^% <>^:\%^^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 «" IIM mil 2.2 u 2.0 1= U ill 1.6 Photographic Sciences Corporation £: 4? iV a VOLLME II— GENEVA ARBITRATION. CONTAIiNING THE KEMALNDER OF THE PArERS ACCOMPANYING THE COUNTER CASE OF THE UNITED STATES; COUNTER CASE OF HER BRITANNIC MAJESTY'S GOVERNMENT; INSTRUCTIONS TO THE AGENT AND COUN- SEL OF THE UNITED STATES, AND PROCEEDINGS AT GENEVA IN DECEMBER, Wi, AND APRIL, 1872; CORRESPONDENCE RESPECTING THE GENEVA ARBITRATION, AND THE PROPOSED SUP- PLEMENTAL ARTICLE TO THE TREATY ; AND DECLARATION OF SIR STAF- FORD NORTIICOTE AT EXETER. ,-^^^3====;-^, .>";r^5 ^'"^'^^ <* Tk'-" S1950 WASHINGTON: GOVERNMENT PKINTINU OFFICE. 1 S 7 2 . 'C rAHLI<: OF CONTKNI^S. n^ Reinaiiuler ofpapiTs accompanyiiij;- tlic Counter Case of the United States Coiiiiter CaHo of Iicr IJritannic Majesty's Goveininont I. Iiitrodiictoiy statcnicnt II. Aifiiinifut of the IJniteil States on neutral duties III. rrt-eedents apiiealed to by the I'nited States IV. A'arious coni])iaints of the I'nited .States against Great IJrituin. TralHciu iniinitions of wai' y, Tlie .Sumter and Nashville, VI. Tlie Florida and Alabama VII. The f ieorgia and Shonandoaii , VIII. The Clarence, Tacouy,Arcln'r,Tusealoosa, Tallahassee, Chickamau)^a,and Ketiibution IX. Ki>ce]ition of the confederate cruisers in IJritisli port.s X. Conclusions I'aK.-. 1 11)7 '207 •Jl>7 ;{-.>i :?:u) :s4b a. Mr. Fish to Jlr. Davis Nov. 14, 1H71 IXSTIUTTIOXS TO rilK AliKXT AM> ( '( H NSIJ,, .VXI» I'liOCKKDlXtiS AT (IKXKVA IX DKCIOMlJKn, 1.-71, AND Al'JilL, inl'^. I. Mr. Davis to Mr. Fish Sul»niits a printed coi»y of the Case and its Nov. l;{, 1*^71. accompaniments. Circumstances attend- ing its preparation 4l;J Acknowledges receipt of the Case. I'resi- dcnt's approval thereof. May present it and its acconii)animeuts at Geneva, in the manner required by the Treaty, as t)ie Case of the United States, and the documenta, &c., oa which they rely 41:5 3. Same to same Instructing Mr. Davis on the subject of his Nov. 14, 1871. duties as Agent of the United States be- fore the Tribunal of Arbitration at Ge- neva 414 4. Mr. Fi.sh to the Counsel General instructions for their guidance as Dec. H, 1H"1, counsel for the United States before the Tribunal of Arbitration 41t) 5. Mr. Davis to Mr. Fish Arrival at Geneva. Meeting of the Arbitra- Dcc. 1."), 1871. tors. Cotiiit Sclopis chosen to presifht over the Tribunal. Mr. Stiimptii, on re- (|uest of the Tribunal, names Mr. Favrot as secretary. Cases presented. Trans- mits copies of notes which accompanied the same 41(j 6. Same to same Meeting of the Arbitrators. Exchange of Counter Cases. Uritisli Counter Case, accompanied by a note from Lord Tenter- den to the Arbitrators. Kejily of Mr. Davis thereto. Telegram from Mr. Fish received relative to claims tiled in the Department of State since March 22d. The Arbitrators and Uriti.sh Agent in- formed thereof 41rt April I."), 187->. CORI{K.si'OXnEXCE HESI'KCnxtJ THK (ilONKVA AlflllTIlATIOX AXIJ THK rUOPOSKD .SLl'ri.K- MKXTAI, AUTICI.K TO THH TUKATY. 1. Gen. Schenrk to Mr. Fish London journals demand withdrawal of (Telegram.) Feb. 2, lH7'«i. claims for indirect damages. Ministry alarmed 425 IV CONTENTS. •». Mr. Fish to fion. Sclienck (TclfgiiiMi.) Ftib. a, inr-J. :J. Gi'ii. 8clHMi(k to ilr. Fisb (Tfjicgriiiii.) Fell. .">, 187"^. 4. Goii. SclieiK'k to ICail (iriuivillc. . ."». Gen. Selioiick to Mr. Fish Feb. 1(», Ir'l'i. (!. Gen. Hcheriek to Mr. Fish fTch'Kiani.) Feb. -27, 187'^. 7. Mr. Fish to General Scheiu-k (Telegram.) Feb. 27, lt;7-.>. 8. Mr. Fish to Gen. Schenek Feb. -27, lril'2. 9. Mr. Fish t<» Gen. Sclieuck (Telegram.) Feb. 27, 1872. 10. Gen. Schenek to Mr. Fish (Telegram.) Feb. 2H, 1872. Pape. There innst \n'. no withdrawal of any part of elaim. liepndiation of Treaty not anticipated 42.'> . Comninnieates Karl Granville's note of :5d, giving Hritish interjtretation of Treaty, "Her Majesty's (Jovernincnt hold that it is not within the province of the Tri- bnnal of Arbitration to decide upon claims for indirect losses and injuries.". 425 Keply to Earl Granville's note of 3d. United States will )«! gratilied with assurance tliat Great Britain does not desire .;o in- terpose obstacles to prosecution of Artti- tration. Object of the United States is identical witii that of (ireat liritain to establish amicable relations between the two countries, and to set an example how two great nations can settle disputes by reference to Arbitration. Will inform his Government as to British opinion regard- ing indirect claims 42fi Conuiu'iils on the argument as used in I*ar- liament to sustain the position taken by Her Majesty's Government in relation to their interpretacion of tl'b Tioaty 427 Interview Avitli Karl Granville, w lio states that Sir Kdward Thornton had informed him that Cabinet at Washington had re- jected Mr. Fish's draught of reply to his note, and had taken fnrtlu'r time for con- sideration. Karl Granville was itrejiared to recommend to ller Majesty's Cabinet that they should not ])ress lor withdrawal of American Case if the agent of the United States shall inform the Arbitra- tors, before their miicting in June, that the United States do not ask award on indirect claims 429 Rejjorted rejection untnu.'. Kntire nnan- imitv. (Jranville'ssnggestion inadmissi- ble 1 429 Referring to I'.arl Granville's note of 'Ml Geneial Schenek, the President sincerely desires to iironiote an abiding friendship between tiie two nations to which the note so hajipily refers. Kcniews the ob- ject of appointment of the .Joint High Connnission "to provide for an amicable settlement of all causes of ditVerence be- tween the two eountiies." The United States desire to maintain the jnrisdictiou of the Tribunal over all unsettled claims — thatthed. Acceptance of friendly assur- ances of British note, but thinks position taken therein unsustained by the history of the negotiations between the two Gov- ernments 43S Earl Granville desires certain changes made in language of hi.s proposal i\i4 11 10. 18. CONTKNTS, rnili'. 11. Ml'. Kisli to (it'll. Stlii'iM'k. (Jtiiiuot iij{ict' to l. D.'.siro of tliis ( Jovcriiiiicn! to niiM't tliat ot^ti(>ii \vlii<;li 12. (icii. Sclii'iick to Mr. Fish. Mar. I(>, li-T-J. 1:^. fit'ii. Sclit'iick to Mr. Fisli. Mar. '21, 1.-72. 11. (ii:ii. Sclit'iick to Mr. I'-isli (Teh'f^raiii.) April 1, 1H72. 1'). Mr. Fisli to Gen. .Schfiick (Telfjjram.) April 2, 1872. luiH arisi'ii 4IU Statin-,' tlial lie lia Asks whetluM" there is any objection to Jhitish (jiovernment lilinj^ Counter Cast^ withmit prejudice to their position in legard to cousequeutial damact claims were not eliminated April 2S, 1872. from the general complaint of the United States. Neither the tJovernineut nor the American people have ever attached much imi)ortance to the so-called indi- rect claims. The United States do not desire a pecuniary award on their ac- count. The Pi esident is desirous of pre- venting a failure of the Arbitration ojf repudiation of the Treaty 475 VI CONTKN'l'S. !'.». Ci.ii. Sclu'ink t.) Mr. Kisli Ainil 'jr., 1-7-,'. •J(i. Mr. I"i>li to (iiii. .*<(lHiMk '21. ICiiil (Jiain illc to Sir E. TlKirnton Ai.iil '2'J, l?-7v!. '22. Gen. 8clioiick to Mr. Fisli (Telfgnnn.) April :!(>, l^T-i. •2:\. .Sir K. Thoriiton to Karl Griiiivillo April 30, 1872. 24. G«Mi. Sclienck to Mr. Fish (Telegram.) May 2, 1^*72. 2.'). Earl Granville to Sir E.Tlinrnton. May 2, lfc72. 2n. yiv. Fish to Gen. Schenek (Telegram.) May 4, 1-^72. I'uKa It aj.i.ears )in>lialilt^ now that the Uritiwh (Jovrniiiicnt will take smh eoiuso as will )int an end 1o the Arliilrat ion and to the Treaty. Coninion eoiivietion in Great Ihitaiii that the lii-sl and most in- llnenlial mm oi'tlic IHitrd St a trs desire to h:i\i'oiM' (iovcinnicnt recede I'rom its IMi.silion 470 Neither ill the Case noi- in any instriietions have the I'nited States asked for ])ecii- niary damages on aectiimt of iiidiieet losHes. It is thdiight essential that the (piestion li(> decided whether claims of similiii' ehaiaeter can in the fiitnii^ he ailvaiiced against the I'nited .^states as a neutral hy (Jreat Ihitain when the latter is a helligerent 477 Conversation with (ieiieral Seheindc as to Mr. Fish's suggestion, \iew.s of Cahiiiet and letter to (ieneral Schenck coinmnni- cating i)ro[iosed draft of note 478 Earl Granville states tli.at liritish Govern- ment ohjects to having Arhitrators ex- jircss opinion on indirect elaiins when the two Governments agree that they are Jiot the suhj<'ct of award. Sends dranght of a jiossihle note from Earl CJranvilh', in wliich it is stated that Her Majesty's Government adhere to tht.-ir view that it is not within the i>rovinee of the Arhitrators to ei>nsider or decide npon claims for indirect losses 4^1 Conversation with ^Ir. Fish as to state- ment of Lord Granvilh^ resjiecting with- drawal from ar))itration. Suggestion made hy Mr. I'ish that agreement for the I'litnre shonld he otfered hy England in return for engagement that I'nited States would not ask for niom\v award for indirect claims 4H1 Sends introductory i>art of note trans- mitted hy telegraph April :U). Her Majesty's (iovernment «lo not wish to comnH.'iico a diplomatic controversy on the snhject of indirect losses, hut nu-rely to comidy with the desire of the Gov- ernment of tin; United States to head- vised of the reasons which had iiromj.ted the declaration made; hy Her Majesty's Government on the 'M of Fchrnarv- . . . 483 Copy of letter to General Schenck, imdos- ing proposed preface todranght of note. 484 The President cannot justify his assent to the terms of the proposition of the lirit- ish Government, as communicated in tel- egram of ;?Oth April. He cannot assent to any proposition which, hy imjilication or inference, withdraws any part of the claims or of the Case of this Government from consideration of the Tribunal. The President adheres to the opinion th.at it is within the i>rovince of the Arhitrators to consider and determine the liability of Great Britain for all the claims put for- ward bv the United States 484 C ONTENTS. VII 47G 47< 478 481 tor lul declaration against. )Miieeediug with the Arhitratiou. Asks if the lollowiiig were sulistituted for that sent on Ajiiil lid, would I'nited States give its assent: Her Majesty's (Joverii- meiit now ready to slate that if the rniled States do aglee not to press for pecuniary award lieforo the 'I'ribunal, Iler Ma.jesty's (Joveiiiment will not, in the e\eiit(if Itecoiuinga belligerent while the Uinted States is a lU'Utral. advance any eliiims againsf the United States on account of any indirect, remote or conse- ([Uential I'csulfs of a failure to oliseive their neutrality 48.'> Transmits amended itio)M>sal. Same sub- ject as contained in No. 27 4"'('» An agreement binding future act ion of this Gv)vernmeiit can be madeonly by tr«'aty, and would renuire the assent of the Sen- ate. If Tribunal decides against jteeii- niary damages for eonsetiiiential resiiltH of failure of any nation to observe its neutral obligations, such decision would be regarded as settling the <|u»;stioii between the two (ilovernments in the future 48(5 Statement of :Mr. '-'isli that United States cannot withdraw any i>art of their Case. . 487 Conversation with (General Sehenek. Ob- jfeetions of American (ioverniiKiiit to pro- posed draught note. Amended driinght note suggested by General Sehenek.... 488 Copy of revised draught-note commnnieated by Lord Granville to (J(Mi«!ral Sehenek.. 490 This Government is of oi»inion that the submission of what are called the in- direct claims is within the intent of the Treaty, and their consideration within the ])rovinee of the Tribunal. The I'resi- deiit is anxious to reach a settlement of the im)iortant (|uestions before the Tri- bunal ; is willing to consider and Avill jiresent, if possible, for consid»'ration of the Senate, any new article which may be proposed by the Hritish Government. 491 Apprehends that Hritish Government -will declare against submission to arbitra- tion of question of indirect damages 491 Communication hy (Jeneral Sehenek of telegram from Mr. Fish and of his in- tended answer 492 This Government cannot withdraw from the province of the Tribunal what it be- lieves to be entirely within their com- jietence. If the Britisii (Joveiiinient per- sist in their demand for the withdrawal by the United States of indireet claims, the responsibility of a failure of the Treaty must rest with thein 493 VIII COXTKNTS. C Kail Grnnvillt' to Sir E. Thornton Mil J -, l-T-^. ^t*^. Suiiie to .same . . May -, 1-T-.'. •XI (J.Mi. Sclicnck to Mr. Fisli (Tili'j;ram.) Ma.v 'J, 1-7','. ■I'l. Saiiif to saiiif Mav ll. n?-'. 11. Saiiii- to Haint- May I), l-T->. 4i. Karl (iranvillc to Sir 1'.. Thornton May 'J, 1-7-J. l!. Oon. S( hcnck to Mr. Kish (Ti-l.';;ram.) May 10, l-T.'. 11. .Same to suaie May 10, 1-^7-,'. 4r>. Karl Granville to 81r K. Thornton May 10, lt^72. 4!^ G. 47. Earl Grauvil:e to Sir E. Thornton Mny i:?, 1-7-i, row ('oMVHn>ation wjih (ii-ncral Schcnck. I'tiitiil .*»tat«-* (iovcrnnn-nt sn^i^cst thai that of 1I«T MaJ<'>t.\ should |iro|ioNt> a Kn|>|>h-ni<-ntary aiticlo <>nilio(lyin^ ar- ninut-nii-nt which should hu Hnhniittt'd to the .S-natf 40 1 Has iiifoniicil Gi-noral Schcnck that Her Majesty's (iovcrnnicnt olijrct to jiro- )K»Hiu>{ an article, and itretcr thu intcr- cbaii};v ol iiote« VM't Uritish Govcrnnicjit, instead of jiropoHinjj new .-irtich- to Treaty, iircfcr iMtcrchan^o of iioteH. and arc willinjj to t'nrthi'r nuxlily their note li)(l Have stateil to Earl Granville decidedly, as to any interchani;e of notes, that the Troidt'iit. uithont the assent of the •S'liate. will not j:o hcyoiid tiie sii<;;fes- tioii made in your tth j;raui of Ajuil "J7. Karl tiraiivillc declines to have coii- dncttnl at Washiii};ton the negotiation for a new article to the Treaty I0(! Karl Gmnville proposes to i-iodify his amended note, as telcj;rai)heil on the, (ith instant l'.>7 Further coiiver>ation with (!ener;il !?chenck respectin;; proposed article... 407 Karl t;ranville informs (Jeneral Scln nek that a Cahinet ni -etinji ^^ iH he held this inoniiiig. and w ishes to meet him atter- ward 4'.t!t Transmit.s a dranjjht »)f an article suh- niitteil liy the 13ritish (Jovernnient, to the etlect that the Trcsident will niako no claim on tlie part of the United States in resjiect of iiuiirect losses to the Tri- bunal cm Statement communicated hy (Jenoral Sclienck as tu the iKisition of the «iu(>s- tion of indirect diinis .'')()0 Inclos«-s ctipies of two notes and their accomjianiments from Karl (iranvillc. The tir>t. dated the loth instant, re- capitulates, in a ;;eneral way, what had recently pa-s«il Ketween him and General Scheiick : and the niemor:induni which accouipaiiieil it relates to a pro]>osed ex- «-han<;e of iiot«-s ujH)n the .subject of a .•iuiiideniental arti«le. The second is a hrief note date«l also the loth, and was acconipanietl hy the tlrauj^ht of the arti- cle referretl to in his lirst .^)0l Reply to :.Tr. Fish's disjiatch of IGth April to General Schcnck, with a review ot th'» arjrnments and corres|»ondene(! of the I'niteil .States in snjijtort of its claims aKain>t tJreat ISritain for inilirect or national l«»s.-4-j* and injuries extending;' In-youd the direct claims of Anier-can citizens for sjiecitic h>s.ses arising from captures by the "Alabama,'' " Florida," ••Shenandoah." and '•Gcorj;ia." Why the Biiti.sh Hifrh Commissioners did not ' 40. (i CONTliNTW. IX I'msiv 47. Karl (Jriinv illr to Sir K. 'I'lioriitim rcinonstiiili' a^iiiiiist tlic jiU'M-iitntion of -• Coiitimicil. May i:{, l-T'i. these claims. The iiatnie oi tiie claiiiih rel'eiieil to in thi' 'I'li'at.v not let't to iii- teleliec, but w i l* that the Ailiitraloi-.-» eannot lie j;y tiiat iiortion ot' the Treaty tlelinin^ the l)o\ver.>4 of tlu) Claims Commission •''>! 1H. Sir K. Thornton to l'",ini (Iranvilie. Conversation with Mr. Fish. Ills state- May i:t, l'^7'-i. meat that Her .Majesty's fJovernnu-nl wi.sh toeompel that ot the I 'ni tell States to retraet. Kavoralile iminession prodneed l>y dran>;lit article .M J I'.t. (ien. Sehenek tn Me. l^'ish Transmits a rojiy of a jiaper which he read May II', l!<7'i. to Kail (iranvilie on tin* loth, heinj; a summary of views of the Inited Statis on the indirect claims, liarl (iranvilie replied tliat llei' Majesty's ( 'oveinnu'UI would i>rol»al)ly conclude to takt^ the initiativt! and propose a Treaty article.. .M."> ."(). Sir K. Thointoii to \. iil (iranvilie. Intention of Mr. Kisli to present pajjcrs io May II, l""/",'. Con;;ress .'il'.' 7)1. Earl GranviJlo to Sir K. Tliorntou . rnderstaiidiiiK v !''' (Jeneral Sehenek as May II, l^7'2. to «liau;{litiiijj; idi niic note .VJil '>'2. Same to same Corresiiondence will l»e puldished in the May 1(), 1S7'>. "(Jazette" .VJi) 5;?. Sir E. Thornton to I'arl (iranvilie. Doc'iniients : • ii']»ti(i(.iislv pnhlished l>v May 17, l"'7-i. the "New lork He-aM" .V,>1 54. Eail ' "jinvillt} to Sir K.Thornton . Approves lanKnay;o ub ri')toited in No. Xio, May 17, 1"'7-J. p. 4^1 iVJ.' o.>. Earl (Jraiivillc to (ien. Sehenek ... . If Senate a; ticatv and notes .V^J May l.<, I61)i. i>7. Sir E.Tboriitou to Earl (iranvilie, Convei>ation with Mr, Fish as to amend- ilay tiO, lf*7'i. ments made hy Committee on Foreign Kelations in draught article 't'i',\ 58. Geu. Scbeuck to Mr. Fish Incloses copies of correspoiidonce between May 2"), lH7'.i. himself and Earl Granville in re4 ")9. Mr. Fish to Gen. Sehenek Senate will amend proposed article. Note May 'J.'), 1"'7'J. to Arbitrators eannot bt^ fixed until l.in- •rnai;(( of article is aj;reeil upon .VJ.'> :>, l-T-i. 01. Mr. Fish to Gen. Scbeuck The Semite has amended the proposed art i- (Telegram.) May 'iii, l*7".i. clesulimittedby tbelbitishtiovernment, and advise and consent to its adoption as amended. General Sehenek is in- structed to inform Earl Granville that, ill pursuance of this acti'Hi of the Sen- ate, the I'resident will lu.gotiate a new article. The article, an propo.sed by (Jreat Ibitaiu and as amended by the Senate, is iipi- 'uded '>'2'> 62. Sir E.Tborntou to Earl (>r,in\ ille.. Note from Mr. Fish, communicatinj; reso- May •J7. l'-7'J. liition of Senate as to article ."ri7 11! CONTENTS. r •i:j. Mr. Fish to (jei. Sch 'iic'c May •2'*,l8:-4 <)-!. (Jen. Sclu'iick to Mr. Fish (Telo^'ram.) M;iy -if*, l-'T'i. ()ii. Mr. Fish to (ien. .SchiMick , (Toh'jATiim.) May -JH, l.-^7-,'. .-<, le?-,'. Ct-^. Sif F. 'I'horiitoM to Farl Gra-ivilh'.. May.i-i, lH7-i. iy9. Earl Granville to Sir F. Thornton May 2-, l.-7v>. 70. Mr. Fisli to (ien. Scheuck (,TL'li';4i'ani.) Jlay v!St, l-'Tti. 71. Farl (iranvillo to Sir F.Thornton. May '>[), ie7-,>. I'llgO, Acknowledges his dispatch of 14th, and conniicnds his review of the (|Ue8tion of indirect claims as read by him to Earl Granville a few days previous. Reasons why the United States insist on retaining the indirect claims before the tribunal.. ^r)'28 States that Her Majesty's Government con- sider the Senate's definition of principle which both Governments are ])repared to adopt for the futnre too vague, and prefer the article as they had draughted it; but are willing to accept tlie article as the Senate proposes, witli the substi- tution of certain words ^yiS United States declines to agrees to the i»ro- ])osed altering of the sni>plemeiitary article '. .VJ9 Transmits text of note from Farl (Jranville to tlie eltt'ct that Her Majesty's Govern- nit'ut are not able to Hnil in the article as amended l)y the Scmate any means or standard of interpretation, and are unabh^ to signify an assent to a form of article of wiiicli tliey cannot discover the scope 5'J9 Informing him that he told Mr. Thornton that no alteration of any kind of the article as amended by the Senate could be entertained, and that it was useless to discuss the proposed note to the Arbi- trators while his Goveriunentis contem- plating any clninge in the article. With regard to tlie possible failure of the Treaty Mr. Fish remarkf? that this coun- try will stand before the world having done all tiiat it could to maintain it and the civilizing principle which it es- tablished .nao Mr. Fish will not agree to proposed altera- tio IS in article. Any further reference to the Senate would be of no avail tM Explanations asked from General Schonck as to juinciple of draught article recom- mended by the Senate .^:^2 Tli:> President is (>xtreniely anxious to preserve the Treaty, and unless the new article be signed and approved by the Senate so that the President's ratification may go by the steamer of Saturday, (1st proximo,) it cannot reach Londcm in time to be exchanged and presented to the Arbitrators on loth June r>'.V.