ■■ — ,——- ?, 2 § 2 s '5i •3 ,2 CO c* ' t •- f ^ ?^ ~ 12 ' 2' iilfsl i 616 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. .f l!> ' i s ,2 I s n ^ H ^ n n o c* ^ a 'T ot I a « -H ^ '^ ■* lit i- (* -^ to i- -N ^J» T» Lt 1-1 ?" SfSif S" S3 = 2.1 <2i a 3 3 S TO moo «- TO (COO at 3 -HO 1- OO -U ■^ O -H ;a • ;^ :3 . s • o O 'J -1* oom ?5S^ ;5 3> — rt O; <- — C5 iO *»• so CJ I» « 'O ID r- (f« o I- o in LT «- (- t? ?5 »rs a : : ; : 3 ; i : ; y I • . t £> ! ! i : ^ II'.! s . < . . o . • . . a I ; I : tft Si O -H Q too t- o o: n ?i o t- e» o .t o o o o — lO (M1"0 11 (^ -H o 00 o in 00 §o-r o ooot-o o— " o 222^2 O')' O OOOTO insfo" o" 'n"o"t7iQ"a5' Ci o o o <: OOltfS •eSn.CoA. JO 8.«Bp JO ox S S 5' ■ : ; a : :a ; ... 3 . ; a ■ • • « • . Q I . . XI . V : 1 ix> ; '.^ ■ s ilia : !a ■■ oo o « •oSuunox ■S T o u a o ;i5 o o o m H OrH Cl »3 o a a 1 .a '3 a .s •>1 a a hi ts S a X ^ s a g 0) s MOO WO 'J a .a n s ')naai 1 |, a)«)8j033i)j I S £T3i ^ ^?i?i Pi X o — w imiTISir TABLES, 617 a S ?• ri ^ rt *?! Ti •» rr X *. te 1?. 1 -. n X ^ O '^ X 5 — ii it s o 2 : J S S g Jo s cs At §15 51 X" ^ ra ^ 'it X 3 OO c ■■■5 o o o o o ao -^ -jl » i5 £■■= \r. i.-5 1.-5 1.; •r 2 »i ' • Si r: It X ?i o 71 ».-5 •?• ?» O 3 3 S O Q o S 5 r. 3 oo T S'-?S**i T S-r Z, 71 "T .t a S 3 s .= _ S »- btu: - S a » s »- r ■3 = £ S « = 1-! O :=^'.il-2:: (S i.— ^ ® • -- i'-glS f o If 3 t^';: > 3 = »-Ji — -■ '5 — — ? 5 ^^'=:: - « = --g2iiii s 2 » '* *- i" fe £ '3 ■■" - -^ P o: * r » t ^ — a H^- P .= *: IS . ® 2 TO 9— ♦^ =.c~ ^ p S-. ■ ?i"- s?r 2 ;! =■ '.2 :3 • s • o i §, c ■-= S > ^ <•< 3 (m ^ "^ H 5J c > - 5 » S 5; 3j I 5 ■"; » « c 1 <5 g- " X > .2 = uJ.= J 2 = a ii - - it «' S = ■= r- i^l L"; o ift n *i i- SO O ^ S M L-5 « o o rf sat: S s S22 S X I- — Tt QQ 3 3 rt « « o l-5l-5hJl-5l-5>-? a el fii o >5 Sir; '' OAhPh cs •3 I C-. »< ^ f- rui ^ m "O rt in » !f2 .t OUOOOi C. 1, X tcj i^ _ ST — £ i"g fc «^ - 1) > £ ^ 3 - - is s r^s J : ■^ 9 S 3 i '■ — .5ofe tt^ -/ ■r — '-^ — -I ■: = — u « 2 = 3 - •= . *.= .= .is^- « c _a _2 >, _ - ■^ .3 J ja £. 5. i. r E - - 2 5 " ,-, S « X E ? I fl. -3 ■« "x 3i 5r -■ pH -• -• . • ^ "■^ -t^ «^ X 1< ^ If j; X.S-«. ~ ^ "^^f ill .♦; » ^ cs s; £ ° B-=;: SP- SS M3=i: i" B , .5 o ^ — -= «- x-3Sx5 2 « 1* S a Ji, •£ '^ « q .3 a *- ® 618 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. ^ T ft ^ O t8 = a i S s — o 1:3 2 I u a o 8 5? :.-! IN C be ^ s S2 iZo'c-.o I--* v •^' p" 01 ;3 i § i3 ^ • 3 :a o o .s '5 3 S' CI i- 1- 1 Is I-- IS "T S £3 ;as su s • to |S : o a -w ;5P (i^ •aSn.CoA JO 8.Vin> .|o -on s Mjfimiiox B i«5 ?- ^ -* a o a I I s o it 3 c s ')U9IU I ■a}»j»)j098it,i) BRITISH TABLES. EXPLANATION OF THE TABLii. 019 I. Ah regards the fourteen whalers the table shows that the sum of !»ir>(i4,>'70 in paper is claiiiietl for the vessels and ontlits ; Imt .fiir)5,4()7 must be deducted from this sum, a.> constituting double claims, which leaves a balance of ;f40y,2:U in paper. Moreover, the sum of .*il,0l{l,*2r)7 in paper is claimed for expected gross profits, from which lS>ll,44'i ujust be deducted as constituting double claims, which leaves a balance of |l,0iy,815 in paper. For gross earned profits the sum of .'5<'J.')3,OOr) in pai)er is claimed, from which must be deducted .iiii:{,14'2, as constituting double claims, which leaves a balance of §'^40,703 in paper. The claims for the vessels, outfits, and probable and earned gross profits, therefore, amount, after deducting the double claims, to.'jil,(iGU,81l in paper. We estimate the losses for which this claim is made at !!<4.">8,ij;?8 in gohl, of which ftSCijOOU represent the value of the vessels and outfits at the begininng of their voyages, and $93,538 represent a profit at the rate of !i.'} per cent, per annum, together with th(i wages from the beginning of the voyage up to the time of the capture. The table also shows that there is a claim for the personal eftects of captains, (and in one or two cases for those of the mates of vessels,) whichamonnts, after deducting the double claims, to .'?13,49(!, and for the damages to .$152,300 in paper. As to the claims for personal eftects, wo have allowed them in full. As regards the claim for damages, it is composed almost entirely of the following items: §1',000, claimed for the first time in the month of April last, by the mate of the Levi Starbnck, for loss of time; $7,000, claimed by a harpooner, for personal injuries; this claim, however, which is only based upon a letter addressed to the Secretary of the Navy, is supported by no afiidavit, and is ad\anced without any explanation. The other item is a claim for .*<135,000, in the case of the Ocraulgee, which, it is asserted, is for losses of merchandise on board and profits. Wo can demonstrate that these claims should be rejected. II. As regards the forty-four merchant- vessels the table sliows the following facts : The sum of $1,015,290 in paper is claimed for the vessels, outfits, aud provisions, after de«luction of the double claims The sum of $782,617 in paper is claimed for gross freights, after deduction of the double claims ; which makes a total of .§2,397,907 in paper for the vessels and freights. Wo estimate the losses for which this claim is presented at $1,171,469 in gold, of which §1,130,400 represent the value of the vessels and outfits at the begimiing of the voyage, and $41,IK)9 the interest on this value and the wages from the beginning of the voyage up to the day of the capture. The sum of $1,831,070 in paper is claimed for cargoes and profits, insurance and commission on these same cargoes, as well as for danmges arising from the non-arrival at the poVt of destination, after deduction of the double claims, which can be easily shown for the moment. We have reduced this claim to $1,620,043 in paper, and we are able to show that this reduction is, in all probability, far from sufficient. The table shows, moreover, that the sum of $90,233 in paper is claimed for pei-sonal effects of cai>tains, (and, in one or two cases, for those of mates likewise,) and $GC,.'i7I in paper for damages and sundry losses. As to the personal eftects of the captain or of the crew, we have allowed them to pass in all cases save five. We can show that, in these five cases, the claims are evidently exaggerated, aud wo liave, therefore, reduced them. As regards the claii is for damages, &c., most of them are composed of extravagant demands advanced bj the captains of the vessels for wages or for the loss of about twelve months of their time ; of a claim of $10,000, presented by a traveler on account of «lclay ; aud of Jinother claim of $10,000, also preferred l)y a traveler for the loss of his position as consul, together with other claims evidently inadmissible. The estimated allowance for loss of personal eftects, damages, &c., is $77,803 in paper. So that the total allowance, provisionally estimated, for vessels captured by the Ala- bama is $1,630,007 in gold for the vessels, outfits, freights, and profits, aud $1,717,842 in paper for other claims. 620 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. it II 3 a . - 1- .2 S s 3 H c; « i $i? I to s i^ iE 1^ Si i « a 2 S S:^ g" •v ^ "« ;a 'S' o ji "* ?:?, Is ■s Q S : Cf, 1- TIN M S3 ^ '^ cf : a -^ ;a 3 a 1 s ! 5 3 3 , ^ , ^ U • 4^ * V 1> 4< < J ■ •a ,3 3 ; 3 d i^ :5 — a a : « U • « ^ ■■ ^ ^- X • , : a i. ^s .= i s Hi 'A <5 I .a a '3 I is 01 * a ii ^(3 i S.2 o bCb. a ■ ed a a a S.2 O V . V = '3 B I aa a a 99 11^ a " "a .a a 3 5 f> ■a o OJ 00 a V *>• i5U gal 3 a ^a-1 BRITISH TABLES. 621 ■f. li tt M ^ rt K ^ -' « ' u tl -3 >> -i. ■T P "^^ n T S^ ? ffi i?3 SS T, I- ^ CI ra 11 o 2 - t — ,tt OC*£J I* If t 5 Us . ja K ^ iC -2 - ■ «Sfl«2" : — a tt?: JS2 ?- * •-■2 I* If V XI H ' M 622 SUPPLEMENTAUY ARGUMENTS AND STATEMENTS. I P I t ( f . » '^iSP. vJBH :§ z a 00 "^ 5 o H **" at U s 3 I £ e — — o 9 ti 9 tI -r .*. ?. — •-: :1 -J 9 1 • r- 'f o ■> ';i w -o 5 11 ir.Tli5'= 2 1: i| 9 s 3; to 5 -H s -T § -?• ^ 1" "T »- 5 — ■ •r 'i» i;- 0" '« V-. ^H S^J V -2 -" = -a •"'''■ :a" • rt SI « ? ;5? f» r*. o .r ? — 9 5 I - S X I- _ i; 5i £ 'f 2 1^ 3 II « 3 S -J ri rt P 511 •a • "^ ''i * * ? S "^ i-ii'i-isTrj" — " i-f CI .* ^^ ^H "I s "=9 2 2222 9 23; 5 £ = *5Si'-' Z' CCS! 5 5 5 5 5 ?( o - = ^ 3 — « :i ;• S Ti ™ -A 2 o II III I "urtu.Co.v jos.Vnp.jo I ' J q lu 11 x; :a •.3 > ;.' '. » ;3 ' 3 = ?,S5.5"= S ;:s •oSuanox o C' o 5 ■•-. '.■: o cv *' 1^ S I.*; i- 1- >-H i C-. K II II i."5 o s s = 1-: = 1- = C p "T » ? I- S PI II T n L-. M -5 n r: li »" o a • a • o S Kl c . J* a •3 • it a c a H CJ * 4^ "^ .S '"^ S ^ ; a ? s.'-s a a O O e .a JO oSbj S SSSr S! ^ 8?.?. S?i .M, > IJUrnSII TABLES. (523 I I3l 9 S s ;s : y.5 TO -Ol • — 'o _' Irf- •• .rt .- 3 rj ;^ -; J • s ■\ — — •-— s . . ■ § Hi z^.-f, o 2 2-^ g « ri s ■5 "u"? M w'c.s !5 ^^N SS; 2S a jf fo 55 n ifl ^ wf^nwi 15 I « 1 1* hit- i*' i.* t V A; ^ 1 ! % Si- — i:? 5 i II 2(2 n 1 r. « : 1 "^ 3 = i 2 fl S s a 5 4) c c * * -« CP^ I- o 2J * o E o i 3 if a 'a '■J 3j « . . a : B n ^ » = « ? n 5 c ja ? SJ H ' if, a s a . H 4- 5 t ♦. 1 -r-"^ ' i S — •- /. t .- — « 2 t- =. i _ rt ^•^- *-.:=• i *a" i-2'3 2 ii T 'a . H r •5 i r- - - tf.'Z -^ 2 3~ r — *- ''- f w — ■7.1^ V '- C '-^ t i-^ :=? = »' T - 7 "Z T, — -aiCii-— ^ — E 5 = - 1' r ■ "5 '"H 2 a-^ • ■C J ;J t.12 5 or. — T " - S — i c ^ 7. 5 5i:5- ■^ i .-— i " a ^ ■■ ^ a. > ^ - i 1 = i e - "" 1 i. c =*£ = ?> "* " « " ■— -— Is '^ i --^ c .i w. '" '- ^ " - 1 z. a--2 -111 ♦. S 4) «. » -i-i-i,.- o^HH iJ G2^ Sl'PPLK.MENTAUy ARliUMENT.S AND STATKMKNTS. KXI'LANATIO^, OF 'niK TVIMJ; 1. As i-C|^iii'K'Mvm;j; 'J'lin Slim of •'Si)'.t;>.U4li ill |tfii>t'r is tlaiiiioil for the vcnscIs. outlit.s. anil iirovisioii-. after (Iciliictioii (if the (loiili'if rlaiiiM. Till- siiiii rf !5'i"i4.rili(J ill iiajtcr is claimed for tfinss fn'i;;lits, iiftff (Itilncrion of the ''loulile ciiiinis, wliicli inakfs a total of sl,>J'>:{,r>7r) in )iai>ei' fi>r tlio vt'sscls iiiilt,4tM) rci»ri'srnt iho saliio of tli<' scsscls and oiitlits at the hi'^finiiiii;^ of the voyanf, and ¥--J,'.Wi H"' inrcicst on this sum. to;;i'tlnM' with the waj^iis from tin- \>v'^\ii- viiuj; of the vovant' n|i to tiic time r>f the caittnre. Tiie Slim of S~.-511.r>n ill |ta|iei' is ciaimed lor the car^.-oes and iirohts, the in>i;rami- aixl I'omniission on the same (■ai;;oes. as well as I'm'' the ''.amajj;es, result inj^ from the noii-arrivai at the |io't of destination, after dednetioii of thedoiihle ehiims \\hieh lan lie ('l<'arl\ demonstrated /«/• (in iDoini'iil We have reduced this claim to !S\>,i(:;4.i:,(; in liaper, nuil ve can show r.iat this reduction is, in all jMohahility, t'nv from bein- siitH- 'ieut. As to the perisonal effects III the ca(tlaiii or crew we ha\e allowed them to pas^ in all I'ftNes, save foil!'. \V(> are ahie to show that in tliese four eases the claims iii<- evi- dently exa^jfjerated, and svi; ha»<' therefore i\ diieed them. As rc^inrds the claims for daiiiai;e.>,. tliev are mainly com|>i)scd ot' tln^ followiii;; items : There are two le-w claims Inmiiiht tor the lirst time in (he month of March last liy (he tirst aiid m cond ma«es ni the Ciowd I'oint.for wajj^es and damai;<'s; they amount to rhe e\t!avay;ant s-.-.m ol ><-.'n.(i(Ml. Th a claim iiroui'ht liv Man ha William-, a imf!Ken;;er on lio.ird of the .lacoli |5ell, fiir |.ersonal eUcct^ amonntiny to J^'ifl.'i^" ; an sh tii'it tliero are siithriciit I'casons for reieeiinij' this claim. There is also a claim .or.'*lH,.''>nO, hronj{ht hy the owners ol' the T.icony for lo.-ses in couHei|uence of tin- intcrrnittieii ol' their Imsiness: we ai'c of the o|iiniou that it should lie striudc out. II. As n'^iiids the live other uierchant-\ essels we I'un show that there arc special rca.soii.s re(|iiirin;{ the rednetion ol tiie claims to the kiiiiis inserted in the tahle. III. As K ;iarils the seven li.shin!;-\ essels and the Hien/i we huve allowiMl the claim.s to ]ia8s ill full. IV. As rcfj;ards the (iolcimda we iia\( di d tl III of ¥I<>-.""<1 in l>a;>cr to ■frTl.CO.'i ill Mdid, in thi* manner and for liie reasons staled on pa^'e ','7 of the sociith volum<^ «'f llu! Hritish Aiipendi\. So tliat llie total allow aiiee. |ii"\isioiially est imaled, for vessels captured ' ;iir •\\l- N|»l'».'iill lal.lf. i\ 111.- .hi I 111.-. ill i>;ti>c,.Mltll red l'\ til'' .1 ft'.'. I :»,:>*') §^ III 'I. . t; - ^i 7* V « II — c 2 3 T S : = il il ;i i i 5 I * I' i i C :l K S 2 X a'Ci ?( " is "~ b j< :| : ; : ; I 'i t ' .'.^ «w.i: £ C c "I '/. T. f 1. !SS53 ;« ^ ^ u ^ £.=.=.1. jl. im\ X -p = 1 r 5 '-"» * - - *: r: - ^ r ^ 1 ^ S ^•^^^ ^^ IIP u ^ C 7» '1 ■-;: c — •■A" fff _; C:.— ^.t--" ..-— bi^N -1 I- §^i;3u r c «V"l!|l |l( 11^ •0"i!llUi>.[. ?^ % L 1 1 'III nil <1 » w fl % ^- K M V. rs. 2 S BRITISH TABLES. (- ^ QD CI T tXi CI ':■! (M It' o o' I- o t- W rH ^ 1 tc .. 107,476 ; — . — — — . . — *f — « (' * o Cf r — o oc o ^ c cr c c ("■ ^ * - - X - c - -;» 7 *- C ot ;.' c 5 ^ — - - V 1 J ^^ _ M — ,- - -t -, — •r ■r T L ^ TU i- X ,"' .". 3 *- ' c *- -^ ^ — <-' "•' 1 «- ,- '-■ — •' *.' 1- „ 7 ^ '"■ - I ' ' 51 « ^ i J ■3 ■ ^t • .- c ,/- L X * f 7 ~ = = s: 1= c t- — - — *~ i- ' — 7' — ■ — ; — ( - 7 I — _ ,_' •f J" • c *' :■ - 1- • * — <"■ » a 627 *| i^ " ;: - e ; <- 1 - o •" 1^ ». I. I O 7» 71 O C 71 71 ;* I. 7' ' '7 71 — 17 t.-.." ji § C 7» '^ t - I - l. 1 i ^ ii 1 I 1 1 « ':*: « K 1/. a. X 1 ■t < X B o .7 1 y^ V >*■ c r. ,71 u. b ?, p 5 "M % 1 c % 628 sri'PLr.MKMAKY AU(i!'MKNT.S AM> slATHMKN'TS. I' f5 i'H Mi. i T S •• •f ! s -7 -i ••fits _ i, !- ' "^ S ?T " I''i IS 3 .i V 'if . ^ Vi ye. 4 1 1 2 • ;.< i: i 1 ;'" • '.i.'. I" aA«| t" ">; 11 s s 1$; ("5 P |3 •3l> S — - I •?l M'llllllli'.f. I % i; ?il ■iii-Hii I >|i':n.l<) •I'liM I : 2- I1 1! 7t tl I'.KITISII TAl-.I.KS. (121) Cliiimi' for upfcUtl }>niril» hi •dv .>/" Ili< iiixils raiiliind hi/ IIk Sin Ktndoith iiJ'Ui lln mcrlh of •/uiiiiiiri/, i''t)."i. - * i *-, f , N.iiiif iif vr-rt-t ! -■J.'i I AMyiiiJ ■JJ7 ' r.niii<\\ii'U ■-'•.'!• ' I'.ltli.lili.- I I.i)-« of I \]irrti il iiiiplllx. r.osN l>\ iiili-ri'iiplioii (if voyiiKts I.iiHJ 111 [ilnliiililr I'.lli 11 'j:w I rmijin— •<
    • :V.\ ' ( 'l)vill;;|iil| t) ' \i/iiriiil llll vVl \ I'l all I.iiiis III' iniiliiilili- (Ml I'll '.'tld . SiH»llilt 'I'lliillllnli..' llll Ili'J Sii«ali .\lil;i.iil llll •Jli,t ! WilVillv. •,'M I Will. 'I'liompNim. «ti.'i W.<". Ny« Total llll. ito Ii'i Ili.irr.H. t\c0 Si !■ llll' iirj;:iii:il i'.t. ji. i:tr. aijil till' 111 j;iliiiii:^ I'f till- •ii'coili'. rr- ' pill t ; Il is ,1 iii'V.' cliiiiii. l;ili. '•07 Sri' till' iiii;:iiial Mxl. p. tTT .inil till' lii-uiliiiiii;.' lit till' Ni'ciMii! It' pint . It i> .1 III » rliiiiii. 4". Ii7"i !i|l, 7.'iil .VI, li;.-. liHi. I.'i" Si«' till' iirl'^iii..! I'>t. JI. i-,n;, .ir;il till' lil-;:illlli'l;: ut tlH' hi-iiiIiiI ri'- piil't : It \* A rliiiiii iiirrt'aM .>7r. Si I- ili"iiij|.'iiiul'l-t. |i. Kii . it :'<.i 111 w rliiiiii, 1 ill, •,.■.<» •Jl", l-JTi 8, 7til, -JtW I)unh\ i/n(i/i> III llll IK*! ii V!'i7 loiiac Hiiulund... ■.•'!!• N.|l«'llil *'<>tiiinli!iiii liisiiiiiiHi' < 'iiiiipaiiy ('mil nil I. i.il I '11111 1 111 11 \ Atl.iiilir Miiliial I'liiiipiiiiy .Ml tn-piilltaii )'iiiii|.aiiy < 'iiiiiiiK'ii "III Nliiliial ('iiiiipiiiiy . . .Ml tiii|iiilital> t 'iiiii|iaiiy .Mlaiilir M'ltiiiil I'liiiipiiiiy , • 'iiliiiiiliiali t'liiMpaliy '. Sim Mull "I I t'lioip.iny .Ml.iiilii .Si lit Hill t'liiiipiiny Kill ill ill' I ali'iil .'\tliiiiiir Miiliiiit ('iiiiipiiiiy llll I 'iiliiiiilii.iii < 'iiiiipaiiy 1 iiiiiii Miiliial I iiiiipiiiiy I 'iiiiiiiii'irial Mutual Ciiiiipiiiiv Mutual Mai'iiii I 'iiiiipaii\ Ailaiitir Miitii.il riiiiipuiiy Mi'tiiiiinlilaii I'liiiipiiiiy ('•iliiiiiliiaii t iiiiip.iiiv ' I iiiiiiiii irial Mutual riMnpiiiiy . Atl.iiitii Miitiiiil <'iiiii|iiiii\ . Ni'» l''.iii!laiiiM 'iiiii|iiiiiy I ''iiiiiiii'iriiil Mutual i 'iiinpaiiy < 'iihiiuliiaii < 'mil puny Mrliiipiilitiiii t'liiiipaiiy Atlaiitii Mutual I 'ninpiiny :c.. III. -11). 't'l il. II). t'l. 1".. 111 •-'li. ii>! i.v ;«8, I, 000 \ii»ll 7iit( :iiNi 7 "Ml IHMl OOll .■iOO .VN) VN) i>7:> ''» I 1,1 I iH) ■Itii ,'ilVl 17. -. •J "-I IHHI .'410 WH) niHi IKI.I I.IHlll :i. ii.'iii rtilt U'l. iHlit G30 SUPPLEMENTARY ARGUMENTS AND STATEMENTS. Ihmhlc rlaim>i in the cane ofri'Huds captured hy the Shenandoah — Contitmcil. '1 ,i l!lr:l : 1 i i: 1 1 r, r " 1 I '1i •■.. a Ph2 n5:« N.init" (if \ ;-.HH('l. M.rtlia Na.t^jiu Sr.S ' \i;.,:-..il 'J>1) , Si'pliia Thointoii . 2i;:» . W.iv. rlv -til ' Wii, rimiiiii-.iiu I Cli.'i W. Xyc T.iiul Morcaiitili' Mutual Company Atlantic. Mutual (^oiniiauy .. Sun Mutual l,'ipniiiany Mctropiilitari ( 'iHH|)any Atlantic Mutual Ci)iii|iany .. I'liion Mutual Atliinlic Mutiuii diMipany .. Ocean Mutual (.'lunpaiiy CoiMiiici'cial Mutual Cut Union Mutual. . . do . ('(iiuiiii'i'cial Mutual Couipany I OciMU Mutual CiiMipau.i I'uiou Mutu.il Ciiuipiiiiy ' Atlantic Mutual t '(.nip, lay. . . Juin|)aiiy. i\. onn 1(1, 000 !>, 000 47, rioo 6, OIK) ■is, tHM) 3, or)i) 1") tMM» '}, 000 :ii,i>r.o 15, 500 It), 500 ■i-i. 500 •■M, 000 (JO-3, «!I0 EXPIANATION OF TIIK TAI'.I.i:. I. A- ii'Lcaid.- till' claiiii of the first Ajiir ^vlialffs. wliit li wiTc .-iiiiji'y dctaiiiod, wo li;iv(> rcdiKfd (lie claiiii of •*:?■!( J,'.!.") I iti jtaiicr to si'(T,4lo in jvolil. ir. As icy;ir(ls tii(> twcKly-fonr wlitilcrs dcstroyctl, tlic tiihlc sliows Unit tlit^ siitii (f .51,'.*'>1,7titi ill ]>i5i)('r is claiiiHHl for the aosscIs iiiid oiitlits; Imt sii-'f^.'^iH must ))h df(1ii(.'li-d from (liis sum as foiistitiitiiio; double claims, wliii.li k-avcs a l>:ilauce of flJVi.^jTti-' in i»i(ji('r. Jicsidcs the al>ovt>, tlio sum of .