\ Communication of telegram from Mr. Fish, declining to agree to alterations in amended article .M54 74. G( ■)S 7.-.. t * 77. F 72. Gen. Schonck ihiy 30 ,l-7->. 73. Gen. Schenck to Mr. Fish (Telegram.) May :50, l-;-i. Memorandum as to the two (iovernments respecting the principle of the article. . . Earl Granville remarks that certain por- tions of Mr. Fish's statement, as con- tained in liistclegianiof tin,' day previous, to General Schenck, were inexjilicable to him. General Sciieiick stated that the M CONTENTS. XI I'ligf. :h, and ition of ;o Earl (eaBons tainiii^ )inial..;528 sntcoii- incipU' ■epare«l 110, and ii<;hted article siibHti- 52^* he jiro- lentary •anville lovern- artiele eaus or id are form of iscover lornton of tlie e could useless le Arhi- onteui- . With of tlie iscoun- liaviug tail! it it es- 5129 altera- fereuce ruW clienck recoHi- )31 ous to lie uew by the icatiou iy,(lst u time to the -):V2 r>3:i •. Fish, HIS iu imeiits icle... : n i»or- is con- evious, licabK) uitthe .34 ilM 7a. Gen. Scheuck to Mr. Fish— Cont'd.. (Telegram.) May 'M, 187-.i. 74. Geti. Schenck to Mr. Fish May :50, 1872. 7.'). Gen. Schenck to ;Mr. Fish (Telegram.) May :}1, 1872. 71). Mr. Fish to Gen. Schenck (Telegram.) May :?1, 1872. 77. Earl Granville to Sir E. Thornton. May 31, 1872. 7.>^. Sir E. Thornton to Earl Granville. May 31, 1872. 70. Gen. Schenck to Mr. Fi.sh June 1, 1872. 80. Mr. Fish to Gen. Schenck (Telegram.) June 1, l."'72. 81. Gen. Schenck to Mr. Fish (Telegram.) June 1, 1H72. Si. Mr. Fish to Gei' Schenck (Telegram.) June 2, 1872. Vane. article as proiiosed by Great Britain con- tines itself to hypothetical cases which may never occur, while the amendments of the Senate apply the principle to general ca.ses .')3r» Incloses copies of recent correspondence with Earl Granville already telegraphed. .')3.") Transmits the text of a note from Earl Granville, of the 3(JtIi, to the cH'ect that Her Majesty's Government have stilted their objisctions to tlie wonls jtroposed by the Senate, but do not pretend that the words suggested by themselves were incapable of iuijirovement. Earl Granville submits to (Jeneral Schenck a dnuight article, the substance «)f wliicli is that the President will not make any claim on the jiart of the l.'iiited States before the Tribunal of Arbitration in resiK'ct of the several ilasses of indiieirt losses therein euniuerated '> 40 Informing him that the time is too limited foi the .Senate to coiisidfi° the important changes ])rojiosed by t'.ie Hritish (jloverii- meiit to the terms of the supplemental article. Mr. Fish has suggested to Mr. Thornton that they sign tlie article as recoiiiniended by the .^^eiiate, that the Arbitration may proceed .">41 Sending draught of a convention for ad- journing presentation of argument to the Trilmiial .")42 Statement of Mr. Fish as to tlitlicuUy of obtaining sanction of Senate to conven- tion for adjournment: of Arbitration r)43 Transmits copy of Earl Granville's note of 30tli ultimo, already telegra\died. [See No. 7r>] r)44 The adjournment of the Tribunal without amending the tifth article of the Treaty would practically amount tc) a discon- tinuance, and that article can only be ainendeil by a new Treaty . .')4.''> Transmits text of note from Earl Granville in reply to teltgraiu fioni Mr. Fisii to General .^^cheiick of :!lst f»f May, to the eHect that Her Maji-sty's (iovernment hold that by the article adopted by the Senate cases of bad faith aiul willful misconduct are brought within thescoite of the propo.sed agreement, which deals with ]tecmiiary compensatifui. Earl Granville is informed by Sir E.Thornt(Ui that Mr. Fish thinks the article atlopted by the Senate capable of improvement. JJriti.'di Government declines to sign a Treaty not in c«)nforniity with their views. Are willing to sign a Treaty or concur in Joint ai»plication toTribunal to atljourn proceedings of Arbitration 'M Relative to eases of bad faith or willful misconduct held by (iieat Itiitain to be within tiie scope of the S Miate article.. r>4n XII CONTENTS. ^•X Gcu. Sflieiiek to Mr. Fish (Tel«;''') Juliet, 1872. H4. Mr. Fish to (ten. .Sclx'iick (Ti'legrain.) .Imif '2, IHT'J. ^T). (jcii. .S(>lifiK;k to Mr. Fiwli (Tcle<;raiii.) June ;!, 187'i. •<(). Mr. Fish to (««mi. Schoiick June ;5, 187-i. 87. Mr. Fisli to GcinMiil Scheiick (Tfle<;raui.) .Iiino 4, 187'^. 8 . McnioriiU'liuit Juw 1, 187'J. 8'J. (ion. Schciifk to Mr. Fi.sli (T»>l<'{;rani.) Jiiiic.^, 187'2. yO. Mr. Fisli toCtMicral Sclioock (Tflt'f^rain.) Jiiik: f), 1,-7','. Page. lUitish Gjvernnient holds that after the Arbitrators have received the ar}?uuieiit.s from the Aj^eiits on the Ifith, they may adjourn for a time '. CAV United States Government eoncnrs in opin- ion that the Arbitrators have power to ant in on ir)th, and Great IJritain move for adjournment, this Government will concur .^)4ti ]fer Majesty's Government of opinion that Arbitrators must meet on l.'ith, but not m^eessary for Agents to present ar<;u- nients at that time ^^A'! Keply to Earl (iranville's instruction to Sir E. Thornton, of the Kith ultimo. Re- fers to Earl Itussell's dispatch, of March •27, 18():?, to Lord Lyons, as jiroof that Mr. Adams, in a conversation with Earl Ktissell therein alluded to, referred tt) the "Alabama" and other cruisers as amoiif? the causes tendinj^ to produce the exasperation which might lead to u war "with a view to aid the confederate cause ;" and not to " blockade-running." Shows that the Ihitish Government must have understotii' that the United States insisted upon indcinnity for indirect in- juries .anterior to theuieetingof the Joint High Commission, and that their present- ation was not a surprise to the British High Commissioners; also, that the Ihitish (iovernmeut entered ui)on the negotiation of the Alabama (|uestion with a knowledgeof the existence of the claims for indirect losses. Alludes to ret .it speech of Sir Statl'ord Northcote, and denies that promise was given by the American High Commissioners that the indirect claims were not to be put forward 547 The Government of tlm T'nited States dif- fers from opinion of Earl Granville with regard to ])resentation of arguments on the l.'jth. If an adjournment is contem- l)lated by Great IJritain it should be un- derstood that this (iovernmtjnt caimot iiegotiateona j>roposition which involves the ide.'i that it is guilty of willful viola- tion of its international duties .').">.'> Statement read by Lord Granville in the House of Lords as to the jiublicatiou of the pai»ers submitted to the Senate 'mCi Opposition members in Parliament have fears that the last clause of the article is not exi>licit enough to previMit indirect claims from beingagain brought forward, 'iiu This Government deals with the IJritish Government, not with ojiposition mem- bers of I'arliament. If the liritish Gov- ernment adopts the unworthy Huspicion, «u' suggests that this (jlovernment will n«)t in good faith act upon the agrcenumt contained therein, all further negotiation must cease at once. Any change in the !fi. San it:!. Mr. (' L)4. 0.-). 'Ji, Gen Mr. ('I Gen. ('1 97. Oeii CONTENTS. XIII Page, fter the tuiuoiits ley may M! yO. Mr. Fish to Geu. Scheiick— Cont'd . (Telegram.) June 5, 1872. Dl. Gen. Sclienck to Mr. Fish (Telegram.) .Jiuie(i, If'Ta. ")4(; r)47 547 r.5(; t have ii'lc is ulirect ward. British moiii- l» tiov- >ieion, t will eiiieiit iatioii ill the il'2. Sauif to same .June (!, Ir7'2. >.i:!. Mr. Fish to Gen. Sch.Mick (Telegram.) .June 7, li-7ii. 'M. Gen. Sehenek to Mr. Fish (Telegram.) .June, 7, l.'^7"^. 0."). Mr. Fish to Gen. Schenck (Telegram.) June H, 1872. 9i. Gen. Sehenek to Mr. Fish (Telegram.) .Tu'ie?^, 1H72. '.t7. Gen. Sehenek to Mr. Fish June y, 1''72. article as agreed to l>y the Senate would involve discussion and lead to tlie defeat of the Treaty 557 The British Government do not adopt the fears and suspicions of others with regard to tlie last clause of the proposed article, hut defend it as suttieicnt. Transmits text of three notes from Earl Granville, iirst of which relates to alterations in the draught article proposed by the Senate: the second relates to the necessity of presenting the written or printed argu- ments on the 15th of .Ji.'ie; and the third to .Til application to he made to the Ar- hitrators to adjourn on the 15th, without the presentation of the argument of either Government, or to conclude a new arrangement with the United States for tlie enlargement of the time .">5'r^ Informed Earl Granville th.it it was uselcHs to expect tliat any change can he made in the article as agreed to by the Senate. Incloses copy of liis note to Earl Gran- ville on the subject •'>.'i'.t The criticisiM 1)y the Ihitish Government ou tlie language of the Senate amend- ment is regarded as hyjiercritical and strained. The Senate and peojile of the United States impatient over the delays. This Government cannot adopt the argu- ment of Earl (iranville with regard to the putting in of arguments by both Governments on the 15th. United States think tlie Treaty recpiires it to be done 5iii' Transmits substance of note of even date from Earl (iranville respecting the sub- stitution of certain words In tiie Senate article with regard to indirect losses Keference to any ef)nv(rsation with Sir I'.. Tiioriitou unjustitied. Have '.iivariably told him that it was useless to discuss the amendments to tiie proposed article. Transmits substance of not ^ from Earl Granville of even date, witli sketch f)f drauglit note in jiresentiiig summary. Earl (iranville says th.-it if the Treaty is to be maintained an adjonrnmeiit from the 15th instant has become absolutely necessary. He proposes that joint appli- cation be made to the Tribunal for an adjournment of eight months. If the Unite. lOi). Mr. Davis to Lord Teiiteideii June 10, IdT-i. 101. Gen. Sch»'nci< to Mr. Fish (Telegram.) June 11, 1H7*J. 102. Gen. Sc.henck to Mr. Fish (Teh'giani.) June 11, 1H7'2. 103. Gen. Schonck to Mr. Fish (Teh'giani.) June \2, l!^7'i. 104. Gen. Schonck to Mr. Fish June lU, 1872. 10.^. Mr. Fish to Gen. Sehenek (Tehigrani.) June 1:5, 1872. ion. Earl Granville to Lord Tenterden . June 12, 1872. I'ajic. Earl Granville's ))roposal for joint applica- tion to Tribunal for an adjournment for eight nu)nths cannot be accepted by this Government. This Oovornment cannot be a party, directly or indirectly, to an agreement thereby Great Ihitain is to submit her argument to the Tribunal conditionally. Inform Mr. Davis of pres- ent condition of negotiation between the twoGovernmeuts T)!!!. Instruct Agents aiul Counsel to be in Ge- neva on ir)th. If nec(!ssary, notify Arbi- trators that yon will be there to deliver argument aiul proceed according to Treaty. Should such notice as Granville's note indicates be given, a decided protest must be entered against any (|ualiiied or conditional appearance before the Tri- bunal .')ti7 Incloses copy of letter addressed by him to each of the Arbitrators stating that United States will be rei)r(!sented on loth instant, pursuant to adjournment and prepare(')'.* Ti iinsmiis ])ortion of a note from Earl Gran- ville of nth instant. British (Jovern- ment believe that they have met all the objections which have been advanced by United States. If the United Stcates be- lieve that certain cases are not covered by the last proposed form of article, and will state what th' cases are, there is no doubt but that the .:wo Governments can aglets upon a form of words which will not be open to the same objection as that of tlu* Senate amendment fjiil' Transmits cojjy of correspondence with I'oreign OlHce, also reports of proceedings in both Houses of Farliament, and arti- cles from leading journals showing anxi- ety and excitement there occasioned by imminent prospect of the failure of the Arbitration at Geneva. Inclosure G re- ferred to iu No. 72 is a recapitulation of the negotiations which have passed with respect to the supplementary Treaty ar- ticle .'■>7i) Telegraph Mr. Davis that if arguments are tiled in good faith without oti'ensive no- tice, we will assent to their motion for adjournmmit r)7>' 107. !•: 108. E ' lOD. L ■i 110. M m. M 112. M li:{. Mr, 114 Mr. ( Aft to time necessary to consider a supple- mentary convention iu case the Arbitra- tors inquire how long an adjourumeut is rccjuested iu note which is to be pre- sented 575 115. Air. (T IK). Gen (T CONTENTS. XV applica- lu'iit for I by this : cannot y, to an lin is to L'rihnnal i of pj-^s- veen the PniiP. e in Oe- ! fy Aibi- ) (leliver (linjj to anviUe's I protest ill lied or the Tri- i")(i7 y him to i\ K'knowl- the one '.(ill ; : irl Gran- i Ciovern- ] t all the meed by i tates be- ; covered A iele. and V L>rc is no V ents can 1 lieh will 1 1 as that 1 r.ii'.i ce with !eedinjjs nd arti- ig anxi- )ned by i of the re G re- ation of led witli eaty ar- , ."ti , unts are iivo no- tion for «-*- ..•.....• «>/•' siipple- Ubitra- incut is be pre- Two ; 107. Earl (Jran ville to Lord Tenterden . Jnne 1:^, lb7"^. 108. Earl Granville to Lord Tenterden . June V2, 187'2. 101). Lord Tenterden to Earl Granville. June J 4, 1872. 110. Mr. Davis to Mr. Fish (Telegram.) June 1;"), IH12. 111. Mr. Fish to Mr. Davis (Telegram.) June 1'!', 187-2. 70 112. Mr. Davis to Mr. (Telegram.) Fish June ll», 1872. 11:5. Mr. Davis to Mr. Fish .June 111, 1H72. Sir Koundell Palmer having consented to act as Her Majesty's Coiuisel, nnist be giiided by his advice in all proceedings. If any lircnmstances sliould occur not pro- vided for while endeavoring tt) obtain an adjoumuient liould ask instructions. .. 'ul\ Keports ari'ival at fJeneva; nu'cting of Tri- bunal (ixed at 12 o'clock, I'jth instant.. ri7.'> Ourargniuent presented. Ihitish Agent in stru( ted to withhold Ibitisli argument. Triljuual adjourns till Monday "i77 If tiiere is to be sin adjournment let it be not beyond 1st of January. The President sees no objection to such adjournment if asked for by the defendants .">77 The Tribunal will, this morning. mak(Mlec- laration to the etl'ect that they do not l)ropos(! to express or imply any opinion upon the points of ditt'erence between the two Governments, but it seems to tliem obvious that the proposed adjourinnent. instead of settling the ([uestions in eiusal of all that has been urg«'d by the United States in favor of indirect claims, they have arrived at the conclusion that these claims do not constitute, ui)ou the principles of internatioinil law applicable to such cases, good f()nn?rai>Iis Geuoral Sclienck that in vit'w of tilt! fact that the United States withdraws her chiiin for indirect h)sses, tlie British Agent will re(|ue8t leave to withdraw the application of his Government for an adjonrnment TiHO Ihitish argument filed. Arbitration goes on 580 Her Majesty's ai>proval of his proceedings at (Jeiieva. Valuable assistance rendered l>y Sir R. I'alnier. Conciliatory spirit shown by Amei'ican colleagues 581 Fcu'wards co])ie8 of Queen's speech. Her Majesty made to say that the declaration of the Arbitrators on subject of claims for indirect losses, is entirely consistent with views announced by her at opening of the session. Ground then taken wag that United States had put forward cer- tain claims whicii Her Majesty's (Jovern- nient held not to be within scope of the Treaty 581 Acknowledges above disjiatch. In the cor- respondence which ensiuid the United States contiMuleil in ettect that all the claims presented were within the )>roper jurisdiction of the Tribunal, and that they could be disposed of only on judg- ment or award of the Arbitrators. The action of the Tribunal looks very much like taking cognizance of them 58'i Her Majesty's acknowledgments for care and attention which ilr. Adams 1»e- stowed on inii>ortant matters with which he was called ni)on to deal, and high ap- l>reciatiou of his ability and indefatiga- ble industry 584 Acknowledges above. Presideut gratified with the intelligence of Her Majesty's ajipreciatiou of the manner in which Mr. Adams has discharged the high duties intrusted to him 58') Parliamentary proceedings. Mr. Glad- stone's statement that the expression of regret by Great Britain contained in the Treaty of Washington Avas not iu the nature of a condition precedent ■ 585 Acknowledges above. Facts will scarce sustain ilr. Gladstone's denial. History of tlu! informal negotiations which pre- ceded the appointment of the Joint High Commission 580 Ivcfers to above and expresses satisfactiou that authentic record of facts attending expression of regret by Great Britaiu contained in the Treaty has been made. His own understanding as to the mat- ter 587 *: No. 1 1 CONTENTS. XVII Page. k that Inited direct i'(lueHt of his ')80 II {JOOH cdiiif^H luhued spirit I. Her nation claims sistfiit ipeniii^? en wag ird cer- Jovern- > of the the cor- I'nited all the ( proper \d that n judK- is. The ry much 580 5H1 nsi 8TATEMKNT OF SIB STAFFORD NORTHCOTE AT EXETER, IN RELATION TO AN ALLBOBD . PROMISE OF EXCLUSION OF THE INDIRECT CLAIMS. No. 1. A passage from a speech of Sir Staiford Northcote, at Exeter, May 17, 1872, as published in the Pall Mali Gazette of May 18 593 2. Extract from the London Times of May 20, 1872, giving a report of the speech of Sir Stafford Northcote, at Exeter 593 3. Extract from an instruction of Mr. Fish to General Schenck, June 3, 1872.. 596 4. Copy of a letter of Mr. Fish addressed to each of the American commis- sioners 597 5. Letter of Judge Hoar, in answer to Mr. Fish's letter of June 3 598 6. Letter of Judge Nelson, in answer to Mr. Fish's letter of June 3 598 ' 7. Letter of General Schenck, in answer to Mr. Fish's letter of June 3 599 8. Letter of Judge Williams, in answer to Mr. Fish's letter of June 3 600 9. Extract from the 36th Protocol of the Conferences of the Joint High Com- mission 601 10. Extract from a speech of the Marquis of Ripon, in the House of Lords, June 4, 1872, taken from the London Times of June 5, 1872 603 11. Letter of Sir Stafford Northcote to Earl Derby, June 5, 1872, read in tbe House of Lords, June 6, taken from the report of the proceedings in the House of Lords, in the London Times of June? 603 II A— n 584 or care ins he- whioli i;h iip- tatiga- >>>>>• * ratified ajesty's ich Mr. duties Glad- ^sion of i in the iu the 384 58.- scarce History Jich pre- lit High ifactiou pending Jritain made. le mat- 5fti 587 CONTINUATION OF THE PAPERS ACCOMPANYlNiJ THE COUNTER CASE OF THE UNITED STATES. t;UrPI>EMENTAL MEMORANDA AND DIPLOMATIC CORRESPONDENCE TOUCHING NEUTRALITY LAWS AND THE EXECUTION THEREOF IN COUNTRIES OTHER THAN THE UNITED STATES AND GREAT BRITAIN. [109] *1.— FKANCE. No. 1. Extracts from the Code Penal of France, with coniineiitaries. No. 2. The Annan contracts. No. 3. Case of the liappahannock. No. 1.— THE CODE PfiNAL AND COMMENTARIES. A. — C. P. Art. 84. Quiconque aura, par ties actions hostiles nonap- l)ronv^e8 par le gouvernement, expose I'etat si une declaration de guerre, sera puni du bani.'issenient; et, si la guerre s'eu est suivie, de la depor- tation. Art. 85. Quiconcpie aura, pardesacte.^nn"-'^' l^-vtM^rfc*-*^ ERRATUM. At imgc r,.-^?, line 7, iusteacl ol' •' to, aud," ica.l ART. 85. Whoever shall have exposed the French to reprisals by acts not approved by the government shall be punished by banishment. [200] *B. DXL,LOZ, jurisprudence generalCf toifle XIV, p. 531. Se(!T. 5. Actes qui peuvent exjyoser Vetat a tine declaration de guerre et les citoyens i des represailles. 07. Ici il ne .s'agit plus de trahisou; il s'agit de simples faits qui revi'lent moins la perversity ou l'immoralit6 de leur auteur que son im- prudence, sa temerit6 ou sa 16gerete. Ce sont des actes qui, dans les circonstances ou ils sont intervenus, peuvent exposer Pdtat ^^ une de- claration de guerre ou les citoyens f\ des represailles. Ils font I'objet de deux articles : "Quiconque," dit I'art. 84, c. pen., "aura, par des ac- tions hostiles nonapprouvees par le gouvernement, expose I'etat ^ une declaration de guerre, sera puni du bannissement ; et, si la guerre s'en est suivie, de la deportation." Ne comprenant pas comment le fait d'un simple particulier pourrait avoir assez de gravite pour exposer I'etat a une declaration de guerre, Carnot a pense que cet article ne pourrait s'appliquer qu'jl des agents du gouvernement. " II n'y a," dit- il, " que les agents du gouvernement dont les actions hostiles puissent produire I'effet d'ali timer la guerre entre la France et les nations Citrau- 1 A — 11 CONTINUATION OF THK i»APKUS ACCOMPANYINI^, THK COUNTER CASK OF THE UxMTED STATES. fciUPPI.EMKNTAL MEIMORANDA AND DIPLOMATIO CORRESPONDENCE TOUCIIINd NEUTRALITY LAWS AND THE EXECUTION THEREOF IN COUNTRIES OTUER THAN THE UNITED STATES AND GREAT HRITA.IN. [109] ♦I.