$'2,*"<1,Ur)r) in jiiqicr is chiimi'd for prolijihlo f/rosn profits. For {jyt'xx eiinicd profits iiii4r)ii,5r>(» in it;i|ier is cliiiiiKMl ; from wliitli mtist l»o ' in paper. The claims for tlic vessels, ontlits, tind ;;ross profits, liotli exiiccted iiml earned, tliero- fore aiiKiimt, after the doiihle claims hiive heeti dtjdtietc'l, to .'i!4,.V,'.il).') in paper. We estimatt! the losses tor whi'h this cliiiiii is itresentcd at >il,(i2;!,:U8 in jjold, o'" which s^.")ti,0()() r(4)reseiit the viiliic ef the vtsssels and ontlits at the lie;;itiniii;j; of their \oyay;es. tiiid 9«ll>7,:U)8 protit tit the rati* of 2.") per cent, per aniitim, and the wajje.s from the hr-iM;ttiij;; of the vo.va^je up to tht' dtiy of the ciiptnre. The tahli' also shows that there i - a claim for persontil etVects of cajitains (and, in OIK! or two instances, for tliost^ of mates of vessels) which amounts, after the double cliiims hiive, been deducted, to $ll)li,ir>li, atid for d;ima};»'Si 6l'>"'."~'i in papiT. As to the claims for persontil (dfects of the ctipttiin or crew, they have heen allowed to pass iti till cases, save six. We c;in show thtit in these cases the claims ;ue. evidently ( \a;;;;eii\icil, and we have therefore reduced them. As rezai'ds the cliiim for diiuuiges, it is composed almost entirely of the lollowiutaitrs iitiis of §"iU,(i(l() ;iud sli),(Mlt), respectively, for the h)s.s of their ]ii()l)al>le catch, in an to their cl.iiins for personal ellects. Ill tie I iise of the Petirl tin; imite :ind one (iiirdeniir, ti cooper, ci.iimed, for the firsti time, ill the month of Mtirch hist, tin- sllm•^ i.f .s.'>,tlOO jind sl,'iOO, res])ectively, for the loss of twelve months' time, in :ideisoiiii! etfects. In the case of the .Susan Ahijiail there is ti claim for *1H,71(» for nierehandise jilaced ell hoard lor commercial purposes, tind ti claim of ^■'-',7ri(» for the profits which it wm expected to re.ili/.e in such eoiiit(H>rce. W.' think ourselves aide to show to the Tribunal rhtit there is ground for the rejec- tion of all these claims for diiiiia. s. rs. itinucd. ! I $1,000 xi, ax) 10, 000 !>, 000 •n, W)!) 6, Oil) 2i!l, (MM) 3, ono 1.>(MMI ':>, 0(Mi IM.i.lO l,'i, soil 10,500 ■i'-i, r>m ■M, (M)() m% mo y dctaiiiod, wo Unit tho sum '>i,'^'M niu.st 1>H u l>alauce «>t" \o f/rosa prolit.s. st hi) dcdiictod '. in pa|)t>r. eariieil, tlioro- I papor. U8 in f;;i)l(l, o" iiiiu^if (»f tlicii lie wages iVoiii )tains (and, in cr the doulde nr. bt'en allowed salt", ovidently the iullowinjr in the month II lor i)er.sonal • tho lirat tinio y, for the lo»s 1, for the first tively, for tho ,s. onseqiieiioe of iCtS. landise jdaced which it wa.'i for tiie rejec- BUITISH TABLES. oTg. id i c 4 o ^ ? ! ^3 V -t* 7.' — rr '' ^ P 8 2 "3 be eg c o A Q c a .55 ce6 T. ♦- u I " -.s 5 4-*.= o 5i ^ V iNii i i.mjk.nck. iai unv. CinvsA Class r, Class C Class 1» Class !•; ami 1'. Class (i SlII.N \M),)\II. Class A. aiiil sii|ii)|i'!iii'iit , Class 1! Class C Clas-i 1> i;i;i \v\ 1 1 i.u ii'N. Alaltaiiia I'loriila SluMiaii(lii,ili . A.....nn«s.-lai.,M.,l ! A.n<.unts .rant...l tal.l.-s. " 'l«''lt.<. tl... Ki.K- lisli ai'iTMmt'iit. ■<\..'.\ l.-J-ii it'.i I, ;!;•(;. i::(i n:\ ?, :i(i'.i, ^Tf'i 1(1 ii:{,'J-< :i:! l-j:!. HIT 7- W'c 'u>i<' add ail llu' claiins aiMii;;- (Vdmi tin- iu- tfriiiptinn 1)1' V(»yaj;i's ami Iksscs of exiirctrd prolit s I'iCMOiit ilaiiiis (il'tlii* I'niti'd Stati'-< lor cviiciisfs caused to tlirir Na\ v liy aits ol' llir I'lni i.la, i Alabama, and Slifuandn.ili , i)(i(i, ~!»:i (I'l til-,."!:!," (M '.', ('i:'i.'i, ."it is (Id ;i,'.i-i, 17'. .V. ll-,.M« i;i 1 I'.l. d.T. tui 1(17,(17:. (II 1, 171, Itil (III •,",i. tllld (Id ',•;•, ."if^'i (Id :;7..'iti(i (III 4. XjC. 1 Id (M 1. ;!:'..'^,t»:!t.; (lo i;.."..'.7,»i'.iii (•:'. •I.t'dd, :'.(•:'. ii.! •»,:;.".i;, -11(1 T.'s (Id (i:M, ."»('(."< (Id :!:!;-, -Jiu; Od i.'.,:.,!*!. i;u (Id i.dd'.i.'.d-,' .".d t . •JII,4H-J Od 1 111, .">:;;•, 7:'«("i Od (;,7:'.."., doo -J'.i 4 , •ill, 4.- J Ud <'4d, 4(;0 24 •^ti,a74.7l»8 ill* e-, Wl,iH'> U Tlio United Stattvs cliiiiii iiit«'rost on tlio wholo iiinount at 7 per cent. ])vr aniiuiu up to tlio ayiiK'iit, according' to the terms of the Treaty. 'S. omits ;j;ri(iit<'il I tin- rciHirt lul- cd to till' I'lij;- sli ;Ufj;illIlt'llt. t;H,.V(H ct •.', o (111 :!.'J('.T.ri7-< (M iii-;,.">n4 (II • ;u.7(ii» (Ml . 77t'.,;t:i7 (111 N,:.7(t (Ml iil.:!r.(i (III •J. »;;'..'>, .')(■>,•< (HI •1, 171. \>\\ (III •jit. (i:<(i (III ;»!•, .'iH'i (Ml ;;7..'>(i(i (III l,;;:>.-i:u; fin ;!.•.»( ".7. ('.7-' (Ml •J. (;:•.:.. ."»(i-< (mi 7.-.MI. I--J tli> 7. J 11, I-' J 0(1 '.'J<|, tdO 2-1 t 7 i)cr cent, crins of the xv.-Rr-rLV OF Till': a(;knt of tiii: initki) states to thk NKW MATTKK INTKODlCi: D HV THE AIJKNT OF HER RIUTANNKJ MAJESTY ON Tin: CAM. OF THE TllinUNAL FOR ELUCIDATION IN RESPECT To THE TAI'.LES PRESENTED IIY THETWOliOV- EIIN.MENTS. The tiihli's ;)i('scii;('il to tlic Tiibiiiiiil liy the ;i;'('iit (it llcr Jiiidiimic j'NIiiJesty *»n tli*' l'->tli inul LMUli instiinr, lUKlcr the I'.ill lor a coiniiaiiitivc Htatciiu'iit of tlic iWitisli ami Aincricaii tabh's tlicii already incscntcd, arc new, in sidtstaiicc as wt'Il as ibrin, and contaiii new critii'isins on tlie American taltlcs. The ainent ot" thi', I'nitcd States makes no e.\cei)ti()n to tins liUeity taken by tlic IWitish a.i;ent. Mis (ioveriinicnt «M)nrts a tree discussion of all its claims, and has no desire to slinr out critieisiu ]»y technical olijections. lie elaims, how- ever, his riiiht. under the Treaty, to reply to the new matter introduced under the v-all for elucidation made at the re(iuest oi' the N'iscount (ritajiibii. I. — Tni: <.ri:sT!n<'y. This is ji mistake. They are made in ;i'old, uidess when expressly stated te be made in paper, 'i'hc ]»r(iof of this is multifarious. ((t) The Treaty provides that the award is to be paid in ;' the war the merchants stciiiny-, is stated to amount to ■*-S0(!.;{(;. This is the exact sum of coin which the sterling' should yield with exchan<'e at l)ar, viz, $4..S4 to the ponml. li, 7'/t6' Z>V<7/m/if, (ymr/c L'7.)— The claim for freif>ht, £;i,tir> J».v. S(/. is stated to amount to .Sl(»,53I.(K>. This also is the exact sum in coin which the 8terlin<;' should yield at i)ar. .'i. The Chastel(titu\ {p(uje 28.) — ITei-e ii claim in jjfold is converted into currenc}', showing expressly that the whole claim is in currency. 4. The Mattahan, {papc 04.)— The loss (80,000 rupees) is stated to amount to $3."), 000. This is undoubtedly stated in gold. (;34 .sriMM-KMKXTARY ARnTMEXTS AND sTATKMKNTS. 'ini The iillojjiitioii tliiit lU'W claims lia\»' Ikm-m iiitiodiicctl into tlu' riiitcd States tabit's is not true in the sense in wiii<'li fin* A<;ent ol" tlu^ United States nnderstands the ri}>:iits of his (loveiinnent under th(» Tr«'aty. [(I) It lias already been shown to the Tribnnal that the United States ill their ease niatU' elaiin (or all ''their »lireet losses j,Mo\vin}; out of (lestrnction of vessels and tlu'ir eai'px's by insnrji'ent <'rnisers," (Ant. Case, pafje 4()1>,) under which they classilied "claims for damajfes or injuries to i»ersons yrowinjj: out of the destruction of each class of ves- sels/' (////(/.,) and that they asked the Tiibunal, '* froui the data whi«;h were furnishe«l to ascertain the names and the tonna;;e of the dilVerent vessels destroyed, ami to form an estimate of the number of hardy but helpless seamen who were thus deprived of their means of subsistence, ami to determine what a}j:<>rej;att' sum it wiudd be Just to i)la<'e in the hands of the United States on that a<*eount,'' {ihiiiH'. 471.) (/>) The real (puistion raisetl by the a<;ent of Jler liritannic Majesty is, therefore, not Avhether the United States havt^ i)resented new lij^ures which were not contained in their former statements, (althou^^fh advanced in the {^ross r. those statements as forminjij j»art of their losses,) but it is this, viz : whether the Tribunal, in the exercise of the power to award a sum in gross, conferred upon it by the seventh article of the Treaty, should limit itself by the rules and modes of proceediiifrs i>rescribed for the assessors in the tenth article. s. AM KRICA N R KPL V TA IlLKS. fi35 wliiis {\)HiiO This shows raiuu's were ir oxpn'ssly IS ol' Ilorts- 'iitly of tlir iM'st iviison if cJaitiis in I' isu. ralr ol" the I the rnit«'«l till' Kioridii, lie, l»»'<'iius(', t'tl illlOIlt ')(> (« tilt' siiiiir i»r valiit's ill 1S«»;5. And U ||i<> ivpiv- «'!• than tilt' '()iii))('iisat«Ml > which will •(' the injury lln' ailtitra sunu' r\('('|>- si'c that tht' ICO is ;;rcatcr he injury, so mmI, will n()t, nitcd States t Ki'itain. » the I'nited the United Treaty, nited States winji out of isers," (An\. (lainafjes or lass of ves- data which the ditVerenI f hardy but snhsistence, l)]a('e in the 1.) <; INIaJesty is, new hj;ines <>fh advanced )sses,) but it »ver to award the Treaty, escribed for I) (<) The assessors are to l>e alh)wed by tlie Treaty two and tnie lia'f yoars to eonelude their examinations, and they are required to exainiiH* eacli elaiin se|»arately and to reiidei their lieeision in each ease on the proofs a«hhieed. (fl) J>ut tlie Tribunal is to make its decision on a jjross sum, if possible, in tiiree nM>nths from the submission of th(; ar;>'uiiient, liaviii<>' tirst ex- hausted the most of the time in determining, s''l'i>''i»tely as to «'acli vessel, whether (I reat Ibitain is responsil>le for itsa«'ts; and tln'ic is nothiii}; in the Treaty requiring; them to make their «h'(;ision on the examination of proofs furnished by tiie parties. (<) 'I'lie jfiosssum which the Tribunal may award is to Itc accepted by the I'nited States as a satisfactiiui of '"•all the claims n /'»■/»■'/ to it, (Art. Nil,) not of all the claims itnsnitnl by them. (/■) It is therefore manifest that the'l'rcaty contemplated that the indi vidiial Arbitralovs, in reaching such a <;rosssiim as they mij;lit see tit to award, should have re;;arrty t«> award such sum as Justice miyht icqiiire, without a minute examination of detailed proofs. (//) {{'-spectiiiu the wa;;es claimed in our tallies, the Arltitratois will lind ill the \oliimes of the American Appendix statements of the numbers of tlu' oflicers and crews of several of the vessels destroyed 1-y the insur.neiit cruisei>i. and in the proofs statements of the waj;es of >uv\\ persons, l-'roiii the • paitlcular proofs they will be able to «lelei ■ mine wlu'ther the estimates in oiii tai»!e ol the amount of the claims pre- sented ori;;iiially in the Ainericaii ( ase are. or ai<' not, concct. I{es|)ect iiifX the claims tor elVects. the same piools show that, in cases in which such j'laims have been actually pioeiitcd in d«'tail. they eipial or exceed the avera^^e claims in oiii tables. The Arbitrators have therefore the means of deti'i'ininin^'. with the reasonable accuracy contemplated by the Treaty, the amount ol the ininiy siilVered by the I'liiteil States in each of these respects. (//) Th(^ a;:('nt of the I'liitcd States assumes that the Arbitrat()rs will not re^'ard the vessels destioNcd by the cruisers as phantom ships, with out ol1i«'ers or crews. On the contrary, he siippos«'s that they will assume that tin'V were olbcercd and manned, and that from the y'cneral proofs in the <'as«', and Ironi their own knowU'dye, and from any t)ther sources of information within their reach, they will deterinine whether the state ments in our tables reyaidin,:; these numbers are, or are not, probably correct. (/) A ^^ross sum, made up without ic^urd to these classes of h^s.so.s, would not be a due eompeii.Nation to llie I nited States tor tlie injuries complained of belbre this rribiin;rica:i statement, particularly in the claims ^rowiny out of the (h\stru(!ti!iM <*i' whalers, ])rospi'ctive ])rotits, or prospective catch, enter into the . xiputation of tlamajjes." (Set' ]S'ote I), American Argu- ment.) " in accorlanee with the siiji;i<'stions of some of the Arbitrators, we liave eliminated fnun thes<' tables the claims for juospective catch. IMAGE EVALUATION TEST TARGET (MT-3) V /. // X y ,^" «?. X? >■ WJ ^ W/J. ^ 1.0 I.I 1.25 IIM 112.5 m 1 2.0 III— U lllll 1.6 Photographic Sciences Corporation iV (136 SUPPLEMENTAUY ARGl'MENT.S AND STATEMENT.^. :!( :L m 'I ;i • ^'' j| if '■' 1 ■ Jimy.^' ■■ ilKii. amounting to .S4,009,302.r»0, but we do not intend to retire tliese elaiirs nor to sujjfj'est that we do not think them just. On this subject we refer the Arbitrators to the note from tlie American Argument cited above." And in the note accompanying the statement made by the Ami'!ica:i Agent on the L'Utli instant, it was stated that •• tiie claims tor whalers and fishermen's wages, for vessels destroyed or detained by the Alabam;!, by the Florida, or b^^ the SliMiandoah, (with the correction of the errors noted in the niemorancbim accompanying our tables,) estimated from the ]troofs presented, were 8'">'">S,-*47.r>();"' and it was said that •• this amoiiiit should be deducted from the total amount in the annexed summary, if the Ti'ibunal allow the whalm's' claims for pr()si»ective catch or interruj)- tion of the voyage.'' And it was further said in that nii'moramhun that if the Tribunal should bc! of the opinion that the prospective catch should not be allowed, then '• we ask, as an eipiivaleut, an allowance of 'J't per cent, on the value of the vessel and theequii>ment,*' and in the said iu)t«' we gave th<^ amount so to be added at slU0,lii7.Ul. It cannot therefore be said with truth that the United States abandon the claims for ])ros[»ective catch or i)rospcctive proiits, or that they present them a- tloiible claims, IV. — ruEKiiiTS. In the memoraiulum above referred to it was said tliat, " according t.> the arbitrary assumption of the British statements, the freight claimed by the United States in the name of their mercantile marine is gross freighr, and those statements rej'ect all claims for ireight; while on our side, in the absence of all evidence to the contrary, we assume that these reclamations are for net freight."' And in the note above referred to i': is said that " in all cases in which the Tribunal is satislied that the freight claimed is net J'rvUjht, the claim for wages should be allow»'d, bu" in all cases in which the Tribunal is satisfied that the claim for freigii"" is lor (fross/fciijhf the claim fiu' wages should be disallowed.'' It canviot be said, therefore, that we either make double claims In this respect or do not indicate to the Trii)uual the ([uestions for their investigation. Y. — Dorr.LE cLAnis. The Agent of the United States has thought that it did not become him to assume the i)rovince of the Tribunal by deciding in advance what; claims for insurance are and what are not ilouble claims. He has, in- stead of such a course, indicated in the tables presented by him such claims as, in his opinion, are clear from doubt, such claims as nuiy or nuiy not be double, and such claims as on their face ap])ear to be double, but which yet deserve the scrutiny of the Tribunal. These columns are thus referred to in the memorandum accompanying the tables : "Column three shows the claims tor insurance, which are clearly not double claims. Column four shows the claims for insurance about \Nhich the evidence is silent. It is possible that some of these should be withdrawn from the aggregate of column two. This can only be determined by the ex- amination of the i>articular facts in each case. Column five shows other clainjs for insurance in which the owners of the property destroyed claim at the same time full indemnity for their losses without regard to the insurance embraced in this column." 'c tlic'se L'laiirs lis subject wo I'^^'uuieiit citod the Aiiie'ica.'i IS for wlialers the Ahibatu:!, 1 ot' the errors lated Ironi tlie ■• this aiiioi'iut il suiiiniary, it •h or iiiterrup- loraiKliiin that J catch shoiiUl nice ot' L'o per I the saitl iiot<' mot tlierefore le claims for 'Sent them a-^ AMF.RrC.W KEl'LV— -TABLES. (;o-^ VJ.-dKXHHAL REMARKS ON THE CIIAlJACTER OF THE CLAIMS h.'l^i'-iudlh.a '" l^li ' Yf'"^ ^^"•" T^"''^ '^'■'' ^^'<'^'^ '-^'^""^ J'^'v*' never ;>;.;i^;Ps.t^^^;h;t^^ -*Mli„^s, and the.abstrnct of tlu' "oof l^l^ n' e "^ ^T.'lreM^ S' In the Anu'rican Case ,,rolert was\nade of'the'ori^inal proof; shouhl I iiKide by the P,i It is also jiot admitted that the ill!!. ±'i';^^^L^V'^','''''^ the request been unide by the Bl-itish X;.;;;;; those j>rools would have been here Geneva, yl»//»,s/ 2S, 1872. '•acconlingt.) :ht claimed by gross freigh:, on our side, 10 that these, referred to :" lied that the allowed, bu^ in for freiiih"^ d." »le claims in ions for their il nor become idvanco what; He has, iu- by him such lis as may or to he double, columns are is: "Cohimn ouble (!laims. the evidence h drawn from xl by the ex- 1 shows other ty destroyed )ut regard to '5 i, r ! Mr ■ i i'^ .XVI -NOTK (IN SOMK OBSERVATIONS PHESKNTKI) BY MR. RAN- CKOFT DAVIS ON THE 'illTH ArOUST. The A^oiit ot' the United States has ibrwarded to the Ayeiit of Her Britaunie ^rajesty, and lias, it is supposed, delivered to the Tribunal, a paper eoiitaiuing some observations, to which it may be proper briefly to reply. Jt will be eonviMiient lor the sake of l>n>vity to refer to the various points to wiiieh these observations relate in the order in wliieh they are mentioned by the Ajjient of the Tnited Stat 's. I. — ,l.s tit tin: ignited St((trs Tables and tkc lirifisk Tubla and a Uo trance:; l/ciwndlii. On comparing'' the Jlritish allowances, as stated in the Tnitcd States Tables, with those contained in the Jlritish 'J'ables, it will be found that the total allowances have been recently " iacreasal.'' This aros«^ Irom a desire to save thc^ time of the Tribunal an«l to avoid disjuites on minor matters, which led to all the claims for ])ersonal effects bein<;- allowed, except a few which were manifestly extrava^^ant. In tio case have the total allowances in resi)ect of any one cruiser been diminished. The alterations, therefore, in the British Tables are not such as the United States have any reason to complain of. On the other hand, where the claims in the United States Tables differ from those in the Jlevised Statenient, they have been invariably increased, and in some cases to no iiu-onsiderable extent. 