— FRANCE. No. 1. Extracts from the Code Penal of France, with coinruentarics. No. 2. The Armaii contracts. No. 3. Case of the Itappahannock. No. 1.— THE CODE PfiNAL AND COMMENTARIES. A. — C. P. Art. 84. Qiiiconque aura, par des actions hostiles non-ap- ]»rouv6e8 par le gouvernetnent, expose I'etat h une declaration de guerre, sera puni du bauuissenient; et, si la guerre s'en est suivie, de Ui depor- tation. Art. 85. Quii^onque aura, ))ar des actes nonapprouves par le gouverne- nient, expose des Fran^ais tl eprouver des repfusailles, sera puni du bauuissenient. A.' — [Translation.] — Art. 84. Whoever shall have exposed the state to a declaration of war by hostile acts not approved by the government shall be punished by banishment, and, if war should follow, by deporta- tion. Art. 85. Whoever shall hjive exposed the Fren(!h to reprisals by acts not approved by the government shall be punished by banishment. [200] *B. Da.i,loz, jurispnidence gro8; cc qui n'snlte, trailU'iir*, •iriipIic'it«Miient «los dispositions de I'art. W"), <|iii s'oct'UiK? rejudicc 4le laqueile il a en lieu est li«'«* par «les rapinuts d*iiitiuilteavec la l''ranc<', on si elh} n'est i)as en etat de soutenir la guerre. T.indis «pie le fait le plus iiisijiniliant, I'otlense la plus le^ere, amenera une conllafiiation si cette nation n'atteiid qu'iiii pn'-texte jxmu- «'clat<'r. ("est tlonc [202) avec, sa4, atl'. .lau.t^e. No. 2S.) GO. Une seconde condition cotistitutive ilu crime est que les actes n'aient pas etc approuves par lb •^ouveriienient. IJeniarcpions (pie la Ioi ne dit pas autoriser, parce que rautoris;iti(Ui. t'taiit antcrienre an fait, le rend legitime et licite sans «pie, dans aucnii cas, il puisse donner lieu a des poursuites; tandis que rappiolKitioii. etant postcrieure, ne cliango pas ie caractere du fait, mais en a^sin** seulement riini)unit(''. Si le gouvernement apiuouve les actes Ii«»>ti!es, il se les ajjproprie, il en assume la responsabilit*' et les conseiiuentes. et il met I'agent a convert: de toutes poursuites. 70. Une troisieme condition du crime, c'est que les actions hostiles aient expose I'elat a une (h-vlnratifm tie (juerre. l{emar«pu)ns (pic [203] la Ioi ne dit pas j\ des hostilitr^. mais a une declaration *de guerre, (V. dim. iiMj., 28 novembie 1.SJ4, alT. Jauge, No. 28.) ]MM. (Mian- veau et ]Ieli(', t. 2, p. 01, peusent que le code aiirait mieux fait de n'exiger que des actes hostiles. "Car," disent-ils, '*les agressions (pii so mauifestent Ic! plus souvent, soit sur les frontieres entre les habitants riverains, soit en mer sur des navires isoles, peuvent provo(pier des actes de la meine nature, mais non une declaration de guerre. Dans I'etat politique de I'Europe, il est ditlieile que le fait isole d'un simple citoyen, et meme d'un foncti«uinaire public, puisse allumer la guerre entre deux nations. Une (h'claration de guerre irintervient pas sans que I'etat oftense ait demand*'- des explications: et des que I'agression a ete commise a I'insu du gouvernemeiit auquel appartient I'agent, d»'s que le gouvernemeiit la divsavoiie liautement, il est improbable que la guerre puisse jamais en etre la consw|nence.'' Mais ne peut-il pas arriver que le gouvernemeiit oft'ens*' ne veuille pas se contenter de ce desaveu ; qu'exagerant I'otlense, il exagere aussi ses pretentious ; qu'il exige une reparation humiliante |K>nr la Fnince, et des satisfactions auxquelles celleci ne puisse souscrire ? 82, 1'- roiiNTF.R CASK or rni.: initki) statks. 8 71. liii «' ('••llo la ^iKMTc, lit ]H'iti(> *!«) lii (h'portatioii nVtaiit plus siiflisaiito l()rs(prmi pan-il Hcaii a suivi le rriiiH*. \a\ i'onst'il dN'tat ivpoiissa. vvtUt proposition jtar lo motif que Tart. SI siipjxis*' (pie Tajjoiiit n'a |)as calcuh* h's coiisi'mphmu'cs do sa cumdnitc, vt (pii>, s'll cii otait autrcniciit, R'il y avait «mi tics intolli^cMUJcs ot iiiaini'uvr«'s, lo I'ait tonilu'iait sons Tapplication , propose'^ a hi (thani- bro des d<''putcs, par un do scs niciidncs, de substitncr la detention tenij)oraiic a la (leportation. 1/antcnrJnstiliait (M-tte proposition snr h^ mot if (pic ce ci ime, si tontcfois il est possililc, est inspire, do moins dans la jdnpait des cinionstaiujcs, par des sentiments ilc bravonre, dc jL'OoJ yeiK'rositc m(''mc, irn'lh'cliis *sans donte, mais (pii nc picsentent pas dans la culi»abilit('! cc caract»'re d(^ uraviti' sijiiiab'' dans Tart. 8L'. "La cliambre ne croit pas di^voir adoi)ter cet amcndcmcnt, sur I'obscrvation dii rapi)oitcnr dc la loi, »pic, si on Jiiji'c cc fait par rinieii- tioii, il nVst i>as d'intcntioii plus conpablo qiu; cellc (pii, nc tenant aucun comi)tc des plus ^ra\'es inti'iets do la Franco, Texpose aiix chances et anx mallicins la j;iierre." Par s- itc- la peine dc la d(''[>or- tatioii fnt maintenue. * All surplus, il importc do rcinanpier (pie (!0 no sont i»as les actcs lios- tilcs, les violences on Ics d(''pr(''dations (pio la loi i>unit, mais sculcment le fait favoir, par ces actcs, expos*'; IV'tat a line declaration de j-uerrc, (V. crini. re(|., IS Jiiin 1S2-1, atf. JJerpin, vo. compct. crim.. No. 112.) 73. J/art. So i>ortc: "Qiii(.'oii(iuo aura, par des actcs non-ai)protiv(''s par lo souvcrnomcnt, expost* des Fraia^'ais a ('[nouver des rcprc'saillcs, sera puni du baiinisscment. ltcmar(pioiis, d'abord, (pic la loi nc dit \>as quiconquo aura atthr des rcpresailles, maiscpiicoiMiuo aura expose'' : d'oii il suit qu'il impui.e ])cn, pour rincrirnination, (pic les rcpr(''saillcs ii'aient jias eii lieu ; qu'il sutlit (pio des Francais aieiit «''t(i ox[)oses a cii ('prouvcr. (Juclle doit ('^tro la nature des actcs dont parlo cet [20GJ artich? capablcs dexposer les Fraii*(;ais a des rcpiesaiiles i ( 'ola no ]»ent s'entemlro (juo iCoutruiicH et ro/cv (/c /Wy7 commis cuvers (les sujets d'niio nation ('trangcre, et non do simples injiurs, aiiisi (pio lo portait, d'aillenrs, lo projot jirimitif, (Conf. MM. (.'arnot sur lo dit article, Chauveau et Ib'lic, t. 2, p. (Jl.) 74. Est-il iKiccssairo quo les rei)r(''sailles aicnt vUt commamlns par Ic ijoiivcrnement otra;;ger? MjM. Chauveau et Ib^lic', t. 2, p. <>2, so ]»ro- non(?ent pour I'aflinnative. II nous scmblo impossible d'admcttre cetto restriction. Quand la loi s(^ borno a dire : Quicoinio aura expose des Francais (t eprouver des ropicsailles sera puni . . . etc., il n'est (hidemment pas permis do rinterpivter conime si olio disait : Quiconque aura . . . provoqn(i contre des Frau^ais des repr(jsaille8 do la part iVuti (joxirernement etrnnger, etc. Ainsi done, nous pensons (^ue si, par exemple, des Anglais , aient re^u de la part de Fran^ais, dos ou- trages de telle nature (ju'ils /ussent provoquer des repriisailles contro les Frau^ais qui se trouvent en Angleterre, les auteurs de coa outrages rr TRKATY OF WASIUNGTON PAPERS ACCOMPANYING devraient etre punis, coiiformemeut it Part. 8.>, sans qu'il fut necessaire que los ropn'jsailles eussent 6tc commaiidc'es par le gouverneraent anglais. Tel OvSt aussi I'avis dcM. Haus. Et il a ete juge, tl cet [!i07 1 ogard, que les violences exercces par des Fraii(;ai8 en vers *uii postresailles dans le sens de Tart. 85 du lueine code, (Grenoble, 25 avril 1831.) (Min., pub., c. Cayen, etc.) La Cour : — Attendu (pi'il rt'sulte de la pro- cedure (jue, le 1'5 ievrier 18,'il, a ouze lieures du soir, un attroupenient de quarante a ciiKpiante personnes, habitant sur le territoire fran(;ais, s'est porte sur le territoire sarde, on il a attaque le poste de la douane sarde et s'est livre a divers actes de violence envers les preposes ; que le poste a etc envahi et le corpsde-garde desarnie ; qu'un coup de cara- bine a ete tire sur I'un de.s preposes ; que les autres amies ont ete re- tenues et deciuirgV'es ; que le& portes d'une remise et d'une ecurie ont ete brisees, a I'ettet d'enlever uu tonneau de vin, (jui avait ete introduit, par contrebande, sur le territoire sarde, ainsi qu'un char et des vaches qui avaieut servi de nioyens de transport, lesquels objets avaient etc saisis par les preposes de la douane, et que ces objets, ainsi violenmient [208J enleves, ont ete raraenc^s ii la *frontiere ; que Joseph Cayen, Pierre Malenjon et Antoiue Magnin sont suffisauinient prevenus d'avoir fait partie de cet attroui)ement, d'eu avoir ete les chefs et d'avoir, d'une nianiere active, i)articipe a I'attaque du post de la douane sarde et aux actes de violence ci tlessus enonces; (|ue cesfaits constituent des actions hostiles non api)rouvees parle gouverneineut, lesquelles exposaient Petot a une declaration de guerre, outout au moins des actes non-approuves par le gouvernenient, lesquels exposaient des Fran^ais ji eprouver des represailles, crimes prevus par les art. 84 et 85, c. pen., et emportant peine afflictive et infamante; — attendu qu'il resultede la dite procedure qu'Autoiue Terret est suftisamment prevenu d'avoir, pardons, promesses, machinations ou artifices coupables, provoqud les auteurs des crimes cidessus enonces a les commettre, ou donne des instructions pour les commettre; — attendu que le fait est qualifle crime par la loi; qu'il est prevu par les art. 59 et 00, c. pen., et qu'il importe peine afflictive et infamante ;r— attendu qu'aux termes de I'art. 5, c. inst. crim., toutFran- cais qui s'est rendu coupable, hors du territoire de France, d'un crime attentatoire s\ la surete de l'6tat, pent etre poursuivi, juge et puni en France, d'apres les dispositions des lois fran^uiises: — par ces motifs, de- clare qu'il y a lieu a accusation centre Antoine Perret, Joseph Cayen, etc. Du 25 avril IS3I, c. de Grenoble, ch. reun. MM. Yignes, pr. Moyne, Ijr.-gen. 1 209 1 *!}. [Translation,] Dalloz, General Jurisprudence, vol. XIV, p. 531. Skction 5. — Acts which may expose a state to a declaration of war, and its citizens to reprisals. «»7, Here it is no longer a question of treason ; it is a question of simple acts which tend less to show the perversity or immorality of the per former than his imiirudence, his temerity, or his foolishness. They are COUNTER CASi: OF THK UXI'IEl) STATES, acts which, accordiiifj to the circumstances uinlor which tlicy happen, might expose the state to a det:hiration ol" war, or the citizens to repri- sals. They are the subject of two r.rticl^s. '• Whoever," says articU' 84, j)enalcoortance to ex pose the state to a declaration of war, Carnotwasof the oi>inion that this article could only apply to govermnent agents, lie says: "The acts of government agents alone can bring about a war between France an«l foreign nations; we see this also explicitly set forth in article S.j, which treats particularly of private individuals." The same author refers in sui)port of his opinion to the terms of article li of the code of [LIIO] 1791, part *'2, section 1, wiiich is indeed to this effect: but at the present time this is not the fact^ and, in face of the geiieralty of the word whoever, usqi\ in article 84, no uncertainty can possibly exist on this point. (V. the "icquisitoire" de 31. Dupin, in the Jauge case.) (jS. A first condition is necessary to constitute the crime provided for in article 84; it is that the imputed actions should be hostile. Wiiat is then to bo understood by this word? The raw does not answer this <|uestion, nor could it do so, for the definition depends no less upon the nature of the relations existing between the two nations than upon the <'ircunistances under which the act is committed. The gravest and most important act would pass unnoticed and would not lead to a conflict, if the nation to whose prejudice it had been done should be bouiul by ties of friendship to France, or should not be in condition to carry on war, while on the other hand the most insigniticant act, the smallest olfense, would lead to an outbreak, if this nation should bt? only waiting for a pretext to commencr>. operations. It w^as, therefore, . ise to refuse to define hostile acts which might expose the state to a declaration of war in the law, and to confine it simply to an exposition of their result. And in accordance with this article, it lias been decided that the negotiation of loans in the name of a ])riiice at war with an ally may not be regarded as constituting a hostile action of a nature to expose France to a [211] declaration of war, unless tiiis action falls under the *censure of the c»>urt of cassation. — ((^lim. rcj. LIS X;^v., 18'}1 — Jaugo case, No. 28.) (iO. A second condition constituting the cri'ne is that the aCts shall not have been approved by the government. Observe that the law »loes not say authorized, for the authorization, having lunn previous to the act, renders it legitimate and lawful, and no prosecution is ever possible; while, on the other hand, approliation is posterior to the act, and does not change its character, but only insures immunity from its conse- (piences. If government approves liostile acts, it appropriates them, it assumes the responsibility and ('((usefiuences of them, and protects the agent from all jtrosecution. 70. A third coinlition to tlio crinu^ is that the hostile acts shouhl have exposed the state to a declaration of war. Observe the law does not say to hostilities, but to a declaration of war, (V. Crim. rej., 28 Nov., 1834, .lauge case, No. 28; MM. Chauveau «St Uleie, vol. 2, p. Gl.) Think that it svould have been better if the code had demanded hostile acts simple, "for," they say, "the aggressions which are most often mani- fested, either on tlie frontiers between the border itihabitauts, or on the sea on isolated islands, may lead to acts of the same nature, but not a declaration of war." In the present state of Europe, the isolated act of a citizen, or even of a government fu'.ictioiiary, wouhl not be 6 TREATY OF WASHINGTON PAPERS ACCOMPANYING likely to load to a war. A declaration of war does uot take place until the injured state Las asked explanations, and if the govern- [212] ment *to which the aggressor belongs has had no connivance in the act, then, as soon as this goveinnient disavows it, it is improbable that a war can follow." But may it not happen that the oftended gov- ernment is m)t contented with this disavowal ; that, exaggerating the oflense, it also exaggerates its demands; that it requires repanition humiliating to France, and satisfaction to which tlie latter cannot agree ? 71. The commission of the Corps Legislatif proposed (meeting of the Oth of January, 1810) to declare the punishment to be deatli instead of deportation in case the hostile acts should lead to war, the punishment of depoatation not being sufticient when such a blow has followed the crime. The Conseil d'Etat rejected this motion because article 84 sup- poses that the agent has not calculated the result of his actions; and even if it were otherwise, if there had been trickery or an understand- ing, the act would fall under the preceding articles. Is this answer abso- lutely correct? MM. Chauveau & Ilelie (v. 2, p. 04) do uot think so. " Without doubt," they say, " if the hostile actions were the result of an understanding with foreign powers, article 70 could be applied in accordance with the case ; but if the acts had been concerted with no foreign power, had been ] (receded by no act preparatory to treason, although they were i)reineditated, they would come under no part of the same section." 72. On the otherhand, at Ihe time of the revision of the code, it was ])roposed by a member in the Chamber of Deputies to substitute [213] temporary detention for deportation. The author *supported his proposition by saying that in almost all cases, whenever this crime is possible, the (criminal is actuated by a feeling of courage, even of generosity, thoughtless, undoubtedly, but presenting none of that depth of guilt assigned to it in article 82. " The chamber did not feel at lib- erty to adopt this amendment," according to the note of the w reporter, "for if one is to judge of the act by the intention, there is no intentiou more culpable than that which, not taking into account the grave inte- rests of France, exposes it to the chances and misfortunes of war ;" con- sequently the jjunishment of deportation was retained. Besides, it must be observed that it is not the hostile act, violence, or depredation that the law punishes, but only tnefact of having by these acts exposed the state to a declaration of war. — (V. crim. lej. 18th June, 1824; llerpin vnse. vo. comp. crim.. No. 112.) 73. Article 85 reads : " VVhoe\ er shall ha\ e «>xposed the French to reprisals, by acts not approved by government, shall be punished by banishment." Observe, the law does uot say whoever shall havG caused reprisals, but whoever shall have exposed Frenchmen to them, whence it follows that for the charge it is of little account whether or not repri- sals have taken place; it is sufticient that French inhabitants have been exj)Osed to the danger of them. What should be the UiUure of the acts spoken of in this article, capable to expose the inhabitants of France to the danger of reprisals ? We can only understand them to be of the nature of outrages and acts of violence committed on the subjects [214] of a foreigu nation, and not of simple *losses, as the original draught had it. — (Conf. MM. Carnot on the said art. ; Chauveau and Helie, v. 2, j). 01.) 74. Is it necessary that the reprisals shall have been ordered by the foreign government 1 MM. Chauveau and Ilelie, vol. 2, p. 02, pro- nounce in the altirmative. It appears to us impossible to admit this :^ COUNTER CASE OF THE UNITED STATES. ike place e govern - uce in the iprobable uled gov- iting the eparation r cannot ig of the n stead of nishment lowed the le 84 sup ons; and [k'l'stand- wer abso- think so. result of pplied in with no treason, art of the le, it was ubstitute lorted his his crime , even of lat depth el at lib- reporter, ntention ive inte- ir;" con- >lence, or by these >th June, reach to shed by a caused whence ot repri- ave been the acts ranee to e of the subjects original bauveau by the 152,' pro- uiit this restriction when the law confines itself to saying : " Whoever shall have exposed Frenchmen to reprisals * * shall be punished,'' * * &c.; evidently this cannot be interpreted as if it read: Whoever shall have ]>rovoked reprisals by a foreign government against Frenchmen, &c. Tiius we are of oi)iiii()U that if, for example, certain Englishmen Lad Mitfered outrages from certain FreiKihmen, of such a nature that they might i>rovoke reprisals against Frenclnuen in England, these outrages should be i)unished, in conformity to article 85, without it being neces- sary that the reprisals should have been ordered by the English gov- ernment. Such is also the opinion of JM. Hans; and it has been decided in this connection that violence exercised by Frenchmen toward the agents of the customs of a foreign government, the result of which was the removal of certain articles smuggled into the foreign territory, and seized by the otticers, constituted hostile acts in the sense of article 84, penal code, or at least acts which would exi>ose the French reprisals in the sense of article 85 of the same code, (Grenoble, L*5th April, 1831 ; [215] jNIin. Public, c. Cayen, &c.) The court: Whereasfiom the case *we conclude, that on the 25th of February, 1831, at 11 o'clock in the evening, a mob of forty or flfty persons, inhabitants of French territory, went into Sardinian territory, where they attacked the postof the Sardin- ian customs, and committed various acts of violence on the otlicers; that the post was invaded and the corps-de-garde disarmed; that a carbine was tired at one of the overseers ; ihat the other arms were retained and discharged; that the doors of a coach-house and stable were broken in, in order to carry ott" a tun of wine which had been smuggled into Sar- dinian territory, as well as a cart and some cows which' had served as the means of transport, which objects had been seized b.y the inspect- ors of the customs; and that these objects, thus violently carried off, were brought back to the frontier ; that Joseph Cayen, Pierre Morlenjon, and Antoine Maguin are sufficiently convicted of having taken part Avith this mob, of having been its leaders, and of having participated in an active manner in the attack on the Sardinian post of customs and in the other acts of violence as aforesaid; that these acts constitute hostile jictions not approved by the government, which exposed the state to reprisals, ciimes provided for in articles 84 and 85, penal code, and accompanied by a personal and infamous jmnishment: Whereas it results from the said procedure that Antoine Per- [210] ret is sufficiently convicted of having, by gifts, *promises, mach- inations of criminal artifices, instigated the authors of the afore- said crimes to commit them, or of having given instructions to commit them; whereas the act is defined by the law as a crime, and is provided for in articles 59 and GO, penal code, and is accompanied by a i)ersonal and infamous punishment; whereas, according to the terms of article 5, 0. Inst. Crim., every Frenchman guilty outside of the territory of France of a crime endangering the security of the state, can be proceeded against, convicted, and punished in France according to the laws of France: Therefore it is declared that there is ground of accusation against An- toine Perret, Joseph Cayen, &c. — (25th Ai)ril, 1831, C. of Grenoble, Ch. reun. MM. Vignes, pr, Moyne, pr.