11. — A.S to the Ciirtenci) question. It appears t'rom the i)aper presented by the United States Anient be- in<;' occu)>icd by this more than by any other (pu'stion, that it is felt to be a (]uestion of considerable importance, but it api)ears to the Aj^ent of Her Britannic Majesty that the arguments uriicd in that paper stron<;'ly <*ontirm the view which has been submitted on this matter iii behalf of Great Britain. The reasons for this opinion are briefly as follows : {(() The circumstance of the Treaty jtrovidin;:^ for the payment of the claims in i^'old would lU) doubt have r.ilsed a ]U'esumi)tion that they are made in that i-urreney, if they haaper-currency, except in some few cases where gold-eurrency is ex- l)ressly referre:out of ITor 1 Tribunal, a roiMH' briefly I tlie various lich they are A\\U'i\ States »c foniMl that arose from a tes on niinoi' 'in*;' aHowed, ase have the iiished. The s the United d, where the tlie Jlevised DUie eases to 's Aji'ent be- it is felt to o the Ayent that paper lis matter in •e brietly as nient of the lat they are meed subse- f the elainis nited States are foumled entieal with, onsiderably it is almost ;he ordinary rency is ex- n which the ered as esti- BKITISH REJOINDER — TAHLES. iuVJ (h) This conclusion is strongly contirnied by the facit that in the well- known report which was i)resented to Congress in the year 1S7(), and which contains most valuable tables, showing the average \alue of American ships and their gross earnings, gold-currency is specially de- signated as " specie-currency," to distinguish it from the ordinary paper-currency. ((') The same conclusion is actually proved almost beyond a doubt by the very facts cited in the paper now under consideration, for they show that, in the few instances in which the claims are made in gohi, there is some special reference to that ciriuimstance — a circumstance which necessarily h^ads to the inference that these are the exce[>tional and not the or«linary cases. (d) The Agent of Her liritannic Majesty entirely denies the extraor- dinary allegation thai the purchasing power of gold has, during the last eight y«»ars, diminished 50 per cent., and is also at a loss to con- ceive what bearing the alleged fact, if true, ought, according to ai.y sound principles of Jurisjuudence, to havu on the decision <>i' the Tribunal. III. — An to the icdffiN. The Tribunal has already decided that there should lie an allowance made to the masters, otllcers, and crews of the whalers of <»iie ,\eai's wages. It is therefore clear that the additional claims for thes(> wages reason to believe that any were omitted wiiich could with any propriety have been advanced. The new and very large claims for personal ef- fects, advanced on the l!Hh August foi' the first time, are purely conjec- tural an«l are not suppcuted by any evidence which has been presented to the Tribunal. Tudeed, it is almost <'ertain that no such evidenc(» eould have been add need, for,from ('ai»tain Si'mines's .lournal ami other sources of inlbrnnititured v«'ssels. The Agent of Jler Jbitannic .Majesty also begs the Tribunal to be;'.i- in mind that to advance these claims Mithoul the slightest evidence in su]»p(Mt of them is to act quite inconsistently with the assertion so fre- quently made in behalf of the United States that all the claims aie sup- ported by the aflidavitsof the <;laimants tiu'inselves, ami there does not seem any reason why the United States might not with t (pial plausibil- ity have advancetli Au<4'iisi last, that the claims lor i'n'i<;'hts should be taken as claims ibr mi and no' ^br f/rofis frcifi'hts. These claims in the caseol' tiie Alabama amount to ni< .e than 1.") per cent, of those for the vessels and outtits; but on looking' at the ]\e)»ort ]>resented to ()on<;ress in the year ISTb, it will be tbniKl in table XXl that tiie average S70 amonnted to .'>o.\ i»er cent, of the values of the vessels. I Tnder these circumstances the Agent of Jler IJritar .ic Majesty is at a loss to conceive how, in the face of this well-known otticial estinmte, it can with any ]>lausibility or ])vopriety be contended that the claims of 4."i per cent, ot the values of the vessels on voya^^es which would not avera<;e more than six months, that is to say, claims equal to a jiross return (»f 00 per cent, per annum, are claims for net freight, or how it can be even denied that they are greatly exaggerated, even when considered as claims for f/ross freight. The Tribunal has decided that one-half this large amount should be allowed, and it certainly must be admitted that this allowance would be amply sufiieieut to'cover, imt oidy the net i)rofits expected to l)e derived l)y the ship-owners from tLese voyages, but also any wages which the otiicers aiul crews could be reasonably supposed to have lost. A'ir. — Ai to the iJonhJe chums. These are of two descriptions: those which are avowedly and ex- l»ressly made and which are admitted in the United iStates tables, but nevertheless included in the alleged total, and those which are tacitly umde, and which are not denied by the United States Government, but are left by them for the determination of the Tribuiuil. As regards the former class, amounting to §809,400, the Agent of Her Britani(; JMajesty confidently submits that the suggestion made by the Tribunal ought to liave been at once adopted, and that these double claims should have been struck out, and ought not to have been included in the total claim Avhich is stated in the United States tables, ami which is there compared with the total British allowance of $7,074,710. As regards the double claims tacitly nuide, they were, many months ago, specifically jwinted out in the British l{ei)orts, and there shown to be double claims. The United States Government has had all the evidentiaiy docun»ents in its possession for a long time, and has, according to the statement iu)w nuule by its agent, carefully examined them. Such being the case, it is submitted by the Agent of Her Britannic IVrajesty that, as the United States Government does not now deny these double claims, they must, of course, be deducted. Tiie double claims altogether considerably ex- <;eed a million and a half of dollars. Finally, it is now alleged by the Agent of the United States that his (rovernment has carefully examined the docunuMits which are filed at AVashington. Tlie assertion that that Government had lu'ver auditetl the claims is to be found in the ArgunuMit of the United States, and is there used as a)! excuse for the d(nible claims not having been excluded. Jt seems also to be the only reason for the very inaccurate statement nuule in that argument to the effect, "that very few, if any, double claims exist, excei)t iu the case of the whaling-vessels destroyed by the Shenandoah, Tfy. ot with a ro- Aiift'iist last, I and no' f'or i)nnt to m< .o- II l()okin.£»' at be i'()nn'«'sscl.s anionnted rcnnistancew ? liow, ill the. insibiiity or 1)0 values of .six months, |)er anmini, lat thoy are >.s'.s freight, t shoiihl be ice would be [) be derived K which the it. lly and ex- tables, but li are tacitly rnment, but regards the iiiic JMajesty lal ought to iliould liave i total claim re compared any months re shown to ' docuinents tementnow le case, it is the United they must, derably ex- tes that his are tiled at le claims is icre used as . It seems nt made in laiins exist, henandojih, lilMTlSIl I.'IMOINDKI'—IAIJLKS. fJ41 t K'lv l.^ir,,mn) by tiie master of the L isi' or interrnpt.on of busincss-neithcr ol" which claims is o e o m j e nhed ^- any alMdavit whatev.-r; a claim of s],),(„>,> b - a . sen^ lor loss o olhce ot^consnl ; a claim by r:i,enc,cr Xve, tlie n Kster o -fl ,". Abigail lor inore than 817,0(>0, Ibr personal etlects ^c; e ns b* n^s" tws and unites of vessels, (over ami above their dJim i Is b^ ,^s m^^ .'llects, of >^20,0(K» and > i ; \\ I'i 1 >■• 1 i h« Wi I- INI) I-: X Ail;iins. .Mr. : 111.' Iii.s iioto ()l'A]ii'il 7, iH(i:) Tho, a.itlK.r ..f 1 h,. ten. I iiidVivrt Vla'im's Aunpimiii. tlic: t. 'ikes coal tu fli(. Alahaiiia Aid. (See (inril linluhi.) Alabama, tlic : nof dispiitc.l that .slic was intfiMlcd lor war -Mr. Adani.s j;iv,.s iiif<.niiati(»ii coiict'niiii.. .V eronnMdl.is inlWrinatim. to tho Lu^^M:)iii;.o;; m'.hMVown .. lM.it ot (•.>,mMissi„„or <.f CMstoms n-ardins- the 'xvh^v] It ^Tu j"i!''f '^"•'.^■'"•ti^or pro.,!' t.. tin 'c'on^^to;:::: ;; : ^l.;J.ol.(;.t.>rol th.. Con.nussio.u.r ..f th- Cnston.s li„ds 1h. ";;,o;;i; h.;;,- (.)nl,\ ,^) and thn.iij-h tho F,nvii<;n OitU-c, (Jnlv •,>•') i' ditional proof thron^r], tho Troasmv, (J„lv -r.i) .a d| lona ].ioo(thn,„o.l, m,,, ForeioV()m,.,>:(.]u v'-J4) I T S tW "'^■""-'' ^'"^ •'••^^^•'"« authodtio. (:j; iv-5):: ..so..r)w *'"' ^ '"''" '••^■^•"""iiend tho .soizuiv. . ' ot-tl[)t) \)l .,-._.... ------V...... i npHioione.v of tho sub.^tMnii.uV iVi-o.-oodi ii^^s :S«?;;'{,;^liS;;:£::™!."^:''''' '-A^i,i,ina;:;;;;;:;::;:;;;;;;; lauds pnsouors and ropaii-.s at .faniaica . . l'r<.ooo( ino-.s at ('aj.etown. oai.ture'ofSoa ISride pi-oooodinj.s at .Simon's 15av. rhe Tnsoaloosa ... ' h.'v annaniont dofouded by (iioat Britain" -\ lal.ama ohunis, (soc Grnut, rrcwJnil :) origin of tho term the term well known in Istit'i ••'*', Aiar'"the : '"""* ^*^' ^'"^ ^"'*^"*^^" •'"*"*" ifif^h'cmnmi^sion;.;;; ^ ! :::;;::::::; armament of the riooroja, iVimi lier Alexandra, the : ])roeeedinos eoncornin"- VilZr. '>7,."i'.t Ml '^r, s:. KM 11 -J IJ7 I SI I 11)11 1111 ,->ii Ml 811 .^'11 111' •Ml :ti 1)4 <)li !»() 5)7 !)7 i»i) lti» !»!» Km 101 10: ! 'J7(i 19!> !!)•> i;»> lo- ll:: i\U IM)K\. :i I ••) ' \iiii('iilili' scllliiiiciil. (Sci' Tntilif iij' W'tisliittijlon. ) Aiiiiiiiis: iiiilVicMilly. oriiiral Kritiiin (owanl (lie I iiilid Stairs rst:il>li>lii(l ."i:!. .'i.'. its relevancy to the issues lielure I lie 'rrihiiiial .'i:; I, Old Westhm.v's \ lews eoiieeniin;; .'i 1 Mr. Iieriiard ^l I I'arl Jviissell's views ('iiiieeniin<:[ ."i I statciiieiits in tlm Itiitisli Case re,t;ai(liii,L;- .")."> Ailiitratidii, (seo '.I'lihinml of ArliUrolUni : ) seniM! of, (see liiilincl ('hthiin:) 1-', !.">'.•, 1>.",. -Jul . •JM' leliised liy Lt)i;'. Arms: purchase of. iioi fdi l)iddcii liy iiilei iiatioiial law . ( note i .M Asylum : doctrine ui'. coii-idiicd 'i.\ Mr. l'.\arls i:,;i Award ; character and crfrci uf !.'>, U; A/niii : ilefinil ion of iicnirality ."ii T.ad laith : ilia ( luvi'rnmcnt necessary to 'le |no\ed in dider to sustain a charge ol' injurious iie.'^li^eiiee :;(i I l>ahaiua, the : takes the armaiiieiit to the A la ha ma '.iii I'.ayley, (Joveriior : uiitViondly action al .Nassau reiinrdinj;- the I'loiida in l~li-.' (ill. 7:1 I'ase of naval operations: detined 1)y Sir K'. I'almer l:ii defined hy Mv. Kvarts Itiii Mr. Waite's views rogardiuj;- it '<]'.'< l>el<;iuiu : laws tor <'iiforcin,n- neutialilx' ol' :;ij iiellij^ereiit : not reeojfiiized jiolitically : the \('ssel of. docs not enjoy piivilejic ut' e\- teiTit(uiality I."):; iu case of violation of lU'iitrality hy, the remedy is af^aiiist thi! vessel l.")), Jh'itisli view as to these points 'i'.'T Jh^Uigereiit power : exercised hy liiiled St.ates of right in suppressing insurrection 7 nou-ac(iuieseeuce in siicii exercise hy another power is intervention Itelligereut riglits : in case ofrehel hostililies heloiig to the sov(>reign of ligld, to the rehid'hy sulleraiiee Id conferring them on tlie ichcls l»y (ireat ISiitain was intervention lo Jh'rnard, Air. Montague, (sec .liiimiix :) his views on the 'J'reaty of W'ashiiigtou "Joi his views regarding tlie language of treaties -Jll Iilockade-ruuning : carried .'« doctrine regarding supplies of coal l:>(i doctrine r»'specting liospitalitics 1 :i:i Ihiice, Sir l'r(!d(>rick : thanks the I'nited States in the name of Her Ihetaiiic .Majesty for their course toward the Feu ia us -l.'i I'll HI- . li I. . ). t .)! > .".1 :. I :. I .").') ', l>',, •j(ii,-,>:,!t IIM -JKi.'Jl- ?:• ■>:>[* , -'w:: •.•;;. 171 .M I.V,' , "n ;v of .'.III ;ii; Cii;. T:i ■i:;i liiii :;ii ' cx- i.",:; 1.-):, l-bv Id 111 vid-j •,'ll 11:! l:!(i K!:; lu'ir !■ IM.KX. ,;4> I'lilluilv, .1. I ». : • I>ii,,, n.r!^:::::?\::L:^r^ <-fsnH.v..ss..isini:n,i:u,.i ;„ •'II. '' .iiic s \ lew s ( oiiccriiiM" ' '-•' " :.|.:: V, < ;^illl^. l.iiiii : Ills virxysas In thr. Inly ur.-,ri/in-.. Ilsi„.,.t...l v....!. Uimks til,. iiKJirnt rlaiiiis arc in lii.. Trcal v -'' ' ah (I ; '■ >j(i;; }■':'"■";"'''• f"' "^ --nns;;; :.:;:.■--;::;: ; ,;; laits ('oiicciiiiii;; Cliiiicsc (!,.(. t : '" 1 i:, rlJl^l ^"•"'"""'■^"""""■i'voniK. ItniislM.nvi.nn.nnt ,„- I'm- arhifijitiuii as (icscrilK'd in llic Tivatv stat.'iiioiit or • M, n;. i>,-j()n Chuciicc, the : 1-^7 a tfiiilcr ot'lJH! I'lniida. C'larcmlon, Lord: 7'.» bis vicw.s as to tlic indirrcl clainis < iial, supplies ol': - ill.') do(!triiio (if Hrnzil ivj;ardiiio- fo Mie SluMiaiidoah at MelbTmni. " .'■x'.'fssi v,'. •*'•' >ir li. J •aimer's vi(3\vs le^fardini;- '■'" ^''" Y'^'^*"" •'"■o""'^^"^ i'',iii>rdin'^'.".'.'.V.'/.".. '.'.'.'.;;■"■■■ :'•'••; c ^..£i.tiiV':;^;:xa;;:{;.J: *■ ^"""^' -"■ ■ ""■ '"'i-'^-^ c^.>ve,.„n.e„, ,J,,^ his opinion iej;aidiiij-- tlie Gcoi oia in l^ilj C omniissioiis: 10^ ort'ecfc of on offeiidiiij>' t'ruis(>is Sir K. rulnier's views reKiirdiiio-.. .'..'.'.. I7(i, •,>•><; Mr. JOvarts's views rcfjanliny..? • 427 nilt!8 of international law rcspeoi in" ^'^'^ « ontederatc asoucies : " ir,| tlioir establislinient in (ireat Ihitaiii defended 'in. I ;.. fwi i t -onstitntional disabilities, (see /«/<■! mlllJla/Aa^lV' '"■^^'""^ '^'•'" no iuiswor to a charjro of violation of an international ' '— »iiii pjoois r^ indefensible course of Great Britain dmin-r Cuba, (See Spain :) " 4t;, H Cnshin;;, Mr. : his arfrunieut in reply to Sir li'oimdell I'ahner bis oliservations on the recruitments for tlie Siieua'ndoai, r^*.' .j'l J iw \4l V 1 1 .li.i il; 1-1 <; Ml i.M)i;\. i». ' , J'tt«i.'. ) l.llllil^ir-., I >ci' I II ill III X.) llllifisl, liiil'nril iliiiiiis : lilies lor inciisi I rill j;' '.'I'.' .mi I mis (if I lie vvroiiL'.-ilorr ;iii clciiiciil ol', in )(irt •.'I'.' >li(tiil(l Itc all iiHlfiiii.ity 'Jir> ii|i|)iit'ii(i(iii ol' lilt! rules eoiieeriiiiij;- •.'!.'( Nlr. Coliden's \ iews rej-iinliii;;- -IM 1,1 nil Sliiiile\"s views reiiiirdiii;; -JlT Mr. I'oislei's views le;fiir(lil|i;' -jIT l.iil'il ivlissell's views reniirdill^j ".'IT II sum ill uross slioiild lie iiwiinleil l[- the ]iriiiei|ile olConiiiensaliiiii liu-, as iiiaint allied liy (ilea t I'ni tain :iiM report of I lie rMniiiiiltee apiioiiited liy lioaid of trade rej^jai'li";;' -'I"' Deiiniai'k: laws for eiiloiciiij; iiriitiality of ;;7 1 leposit of llie offense : liy Hie I'loi ida at Mobile : ai;;iinieiit as to .'> II . .'i (li I >ili.i;eiice. (See Dnr IHIiijemr.) line Dilieeiiee. (See lliinliii of J'iudJ'. (li'iiil Itritaiii : ) eon ten lion of I nited States rejuaidini; Itritisli want of I' not esereised to iiievcni lift iii^ out , ei|iiippin,n, or ai iiiiiii; ill its Jnrisdiit ion ol' \ i ssels lilt el 111 ed to eailN oil War ajiiiilist tile I i 1 ted States 17 nor to prevent its ports from litiiij;' used as liases of naval operiitions IT tlie |»lirase is a definite and praelieal one I.M '•diliyenee ■■ implies zeal. a)i|ili(Mtioii.elfort. «Ve 1.V> ■• due " implies reasonalileiiess, a]i]ii'o]iriateness, and adeuiialeucss I.'i.'i tibjeelions to I be Ib'itisli deli nit ion I.'i.'i ilelinilion of dilij^eiice Iiy Iititisli and Ameriean eon its l.')!i. l.'iT limit of tile obi ij>at ions e eated by tliis leqiiiremeiit of tlie 'i'le.ity I."i7 no t'vid.enee of (lie eNeieis(> of, submitted by (ireat liritain lHr> Ibitisli delinifion of ■.'•'iT.'JCiS sources of tlie obli<;jitioiis to les of inteniational law rei;ardin;;- ( I'almeii :',<> the I nited States observame of in jnaetiee (Id Mr. Kvarts' views legardiiij;' 1 1:'.. iHil Mr. ('nsliiiij;'s views regard iiii;- 4"^7 Sir j;. {'aimer's views in the ease of l.iiird's rams .4!il Dnniiid, Captain : eviiUmiM' re>i,arding the I'lorida .")•-' i:. Kvarts, Mr. : hisarjiiiment in reply to Sir {{oiindell 1 'a liner \\-i I'videiiee, (see Hiirdtii i>f J'roof:) of breach of law to besouj^ht from those who j'ive information the Tiiitt'd States have invariably reipiired legal, before (Mimmeiieing ]iro- ll.'i eeediligs the, belief of Consuls does not eoiislitnte pi'imii-fmU- U.") Kxeeiitive ]u>wi'r; im hides the power of iireventiiij; violations of law til* l)eenliar iulvanta,ues of (Jreat Mritain lor the exercise ol' such power I.M llxterritoriality : l.Vi ofa vessel of A\ a r. the )iiivile<>(' is [lolitical and . li».") I'iore : eoncerniiig neutralitv :><> '■^'f^^ •JIV •-•ir. ■i\:< •n: •ilT •JIT •.'17 •7i- :',HI .MI..MC. I'tiiiii i: IT l.M I.V. I.". I.V. 1. '.!'>, l.'w ir.v {'*•> •.'•■,:. -jr. ■< v.... ■■'<<> .. li:l.4H» t-^T J'.tl I4^,> lU'll- S(il>. 11.') n.". 4Ht l.M l.Vi l.Vi l.-.:!,4.". •j!t."). -JltT 4-JT 4.'.1 4.". 1i).') iM>i;\. ridiiiiii, lli<> : lit Mvci'iiiMil, iiirniiiiiilMiii l>y Mf. .^iliiiii'' (■iiiiccniiiiy,.. act inn 1»\ II rr Mnji'siy's < ii'\ <'i niiifiit iiitcniiil pidiir tJKil sill' WHS specially ailaplcd I'or war i'c|>i>rl to l)c inter II Icil I'm the Italian (inseriiinenl the rc|Hirt ascertaiiieil In lie wit limit I'minilal imi , licf ic^fistry 'UT I'llKc want III' line till i;ici ICC in not iiii|iiiiin,n' cmieeniini;' want ol'ilne ililinelice ill iiol n>in;;- llle lliiwcis '4i\eli li\ liie iiiereli.iiil^' slnii- |iinu act arrival at .Nassau t he e\ccllti\ c |iriMi ciliiins I here a la i line nj' I he ilile ilili-ieiicr ier|niieil l\ the Tieaty '. '. I he sei/iue 1. 