-gen. |217] •C. Theorie du code penal d^Adolphe Cliaurean et FaunHn Uelh', troiaidme edition, tome 2e, pages 58 ct seq., articles 84 et 85. 11 ne s'agit i»lu8 d'un crime de trahiscm: la loi ne soup§onne meme aucune intelligence entre I'agent qu'elle inculpe et les ennemisde l'6tat; ^ 8 TREATY OF WASHINGTON PAPERS ACCOMPANYING ce qu'elle pnnit, ce sont ties actes impriulents et ttitneraires, qui peuvent attirer sur le8 citoyens des repreaailles ; sur I'etat la guerre, avec ses chances et ses niallieurs. " Si on n'avait pas mis dans le code," a dit uu illustre magistrat (M. Dupin, requisitoiredans I'affaire Jauge), " des peines contre I'lionirae qui expose son i)ays li la guerre, si Ic crime etait impuni, il n'y aurait aucune satisfaction legale a donner a I'etranger qui se plaint: la guerre serait le seul reuiede; on, bien, on ferait comme cbez les peu- l)les anciens, on attadierait cet honune les mains derriere le dos avec une corde, on lui ferait franchir la frontiere, et on le livreralt a I'etran- ger, pour qu'il ])uisse en faire Justice. II y aurait inhunianite; il faut que le pays ait ses lois, qu'il y ait des juges francais pour juger et punir les jou]>al)les, aiin qu'elle ottre aux etrangors une jtiste satisfac- [218j tion. La loi fran<;aise*a conserve la dignitc nationale en niettant parmi les crimes les faits de cette nature, et en r«''servant le Juge- ment a des juges francais. Quelle que soit cette (iecijiiion, elle devra etre respectee ; alors, si on fait la guerre, elle sera juste.'' Rappelons le texte des deux articles: Article 84. ...... . Article 85. ...... . II est evident ((ue ces deux dispositions prevolent le meme fait, niais eri le supposant dans des especes diverses et eu lui imprimant un caractere difllerent. Nous allons successivement examiner ces deux liypotheses. M. Carnot parait penser que I'article 84 ne s'applique qu'aux agents du gouvernement, et il se fonde sur ce qu'il n'y a que les agents qui, par des agressiona liostiles on des infractions aux traites, puissent exposer I'etat a une declaiation de guerre. Le code penal do 1791 por- tait, en eiiet, dans I'article 2 de la section lore de la 2eme i)artie: -'Que, lorsqu'il a »''te commis quelques agressions liostiles ou infractions de traites, tendantes a alluiner la guerre entre la France et une nation [219 1 etrangere . . . . le*ministre qui aurait donne ou contre-sign(3 I'ordre, ou le commandant des forces nationales, de terre ou de mer, qui, sans ordre, aurait commis les dites agressions liostiles ou infractions de traite, serait puni de mort."' Mais si le legislateur de 1791 n'avait cru devoir s'occuper que des actes hostiles du fonctionnaire, notre code a efface cette restriction ; I'article, en employant le mot quiconqiie, ne laisse aucun doute sur sa generalite. La loi n'a point tlefini les actes hostiles, et peutV'tre cette definition etait-elle impossible. En general les actes de cette nature empruntent toute leur valcur politial)le, doit demeurer sans application dans no8 lois. Mais il en eut etc autrement si le Irgislateur avait modifie I'uue des circonstances constitutives de ce crime, s'il s'etait borne a exiger que les actes liostiles fussent de nature a e!^poser I'etat, non a uiie declaration de guerre, niais a de simples actes bos- [2-'IJ tiles: car les agressions qui se mauifesteut le plus souvent, *soit sur les frontieres entre des babitauts riverains, soit en mer sur dea iiavires isoles, jieuvent provoquer ositions out «''te rarement appliquces; il inii»oi'te dos lors de vecueillir avec plus de soin los esjK'ces ou cette application a eu lieu. Lo Sieur llerpiu avait capture un iiavire sarde pendant qu'il commandait iin navire coloinbien; accus*'; d'avoir conimis un acte hosf-ie qui expo- sait la Fiance a une declaration de guerre de la Sardai' ., ou du moin8 a des represailles, il repondait que ce fait ne rentiuit point dans les ternjes des art. 84 et 85, et que, d'ailleurs, conimis en pays etranger, il n'etait pas justiciable des tribunaux de France. La cour de [224] * cassation a rejete ces exceptions en se fondant sur ce que toute la criniinalite juevue par ces articles consistait uniquemeut dans le fait d'avoir expose IV'tat u une declaration de guerre ou les Fran^ais a des rei)r«''sailles ; que le prejudice eventuel faisait rertrer I'acte in- criuiine dans la categoric des faits qvie les art. 5, G, et 7 du code d'in- struction criiuinelle ar les art. 84 et 85. ])e cet arret, (jui a juge an fond en point de fait, il resulte cette seule regie, que les crimes prevus par cet article i)euvent, lorsqu'ils oat etc coinniis en pays etranger, et qu'ils se trouvent dans les cas prevus par le code d'instruction criminelle, etre I'objet d'une poursuite en France. Dans une seconde esp»;ce qui senible de nature Ti se renouveler d'avan tage, un attroupeiuent de 50 Fran^ais s'etait porte sur le territoire sarde, et avait exerc*'; des violences envers un i)oste de la douane etrangere, dans le but d'enlever des objets iutroduits en contrebande dans la Sardaigne et que les preposes avaient saisis. La chambre d'accusation de la cour royale de Grenoble a reconnu que ces foits constituaient des actes hostiles non-approuves par le gouvernemeut, lesquels ex- [225] jiosaient *l'etat a une declaration de guerre; ou tout au moins des actes nou approuves par le gouvernement, lesquels exposaieut des Francais a eprouver des repi-esailles. 11 est a remarquer que dans cet arret, conime dans le precedent, les juges out cru n^cessaire d'accu- muler la double accusation des deux crimes prevus par les art. 84 et 85. C'est qn'il est evident que la premiere, circonscrite dans les termes trop restrictifs de Part. 84, n'a que peu de chances de succes. L'observatiou que nous avons fiiite plus haut se trouve done confirmee par la pra- tique. — Jurisprudence des codes criminels par M.Bourguignon, tome 3", p. 86 ; (Jommentairr sur le code penal, par M. Carnot, seconde edition, tome l*^"", pp. 300 et seqs. ; Traite tbeorique et i)ratique du droit criminel francais, par M. Kauter, tome l'"", p. 418, No. 287. renie j22< (228] [226] *C. [Translation.] Theory of the penal code ; by AdoJphe Cliauvcau and Fausthi Heine ; third edition, .second volume, pages 58 et aeq, lit. 84-5. The crime of treason is no longer in question. The law does no sup- pose any understanding to exist between the agent that it arraigns and the enemies of the state; it punishes the imprudent acts and acts of temerity which might make her citizens suffer from reprisals, or bring a war with all its cliances and misfortunes upon the state. If, said a famous magistrate, (M. Dui)in, requisitoire in the Jauge case,) thev had not ordered in the code punishment for him who exposes his country to war, if the crime were not punishable, there would be no legal satisfac- tion to the foreign nation which complained. War would be the only IM COl'NTKR CASK OF THE UNITED ST'TES. 11 remedy; or we would be obliged to follow the ancients, who tied the man's hands behind his back with a cord, r...tde him cross the frontier, and gave him up to the foreign nation that it might administer justice on his case. This would be unnatural. A country must have its own laws and its own Judges to Judge and ]>unish guilty ])ersons, in order that it may otter to a foreign state a Just satisfaction. French law has preserved the national dignity in putting among crimes acts of this na- ture, and in reserving judgment on them for French Judges. ]L'27] *\Vliatever be this decision it should be respected; then, if war fol- lows, it will be a just one. Let us look at the text of the articles : Art. 84. * ' * * * * * ART. 8.-). * * * * . * It is evident that the two arrangements provide for the same action, hut supposing it divided into diiferent species aiul imprinting dilfereut ciuiracters upon it. We will successively examine tht^se two liypo- tlieses. jM. Carnot appeared to think that article 84 applied only to govi'rn- uuMit agents, and he depends u])on the statement that only agents of the government can, by hostile aggressions, and infractions of treaties, expose the state to a declaration of war. The penal code of 171)1, in fact, reads, article 2, section ], part 2 : "If any hostile aggression or in- fraction of a treaty has been committed, which tends to cause var be- tween France and a foreign country, * * * the minister \.u0 shall have given or countersigned the order, or the commander of the national Ibrces on land or water who, without orders, shall have committed the hostile aggression or infraction of treaty, shall be punished by death." 3>ut, altliough the legislator of 1791 occupied himself only with the lu)stile acts of public functionaries, our code has ettaced this restriction. The article in employing the word whoever left no doubt as to its gener- ality. The law has not defined hostile a-^.ts, and perhaps a (228] def*initiou was impossible. Generally, acts of this nature get all their political value from the circumstances under which they take place. A grave and imi)ortant act will have no serious consequence if committed against a nation closely bound in friendship to France. Under other circumstances, the least act might occasion a conflict and throw the nation into a state of alarm. It is necessary, then, to confine oneself to the terms of the law, that hostile actions are all material acts which, not being approved by the government, have exposed the state to a declaration of war. Thus it would not be enough that the hostile acts should have simply caused an exposure to hostilities ; the law formally demands, in order to constitute the crime, the peril and alarm of a declaration of war. This point was solemnly recognized by the court of cassation in the Jauge case. And this gives us occasion to observe what ma}' be regarded as a deficiency in the law. In the political state of Europe it would be diffi- cult for the isolated act of a simple citizen, or even of a public func- tionary, to cause a war between two nations. A declaration cf war does not take place until the olieuded State has demanded explanations, and if the ct has been committed without connivance of the govern- [229] ment — connivance to which the agent belongs — *a8 soon ah that government disavows it, it is improbable that war will result. From this it follows, and we are confirmed by experience that article 84, although intended to suppress a culpable act, must remain in our laws without application. But it would have been otherwise if the I legislators had modified one of the details constituting the crime; if !■: #!i 12 TKKATY OF WASHINGTON rAF'EKS ACCOMPANYING 111 ^1 they bad confined tliomselves to domaiiditig tliat the hostile acts sliould be of a nature not to expose tlio State to a dechiration of war, but to expose it to simple acts of hostility; for the a^'jjressiona which are most often made, either on the frontier between the border iidiabitant«, or in the sea on an isolated island, may provoke acts of the same na- ture, but not a d<'clarati()n of ^^ar. it mif^ht be objected that the casp where the ajijir«*ssion juovokes hostilities ajfainst the State is provided for in the terms of article 8r». This would be ineorre«!t; this artido l)unishes only those who expose the Fr«Mich to the danj^er of reprisals. Then this expression, oi)posed to the one relative to the acts which ex- pose the State to war in article 84, indicates clearly that the first of these articles only provided for reprisals against private i)ersons, an I we shall presently see that this is also the meaninmnii.s (1( s uctos (riiostilitr sous un pavilion autre que celui de l'«'tat dout il auiiiit comuiission. III. Seront t'fjaleinont poursuivi.s et jujjt'S comme pirates: 1° Tout Fran^aisou naturalise Frau(;ais qui, sans I'autorisatioii du roi, prendrait coniniission d'une puissance «'5tranj?ero pour coininander un naviro ou Vatinient d<; iner arnie en course; 2" Tout Frun(*ui8 ou naturalise Fran- rais qui, ayant obtenu, metne aveo I'autorisation dn roi, comnnssion d'une puissance etran<;ere pour ] [IV, . atioii.] Dalloz, (iencral rlurispnidcnce, vol. xxxiv, p. 1<>.SU r^ srr/. DuvEKCiKii, Cothrtionof LawH, ^:c., vol. 2."i; 10, 11, April, ISL'.j. for the safety of niaritiine navigation and couiineree. TITLE I. — Tino cuniE of pi racy.- Law Art. 1. To be prosecuted and convicted as pirates: 1. Every iiidi vidual f(uinin<; part of the crew of any armed shij), or vessel whatever, .sailinjf without passport, manifest, coniniission, or other papers sliowinn' the le^^ality of the voyage. 2. Every commander of armed vessel carry ing the commissions of two or more ditferent powers or states. 2. To be prosecuted and convicted as pirates: 1. Every indi vidua! forming part of the crew of a French vessel, which has by force com mitted acts of tlepredation or violence, either against French vessels or those of a power with which France is not in state of war, (y their crews, or.cargoes. 2, Every individual belonging to the crew of jMiy foreign vessel that commits the sai«l acts against French vessels, their crews oi- cargoes, there being no war between th(> countries at the time, and the vessel not being provided with letters of niar(iue or regular commissions. 3. The captain and otticers of any vessel whatever which shall have committed acts of hostility under the flag of a country other than that of the state whose commission it carries. 3. Also to be iirosecuted and convicteinM)u du droit dcH <(ons, ponrrait etro considi'Te eonnn<^ nn acto hostiiu a I'liuo dt^s deux pavtit's ot foiitrairo a la neutralito ((uo nous avons lesolu d'adoi)toi-. La declaration imperiale se termine eu cos terme.s: f'JIO] lji'S(!ontreveiiantsanxd<-fonse,sot ro<'oinnian*dat ions con tonnes dans la presen to (Iccliivation seront ponrsnivis, s'il y a lien, eontbrmenient anx tlispositionsdo la loi .") et suivants du dtkiet du 24 mars 1852 BUi' la marine niaicliande, '.\\'.\ ot suivants du ('ode penal pour I'aiinco do nier. iMaIp,recetto declaration publique de la neutrnlito de la France, mal^re Ies proiiibitions ibrmelles lir uim' coiniiumicatioii iV'j;uli('ie cntiv Hlianj; liaf, V«'«lu, et J>an Fraiitisco, j>aMsaiit par lo d(i troit ull(M;k .sViiga;;*' a fain* coiiiiaitre aux constructeiirs la maisoti tie baiupu* qui sera rharj»«'t' dVflVcliUT a Paris \e )><)rnu'ra I'ordonnance royale du 12 jnilU't 1847, adrosHii a M. lo Diini.stre de la marine la demandc d^ine autorisation de inunir d'un aruenient de douzea quatorzc canons, t |)o.s.sild« a M. Voruz I'uutorisatioii que jo 8ollicit<) et que pre.scrit I'ordoun.ince royale du 12 jiiillet 1H47. Sur cet expose, et pour la destination supiH).s«'*e dcs quatre navirea, Tautorisation Int accordeo par M. le ministre de la marine des le 6 juiu, ainsi qu'elle etait demandee par M. Armau. Le memejour, 6 juin 18«J.'}, M. Slidell, autre ajjent du gouvernement des etats-confederes, adres.sait a M. Arnian la lettre suivante: En consequence de Tautori-tation oiini»t<^rielle que vous m'avez moutree, et que jo juge ButtiHaute, le traito du U> avril devient obligatoire. Trois jours apres, le juin, M. Erlanger, banquier a Paris, chez qui M. Bullock avait pris domicile dans le traitf du 15 avril, et qui devai garantir les paiements anx coustructeurs, ecrivait a M. Armau : [24:$] *Jo m'engage ii vous garantir les deux premiers paiements des navires que vous coustruisez pour les confedt'-rcs. muyennant uae commission, etc. Les conditions financieres proi>os«^s par M. Erlanger furent accepteea par M. Arman, qui, le nieme jour, le 9 juiu. adressa a M. Voruz, A Nantes, le telegramme suivant : A M. Vtujuz, Grand Hotel, I'arin : J'ai sigue, sans moditicatiun, la lettre a Erlanger : elle e«>t au courrier. ARMAN. De son c«>te, M. Erlanger ecnvai.. .^^ous la meme date, a Mr. Voruz, ii Nantes : Voici les lettres d'engagemeuts, •.- coutrat et la copie. Comme vous babitez sous le meme toil que le cajyitaine BuUork, vous aurrz peut-etre robligeance de lui faire sigiiiu' la copie du contrat. J'ai ^crit directement a M. Arman. Kecevez, etc. Le lendemain, 10 juin, M. Arman adressait a M. Voruz uue lettre aiuisi con^'ue : Cheh Moxsieuk Vorcz : Je vous accuse nx-eption de votre lettre chargee du 0, et du mandat de Bullock de 7iiO,(XM) fr., qui i^tait inclus. Je mVmpresse de vous donnerdr- cliarge, ainsi quo vous le desirez, de.s pit-ces que vo'is avez siguf'-e.** aux mains de M. Bullock pour le premier paiement de» dtifx marires de 4(Xi rheraiix, que Je conbiru-i* [244] pour le compte des conft^ere'x 'simi^tanrment avec ceux que vous faites coustruiro par MM. Jollet et Babiu, et Dubigeon Je vous prie de faire en .sorte d'obteuir de M. Bnllook la ie du9, etilii •lis rtoiinerdr- : niiiina tic M. lie Jf COIIHXriM ti's construiro ions reiuboiir- Hit riiiin lie innij)!" tlf<. (•Miiinptt"'! (Ii ri'vi'/. ftc. i;ir;iiitir i|iii' iiMii>. paytilirt ii M. luliiii^fi-r. Re- I>*aiitn> part. MM. .lollct cr liiihiii, et I)iil»ij;von flls, <'liarj;i'H d«- la ronstnictioii, dans h-nrs cliiuiticrs ;i Niintcs, dc dciivdcs ([iiatrc naviivs, .linsi (pril C.St dit dans I;i Iv'^tic adrosscc Ic 1' Jiiiii par Mr. Annan a M. Ic mini.strc do la niarin*-, .itii'n- rc,s|MMtivcs ilaiis I'littf allairc. l>'antrcs piT.sonnes, avcc cnticre connaissance «lc la vt'-ritablc destina- tion dc CCS constructions ct dc ccs arnicnicnt.sniaritiuics, dcvaicnt prcn - (ir«' uncpart notable dans Ics Iti'Mu'-ticcs dc l'op«''iation ct supporter pro - |u»iti«)ncllcincnt Ics csconiptcs dc garantic stipules en tavciir dc M. Kr - laiifjcr. C'cst pour .s'cntciulrc sur ce o(!iant a Nant«'s, ecrivait di's *le 8 Juiu a M. N'oruz air.!' : I, a •■(•initliration tiiiaiifi.'ic Hiirvomic aiiioiinriiiii ilaii?. liillairi' tlout Ic (M)iitrat a 6\6 ■1 siyiif If I.') aviil ilfiiiicr fiitic Al. Annan, voiim if U\ caiiitainr Bullock, motive la pro- '/< |H(Niti ji" vii-ns vuiis Hininn'tti'is. .MM. Mazcliuc et (■', du tlavrc, ctaicut charyt'cs dc la coutcotiou dcs iuachines a vapeur pour Ics (piatrc iiavires a helice, dont les coques .so jronstruisaicut «lans les clianticrs dc IJordeaux et dc Nantes. Mais igno- I riiient-ils la veritable destination dc ces batirucnts dc guerre lor.s(iu'ils ♦ rrivaient a M. \'oruz aine, le 2.'i juiu 18(W I MoNsiKi'ii: Hii }niri f,iiii)it.\\ ya i|neli(iii'H jiiiirs, /( miiiiln' /)^''/^)('A•, etc., nons avons !oiiiis. voii.s ft noils. ilf reilrfSM'r iiuo tn'riMir ile tliiiieiiHioti ties iiiacliiiii's, etc. Nous vou.s ijirioiis ilf nous I'-fi-irf inio i '-s dcrnicii's mcsiii'fs, (jiii nuiil I'ti voihitniilion, .sont bieti celled (Kiivcniifs f litre noiis. Tout etait done jiui t'aitenient couccrte entre les divers participaut.s [)our l'cx<''C'ution du rraiti- pa.s.siHe 15 avril ISIJ;? entre M. xVnuan,con- structeur fraiieais. et M. Ic capitaine Bullock. Ce trait*' a «'t«' expre.s.sc- iiient ratific par M. 81idell, agent diploiuati(pic i la construction ct rarniemeut *de.s batimeuts dc guerre out ct«''.iic- eordees, radininistratiou a.yautsau.sdoutc et«'*abus«'e par lapretcn- ii;ic fle.stinatiou <|u'un lo-tunteiir I'tydnr/eriltiviiitdouucv i\ ces uavircs de guerre daiis k\s niers de Chine ct du l*aciti ' * ^ Akt. 9. Lo prix de cliacnn de ces navires est tixe a la souinie do deux millions dt francs, qui sera payee a I'aris iiu cinqieme coniptaut. Aht. 11. M. Bullock a design^ la maison fi. ErlangiT et C'"', comme etant cliargec d'etfectuer les paiements a Paris et devaut accepter ks clauses liuaucieres du present trait<^. Le 17 juillet, M. Voruz ainc ecrit : Je refois aujonrd'lini une lettre 'I'Arnous, de Bordeaux, qui me dit qu'Arnuvn vient de signer lo marcbd pour deux canouui(;res bliudees, de 'MO cbevaux de force, pour dtiux millions cbaque. Eafin, le 12 aout, M. Bullock, reste charge, par Particle 3 du traite du 10 juillet ci-dessus, des canons, des armes, des projectiles, etc., [24*9] pour les deux cauonnieres blindees, adressait a M. Voruz *la let- tre suivante : LiVKiU'OOL, 12 aoiit 1863. J'ai refu, M. Voruz, votre lettre, du 4 courant, avec lea indications de prix dn canon de 150, et de ses accessoires. II ne m'est pas possible de dire si je vous donnerai un ordre positif et direct pcnir de semblables canons avant d'avoir ap])ris du capitaine Blakeley comment I'aftaire de son propre models de canon ceroid lY dtd comprise. Je serais cependant cbarind de traiter une affaire avec vons, si nous pouvous nous accordci sur les conditions. Nous discuterons tout cela qnand j'irai a Nantes. II est dans mes intentions de confier mes affaires h aussi pen de mains que possible, et j'espfcre que ncms tomberous d'accord snr tons les points essentiels. de telle sorte que 1108 relatione pourront prendre vne plus grande extension meme en cae de paix. Notre gouvernement aura besoin, sans doiite, pendant un certain temps, de s'adresaer en Frame pour la construction de ses vaisseaiix et viachin^s, et, pour ce qui me concerne persounellement, je aeraia euchautd que les rapports que j'ai ewa avec vona voua amenaaatnt poui' I'avenir ii dea commandea plus considdrablea encore. Veuillez, s'il voua plait, m'in- former si lea corvettea avaucent et me dire quand lea aecouda paiements seront dus. Je voua dcrirai une aemaiue avaut mon arrivde u Nantea. BULLOCK. 1 250] *Le8 termes de cette lettre s'appliquent evidemnient au projet d'armement des deux cauonnieres biindees, dont la construction a ete I'objet du traits pass^ il Bordeaux, le 10 juillet, entre MM. Ar- man et Bullock. Ce dernier, capitaiue au service de la confederation des etats du sud, a agi d'ordre et pour compte de son gouvernement. 11 u'est G COUNTER CASE OF THE IXITED STATES. W (lis neces- Htruction h kitittiers (/r jlissemeut uees (laus 1 10 juillet gislatif, quai ir coiiipto (le M. M. Cmilf conventions lire ponr son a cociue bois M, coutoinu's OS ainicH, lis 'res de lV(iui- •anx ruz *la Ict- • aoiit 1863. )rix du cunnn donnerai nn du capitaine oaiprise. Je U0U3 accorder que possible, elle eorte que paix. Noire n Frame ponr ounellement, nasstnt pour a plait, m'in- H ^eront dus. ULLOCK. ; au projet Dustructioft e MM. Ar eration des ■it. 11 u'est a? pas possiMe de mt'connaitre quo ces deux caiionnitTcs soiit, ainsi que los quatie navires pour lesquels uvait etecouclu le uiarche du loavril pre- cedeut, destinee.s au service des etats-conlederes du sud dans la guerre ((u'ils soutieunent centre les etats fedt^'raux de I'Amerique du Nord. La preuve materielle de ces foits re.sulte trop evideiument des conven- tions passees entre les diverses personnes qui out participe a leur reali- sation, et de la correspondance «^eliar.gee entre elles jwur le reglemeut de leurs iuterets particuliers. Les faits sont de la plus haute gravite. Kxpressement interdits il tons les Fran^ais par la declaration iiuperialo du 10 Juin 1801, ils constituent de tlagruntes violations des principesdu droit des gens e; des devoirs imposes aux sujets de toute puissance neu- tre, devoirs dont racconiplisseinent loyal est la premiere garantie du respect du a la liberte des etats neutres et li la dig'ute de leurs j2r)l] *pavillons. Ce sont la des actes de manife.ste hostilite contre I'une des deux ]>arties belligerantes a 1 Vgard desportation. Cette disposition de la loi est, dans I'opinion du soussigne, evidem- nient applica'ble aux auteurset complices des iaits«iui .sont resumes plus haut. (^uels que soient les motifs et quel que soit le caractcre de la lutte si deplorablement engagee au seiii de I'Union americaine, soit qu'on Ja eousidere connue une guerre civile, nieme comme une insurrection d'une partie de la nation americaine contre le Gouvernement etabli, soit que i'on envisage Is: separation qui veut s'operer les arines a la main, comme une division de la nation en deux p*niples diflereuts, la guerre entre ces deux parties, nous dit encore Vattel, retombe a tons egards dans le eas d'une guerre publique entre deux nations differeutes. Les peuples moditie, et ils n'en auront i»as moins fait des actions liostiles qui |li.M| e.vposaient la France a une declaration de guerre; ils sont *don(' ilaii^ le cas textuellement pievu par I'article 84 du Code penal. Il> n'ont pas le droit d'alb'guer (|u'ils ont «''t«' b'galement autorisi's par le gouvernement. La fraude dont ils ont use, viciant dans leur essenci mcine les actes dont ils prctendaijnt se prevaloir, leur culpabilite est aggravee aux yeux de la Justice frai.'caise. 11 est (Tautres de nos lois dont les contractants et participants des marches des {."» ;ivril et lOjuillct i.s^l-'iont t'rauduleusenient <''lud(' lesdis positions. La loi du 21 mai IS-'JI porte : Aim.:'. Timt individu qui. suns y t"'tn' li'^ialciiiciit autoii.si, aiiiii fiiliiKini' on coiilVc tioniu' (It's iiriiM-s de siiiciii', dfs faitomdii's et, auirt's iiiiiiiitioiis de seroiit jiijjoes par les tii- lintiaiix de ]i()liee edrrectinimelle. Les ariiies -t iiiuuitious falu'i([tiei;s sans autoriwutitui sei'oiit eoutisqnocH. Dans rinteret du d«''veloppement de la fabrication fran(;aise et de notif commerce exterieur, une ordonnance royale, du 12 juillet 1847, n [25()| regie Tapplication de cette loi de 1831 *et les formalit«''s admini stratives qui doiveut etre rempiies par les fabricants d'armes. On lit dans I'article 1'' de Tordon nance du 12 juillet : Conforme'ineut a I'artiele 'A de la loi d\i '24 inai I8:i4, tout iiiilividu i|ui voudra t'aliri- •liier on cont'eetioniier des ainu's de )j;ueire \)our I'lisajfe des uavire.s de conimenr devia oliteiiir )irealal)leiiieiit laiistorisutioii de iiotiw miiiistre secrdtaire d'etat au th- l>artenienf de la };'i*'i">'''. "*t de notre iniiiiHtre secretaire d'etat ail d<^partemeiit tie li marine <{. des coloniis. (jnaut anx Itoiiehesa fen et aux niuiiitions. Dans la juatique, ces dispositions de I'ordonnance q.'i setnblaieDt n'ctii' aiqdicables qu'a rarmement de nos navires de commerc s ont «'1< 5tend Imerce Pot 'pouvfi en gag 'maud Siiti )n site, (lui lui mdept guerre I'appai destim couraj dice ..' II r( (pielle coupal reparn Let naux etabli( penal, specia et plei Con struct 1259] compe ^ devan SG uliiM'eincnt •as d'appii. lis neutics. :e, quoiqiie chaiulises. L'es pour lii eclaivos de lite aueuiic L'llitt'Ul'8 ot enuseutre ifedon's, 1(> nis par los e caractt'ic le gonver lie exposei I gouv^enic ructeurs ft Llicatioii dc ine et do l;i irnemeut n II\r. Arniaii la part dii IS dout ce> Ml sera pa> lostiles qui sont *doii(' penal. Il> "s(''s par h- ur esseiici al>ilit('' est ipaiits (]('.> id('' lesdis- It' oil contt'c- . . . .sera iiiR-s a l.iioii par Ics tri- aiitoriMiitiiiii t de notic let 1847, a 's admiiii Urines. jiulra t'alni- CiUJIini'lCr [Vtat ail ill ■ 'incut d;' li einljlaieiii • ', out «''!< «: COr.NTKK CASK OF THE rMTKD MATH- 21 Vendues a la fabrieatiou et a la livraisou des; annes de giinrre an eom lerce «''traiiger. Pour obteiiir les autorisatioiis toiijours re(juist's vn pareil eas, et pour fpouvoir livrer anx coutee lelles autorisatioiis subrepticement obtenues doivent done etre cousiderees conime nulles et de nul eff'et. MM. Arman, Voruz et leurs , conipliees sont done dans un cas de violation de la loi du 24 mai 1834, et pors le eoup des peiiiAs eorrectionelles qu'elle prononce. ' ] ' ^ri'iie et le delit resultant de la violation de Tartiele 84 du Code • ' v!e la loi de 1834 constituent MM. Arman et Voru/ et leurs v .ni.'ie. I's contrevenants aux defenses et recommendations couteuues dans la d«''claration imp«''riale du 10 juin, et doivent etre, ainsi (pi'il est dit dans eette declaration, poursuivis conformement aux dispositions de 'la loi. Les faits qui doivent donner lieu a ces poursuites h'-gales out ete com- 111 is an prejudice et contre la securite du gouvernement des Itltas-Unis. II est bors de doute que le gouvernement est en droit, comme t'jut [L'nS] etranger, de se *pourvoir devant les tribunaux franeais poui re- elamer la repression et la reparation de faits accomplis en France ■!- ;gue a indiquor an Gouverneiiieut des fitats-Unis quelles voies ju ' i'ijii'ies il jieut snivre pour faire pnuioiieer eontre les eoupables let! •<■. ; Jons qui lui sont dues, et (juelles doivent etre ces reparations. Le Ciouvernement des Htats-Uiiis jieut rendre plainte devfiut les tribu- naux franeais pour raison des faits dont la oi'iiiinalite vient d'etre etablie, et notammeut quant an crime nn'^vu par Tarticle 84 du Code penal. Cette plainte devra etre remise, soit a la diligence d'uu agent specialemeuu autorise, soit sur la poursuite de renvoye extraordinaire et pleni- .^tentiaire (tes T^itats-Unis en France, an juocureur iuqterial. Conr >!•- MPut aux dispositions des articles G.» et G4 du Code d'in- strnctioii v. t jinelle, la plainte peut etre portee, ou devant le magistrat du Ik . - k '.rime et le debt out ete coiumis, ou devant celui de [259] la resjuence de rincnlpe. Comme il y *a plusieurs complices et agents des faits incrimines, le juge du domicile de I'un d'eux est competent pour recevoir la plainte, et tons les complices seroiit api>eles devant lui en raison de la connexite des faits denon«'«v^. $ :M .'ii 22 TREATY OF WASHINGTON PAPERS ACCOMPANYING MM. liullock et Slidell, agents iles couft'deros, sont, quoiqu'etrangcrs, jiisticiabh's des tribunaux lran«;ais i)oiir raison des faits coupables qu'ils ont piovoqiu'S on anxquels ils out participe snr le territoire franyais. La plainte devni onoiicer les faits inculpe.s et otre appuyee des pieces justificatives. Pour faire i)rononcer les i(''i)aratioiis qu'il se propose de demander, le CJonverneiueut americaiu devra, i^ar sou ageut special, declarer qu'il enteud so constituer partie civile — c'est-a-Uire, qu'il euteud soutenir la poursuite ii flu de reparation, concurremuieut avec le uiinistere public. Eu se constituant partie civile, le Gouveruemeut des Itltats-Uuis doit etre averti qu'il pourra etre teuu de donuer caution judicatum solvi, aux ternies de Particle 100 du Code de procedure civile, ainsi conyu: Tous otranijers, deiiiandems priiicipaux ou intervcnauts seror.t temis, si le clofi'iideur 10 reqiiiert, avaiit toiito exception, de tbuniir caution et payer les frais et doiunia^es- intorets aux»iuels ils pounaieut etre coudanuics. Enfin, il faut faire observer que I'ane des personnes contre lesqnelles la plainte devra etre portee collectivement est membre du Corps legis latif, et qu'en raison de la <]nalite qui lui appartient, avant do [2(5()J donner suite a la pi: irte, le uiinistere ])ublic devra demander *i\ I'asseniblee I'autoriiL . ' ^e poursuivre, confonueinent A rariicl':' 11 du decret organ ique de to 1852. * Dans le cas oil I'on ne voudi. porter plainte que pour raison de la violation de la loi du 24 mai 1831 et de I'ordonnance de 1847, au lieu de soumettre la plainte au jugo d'iustruction ou de la reniettre au procu- reur imperial. Taction devant etre portee devant un tribunal correction nel, le Gouveruemeut american pourrait proceder par voie de citation directe, et il i)orterait devant le juge correctionnel sa deniaude a flu do reparations civiles et de donmiages-interets. Dans le cas eulin on le Gouvernement des Etats-Uuis renoncerait a intenter, pour raison des faits doiit 11 s'agit, soit une action au criniiuel par voie de i>laiute, soit une simple actiou correctiounelle, il pent sepa rer Paction civile de Paction publique, et intenter contre ceux qui lui ont fait prejudice une actiou devant le» tribunaux civils, sauf au mini stere public jY exercer Paction publique eu repression du crime et du delit, s'il lejuge a propos. Devant le tribunal civil, le Gouver lement des I^'tats-Uuis n'aura a in votjuer, en justifiant des actes dont il a soutiert, que les dispositions de Particle 1382 du Code civil, ou il est ecrit : t'«> Hrangei'S, bles qu'ils J fran(;aih. les pieces iiander, Ic arer qu'il ioutenir la re public. Uiiis doit solvi, aux >ii(;u : Ic defi'iideur domniiigos- le.sqnelles orps legis , avant de minder *i\ , A rariicl',' jison de la au lieu do ( au procu correction le citation de ii tin do loncerait a \\ criniinol l>eut sepa Bux qui lui if au mini rime et du I'aura s\ in jsitions do oblige celiii. li, le Gon- cation dcs irra memo, servatrice, )eril8, tons i criminels tit les juri t re^u lenr EK, de Paris. m[2G2] 'E. Translation of the opinion of Mr. Berryer. The undersigned, formerly advocate, after examination of the con- sultative memoir presented in the name of the United States of America, 'together with the documents justiftcative, hereto annexed, and after deliberation upon the questions submitted to him, is of the following i opinion : From the expose contained in the memorandum and the accompanying ; documents results the complete proof of the facts, which it will be ad- vantageous first to recapitulate. In the month of February, 18G1, several of the Southern American [States, until that time undei- the Government of the Federal Constitu- iion of the United States, resolved to separate themselves from the Northern States, and assembled a congress for the purpose of consti- tuting the government of the Cotifederate States of America. War be- tween the confederates and the FederarGovernment broke out in the ; month of April. On the 10th of June, in the same year, in the official part of the Moni- [tenr, a declaration appeared, submitted by the minister of foreign aftairs to the Emperor of the French and by him approved. [2G3J *By this solemn act the Emperor, considering the i)eaceful re- lations existing between France ami the United States of Amer- ica, resolved to maintain a a strict neutrality in the struggle commenced ", between the Government of the Union and the States pretending to form '«^4i distinct confederation. It declares, among other things : :{. All Frciicluuen are forbidden to take a coiniiiis.sioa from either of the two parties ^ for arming vessels of war, ' * * or to eo-operate in any manner whatsoever iu the eiiuipnient or armament of a war-vessei v>r corsair of either of the parties. 5. Frenchmen residing in '''ranee or in otL°r conutries will be reijuired eqnally to iibstain from every act which, committed in violation of the laws of the empire or of : the laws of nations, could be c(>nsidereower of attorney it declares him to have produced. For the execution of the agreement Mr. Bullock names the banking- house of Mr. Erlanger, of Paris. By this agreement Mr. Armau " engages to construct four steamers of four hundred horsepower, and arranged for the reception of an armament i of from ten to twelve cannons." It is stipulated that Mr. Arman shall construct two of these ships in 24 TREATY OI- WASHINGTON PAPERS A( rOMTANYlNG his yards at Bordeaux, and shad intrust the execution of tico other .sA//«.v to Mr. Voruz, to he coiiNtrneted at the same time in his yards at yantes. To disguise the destination of these four ships the agreement states tliat they are intended to establish a "reguhir couiniuuication betweei: Shanghai, Jeddo, and San Francisco, passing the strait of A'at: [20j] Dieuian, and also that they are to *be fitted out, should the oppoi tunity present itself, for sale to the Chinese or Japanese empire."' Finally Mr. Bullock engages to make known to the constructors the banking-house which will be charged with effecting the i)ayment at Paris of the price of each of these ships, which is fixed at the sum of 1,800,0(K) francs. The 1st of June following, Mr. Annan, in order to conform to theroya) ordinance of l-'th July, 1847, addressed to the minister of marine a dc maud for authorization to sujjply with an armament of twelve to fourteei: thirty pound cannon four stearashii>s, iron-clad, in process of construction, tico in his ship-yards at Bordeaux, one in that ofJollet tt* Bahin at yantcs. and one in that of Mr. Dnhigcon at yantes. These sliips^it is said in the letter addressed to the minister) .ire destined for a for- eign shipper, to do service in theCliineso seas and on the Pacific between China, Japaii, and Han Francisco. Their special ariuauieut has the additional object of perinittiniL; their eventnal sale to the government of China and .Japan. The cannons will be maKAR Mk. AV iiuv, : I have to acknowledge receipt of your registered letter of the 9tli, and of thedraft of Bnllock for 7'2O,000 francs, which was inclosed. I hasten todiscluirj,"' j i sG COUNTER .CASK OF THE r\m:i> STATES. •_>:, othrr fihifi': y antes. lent states )n botwet'i: lit of A'lii: the oppoi 5e empire."' uctors the Mit at Paris I' 1,800,0(1(1 o tlie royal lariiie a (!«' to fourteci: nstrnctioii, at yant(>\ lU'il lor a I'oi- .'liina, Jaiuiii, )f pi'Vinittiii^ of Naiit<'>. Utncy 1(> ffiin.i hiaiice of Juiii four ships; e 0th Jnii('< of the gov- Annan tlu' [le. and AvliK ^ ■r at Paris, ^ April, ami 4 four ships, tu an buildiitj icoei)ted by , at Nantes, le way. AKxMAN. at Nantes : oil are living; lougli to Lavi' au. Keceivf, j ssed to Mr. :er of the 9th, II to diHcliar<"' :f yoii. iis you desire, from the dociinients siarncd by you in the hands of Mr. JJiilloek for the first payment of the two ships of four hundred horse-power, whieh 1 uui construct- in" for ilie account of the confederates simultaneously with those which you are hav- jnjj huilt by Messrs. Jollet A: Habin and ])ubif^-eon. 1 pray you to arranjjje in such manner as to obtain from Mr. Bullock the proniis*- to rc-imbtirse us tinally on account of the discounts of guarantee we are paying to .Mr. Erlanger. h'eceive, A:c. On the other hand, Messrs. Jollet »S:Iiabin and Ditbigeon, charged with the construction, in their yards at Nantes, of two of the four ships, as above stated in the letter addressed on the 1st of June by Mr. Annan I* to the minister of marine, wrote on the 10th of \iie same month to Mr. Voruz : Dkar Ml!. V(ii:t /.: After having noted the linamiivl conditions which have been addressed to you by the house of P'rlanger, «« well an thf letters which hare paxxnt .['Jt*!*] betireen ' ijoa and Alcxarx. SUdell atid Jhillock, we recall to you our verbal agree- ments, foi the purpose of fixing precisely our respective positions in this affair. Other i)ersous, with full knowledge of the real destination of these constructions and of the naval armaments, were to take a notable part in the benefits to be derived from the operation, and were to support proportionally the discount of guarantee stipulated in favor of ^Ir. Er- langer. It is to arrive at an understanding upon this last head that Mr. ITenri Aruous liiviere, a merchant at Nantes, wrote on the Sth of June to Mr. Voruz, sr. : The financial complication arisen in the affair of which the contract Wius signe Erlanger, '21 rue de la Chaus<''f d'Antin, Paris, as follows: Art. 1, Mr. Arman engages with Mr. Bullock, who accepts Ihe terms, to cou- [271] struct for his account, in his *yards at Bordeaux, two screw-steainships of wood and iron, of 'MO horse-power, with two scn^ws, with two iron-clad turrets, in conformity with the jilan accepted by Mr. Bullock. AiJT. 3. The cannons, arms, projectiles, powder, combustibles, and finally the salaries and provisions of the sailors, shall be at the sole charge of Mr. Bullock. Akt. i). The ships are to be provided with an engine of 30Q horse-power, at 20»l kilograms the liorse. constructed by Mr. Mazeline, of Havre. AuT. 6. The two ships shall be admitted and ready to make their trial trips in ten months. • Art. 9. The price of each of these ships is fixed at the sum of 2,000,000 francs, which shall be paid at Paris, one-tifth down. Art. 11. Mr. Bullock has designated the house of Tl. Erlanger &, Co. as the one charged with eft'ecting the payments at Paris and with accepting the financial condi- tions of the present agreement. The 17th of July, Mr. Yoruz, sr., writes : / hare received to-daij a letter from Arnoiix, at Bordeaux, who nayn that Arman him ,/i;v/ fihjned the agreement for two iron-clad t/un-boat.s of three hundred horse-power for 2,000,000 francs each. Finally, on the 12th of August, !