1' I lie I'lmiijii ami >lili»ei|iiillt Jiliiicial lUdceeiliiiMs trial anil I'elcase. partial ami niijiisi eharaiter ol' the iiriiieei'iiii;s departure I'rmii Nassau arniini;' at (ireen ( 'av atlenipls III elude Spanish laws and tails, and then arrives at Mnliili' eiial.H, priiN isimis, and r ises reernitnients from Nassau, .lannary, Ist;;!.. I eceives I'resh siipiilies iil' eiial and repairs at Marhadiis, {"clpinary, l"^ii;> at I'ernainlmco repair.s and coals at lierninda, .lnl,\ I."., l-^ii:! at llrcst. receives recruits and lu, i i- nery I'm mi Lis erpnn! at Marti II ii| lie at jialiia li(>r tenders, (iieat Ihitain liahle lor l heir ads r(!asoiis why (iieat Itritain is mil r' sponsililc for the acts ol'. as ^ei I'm; h in the I British Aryiinient iier aniianiciit no iiei>lii;eiice . the, ]iart of (Jreat Itritain : sir K. I'aliner's aiiiiiniciit concernin;;' 'tcr entry into Mobile rei)l.v of the counsel of llie I'liilcd .Sliites to sir I'. I'aliner's ;ir;;iinieiil l'<)rei;;ii-l'',nlistiiiciit Act. (sec (Iritil H'.tiihi.) if Uilopted as the nieasnre of duties, (ireal liiilain siill ;;ii:lly of eiilpahle lie;>lij;'ence not the nieasnre of international old i<;al ions if defective it should have heeii aiiieiided its (h'l'ects were j;lariiie .sir Ikoliert I'hilliniorc's opinion of i i IJaroii ("liainieH's opinion of it eoiiii»arisoii hctweeii it and the Inited States neutrality law ot l~'l~ •J^. history of was inefticiciit and its el'ticieiie>diiiiinifsliod hy .judicial lonstniclimi note regard i 11 jf . dehale upon the act of l-'IU debate upon the act of |S70 correspondeiKic relatin.u' to aineiidineiit of eouHideration of. in the Itritish Arjjnnieiil its ellicienc.N neiintained hy (ireat liritain I'oister, Mr. : liis views renardinj;' injuries to I'nited .'states I 'ranee : Laws for eiiforciiii>' neutrality of Course of (Jroat iJritain towiird, dnrinj;- the Ameiic.iii lievolntion fraser, Trenliolin, iV. Co. : tlio linaiKtial ajicnts ot the insurgents I'rasev, .loliii, the : coal sii]>]»lied from, to the Slieiiandoah at Melhmirne . w .V.I .11 till ."i* i;ii I'd <;:; Id frj III ol lii'i 1)11 Ti'. T.') T."> T.') Tii Til T7 /I .'.I I 4ii: I'.t, \r> lit 111 t>,s •,'h r.T.-'Tii t'.i iiii; •.'•,'i; •J !•,», :uii» •itiit c. (feoroja, the; : notoriety of her const met ion ami i lest i nation registry, cleaninee and dei)artuie armament iVom the Alar information by Mr. Atlam.s eonctuninf;' inefficient action of I ler Majesty • (iovernmeiit regarding receives eo.al.s, supplies, and repairs at .Simon's Bay, and goes to Clun-bourg is sold at Liverpool reasons why Great Britain is not responsible for the acts of, as .set forth in tlio British Argument lier arinament defended by d'reat Britain •2\: ;!•.*. :')4 4!) Ill i:m 104 107 lOS 108 lOi) 1(»1> 110 •2H1 •2ei) i;4s iM)i;.\. m i % Kh ■ I.:; I Id M 1^: ( i'. Illllrlll, I'dl III tU': ilsiiiliiii'iici- 11111)11 llif (ilili^al imi III oUmtvc diir dilincnir. ( I 'Ji'iiiri. I (if (ileal 1)1 i hi ill ciiii^uU red \\\ Mr. (.Iiisliiiii; < iijiiit, I'nsidi'iil : liis Mcssiim' as to t III' .\liili:iiii;i claims fMniiviiic. liOid : s icw.s as to Joliii.sdii ( lairiidoii (Joii\( ii( imi \ ic-\v.s ...-. to tlie Treaty ol Wasliinntoii (ileal Itritaiii. (.see Aiiituits. J)iit JHIii/tiKv, Hrtviilirc I'oinr, iiDriijii-r.nH^liii'iil Ally liixurijitil Aiiiiil, Miniiiiixd /.(tiVK, I'lrrofialirr, l'i)/'ri('ii(Uiii<'iu'(Mr.s I'idi'laiiial ion sy.slenialie aid lunii.sliod IVoiii, to tlie iiiMii'^ciit.s wiiieli i.s I lie cause orj>n'at iiijmy to t lie liiitod Slates tin- aid IVoiii was or;;aiii/e(l and ol'lieial I lie only ])o\\cr wliieli permit ted siieli acts contention in its Case and Coimter Case responsibility for Die acts of Itrili.sli snlijeels la i lure to use 11 le ]iierot;ative ])o\\er of tlie Crown 'JT. averse to lenislatiiiu: on tin; siibjeel of neutral diil ies Iiei laws I'omitared with tliose of oilier jtoweis lier history as a neutral eoni])ared witJi that of tlic Iniied States :!-^ her course as a. belligerent towards neutrals invite. 1 a Joint acti.'ii \\ ilh I'ranee in American ali'airs Ijeloie iiisiirre. as lielli^-ciculs liel'ore insiirreet ion broke out other unfriendly proceed ilia's which established an unfriendly feciinn toward tiie I'liited Stales itstioveriiment ]>ossessed ('noiigh jjower lo carry oul any course of action il niij^ht iulopt the prei(>j>ative of the Crown ample for the ])urpose numerous examples of its exercise diirint;- the. rebellion ad\anta_n(>s enjoyed by it for tin, exerci.se ot' executive jtowcr oiiini pole nee of iiarliainent her duty under the law of nations to have, seized the iiisurj;t;iit eriii/.ers.. la i lure lo use due dilij^eiici! to obtain information of the insiirjjent schemes. to iiistnut to maintain vifiila nee rc5;ardiii(>' prosceiitiiiji' ofliecrs lo break up the liostih; system by rclyiiiji on the Foreimi-lliilisdneni .\ct by nenleetinjj; to anunul that act ill not *letaininj>' olVenders, when retiiriiinu; to llrilish ports ill not exeludinjv otreudiii<>' cruisers from Itritish ports,. in dolayinj;' to make, representations to insiir.nviit aj;eiits licr course rcffiirdiiif^ .Mr. Adams's rci>resentutioiis defended lierdilij'oncc not atfected by the doubtful construction of tlu> I'oreij'n-Kii list men t Act. (Talnier) .! look activ*! and si»ontane()iis measures to aeiiiiire information iVc, (rai- nier ) irceii Cay : arriviiiji; of the I'lorida at irohSKuni. (See IhaiHUiix.) II. lardiiiii', Sir .lolin : illness of iattcias, the: destroyed by the Alabama licklcy, Comniuiider : in([uires the condition of the I'lorida when leasinj; Liverpool luH opinion conccrninj;' her at Nassau lolhuid : laws for ciiforeinji' neutrality of conr.se of (Jrcat lirilain toward during llic .\merican licxolution iospitalitics: alleged excessive to iiisur;j;ents in Mrilish ports explained and just ilied iiy (Jreat Ihitain lostile a 11! I '.I n;:;, n;, '•<>, in. it:', ll'.i Mil I 111 I.Vi I.-.--' 1.-.:; I. ".it Kill ICII Ii;ii IT-J i::-. i:.-. I'l; 1(1 i li:! 7ii .".II I'.i'i ■I'.i :'.ii:; I.-. J :;'.tl c.i:. .. . I'.h; i',>:! •:():;. -ji I- Ill II. :.:. I-.' l:!.:.:) i:! i:i -Jl . ..-,'7. u;:!. Hi.') :u), :!•.' :i-. III. it:'. 1> ctilMI ,",•_> etiim -■> .">■' .">.) 1(1 idll Il'.i Il',» Il'.t I.Vi l.VJ /.•vs.. i:.:; Kill n;ii 1 I'll I 17:: 17.". I7ti • >...;> 11-1', 11 10 i (r.ii- n:; 7t> !>1 07 :,!* :.',t :',(■> 4'.) .1 l.v :;o:; I'.J TiO i.vi)r..\. * 1. liiiliiiil ciiiiiii^. ^.1(■^• I'rciilii of ll'ti^liiiiiilnii. /.(Dd Ciiini'- : ) llic iiMiii not 1(11111(1 ill the 'I'lTiity ii'tlliiiii'nl '. 1 njill'ics. (,-^('c Ciiihd iShlli >i :} the relation between, and I heir caii^r. w liieli is rei|ni-.ilr lo 1011111 1 :i 1 la i in lor daniaii'es t'oi lii^nru'eiit.s : |n-e\'eiiled liy I'nited .Slate-, iVoin eairsin;^ en niariliiiH' v;\v IVoin llieii own resources make l'"ra/<'r. 'rreiilioliii A ( 'o. their liiiaiieial ai;cnts .■intliori/.(> the inirchasi' oj' eoiislrnct ion of a navy ahroad I iisiii!j;eiit aiicnl. (sei^ Hiil/inl, : ) estaldislKMl in (ireat liiilain lielore 1 lie oni h:-eak ol'llie in>ni rciiion iiitei'viev s with lAMilJolin Iviissclj. and their represental ions to liiin ... . 1! apiiointineiits oj' I'nllock, Iliisc. North. Anderson, and < ireen iniieecdiims of, in Mnji'land for I he format ion ot'aii iiisnij;'eiil navy II Inlei national law. (see Mniiitipul l.mv. Xiiilniliti/, Xmlidls. Tini'-ji ul iiiisli- iiiyloii : ) the olilinations. dl' not allceted liy llie eimstit iitional disi 1 ihiit ion ol' ihe jioweisofa (iovt'rmncnt nor hy tin' i list itnt ions, cnstonis, .n habits of a pcojiie calls for seastaiahle, ,ipproi>riate. ami adeiiiiaie ineiins lo pre\ cnl \ iolat ion of nenlrality which means should he a\ ailnhlc as somi as rciiiiirei' jii iiici)des in force \\ hen tlie facts occnrrcd Intervcnl ion. ^set' liiUiiiiri I'l l!ii/liy-<:) what cMist itntes it ' '. ahstineiice from it' noi iicntralily Interest : - should lie inelnded in eoii.ipeiis.it ion I'cM' (lan.ia,iies ' ;. Sir K'onndell Palmer's ar;;'iinient reniirdim;' ' ( ■oiinscl of the rnited Stales. ai\n'nnielit of.fiii ivpl> Iron-clads, the : -- j proceed in us c(nicernin'4 It.-ily: _ ' ■• . law- lor e.nt'orcinn' neutral if \ ol " • '■ •'• • .la,\'s 'i'lcaly. i see JDirdcit <;/' t'roof:) intcrivst allowed in proce(Hliiianicl, the. (see SliciitiiKhMli :) sails from laverpool with otliceis. armament, ;iiul tiew, for Siienimloah . . transfers the .same to the Slienaiidoiili l.nw of nations, (see liilcniiiHoiial Law.) (14!! I\ezi-. H'.l i:t.". I'.i'.t •ill.-, •jd'.t -.'•Jl Vll III III 111 II-.' Ill II.". I 17 I 17 I I- ll~ •.T..", •.'•Jl I .-.."il 1 11:! :'.( II.-. i;i;! p.) I P>T .-I) M.-. in; flJ ■mi ni ■. i ■ *;: , G')() INDEX. M. M<'KilIi)|), (.'oniiiiaiitltM' : opinion icf^iiiding tlie I'loiiila ."v-^, 7:'. Miirshiill, C. J.: his Judgment in llotm rs, lliniely '.) Melbourne : l>aitiality ol" population of, towanl insurgents 1 1 ~ recruitment of men for the Slienandoali 1 1'.i Merclianls' Shipping Aet, the : failure to use its powers in the ease of llie I'loiidii lil -Mirandii ex])edition : history of it II Mnnieipal law, (see liiliviiathmal Lair :) not the measure of international ohligations '. .. H. l!!• for Avhat purposes rcferr(Hl to l»y (Jreat liritain, (Palmer) :VX\ of otluu- powers, tlie comparison with, eousidered 1>.\ Sir !>'. I'.ilmn 10.') \. NasliviUe, tile : arrives at liermiula and coals there I:!^ ariives at Southampton |:!li (roals again at Mermuda 1 |ii Nassau : symi)athy of tlu^ colony with tiu' insurgents 7 4 note concerning the sanu! •.'•.".! Negligence. (Set; fhic JJiliniiK-c, llrral Hiihiin.) Neutral, (see liilirrriilitiii, hiitviKilioiial I.iiir, li(Ui] delinitiou of it by the ("ounsel of the United States •i'J, r)0 should be nuuntaiiu'd by seasonable, ai)i)roi»riate, and adeipiate nu'ans. .. I-l> unfriendliness of (Irc^t Ih'itain should have been considi red in ju'ovidiug such uu'ans 11- other clenuinis which Oreat Jbitain should have considered in jiroviding its means 14- Neutralitj* laws, (see Hiniicipal Law :) of the United States compaied wiMi the I'oreign-lCnlistment Aet Isi auu'uded at reipiest of (ireat Britain ;{(• of Italy. I'la/il, Swit/.erlaiul, J'rance, Spain, Portugal, i^c.. Ac. com- pare(i :!7 , 38, ~m This comparison ciiticised by Sir ]{. I'.ilmer 4(l.'> the prev(!ntive ]iowcis in the I'nited States law exauuued. (I'aliuer) 4il.'), 4','(» Northcote, Sir Statlbid: his views on the Treaty of Washington ■Jtl'i, "iill •>. Orders in council : an intense assertion of neutral obligations 4- 1'. I'aluiei', Sir Ktninu >ll : his speech on the )»owers of the British (iovernnient to sei/.e suspected ves.scls 'jr> his view.s regarding the Inited States performance of their duties as neu- trals 4l> his views respecting the prerogativtMtf the Crown , l.'il his i>'guinent on ilue diligence, ttVeet of comuiissious, and supplies of coal '■'<<> his argument coiu;erniug recruitm(!nts lor the Sheuundoah ■"»'*(l his argument respecting the entrance of the Florida into Mobile ... ."t4I lii.s arguuuMit respecting the allowance of interest rMii l'arlinnu>nt : debates in "j:!! I'll-C. 11- i;i 11 1-^. IKIi •iC.'.t :',lt:; .III.') 111" 74 ;■.■."-' -J" cr or •,•11 •J( I ..... -il \s'.'.'. 14> iiViim 11- idinu, 14- 4.^1 :u) coin- ...:;T.:^e,ri()4 40.') 4(l.'.,4'J(l -id-i.-Jtrl l-tl-tl -jr. 4l> 1''1 s of :'■■'•■> •V,>(l .")41 "•".II •r.i INDKX. 651 riiilliiiii):(', Sir If. : his iiUtliDiity fit I'd -^t* rt)itii<;iil : law tor culorciiij;' la-iitrality ot" :;."> wiU' with fl".! ]5aii»lii Oriental, course ot' the I'liiied States iliiriiij; 44 I'ladief, {'(xKie : liis views i'e((iieiitia1 daiiiajfes •,'•.*•,* i'rero-iative, (see flratl /'>nlani :) minieroiis exaiiii.les of its exereise diniiij;' the iiisnrreetioii I II' (ireat I Sri tain failed to use it in favor of the I'nited States Hi:!, Ki.'i exanunatiou of tho I'nited States Arnnment ui)on, by Sir iJ. I'alnier :'.'.*.'> ^fr. I'.varfs reniarlcs u]>oii 174 I'revt'iition : distinction lietween it and pn nisi in lent :!".'. 141* the, ^lowi'r of, insejtarahle from the idea of exe(itti\ i' |iowcr l.'il Sir lionndell ralnieTs \ lews as to liiH Prizes: The exclnsico of fioni Kritisli ports no iieiielir to the I'nited Statis j-l rroelaniation. (the (.,>neen's, conferring;' bellijrtient rights : i was voluntary and anticipatory in chan.ued lenal relations lietween (Ji-eat Uritaiii and the insnrnent- 11 I'rnssia: laws for enforcing; nentrality oi" :'i7 rnrsiut of onisers: iioti' on the claim for . '■''>>> n. •' it'easonalde ^roninl to helieve :'" Uritish delinition of -.'ti- Sir II. I'alnn-r's views rej;:irdinn- llvf Mr. Kvarts's views rej,ardin.n' I'lt' IJeliel Iio.stilities : hiiij;ton •in-.>, -Ji):; Unles. (See 'I'nati) of ll'ii>ihiiiyli)ii.) !»U!*sell, ilarl. (see ./»;»/(((« ;) thinks the Alabama and tlu! Orofo a scandal ;ind re|iroach iK! is inlonned by the insuri;ent aj;out of tin; ])nr))ose of the insnr>;<'nts |o de- stroy the coininorce of the I Hi ted States Ill denies Uritish liability for the Alabanni claims T.M rc^l'iisos arbitration I'.tl tlie author of tlu) term Alabama claims I'.l-j his views re{>ardin<; daniaj^es -217 b'lissia: laws lor enlbrcin;;' the neut ralit.v of :',7 I'nssian ships, tho : considered by .Mr. ( 'nshinjj; I'.t'.i S. Sale: of arms and cont raband of w ar ■.*:!. •,>().'> Soil Kin;;', thi'. (See sliciiaiithxili.) Seward, Mr. : instructions regarding the indirect i laims . I!»() Shenaudoah, tiie Ill pnreliiise of the Sea King II.", enlistinoiit of part of the crew 11" ilopartiue from London 11,". is armed and manned from the J.aurel IKI infornnition roKardiu};, eomninnlcated to Karl liiii'.sell 117 she arrives at >lelbonriio 117 |ti'rmiNslon }»rnnted to eoal and make repairs 1 1;* t;52 INDKX. If J 'it ij 'ii. it* !f i .Slu'iiiimloiili. llu — coiitiniird : tlic Aiiicrifau Coiisiil jnotcsts ;i;;.iiii>l il IMTiuissiDii 'I". lilted to ;j;<) ti> llic imblic docks |iiii(iiility ol' ]U'oi)U' of iMc] bourne toward the iiisiiiyeiits laift'e reeriiituieiits oC iiien for, at Mi'llioiiriu! I he ('oh>iiial authorities in formed of coiiteinphited retrnitinenls I heir iiiei'lieient iiroeeediiij^s further jiroof oi' reeriiitnieiils furnished llie aiitlioiities I he aiitiiorities i>arh'y witli tlie eoimnaiKh'r in plai'e of lul iiiij furl her in format ion of eon tcmi dated re(;rnitiiieiits refusal of tlie Colonial authorities (o net depart un.' from Melhonrne excessive repairs at Melltonriii' excessive supplies of coal i'roiii the John l"ra/er at .Melhonrne arrixes at J Liverpool reasons why ■.' |-J-> I -,'4 1-J.". l-ili V>7 i-i- Ciii i::n i:!l '>"*; .V,'() .'):!•.' 1J7 |:i(i ):; n i!t;; •-'IT i:5(; i:!(; i:!t; :!! T. Tables of liy;ur»'s : ])resLiitcd by tho American agent. August. lU, isT'i presented by tho Kritish agent, August 11), 1H7'^> I'aeony, the : a tender of the I'lorida Talhiliassee : facts carliamentary debate regarding Sir I>. Palmer's views regarding Ml'. Kvarts'H views r<'garding' 'I'hornlou, Sir Kdwurd: his dispatch of April 11», ISil'.t 'I'reatics : principles to go\ em construction of. ( I'almer) r)7'.> dill ;:> 1 f.'., 1 1 1 10 lyt; lltl 117 II- ir.», V2-' \->\ V>7 i-J- i:!o C'.il r.'.i .VJO r>:vj \n r.io .i;;i .1) I'll) j:! 11 1-J lie; •n: i;!o,-,>i»;! U'.C i:!ti :•. 1 r>ro •ill I . ll:'., IH 'r.4 •r.54 'lyt; 'le-:? r.ti [NDKX. (!').') ''■'-'■ Ticaly (if W'asliiiiiitdii. (sci- Ihn I)iHiiiiict , lull nuiliiniitl l.ttiv. ImlirK' ('liiims, .Witlrals, Si ninilitij : ) (irovisioiLS rcsiicctiii;;' arliitiatinii 1 ! lirovisliiiis ri'six'ctiii^ claiiiif* I I. !.'» rules of I'l IIk'su rules tliu iiMi»ei'ative law in this cdiitroN cisy 1 lii. I 17, H''> Iiow the tii'st i'iil(! is to li. apjilied to I he facts I l(!. Il-^ how tlie second and fhinl iiiies ai'e to he ai>i>lied I tf> nothing; adiiiissihle ■which diniinislics Ihcii' iorce 117 I he oI)li<;ations of (ii'eat IJritain to ohservt! them has the forci- of an ohli- j^ation nnder international law I 17 1 he rules call for scasonahle. ai>]M()]>iiale. and adei|nate means to preserv > neutrality 1 !!• claims coniprchcmlinj;' it ls7 negotiations ]U'ccedini;' i-'J o])eninKnf ncLCotiations I'.td lireliminary corresjiondeiicc conccrnin,!;' I!t7 moaninn' of tin; words aniicahle setlh'meiit ".''•(» sii])posed concessions in liy (Jrcat Urilain <'Na mined •.'!)('. (h;bate in I'arliament le/^aidiiii;' 'I'.VJ deliups the rnin,ii;- the liist rule 17- Trihiinal of Arbitration : its authority alisoliite If, Ncope of the snlimissioii under 1-, I •">'.•. "I'^i the solt! Jiidiio of what constitll!l■^ duedilin-enc.' I')7 tiic.jiul;;(' ol its own powers 'iln Tnsealoosa : a i»riy.(! captured liy the Alai'ama and lifted as a 1 emit"/ Klii proei'edin^s reMarilini;' hid. |ii| (•apturcs liy Id:'. r. I nfricndlincss of ( ;rcal Ihitaiii. i sei' .Iniiiiiix, (imtl llrihtiii :) an eh>nient to be considered in luepariiiii' means to preser\c ni'iiiraliiy ... 11"^ inoi'eased by tins conduct f)f the IJritish (u)\('inment Ib'i I'nitod Stiites, (se(( Xiiilnditi/ fAurt:) suffer great injury from aid furnished insui'j^euts from iJritisli territory .. I'i naturo of tlu! injuries to K! Ih(;ir neutralitv law of l-l-', compared with tlm IJritisli Foreigu-Kulistment .\ct -. '. J- their legislative history shows a constant desiro to )»erforiu their duties a^ lUMitrals till their history as a uinitral compared with that of (ireat Jhitain :>-', Id, \(\2 their liistorv as a neutral further examined 40. Hi, '■i'2> treaty with'Spaiu of IHID 4:! the failure of tln^ir oHieers does not release (Jruat IJritiviu Hit their alleged eonilonemeut 'JI~ their views of '• due diligence" in jiractice 4 Id V. \'essels, (se(( Aruud I'vanih, I'.jicvriUii'tuHhi :) to w lii( h arbiti'at ion relates I"-."), 'iW W. Waite, Mr. : his argument ou the sui)[>lies of coal ">r' Walker's cxiiedition : defense of the conduct of the United States (ioverumcnt regarding 44 Wa.shington. (See Tirultj of U'anhin