\rr. Bullock, remaining charged by Articles of the agreement of Julj' 18th, above named, with i)ro- [272] viding cannons, arni)--, projec*tiles, &c., for the two ironclad gun boats, addressed to Mr. Voruz the following letter : Liverpool, August 12, 13C3. I have received, Mr. Voruz, your letter of the 4th instant, with statements of the price of the 30-pounayments will be due ? I shall write you a week before my arrival at Nantes. BULLOCK. [273] *The terms of this letter apply evidently to the project of arm ing the two iron-clad gun-boats, the construction of which was the object of the agreement executed at Bordeaux the 16th of July, be Iwcen ^rman and Bullock. This latter, a captain in the service of the ,[274] 1 275] S'G ;he oxclusivo tion of the me he bad at Nantes, ich two arc hco in the he govern n utensils, he IGth of epiity of the Hock, actiiif; ' t»f attorney la Clians('ii' rnis, to con- hilts of wood id turrets, in y the salaries >ower, at 2W trips in ten 'raucs, whicli i, as the one imcial coud i - man hat jusi for 2,000;00() iharged by with pro- chid gun- 1 12, 18G3. ineuts of tlio say whethoi ig from Cfip- 1 agree upon intentiou to all essential even in case n period, of y concerned, more consid- ;ell me when lULLOCK. jct of arm which was f July, be nee of the COUNTER CASK OF THK UNITED STATES. I 27 )onfederate States of the South, has acted by the order and for the ac- 30unt of his fjorenment. • It is impossible not to understand that these two gun-boats, as well as the four ships, for which the agreement of the hsth of the preceding April had been concluded, are destined for the [service of the Confederate States of the South in the war which they [are carrying on with the Federal States of the North. I The material i)roof of these facts results too evidently from the agree- jments concluded between the different persons who have participated [in their fultillment, and from the correspondence exchanged between [them for the regulation of their particular interests. These facts are of the gravest importance. Expressly forbidden to fall Frenchmen by the imperial declaration of the 10th of June, 18G1, Ithey constitute flagrant violations of the principles of the law of nations land of the duties imposed upon the subjects of every neutral power; I duties, the loyal observance of which is the Ibremost guarantee of the ! respect due to the liberty of neutral states and to the dignity of their * flags. These are acts of manifest hostility against one of the two bel- ligerent parties in regard to whom the French govcrn?nent has resolved s to maintain a strict neutrality. S [''i~4] * It is necessary to avoid (says Vattel, lib. Ill, chaj). 7) confounding what is allowed jl to a nation free from all engagements from what it may do if it expects to he ^treated as perfectly neutral in a war. So long as a neutral people desires securely to i«eiijoy that position, they shouM show, in all things, an exact impartiality toward 'tho.se who carry on war.' For, if this jx'ople /acort one to the pieindiee of the other, it ijcannot complain when the latter treats it as an adherent and ally of its enemy. Its loeutrality would be ixfraitdiileiit iieiilraHtji, of which no one wishes to be the dupe. f This iiupartiality (adds Vattel) which a neutral people onght to observe, com- [>rises two things : tiie refusal to jtrotect or voluntarily to furnish either troops, arms, lunitions, or anything of direct service in war. These are acts of hostility which, forbidden by the law of nations, are ^|characteri/-ed as crimes Jtiid misdemeanors by ti:e French laws, wliich |decree their repression under penalties. Article 84 of the penal code is /: conceived in the'following terms : Whoever, hy hostile acts not approved hj/ the government, shall hare exposed the state to a id'claratlon of war, shall he i)unhhed witli banishment, and, if war is the result, irilh \ di'portation. |27o] This provision of the law is, in the opinion of the *undersigned, evidently applicable to the authors aiul accomplices of the facts recapitulated in the foregoing. Whatever may be the motives and whatever the character of the strug-gle so deplorably carried on in the heart of the American Union, whether it be considered as a civil war or as an insurrection of a part of the American nation -against the establishelic'ly *iu tlie poj-ts, sliip yanls, and woil;- ishops of rranee. Tho action of parties uiiiU'itaking those aiinaineuts is all the iiion- eoinp''^»'nisiiijr, and exposes our eoiintry all the more to the »lan<;<'r u\ Iteiii}^ considered hostile, and of j)rovokin{jf against itself a declaration of v,ar. for the reasun that the arniaiuents in question are made witii the regular authorization of the Frencii administration. Jt is no kuigf: ;i case for the application of the princijdes which ordinarily govern ii. I'cgard to neutral nations, the conse(pien(!esof shipments of iontudiand. Although navigating under a neutral tlag, the shipjters of such mei (-•handise, arms, munitiuns, ami all material prepared foi- war, are aloin responsible : they can be seized and declared as prize — their Hag does not cover them — btit there results no reponsibility on the part of tlu' government to which such. .shii)pers ami titters-out belong, Jn the agree mentsand in the execution of the agreements entered into between tin- i'rench builders and the agents of the Confearties to the agreement of the 15th of April, who. by misrepresentation of the destination of the ships, deceived the min ister.s of marine and of war. Let the explanations loyally given by government to government, let the withdrawal of the authorizations granted to Armau and Voruz ic move all complaint and recrinnuatiou on part of the United States Gov- ernment: the criminal character of the acts ot which these gentlemen and their co-operators have rendered themselves guilty will not be mod tied, and they will have none the less committed hostile acts which expose France to a declaration of war ; they are then within the case provided for in the text of article 84 of the penal code. They have no right to allege that they have been legally authorized by the Government. The fraud which they have practiced vitiating the very essence of tlir acts of which they would pretend to take advantage, their guilt is therein aggravated in the eyes of French justice. There are other of our laws whose provisions the contractors and par ties to the agreements of the 15th of April and of the 10th of July. 18G3, have fraudulentlj' eluded. [L»78J *The law of the 24th of May, 18;j4, declares : Ai:t. 3. Every person who. without Itoiug thereunto legally authorized, shall ha\r niauulactured t>r coiujileteil anus, cartridjifcs, and other uiuuitions of war, shall I" punished with imprisonment from one Uionth to two years, and with a tine of froin sixteen to a thousand francs. Akt. 4. The misdemeanors provided for by the precedin<; articles shaU be adjud<;c«l by the tribunals of correctional police; the anus and munitions uuinufactured withon; authorization !1ATKS. ami woii ■ , the iiioir danj^rr (ti U'cl a ration made witii < no loll};'': jLtovt'in ii. ■out I ((!>(( ltd. such IIKM •, arc aloiii' r tla;»' «l<)«'s part of tln' I tlieay;r<'f ('tween tli«' . the nanit' ■ n)inise(l hy lif)stile ar; the l.'nitei! ) a tleehuii ruise of th»' iced by the April, who. ed the min rninent, \vx \ Voruz IT states Go\ • gentlemen otbe mod lieh expost se provided no right to meut. 5euce of thi t is thereh\ ors and par th of July. I'd, shall lia\< war, shall l" line of fmii' I lie atl.judgi'l lued withon; rers and ot j , 184.7, hasj ities whicli July : sou who filiall Idt'sirc !o inakf or rmi'.ti iirt .iriri-« <<(' ";tr foi' thi- ii.tf of .>Iii|i> nC rominiM'cc ^liall prcvi- IommIv olitaiii uiitliori/iitioii hi'in our niinihti'r sccrctarv <>t' Hfatf tor the (lt']iiirtiin'iit of Ivar aiwl from oiir tiiiiiistiM MTi^'tarv ol^tatt- for thi' (l<'|iartiiii'iit ol' iMariiic and of tlir Icoloiiics. HO far u> ri'liiti-^' 'to tiiiiiioii and niunitions. :7l>i •Praetically these provisions of the ordinance, whieh seem to be applieabh' only to onr eommereial marine, iiave been extended [to tiie niannfactiiie and debvery of implements of war for foreign com- jmeree. In order to obtain the authoiizations always re(juired in such cases land to provide for the delivery to the «'onfederates of the armaments of war whi<'h they had engaged to furnish them, Messrs. Armanand Voruz [aildressed their demands to the ministers of nnirine and of war. The authorizations have been ac«tordedthem; they haveeven obtained [permission to visit the government eHtablishments, in order to jtrotit by Ithe improvements there ertected. It is in view of these authorizations, which he declared se«'med to him sufficient, that the dii)lomatic agent of [the confederates latities. on the <>th of June, lSti3, the treaty concluded [tiie l.'ith of April preceding between Messrs. Arman and Bullock. IJiit, as we have seen in the letter addressed by Arman to the minister tof nmrine on the 1st of June, it was only by willfully deceiving the [minister with regard to the destination of the armaments with which Ithey desired t(t supply the four ships constructed at lUtrdeaux and at llsantes, that tiiese gentlemen caused to be accorded them the authori- zations whicii they unduly solicited. IfL'SOi *Such authorization, surreptitiously obtained, ought then to be i considered as null and of no etteet. Alessrs. Arman. Voruz, anl, and liabl(> to the correctional penalties whi(!h it decrees. Tlu' crime and misdemeanor resulting from the violation of article S4 of the penal code, and of the law of 1834, constitute ^Messrs. Arman and \'oruz, and those interoted with them, ofendcm Hijainut the prohibi tion.s and recommendations mnfained in the imperial declaration of the lU/A of 'tune, and should l»e, as declared in that declaration, prosecuted ■ cuiifojinably to the pro\ isions of the law. '■■ The acts which ought to give rise to these legal prosecutions have -I'l'iMi committed to the prejudice and against the security of the Gov- ernment of the I'nited States. ' This (lovernment has the undou'oted riglit, as has every foreign gov- fi nment, to demand before the French tribunals the repression anoii itros«*ciitioii by tlie luiiiiHtci l)UMiipoti'iitiary of the L'nittMl Stat*** to \lw pn» Ktau- iinprrial. Vout'ovn\',\h]y to the provisions of articles «J^j and (it of the code ot criminal instructions, corn|daiiit may be inatle. either before tlie ma}j;i.s trate of the phice where the crime «»r otlense has been connnitted, oi before the niaj;istrate of the residencf of the criminal. As there are several accomplices and ajrents incriminated by the acts, the judjje of the residence of one of them is c<»nipetent to receive the complaint, and all the accomplices will l»e called before him by reason of the connection of the acts denoiinceaT expeusesaiul peiiultiL's to which they may l>e condemned. Finally, it **hould be observed that one of the persons against whom the complaint should be collectively made is a member of the "orps Legislatif, and that, by rea.son of his position. l»efore making cor 'nt. the i)ublic mini.ster must demand of the a.s.sembly authorizr tn pro.secute, conformably to article 11 of the decree of February, ISoJ. In case it should be desireer. Before the civil tribunal, the Government of the United States has only to appeal iu judicial proceetlings for the acts from which it has i suffered to the i>rovisions of article 1-3S2 of the civil code, where it is j written: Every act wh.itsoever of a man which canaes loss to another, obliges him, by whose fault it has been committed, to repair the Io«<«. As a reparation of the crime or offen.se committed against it, the Fed- eral Government will demand, nnder the title of indemnity, the confis- cation of the objects constrncte' of cannon contracted for fiom forty-eight to tifty >ix, and the number of shells from five thousand to twelve thousand. Mr. Drouyn de Lhuys di«l not intinmte any doubt as to the tacts <'harged, and the minister of marine, he said, Imd informed iiim that in .u:ranting the authorization to build and arm these vessels he did it as a matter of course, as he had done in like cases before, supposing that the reiuesentatiou in the application, that they were intended for the | China sea, &c., was true. JJut Mr. Drouyu de Lhuys said that he, tlio minister of marine, entirely agreed with him that no violation of tlic neutrality of France should be permitted, and he (>[r. Drouyn lU* lihuys) said I might be assured that it would not be. ^ I am. sir, vour obedient servant, WILLI A:N[ L. DAYTON. Hon. Wii-MAM II. ^SK^VAIll). Scrrrhnij (»/' t the answer which he has just addressed to me. The only information w hich the which he is going to call forth, by the aid of the papers which you havt j brought to my knowledge, that M. leComtedeCluLsselouj) Laiibat shall be able to judge of the measures to be taken conformably to our declarii tion of neutrality. Accept the aasuranees of the high consideration with which I liave tlioj honor to be, sir, vour \erv humble and very obedient servant, DROUYN DE LHUYS. Mr. Dayton. Minister of the United Siates at Paris. COUNTER CASE OF THE UNITED STATES. 33 roQO] [*IiicU)snro.] .1/. the minister of the mavine to M. the minister of forciijn a fairs. [Translation.] Paiiis, October 12, 18G3. M. THE Minister and deau Colleacue: You !inve done mo t lie honor to coniinunicsite to me, the lioth of 8t*ptemlK':- last, tlii' copy, with its annexes, of a letter from M. the minister of the United States at Taris, relative to bargains entered into by INFessrs. Annan and Voru/ for the eonstrn(;tion and delivery to the confederate }jj(»vernment of several vessels armed for war. In pointing;' out to my attention the ;;ravity of this matter, which you recommend in a manner alto«jjether special to my examination, you express tlie re;.;ret that my department ha ' notthoujiht l)roper to come to an nnderstandiny with that of the foreijr'i affairs before answerinj;' the re(piests of Mr. Arman, wiio had obtained from Ithe marine the authori/.ation to provide his vessel with twelve cannon [of 30 pounds. As to that which concerns the authorization .s«)licited by Mr. Arman, and which was necessary to him bv the terms of the oran, and San Franci>--cu. l[201] *I coidd not, upon such a declaration, and knowing, besich's, I that the vessels of commerce which mu i<'ate the parts in cjuestioii Jlou^ht always to be furnished with certain armament, in view of the ■iiumerous pirates which infest them, I could not, I say, an.swer nej;a- ■tively to the request of . Tr. Aruian, nor refuse Mr. Voruz the pernussion ■to mruiufacture the canii >n intended to form this armanuMit. This last ■authorization was the conscipience of that given to the constructor to ■ ])rovide his vessels with ar.tillery. B Jn granting to 3[r. Yoruz the jjermissiou to procure at Ueuil theelnci- ■ dations necessary to the manufacture of his cannon, I followed that mv'hich hasalirays been done b>/ my department in analogous circumstances, S commerce only ex«!eptionaily giving itself to a manufacture which, in EFrance, is seldom carried on, save by the government. As to the re- Hgrets expressed by your exci'llency that the department of foreign af- Rlairs has not previously been consulted, I win cause you to remark that it ■ was a (piestion of arms tf» be caused to be manufactured by private in- ■ dustry, and not of material of war appertaining to the state and delivered Hby the magazines of the state. This ditlerence will not escape yo o- cx- m cellency, and I would not have lailed to come to an understa .ding m [_'!)2] *with you if there had been asked of my department arm of the H marine. Upon the whole, my dei)artment has only conformed in ||this circumstance to its prece«h'nts. It could only trust to the declara- lltion of Messrs. Arnmn and Yoruz, aiul it could not be responsible for the ■ unlawful operations which mighv be undertaken. I am going, however, to ■ call forth from ^lessrs. Annan and Yoruz exphmations upon the facts of ■ which you have spoken to me, and you may rest assure*!, M. and dear col- ■ h'ague, that the to the present day, to do everything which shall be necessary acconl- ■liig to the wish of the Emperor, and conformably to the declaration of »his government, in order that the most .strict neutrality be observed in ■that which concerns the war which desolates America at this moiuent,&c. m CHASSELOCr LAUBAT. ■ 3 A II 34 TREATY OF WASHINGTON — PAPERS ACCOMPANYING Mr. Dronyn de Lhui/,s, minister of fon'ifiii affairs, to Mr. Dayton, United States mini titer. [Trausliition.] Paris, Oetoher 22, 1803. Sill : I have tlui honor to announce to yon, as a sequence to my [20;>] h'tter of the *loth of this in( -nth, that ]\[. the minister of marine has Just notified Mr. Voruz of tlie withdrawal of tiie authoriza- tion whicii he had obtained for the armament of four vessels in course of construction at Xantes and Bordeaux. Notice has also been }»'v<^ii to Mr. Arman, whose attention has been at the same time called to the responsibility which he mijijht incur by acts in opposition to our declar- ation of the 18th of Vune, l.SGl. These measures testify, sir, to tho scrupulous care which the government of the Emperor brings to the ob- servance of the rules of a strict neutrality. It is in order to give to your Government a new proof of our disposition in this respect that we have not hesitated to take into consideration the information, the authenticity of which you have allirnu'd to me. Accept the assurances of the high consideration with which I have the honor to be, sir, your very humble and very obedient servant, UUOUYN DE LIIUYS. Mr. Dayton, Minister of*he United States at Paris. Mr. Dayton, United States minister, to Mr. Seward, Secretary of State. [Extract.] [294] ' *Paiiis, Xovemher 27, 18G3. Sir : I yesterday saw Mr. Dronyn de l^huys for the first time within the last fortnight. His absence from Paris, and pressing engage- ments the week before, have ])rcvented his receiving the diplomatic corps for business. * * * Ue said, furthermore, that he had him- self personally informed Messrs. Armau and Vor. ^, (the constructors and iron-founders,) engaged on the vessels now being built at Bordeaux and Nantes, that the work thereon must cease unless they could satisfy him that they were honestly intended for another government; and he added to me that he would at once refer their* proceeding to the min- ister of marine. *«#*♦» I am, sir, your obedient servant, WILLIAM L. DAYTON. IIou. William H. Seward, Secretary of State, circ., d'c. v' the Danish i If. Si.WAiiD, Secretary of State. I208J *JJLscours tic M. liouJar, vi hunt re (Vetat. [Uu ;Moiiiteur Univcrsel, pa^e (JTU.— Vciidioili, 13 iiiai Ifr^GI.] Corps Legislatif, fcimnce du 12 mai 18G4.; ^1. liouiiEK, Ministre d'lJtat ; .... Si j'examine le discours do riionoiablo yi. Jules Favre, en pronant ses objections dans un ordro inverse a celni (pi'il a adopto, le proniier point fpie je rencontre est cetto protendue violation des regies do la noutralito commise par la France vis avis des otats du iu)rd do rAmoi icjuo. Messieurs, les (piestions do noiitralito, rotondue des devoirs des nentres. ont donno, dans tons les temps, matiore a dos difticultes, a des contiits nombreux. Je ne veux pas retracer ici les phiises diverses que le droit des neutres a snbies dans lo code interinitional ; mais ce que je peux dire a I'honneur do la politique de notrepays, c'ost (pie tout cequ'il y a en d'idces liborales, i)rogTessives, t?(''nerouses, introduites dans la legis- lation des nentros, est parti du gouvernement t'ranyais. [C'estvrai! c'est vrai !] Aussi,. lors de la declaration de la guerre en Amrriipio outre les otats du nord ot les etats du sud, nous n'avons pas t'ailli aces preco- |2l)0j «lents, et nous avons pose, dos los premiers jours, les *principes de noutralito (pii devaient rogir touto not re conduite. Dans la declaration du 10 juin l.SCil, insoroo au 3Ioiiiiour, acte officiel emane du souverain, ii est dit par a Particle 3 : II est iiitonlit a tout Fraiiviiis do preiidii' coiiiiiiissioii do rnne des deux parties pom ariner des vaisseaux en jiuerie, oil d'accepter des lettres de inanpie poiu- fains la course maritime, ou i\v coneourir d'une maniere iiuelconque a re(|uipement on a I'aruiemeut d'uu navire licy of our country is that all liberal, progressive, ami generous ideas introduced into the law of neutrals originated with the French goverinnent. [True, true.J Accordingly, after the declination ot war iii America between the States of the North and the States of the South, we have followed these precedents, and we announced [302] at an early day the princi[»!es of neutrality * which were to regulate our conduct. In the declaration of the 10th of June, ISGl, an ofticial act emanating from the sovereign, inserted in the Monitenr, it is stated in Article 3 : All Freuclinien are forbidden to take a commission from either of the two parties to arui vessels of war, or to aceept h'tters of mar |ue for a cruise, or to assist in any manner in tho c(|uipment or armauient of a war-vessel or privateer of either of the bel- ligerents. fn the month of June, 1803, afonnal request was made by two French builders for- the right to construct two steamers, with the infonnation that these vessels were intended to navigate the Chinese seas. JNIr. Day- ton, the minister of the United States, in the month of December, 18(i3, called our attention to certain letters and documents which circum- stances, into the character of which we have not wi.shed to inquire, had put into his hands; he nuiintained that these vessels were for the con- federates. An inquiry was immediately instituted ; the owners were (|uestioned; their explanations were weighed, and the authorization ft>rmerly given was withdrawn by the governjnent. li.iter, doubts arose; it was intimated that lese steamers, which had not yet sailed, were intended for Swev/, Scerctart/ of State. Paris, May IG, 1804. Sir : At a s])('cial interview accorded to me on Saturday hist, M. Drouyn de Lhnys informed me not only that the two ironclads, now being- constructed by Arman, at Jjordeanx, under contract with the (;on- federates, have been jtositively sold to a neutral power, but he assured mc distinctly that the four clipper-ships in the course of constru(;tion at IJordetiux and Nante.«, under a like (!ontract, should not be air her boilers. 40' TREATY OF WASHINGTON — PAPERS ACCOMPANYING 5. I inclose likewise copii's of two adidavits sent to me from tlifi United States legation at London, jnaving that the vessel left the Kn;^- lish port to go to Calais; that she was then incomplete ; that. she waits at the port of Calais for her crew, and that she is, as her captain says, a confederate i)rivateer. It is (piite evident that this vessel occnpies a position which ditt'crs from either the Florida («• the Georgia. She has left her port on tin; other side of the channel, voluntarily, without papers, ami run directly across to a neighboring port, within which she hopes to be i)rotecte(l until her equi|)ment is completed, and her officers ami crew ready. On this statement of facts no argument is necessary to show that permission from the French authorities to carry out her purpose would be a violation of neutrality. •May I beg the attention of your excellency, therefore, imme- diately to this (piestion. I have the honor to be, &c., W^r. L. DAYTON. His Excellency Mr. Drouyn de Liiuys, Minister of Foreign Affairs, Paris. [300] Mr. Dayton, United States minister, to Mr. Seward, Secretary of State. Paris, December 25, 18B3. Sir : ^ly dispatch No. '3S7 incloses to you a copy of a note recently sent to Mr. Drouyn de Lhuys, in reference to the rebel vessel called the llappaluinnock, lying at Calais. I now beg to inclose to you a transit tion of ^Ir. ]>rouyn (le Lhuys's reply. I should achl that in the course of conversation had with him yesterday headmitt«'d that this vessel was. in his judgment, an exceptional case, inasmuch as she was not driteii in by stress of weather or necessity, but came voluntarily, to complete her efpiipment; and that, in this respect, her case was unlike the case of eitiier the Florida or Georgia. lie said, further, that he understood the minister of marine agreed with him in this view, but nothing has | yet been done. I am daily expecting some orders from the minister ot marine in reference to this vessel. I am, sir, &c., WM. L. DAYTON. lion. William II. Seward, Secretary of State. [310] *M. Jh'ouyn de Lhuys, minister of foreign affairs, to Mr. Dayton. United States minister. [Trauslatioii. — Extract.] Taris, December 23, 1SG3. Sir : I have received the letters which you have done me the honor to address me, dated the 4th, J2th, and lOth of this month, to commu- nicate to me the infonnation wliich had been transmitted to you in re gard to the vessel Happahannock. 1 have taken care to give notice of them to the minister of marine, G from the ; the Eiij-- sho waits itaiii sjiys, ich (litters wt on the n (liiectl.v protected iady. show that ose would )re, inline- VYTON. COUNTER CASE OF THE UNITED STATES. 41 i of state. 25, 18C3. te recently I called the I a transhv the course vessel was, not (Iriten o complete e the case nderstood lothing: has minister ol AYTON. Iwhose information was still incomplete, and I await the result of the in- piii y into which our authorities are obliged to proceed, in order to judge )f the ditterence which you point out between the position of the vessel Innd that of the Florida and of the Georgia. 1 think, indeed, with you, that it is desirable to avoid giving an equit- ible base for future reclamations. It is with this feeling that the gov- ernment of tlie Emperor has always been studious to act, and it will |jiot dei)art therefrom in this circumstance. A(;cept, sir, the assurances of the high consideration with which I lave the honor to be, «S:c., , DROUYX DE L'HUYS. :\Ir. Dayton, • Minister, «0c., cOc. |311] fr. Dayton. Mr. Drouyn (1e Lhuys, minister o/ foreign affairs, to Mr. Dayton, United States minister. [Translation.] ♦Paris, January 13, 18(54. Sir: I have just received the answer of the minister of marino ;o the communications which I had addressed him, as I have had the onor to inform you by my letter of the 23d of last month, in regard to ihe stay at Calais of the vessel the Rappahannock. It appears from it ihat this matter has already attracted the attention of M. le Cte. de Chas- loup Laubat, and that he had hastened to give the necessary orders Jfhat the captain of the vessel referred to might be able solely to put.it n a state of navigability, and revictual with provisions, and coal. It t'esults also from an inquiry which was entered into on the spot, that ^alais wa« not at all the port of destination of the llappahannock when he left the shores of England; that unforeseen acciilents only led her o take refuge in our waters, and that we could not un;ier the circum- aiicos refuse her an asylum any more than to aiiy other vessel placed n the same situation. Tliis vessel has been, however, and continues to e, the object of special surveillance, and you yourself will be satisfied ritli the care with which watch is kept that no suspicious object be iu- roduced on board, by reading the report on this subject addressed to ho department of the marine by the competent local authority, and here- ith annexed in copy. I«will add that M. le Cte. de Chasseloup Laubat n limiting the facilities accorded to the Rappahannock to wliat is de- nanded for the equipment and seawortliiness of an ordinary vessel of ominerce, has besides given directions not to authorize her to prolong er stay at (idais, so soon as she shall be in a state to go to sea. Receive the assurances of the high consideration, &c. DROUYN DE LUUYS. Mr. Dayton, Minister of the United States at Paris. ■,i ■'( ii 23, 18G3. the honor to column- ) you in re- of marine, [312] *Mr. Dayton, United States minister, to M. Droityn de Lhuys, min- ister of foreign a fairs. Paris, February 2, 18G4. ^lONSiEURLE MiNiSTRE : I luive just received information from oiircon- lular agent at Calais that the confederate war- vessel Rappahannock 42 TKKATV or WASHIXOTOX PArKKS ACCOMPAXVIXO lias coniplft*-!! Iicr icpaii's and (>i|iii|iiii(>iit, an«l is about to loavc that jMH-t; and lir fiiitiicr savs tJiat it a]>|»'ar.s hy a sliippiiiy f^a/.cttc that a ship has <;(iiii> out of the Thames hiih'ii with iniiiiitioiis of ail Iciiids for thi' K'ap|iahaiiiioci<. If tiiis Ik> tnu' (and it is pro1>al)lc) its oW'i'vX upon the piililic iiiiiid of: my comitry. and tln' vi«'\v likely to he taken of it by my (lOveiiinuMit must lie oi»\ ions. The I{app.iIiaiino(,'k is a ec.n federate (Miiiser, and not a vessel of coin iiierce. To etpiip her in one uentral port ) • such, when it is well under- stood she is to he immei)Iicatiou as well in our colonies as in tin* ports of tlie mother country. IJut tin' continuation of the war haviufj led the belligerents to carry the theater of maritime hostilities into the neighboring waters of tlu' neutral states of Europe and brought them to seek in our ports tin' means of repairs or of i»rovisioning, the Emperor's goverumeut has COUNTKR CASE OF TIIK UNITED STATES. 43 ItlcciiKMl it iiscl'iil to ii'iuiiid yon iij^iiiii of tlu' rules to ho ohscrvcd in lonlci' to niaintiiin its ncntnility, conibnniibl.v to |inl>li(; law iintl to tii«> Itniditions of tlic l''rciu;li niiirinr, and to dctcnninc consiMiniMiil.v on the Itrcatincnt which is to he ai)|»lied, witliont, distinction of lla;;,to tlic vcs- Iscis of tlu' hclli<;«'ivnts. Voii will therefore have toattcnd to the strict execntioii olthe follow- liii.i; re:,'nlations : 1st. No ves.sel of war or belli^cri'iit privateer will be allowed to stay More than twenty-four honrs in a poit of the empire of the l-'icnch eol- loiiies, or in the adjacent waters, exci'pt in the case of a forced ]>nttin^' jiii on account of bad weather, of injuries, or of e.\hsiustion of provisions, liicccssaiy to the safety of the voya^'e. I'd. In no case can ii bellijicrent make use of ji French port foi- a pur- ])ose of war, or for there supplyinji' himself with arms or niuni- [;»1.")| tions of war, or for there *execntin>i', unih'r pretext of repairs, woiks whose object is to increase his military jjower. ;!d. Tliei'e can only be furnished to a vessel of wai' or l»elli;::erent. i)ri- Ivateer the provisions, stores, and nu'ans of repair necessary lor the siib- |sistcnce of her crew and for the safety of iu'r voya;;e. Itli. Nt) vessel of war or belli,y('rent privateer allowed to take in pro- [visioMs or to make repairs in a French port can i)rolon<;- her stay tln-re Iheyond twenty t\:iir hours alter hei* supplies shall have been sliip[)eil |tind her repairs. (Inished, except in the case hereinafter provided for. ."»ih. When v<'sselsof war, jnivateers, or nierchant-\essels of the two |b('lliovernmenr. in respect P tlie Happahannock, C(>-operatinjj with other causes, will be si trial to |k' friendship of our country toward France, for which, after the pro- [sts we have nnule, not our (iovi'rnmenr, but " the Em[)eror, will be re- i)oiislble." He said, in reply, that we must deal with things us they ^mi -iirM t fi 44 TREATY OF WASIIIXOTON* PAPERS ACCOMPANYIXO were. Tliat France liavin^ acknowlfil^rftl tin* South as lu'llijfi'rcnts, Ik cniilil do iiotliiii^ less tliaii treat them as siieh. That, keepiii;j: that po Htioii ill view, tlie Fhirida and CJeor;:ia had Immmi nveived in their ports That the Fh)ripaliannoek. sin* had not yet oeen perl [;JI7J niitted to leave port, nor would she Ik? |K*ruiitle«l to leave 'until liiil jrovernment,hy a most ri;»orous;indcan-ful examination, had satis [ lied itsi'lf that no rule of war had Ih'cu viulateil. iShe haourtant, lacommniii| cation ouvoir etre en etat completdJ |»renossibilite des mesures surveuues aujourd' hui, a du voii| juvparer a y faire face. COUNTER CASK OF THE UNITED STATES. 45 .Iiii tloiic \v n»y;r('t, monslonv,
  • voii.s iiiloniior ] eiitiv h'n ICtats-Uni.s «'t *lt'H <;ontV'(l«''n''S. Le Ion;; sejour «le v«)tie batiiiient a Calais, et Hintoiit le teiiii>N Seoalt' (lepiiis Tavis piveite, me font espfher, inoiisieiii', qn'il vous sera jossible (I'iei iiiinuit de hater vosderiiier.s prepaiafifs, de telle sorte (pie 111 decision de laqiielleje viens d'avoir riioiineiii" de vous laire part re- solve son execution. .rajouteiai, monsieur, mal;,Me la nature epiiu'use de me.s relations ofil- BR'lles avec vous, je dt'sire vivenuMit que le href dt'lai qui vous est ue- Bonlesoitpouitantsidlisant. Ai-je besoin d'insister, monsieur, an moment K' votre d«''pai't sur ee «pie les rap[H)rt8 et les re[)onses quej'ai eu a idresser a IVyanl de votre batiment out ete constamment eimformes a la verit*', telle (pie mes inve.sti;iatilieatioiis out iJte tunjuurs loyales, .siii- K'lt's et completes ? .le vous |)iie de vouloii* bien, en raison de sou importanee, m'aecusei' ^(^'ceptioii de la pivsente. Veiiilh / lecevoir, monsieur, rexpr(issioii de ma consideration tres- listiiijjue. Le commissaire de rinscription maritime: COSSELIN. A Monsieur Camimjell, ' Lieuteiunit (Jommamlant Ic Vapeitr Jiappahannocl: |r>l,'()] *M. (Josscliu au Lieutenant CnmpheU. Calais, h 10 fen- ler 1804. JfoNsiKL i{ : J'ai riionneur de vous accuser rt^'ceptioii de la lettre que oils iifavez adress('e bier. J'ai ('^alement riionneur de vous informer que, par suite a la lettre ue voiis m'avez adress(}e, dans laquelle vous me laisiez connaitre (jue oiis serioz pirt u partir aussit('»t rarriv(^'e de votre charbon. et quej'ai raiismise a son excellence, le gouvernement de sa Majeste I'Eiiqiereur iciit de me prescrire de vous maiutenir dans le bassin jus(]u'a iiouvel idle, et arefl you to encounter them. I n-.i;ret, sir. to infciin you that the vernment of His Majesty tlni Knijicrc' has (h'cid«'d that I sindl order tlie " iiappahaunock to lea\(^ flu' jtotl of Calais at tlie next hiyli tide after the receipt of this lett-«M';*' and ifyoi. fail to (M)mply with this coni?nand you will not Iw permitted to| leave tliis port until I h(^ eu«l of hostilities between the. United instates ami the eonti derates. The U}U'^ stay of your vessel at Calais, ami above all the time whicli has elapseil since the abo-.'' mentioned noticte, makes me hope, sir, [.3*_'l.'] that from now until *midni.iiht it will be i)ossible for you so t" hasten .\onrlast preparations that tlu- decision with which I havi just had the honor to make you acf;uainted shall be executed. I have to add, sir. that in spit<' of my delicate olUcial relations witljj you, 1 desire i'xtrenu'ly that the brief delay accorded to you slioidd IhI sullicient. Is it necessary for me Jto repeat, sir, at the moim'Ut of yomj departure, tiiat the rei>orts and answt'rs wiiich I have had to make rel.ij tive to your vessel have always been truthfully in accordance with iiiv personal and impartial investij>ations, ami that my explanati(Mis havi always been loyal, sin(;ere, and (iomplete ? I have to re(|uest you to ac knowled.:,;e the receipt (tf this letter, on account of its importance. Accept, sir, the expression of my very distinguished consideratioh. Le commis,saire de rinscri]»tiv,u ujaritime, (lOSSELlN. M. Camimjell, Lii'utcniint, ContnKOidlnfj the /Stcuina' Rupj/ahaiinoek. Mr. Gossclin to Lieutenant Cdmphcll. f Translation.] Calais, Fefirnarji 10, 1801. SlU: I have the honor to neknowlodHC the receijit of your letter ye.sterday. [323J I have also the honor to inform you that in consequence *'of Itij letter atldressed byyou to me, in whichyon. tell nu' that youfshall Ix re^ady to dt'part upon the arrival of your coal, a\ul which ! ter I trati^j iiiiitted to his excellency, the };overnme,i»t of llks Majesty the EuipcnrB has just ordered me to detain you within the basin until further ordcisl and that you can only ieave this port when I shall receive new orders t:| that etl'ect. The Hunic orders have been given to the comtnunder of tlit^ G.ililee. AccM'pt, sir, the assurance of my distinguished consideration. Le couii'iissaire de riuscription, G0S8ELIN, M. Campbell, First Lieutenant, Commanding the Rappahannock. COUNTER CASE OF THE UNITED STATES. 47 .1//-. D.iijtoii, United StiitcH ui'niisi<'r,tn Mr. >Sen'ar. l.S(i4. ^.|, .# * # * * * * • * My notice t<» tlif French fjovormiUMit tliat tlioy would be held respon- [siltlc tor iill , ]Mr. Drouyn de Lhiiys informs *nw, " <.iiiaible" viry nuicli at their enforced detention, but he ]..\: in- Ifuniied ti «'in that France will not permit her ports to be used for the j('i|iii|iinent of vessels of war for the confederates. 1 liMve just r'ent at Calais that jCiiptain {'anii>bell, as well as the first lieutenant of the Happahannock, jluivc left here juid ,!i(»ne back to Fnjjland, with a view, as tln*y s:iid, ti) [liiiv and e(pii|) another ship there; and tluh a man named Fonteroy liis l>iij;" [)ermit to lea\e, and had, a j(l;iy or two since oii boarding', neither arms noi crew for any hostile j]»iupose, or indeed to do anything nM)re than navigate her frouj one )i(iit to a neighboring port. * * # # * 1 aui, sir, your obedient ser\'ant, W. L. DAYTOX. lion. William II. SE^VAUI), JSccretctfi/ of l^tatti, dr., tfr., tCr. > r Mr. Scimrd, S'^eretary of State, to Mr. Dayton, United Statcn minister. [Extract.] Department of State. Washinyton, May L'U, 1804. [I'.LTtj Siii: [ have the honor to acknowledge the recei[)t *of your dis- patch of the -M of May, No. M'AK Vou will please express to Mr. Drouyn de Lhnys a high satisfaction k>i! the part of this (iovernment with the information he has given ytui, Hint tlie]iin>pahauno(;k will not be allowed to enter thepiraticaLsorvicoof the enemies of the United States. •»#•*• J am, sir, your obedient servant, Vv'ILLIAM IJ. SEWAllD. William L. Davton, Esq., (Of. Mr, Dayton, United States minister, to Mr. Setcard, Secretary of State. Taims, June 10, IHC4. Sill : Looking over n»y dispatch of the Sth instant, Xo. 484, I find fl'at I have neglected to .>*Hy that, iu the conference tlier<< reported, »li. Drouyn de Lbuys informed mo that no change had been wade iu ■I 48 TREATY OF WASHINGTON PAPERS ACCOMPANYING tbe condition of tilings connected with the Kappahannock, and that m orders had issued, or were about beinj;- issued, for its dis<;liatjje. lit- said that he liad as yet received no answer from the coniDiittee ofjuris- consults, who had been consulted by him ; although, as tlie senate hiid now adjourned, and "Sir. Troplong, the president, who is chairman of this committee, wouhl be at leisure, he might expect an answer at no distant day. J am, sir, your obedient servant, WM. L. DAYTON. Hon. William II. Seward, Secretary of State » [32G] *The min'mter of the marine and the colonies to Monsieur the vice- admiral, maritime prefect at Cherhounj. [Traiislatiop.J Cabinet of the Minister, Paris, June IT), JtS()4— noon. We cannot permit the Alabama t« enter into one ol»our basins of tin arsenal, that not being indispensable to place it in a state to go again to sea. This vessel can addressitsclf tocommerce (commercial acconunodatioiis for the urgent repairs it has ueetlof to enable it to go out ; but the priucipU > ol neutrality, recalled in my circular of the r»th of February, do not per mit us t(» give to one of the belligerents the means to augment its forces, .and in some sort to rebuild itself ; in fine, it is not juoper that one of tin belligerents take, without ceasing, our ports, and especially our arsenals, as a l)ase of their operations, and, so to say, as one of their own i>roi»i'i ports. You will ob.serxe to the cai)tain of the Alabaaia that he has not beeii| forced to enter into Cherbourg by any accidents of the sea, and that lie could altogether as well have toucihed at the ports of Spain or Portugal. of England, of Uelgiuju, and of Holland. As to the prisoners niade by the Alabama, and who have been placed I ashore, they are free from the tinu^ they have touched our soil:! [;>27J but they ought *not to be delivered up to the Kearsarge, whicli is a Federal ship of war. This would l)e for the Kearsarge an augmentation of military force, and we can no more i)eraiit this for oik j (►f the belligerents than for the other. 1 ^ I'l 1" , 1 mm^ Mr. Bigilow, United States minister, to Mr. Scivard, Secretary of State. [Extnut.] Legation of the U'nited States, I'aris, March A, i.SC."). Sir : I have to acknowledge the receipt of disi^atches Xos. 3!) to 1-1 inclusive. I received yesterday from Mr. Dudley, our consul at Liverpool, alettcil informing me that that iK)rtion of the crew of the confederate cruiscif COUNTER CASE OF THE UNITE P STATES. 49 Floridii wliich was liluM-iittMl at Doston was j):u(l off at Lhcrpool on the -Otii of Ft'l)niary last, and to each was •••i\ en l('a\'«' of altsoiice till tiic lOtli instant, whoii tln'v wore to r»*iK)it for duty o'l hoard the ]{a])])aliainuK'k, at Calais. 1 inune«liatoly wrote (inclo>;ure No. 1) to Mr. Dronyn de Lliiiys, and at iin interview whieli I liad with his excellency in the afternoon jiiaeed it in his hands. His exeelh'ncy lead it, «>xpressed dissatisfaction with the allefjed conduct of tiie vessel, and said it should be looked into at once. lii.'Sj I reniaiked that I did not suppose I coidd say *anythin^ that would make the duty of the f:;ov«Mnnient in reference tothisahuse ()!' the hospitality of France more clear, and then I Ment on to other business. In the course of my conversation ui>on other topics, I had occasion to refer again to this vessel, as you will see in dispatch No. 4l*, when he said, " I shall send a copy of your letter to the nunister of marine at once," intuaating at the same time his decide«l disapproval of the use made of the llap»)ahannock, and his «letermination to have it stopi)ed. * » ♦ 1 have written to our consular a{;fent at Calais to keei» me fully advised of everything: that may occur on board the Kai>pahannock. especially between this and the 10th instant. I am, sir, with yreat respect, vour very obedient >erva>Jt. doiiN IIl(;l•:Lo^Y. Hon. William IT. Sewaud, Sfcri'tari/ of State, dr., dr., tlr. -v:i;:m Mr. 'John Sliilcll tt> Mr. Jh'ouipi tic Lhuijs, minister of lorchfa affnirii. I'AHIS, J»»t'l). 1801. .Vl\y\ *Sik: On the 17th February last the Confederate States war- steamer liappahannock having completed her r«'pairs at the i)ort ol' Calais and taken on board a supply »d" coal, her commander notilied the authorities of the port of his wish to proceed to sea, when he was iiifornie*! that instructions had been given by his excellency the ministi'r j of marine not to permit the dei)arture of the vessel. On the 2iith Feb- ruary, the undersigned had the honor to address your excellency on the >;ibj('ct of this d«'tention, atul to (kMuonstrate ci>nclusively, as he thought, iliat no Just cause «'\isted for the iletention of the liappahannock; no answer having been made to this letter, the undersigned, on the 14th -March, again addressed \<>ur excellency, and reipu'stecl to l)e inform»'d of I the reasons of the detention. This letter also remaining unansweied, t'le nndersigned advised the commander of the Kappahannock to give notice of his intentit)n to strike his llag, withdraw his crew, and abandon his vessel to the pro[ier authorities of the port. This stei> was accord- iiiiily taken by the commander, who, on the Kith, informed in writing [tiic commissary of marine at Calais of his intention to abandon his Vessel on the ir»th of May. In th«' nu'an wiiile the undeisigni'd was Uciliatly informed that the question of the Rappahannock had beiMi re- ferred tor examination ami report, by yiuir excellency, to a commission lit jiuiscousults, anusl COHXTKK CASE OV THE UNITED STATES. T)! roiiuniinicjitions on that sul)je(!t. I liojted now to liav*' a verbal one. He said that he had not replied to my eouiinunications, be<'ause he was not prei)ared to {:;ive a conchisive answer; tliat he had written the day I)ri'vioiis to the president of tlie s«'nate iiskinj;- Ibr an early report, and so soon as that shonhl be receivetl he woidd ilecitle what siiouhl be done, and wonid inform me of his (h'cision. # # * I have obtained, from a (^onJideiitial source, a copy of the '•dispositif' of the reporr of the eonsidtative committee in the case of tlie ]ia{ipa- liaiinock ; it runs tlnis: I.i^ ((Hiiitt- ost (r;i\is <\\io <'<'st scnlriiiciit, sons In <(iTMliti(iii ] 'lai;lu>, ct apivH l'a((OMiplis.s«nn('iit dc ccftf coiulition (|nc' Ic ;x<>n\ frnciiicnt «l«i I'EiMjuM'fnr dt'vra lover rintt'i'tlictinn dt; jtrcndrf la uht i[\u a «•!<■ iirouonc'i-o (■oiitrc Ic iiaviic conU'dtir le IJappaliuiiiiock. I annex copy of a letter addressed by me to the Duke de Persi;j^ny on the subject of the llappahannock, written at his suy;^estion, that lie mijiht lay it befcne the Emperor, which he has done. (\nisiide . [Extract. 1 Paris, 10 Rue de Mmhjnnn. .Jane 17, l.Siil. M| *Mv Dhau DcKH DM PEUSKiNV: To whom but you, the only decider wliicli I invoke your probatiou and und«'r the surveil- lliuice of the commissary of m:ui:M', ai'tmg under the instructions of the liiiiiiister of nmrine. Her commamlant ilesiriUjito proe<'ed to sea, applied, on the 17th Feb- Iriiary lust, for the necessaiy permissions, which was denied. The [i is still detained, and np tt) this nion>«'nt every explanation of the [•aiiseof her detention has been refused. I:: the month of April the 52 TIM:ATY of WASHINGTON PAPKRS AC'COMPANVING III , ' I <|\U'stioii of ln'itU'tt'iitioji «;is iclciu'd l)y tlir ininistcr of fon'i;!:ii nttairH to tlM' *' coinitr- coiisnltiitif dii roiitriitirn''' for cxaiiiinatiou ami report. That coiiiiiiittoi', provided by the president of the senate and eoujposed of distin;:'iiished jiiiiseonsults antl Ifiipitahannoek, and lias so r»'|»orted. J liave ;;«>od reason to believe that tlie report wonM ha\elte«Mi made miieli sooner had it not beeiiintimated to Mr. Troploiij; that it wonhl be well to deter it nntil the chambers shonld have ad- journed. I eaniiot permit myself to believe that in this matter ^I. Dronyn di Minys is aetin;; in >triet aeeordane*; with the wishes of the Emperor; sure I am, at least, that the Emperor eannot desire that insnlt should hv aild»'«l to injury, as it iinqnestionably is, when the minister, althou<;h re peatedly asked, will not even eonilit,v| of ship[)ing and dispatching Irom ICngland or elsewhere the remaindci id the crew, the ])resence «>f four of the enemy's cini>ers in the neigh borhood of Calais, the inability of the ship to carry more than live da\> lull supply of coal, and In-r general nntitness for the service in which | .she was to be emitloyed. I have the honor t(» l»e. with great resj)ect. your most obedient ser vant, JOHN SEIDELL. rion. J. r. HKN.fAMlN, i. ChiiiiKiuo I'on atti noii approvati vt'ni(> (k'l re avraesjjosto rt'«,'iiic<)li a vollVirc lapprcsaf^lio, sara puiiito colla n'U*;;a/,ioue estensilde iid amii dioci o col ean-eiv ; salve Ic i>i'iu' inaj^giori in cui losse ineorso per un/.ioii;uio i)uhlico so<,'j;iact'ia alia jioiia della R'k'ya/ioiio. [Trail iiitHiii.] Vinal statiitc of the lliuj(]oin of ItiiJi/. 174. If any jxTson wiiosocvor shall, l\v acts not antliori/cd by the ;;-ovcinnicnt of tin- Kin;j, have cxi»osc(l the state to a tU'claratiunisluMl with banisliincnt ; if the war has been actually carried out, he shall be punished with temporary jtciial servitude. 17."». If any person whosoever shall, by a(;t.< not approved of by the ;,'()verninent of the Kin;;', have exposed the subjects of the kin.i;(h)ni to reprisals, he shall be punished with banishuient even for a term of ten years, or with imprisonment, without prejudice to any further ]>enalty to which he may be lialdo on account of the acts he has committed. If the ((H'entler be a public functionary, he shall bo lumished with ban- ishment. These provisions are similar to those of the Code Penal of France on the same subject, and to those of the Netherlands, liel^ium, IJavaria, Spain, Portugal, and other countries of Iairo[)e, as t:ollected in the work entitled '• Le yularioni comparatodcl codi(;e peualo Italiano," by !Mar- teiio Speciolo Castelleri, p, L'S4. In all these codes, therefore, the com- mentaries, cases, and opinions, havin;;' reference to Articles S4 and S."} of the Code IV'iial of I'ranee, ajiply. Sju'cial <'ommi'ntary thereon is, iievertheh'ss, subjoined. — ((.'ommeiitario «lel codice penale, T. JVrrarotti, Vol. 1, i»p. i*«;i,l'(L'.) ■ * -3 ir :' : 1 ( ! ■ i ^ il Ih; Mr Ml I *Vo(}ki (hij'i f.v stati fJu'toiKi — ,1/7. ICi'.l, /(. t), \'('(jf/ ji>/'(c< '/(■// /c. Occorendo decider«' (piali atti abbiano a ritciiersi siccome <'apaci ad csporre i rc^nicoli a sul)ire rapprcsa^lie .' Consultinsi Ciirnot, (\nmn. snir art. S."», n. L*. — Ihius. Osseri. .'>ul. iuo«i'. Ilel^.. t. 11, i>. -."». — Ihillo:, t. XX\'II, ]». 7. — h'aiittr, Tratt. didrit. ciiiii., ^ L.'S7. — CliKitrcan it Ilrlit, t. 1, n. KML', edi/. iJrux. II fattt> d'aver tentato di allontanare militari na/.ionali dalle loro ban- (liere per farli i)assare in pa«-se stianiaro, constituisce il crimincMli reclii- tiunento all' (^stero, ancoridn* lo stato non al>bia netnici all' estero ne I ihelli air interno, e sia in pace con tutte le altre ]»roten/e. Cass. Franc., li ajHil, IS.'ll.— .SVr., t. XXXI, parte 1, jt. .177— 1;> febbraio, 182.'!.— Motin c S<(bir(', 1. c. — On-not, art. 1>J, n. (». Sulla (piestione so lo scopo ttandj all' a(!i;u.sato di lorniriii la ]>i()\a od ai .uiiiiali di approz/arla. [■•54:?] TTiiinhlittion. 1 StaliiUof the (iiiciott Sfntrs nf Estr, Art. 1(5'.), Xo. 0. — ^cc t!ir tc.ct under Alt. li'i'.K (ilwre inentioned. The (piostion boin;; to doride uliat ac.'ts arc to l>o consid«*rod as hoinpf liable to oxposo tlio snbjoots of the kingdom to icpnsals. (Joii.snlt Coniof, Coniniont. on art. S.^, N«). 1'. — Hans, Obsoiv. on Jloljiiian IMoj., Aol ii, J). '_'.'». — lUillir.i)^ \u\. x.wii. ]>, 7. — liauttr, I'roatiso on ('^riininal l{ij>ht, s«'0. LMiT. — Cliaiivoau and ilolio, vol. i, No. Idfii', lOdit. of l>rn.s- sols. The fact ol" lia\ in;; at templed to enliee away national soldiers and to take tlieni away to a f- abroad, tlionyli the State be not atwarwitli any forei,;i;n natio:i, not contending' uitli any rebels in the country, and l)e at pea»'e with all other i»o\vers. (l'rcn<'li Conit of Cass., April '_', IS.'il — Sir, \-ol. xxxi, pait 1, )). 377, Februai-y \'.\. ISi'.'j. — Morin and Sebire. !. c. — ("ainot, art. t>L'. No. (i.) i)\\ the <|neslion as to tin- b<'arin.u of sai«l article, whetliei- it i>e in- tended to imnish all tinlawtnl armament, or only and more likely the ilU';;ilimate levying of troops and nnlawfnl armament of soldiers in- teiide«l to attark tlie authority of the State, see. in the lirst sense, l'ren. 1.'17, deem that tht words "without the authorization of the government of the kiny" in this article, are not to be understood in a too absolute sense ; therefore, that the agent who shidl have proceeded to levy men without the authorization of the p:ov eminent shall nevertheless be ex<.*usable if he shall have acted in con fornu\iu;e w ith the tlirections of his hierarchical superior.s, and if such enli.stment shall liave been i>art of his onlinary functions. On tht'se premi.ses, Morin, Usurpation of Authority, contends more- over that the queKtion, whetlu'r such directions or such authorization be legitimately or regularly given, is to be |)resented to the eonsid- eration of the jury, and that the defendant is i'xpected to give the proof thereof, and the jury is to decide on the value of said proof. ^jiierra ou COUNTKR CASE OF THK I'NITKl) .STATES. 55 :)V, III poutim; A L. No. 1. Codt' jiihI Commontiirv. No. 2. Krtbrt.s to J'n'servc tin; Nt'iitiiHity of tlio Azores nnd Madeira. No. .'{. Liinitiitioiis of Asylnm to the Florida at Fiuichal. No. I. Case of the "Stonewall.*' .US I *N(). 1.— C'ODK AND t'O.MMHNTAIfY. Ih' 111- 'ly the 'IS in- .. Vvdro 11. — liHIirrador )io Hr(i:il per F. A. F. Ihr Silra Fcrnut. Vol. I V. [IJshoa,, AKTKJi^ 14S". — Todo o portii^i'Uez <|ne, por (piaesquer aetos nao iuictoiisados i)elo j^ovei'no, exjxizer o estado a nnia declaraefio do ;,'iierra ou expozer os portuj^nezes a n'jtresalias dii parte do uina poten- (ia estranj'eira, seii'i condeinnado, se a };iierra on as represalias so s(';;iiirein, a ilejri'edo teinporario; e, se a ^^iierra on as lepresalias .se nao sciiiiireni, a prisfio (M)rreetional sde nn» a ti'es annos. JSalva a pena iiiaior em (pie possa ter incorndo seo fa<'to pratieado ior erinie jtnnido pela lei coin ])ena niais ;nrave. (Art. -!>', N' I'e rel". ; art. .'i<>" N '. 4' e ref. ; Cart., Const., art.t>", ^ -'. |.')41IJ *Con('ordani eoni a litra e disposirao d'este art. o cod. Vi., art. SI e 85, Ilesp., art 1 4S, do IJrazil, art. 7.), das Dnas Sicilias, art. 117 e lis, da 8ardenlia, ait. 17!> e ISO, e o nosso tie 1S;»7, art. ll.'J. Coin a dill'erciica de que o Cod. Vv. e t)s das Dnas Sicilias e Sardeiilia, (|U(' o iinitarain, distintin;;nirain a ineriininarrio i)ara tratar d Vila .sepa- ladaniente, (piando resnltasse coinproinettiitieiito da paz, e(piando so- iiK'iite a ])rovoca(;i"io a represalias. () Cod. do IJrazil, o nosso de ls;;7 e o llesj). liz
    reci.so tamblMu que seja hostil de sua natnreza "ymr des actions hosfiles.''' Os Cod. da Sardeidia e das Diias Sicilias con.servaram para o caso a iiH'sina expressao, e o ultimo Ihcacresceiitou a hyjmthese de o facto ser tal ipie a lei o qualiUcasse crime "^wr qiidque crime oupar dcs actes hos- tiles.'' Assim a loi, quando .se tratasse de avaliar .se o facto era ou nao hontil iiiTo definia (piaes eram os que deviain ou nao tomar cs.so caracter, mas lii'.iva eutao ao arbitrio dosjuizes o pronunciar a tal rcspeito, absolvendo OS reus sempre que setrata.s.se de ac<;oe8 illicitas so pelo fuiidamento nega- tii'o de nao ser o tVw^to auctorisado pelo governo, t'uudamento in- iulmissivel por incoustitucioual ; porque a auctorisa(;ao do governo so 6 \ I:- k :| ^ 5(; TRKATY (tr \VA.SniN(;TO\ PAPKHS ACCOMPANYIXf} 4 1 1 1 1 nocossiiiia qu:m o Iju'to sc arliar atutoi isado \h\,\ h'i, (|m' dis]»t'nsa toda «• (|ual<|nor outni aiictoiisa«;rio, v jiara o caso ilispi-nsava o t'nipn'<;o da ('xpr('ssao"/«o.v//V' assini conio aluanyia as diias ideas do Cod. das Diias Sicilias " (•/•('wrx ou Imsfis." () Cod. do r.ra/.il ainda «'■ niais explicito une to«los cstos Cod., conio sc vt* das pida\ i:is «|iu' jul<;auios dij^nas do {jovcrno lio^nrKhuhs i." Assiin sc tifa cntendrndo (pic, sc o facto cm si lor tal que scirmnlo o dirciio intcrnacional nao jiojIcssc dar Jiisto motiv(> dc jjiicrra. nnncii. com (piauto nao auctorisado jtelo jjovciiio c mesmo qiianrcxtcxto. Calic nos limitcs da |M»ssiltilidadc moral cvitar factos dc ra/.il c do no^ dc IS.'iT, comju'c- licndcndo •* f//fa.<(r//;r»' rf(Yf;.s-," abriii a ]»orta a proeosos, cuja criminii- lidadc nao tcm ncni podc tcr vcnladc moral. Por cstc nnulo c dcliiiixo d\'stcs dois ]t<(ntos dc vista, <» art. <• mais (pic OS do Iha/il. llcsjiaidia c dc is.'IT, c nao adopttai d'cstcs o que tinliam dc l)om, nao imitando, prccisando on ampliando o ([[W o Fr. c OS {hi Italia snpracitados lia\ iani prcscript(». Qnanto ii pcnalidarovo«'atlorcs das yfimsolid.s. Esto incrimitiacfaK na sna si;,Miiticacao mais amjda, comprciicmlc to- das as viasjlc facto ollcnsivasdc nm suhditooudc uma nacaocstranfrcini. nicsu"" as jpic sc icdn/.cm a simjdcs injurias. Assini. a pcna jiodcrji scr ^Miivissima qiiando o facto dc provocacao t(»r iMsi<;nilicantc ou [.>■».'.] insifihiticantissimo, *c ainda (pnuido os da rcprcsalia, tcndo-sc odcrao cncontrar, «pianto ii criminalidadc do tacto, do nicsiho art. UIJ. no. ll,combinadocom o art. .s;{, no. 40. C) Cod. porcm c atpii i»revi«lcnte cm jtarte, pois sc nao rcsalvoii os| ciBOS em que ao facto mat<*rial corresponda uma ^x/uf minor, rcsalvoii aipielles a (pn- dcva inipor sc uma pcna maior. Emcndou assim a omissfio dos Cod. llcsj). e Fr., adoptou a (pie se aclia nos da Italia supracitad«>s, e vitou o defeitodc ijjual dcclaracao do Cod. do Brazil, rcstricta as oflcnsas coramettidas contra subditos bra- ziIeiro8. COl'NTl'K CASK OF TllK I'MTKl* STATKS. 57 >'(» Cod. (lii IJavicra, art. ■»(K), so incriniina o facto d'aciiu'lle ([lie tctilia quo n'nma intonrao hostil pratica lactos do provocaoiu* do yuorra fnndados, iiao dt'vo sor ooiisi- (lerado namosmaliidiado crimiiialidade (pie o (pto iia mosma intoiioao so saltiuiiiistrou um jn'ctcxto. So a <;uorra s<' iiao jiistilioa \w\;\ jjravitlado da provocaofio, a impiita- (•.u) moral osto om oiitros lojjaros, para sor pimido ootri jiistioa dovo sor ooiisidorado taiito iia sua causa moral reuwta como iia sua tavsa moral pro.rima, sorii altstraliir os antijjas e modornas, mas na ])ratio:i, som roprosalias nom doolara<;ao al^nima i)rovia solomno [.T»G| •sotom visto, o (' jiortanto possivol comO(;ar a ^uorra do i'aoto, (juanto a na(;aooftondi(la ou ajijirossora tem por inconvonionto j)ro- vf'iiir o avisnr a na(;ri() ollonsora ou ajjjrredida. Assima oxprossao t\o art. a uma dcclara<;do de (lucrra " dovia sor emon- (lada pela exprossfio" a uma fruerra ''aiicune d«''claration ou autre avis .1 ronnomi {U^^ roxistonoo de la },nierro est n(''cossain^ pour U'l-alisor los liostilit(''S.*' (Wlioaton, Droit intern., tom. 1', p. 271>.) (^iiando poivm nao precede a •■•uorra a doclara(;ao o (*► mesmo I'aoto da };uerra (pie dis- poiisa e projudica ou antes oxpiime a doolara(;ao; e assim «levo enten- (U'l-se o ]>rosonto art. Com mais lundamonto dovo notar-se fpio nas palavras do (pie lan(;ou mfis o leyislador " iodo o portuaucz"' imita(;rio do Cod. Fr. " tout /ran- (;iiitMMitidiiil<*«ii^tiiicta tia <>iitiila«l(' tjo- rerno, <• piirtanto distiiicta ttos iiiiliviiltios ipie i> ciini|MMMn. I'anTt* rcailtar da n'dai'rai) t'spcrial •rr«»ti' art. i|m* soiiuMitr inxlcrai) s«T culpadoH OS miiiistros d'cstatlo |k-|i)s rriiiH*s pifx i.stos iiu. ait. 1 Mi', «' lis, i|uaiHlo tiurtorisanm oa tartos ;;t'raliiiiMit«* puiiiveis contra ^^toilo o i>nrtuifnr:"' aiictor principal c dirccto, sc a aiictorisaca ». considcrada c« ino oi'dcni, conscllio on pro vocai-a. »/<*/' riiuiii flrUniihunitf tui nnia das caiisjLs dctcrniinantcs do nicsnio facto. i|iialitiraartici|iantcs. coan<-toii*s oii ciinipliccs, sc;;niido o ;;ran dc inllncnj-ia qnctivcrani •• |H'las rc^ras p-ra»'s dos art. li'r, |.'L>sj V lmJ'. •Isto porcni ac«*nsa a dcticicncia •* i ncobcrciicia do< 'od. com rclacao aos niinistios dVstado. S*- cM*-* >«• considcrarn partici- panics cm i;;nal yran, o tacto cm rcIa«;;Vi a dies dcvia srr niais scvcra- niiMiti* rcprimido do <|nc a rcspcito dos oiitros co-n'Mis. ponpico ahnsodc iMMlcr c t'alta dc Icaldadc nao c nicnos nni clt-nu-nto aijni dc a^grava- «;ao «jMc na li\potln's»' do § nn — do art. 1 l-i . JScria injustilicav«'l s«« irrcsp«»iisavcl pcla cnnccs.sao da nu'sina anctorisacao cm diatnctral rrpu;^iiancia com o art. 1*1 »s . l>cmais, n(»s tci-nios dV'stc art. 1".>S' ipianti> ao dt-linqncntc dirccto, a anctorisacao do ;:(tv«'rno para sc tornar causa jusiiiii-ativa dos crimes (pic pr ndcva o ipic d"«'!la nson dclimpn'ntc, i)rincipal c o ministropc«lcMdos4Mn crimcdcixar dc a j;i."»S| nsar *maximc ipiando cntrc o t\v cstado nao Lonvcr idacocs hiciardiicas <|nc tacam coiisiilrrar est»* sn|M-rior, <*omo sc dcmon- Mr.i por arj^nmcnto do No. L'O, ii\ I'liii'iit'- <|ii(» o l.'«>il. rc'.iilva*- ■ an)- vni-a< ;i«i ijiu- OS ilcl) ^rjiil,,,, ;;fi'a<'«i iln ;;iiv<-rin». ruii'.tidiiii.r^ «-ui ii«"«'«->si(l.nlc. i>iiilciii M T •>liiri';:jiii|Mtivi'l o •.♦•ii ••r-:itu (■•iii a atiitoiii.ivau (In •jov.-iiio ili'tci'iiiiiiailaini'iiii' |)aia <•»«•> arfi>». < ►> n<»siii.i i\,- |iniviiii-ia •- im^tos iiiaritinios distaii- !<-> «la <'«i.sta. OS foiniiiaiiilanti's ilc coiho^ niiiitan-^. ■>» ilt- iia\ !••» dv '4ii<-i'r.'i, I'tc, podciii rx-iii unlctii f.\|ii-i-ssa do ^ovfi'iio ri-|icl!ir prla ton;:! 'hf* anna'* iini ataijiif, oii iiii'siiio, |>ara iiianiitfiivao ria . princ. !:•'•'-» "Assiin em jireseiiea do i|ne levainoH dito. a.-, iialavraxlu art. Tmlo o iMftiiffiic: £:dt)] «/««■ inir iiiiarxiiiiir ii< lot iii'io iitirtorinailiM r'jttio yttrrri—t t r/ntz^r o f-tado a utmi divlora- <»i(i * ia»/i« «« criutiHoiox expozcr u (f- l*tdf a «M(i ifiitrra". A ;ruerra niesina nao o em si mai.s (pie inii •v->tadii dt» rrpr- ■miHnt' girar* e vinitiiiiiax,fni (|iianiu iiV.ss*- estado tiido o que li permittido a iiiiia lian [Kint-s iM-lli^fraiiU-s ne cousidera lit-ito a ontni. (Selimalz, IJroit des ^^eiis enrop«-ei»s. Hvrt- »/*. tap. i'. paj;. 'JH.) I."*f<» comtiiilo sortie uma limitaeao a r»-s|MMio tia.'i m»->ni*» nav'Va* «pie siisteiitam no e«ta4lo de pa/ nm ap)»arato Ix-llico, tanto em ttrra <>i>mo no nur. f-uj<>!> exercitoH u arma- das, coiifuudindo ]>or sua attitndo o estadu preveittivo roiu w dtf anieava e a^gretisao penuanent**, compiomottcm a existeneia on iiide|>en- omr^dodo^ei-ulo 17°, e ticouHnl*- Mitnida i>elo dt>crt>tument<) da gnerra e nna communirav''^" oAirijI as navoes aggnuiidas, alliada«ou uentras, acoompauliada de mauifesttM ou exiwAivao de uiotiv«MdeJuiitilicavi'u), COl'NTKR ( A!^K OK llIK rMlKD SlATKH. 50 [ft (inr rt'-tnomliMii (wroiiti-i-inanif«'!«ti>8, iitt' ipu' I'lViftivuMH'iiti' roiiipmi ii«lii)HHIiiliitl(»M. 'I'lHliivia :iiii'ti>i'i-s I'Xistt'tii ciniio llyiikiTtliui'k. i|iii- .sii^tt'iittini i|Ut^ n<-iii rutva iiiiitiit'rstON H.i'> iitTi'.ssarioH, )■ iniiitiin \«-/i-i4 dr iiii|irii\ i.sn, on ii.s nav'M's a sua ^iliiai.ait ate a iiiaiiiri" iDriiial
  • rstailo ilc ^iioriii. (iiii'i'iaH Inn liavi svm ]trcv ia tli'claraV'io: I'oiiio Un a i|iii- ii'lx'iitnu ciiti'i' a l''i'aiiv!i << ii lii;;lati-ri'a <'iii .hiiiliii lie I'ri.'i, Miuni-iitf ili-rlaraila Hiilt'iniicinriilr I'lii Maio ilc I7')li; o iiii» iD'iriM ia-, iit's inoviilaH nu ITiil miIhi- icNliliiivao c iiiilciniii.saV'K) ili^ ])rfHas t'ltittiH iiiiti'K a ilt'i'laravai* *'iili'c arnrti- ili- N'l r>ailli-H c a ili> I.oikIics, Niistcntoii mtu alutrla- iin-iiti' a t'alta •!•■ iliiciti) a ri-claiiiai.';'))) ciiiiiii int'iiiiilada |ii)i' I'alta ilc rmivt'iivao uHpouial I' ili'|iciiili'iit)' il<> iiiii |ii'iiiri|iiii ill' iliifitii tias j^nitrr^ Hiiji'itn a rmiti'starrio. |[:;iil j 'As sni'iirr/a.H pDrriii li'rstr ;{i-nri'ii tiiiiiaiiiii I'arartri'ilr |iiTl)ilia r alrivoNia. K ii •riiri'ia iliiN)iii'itta.si'>:ilti'ai|iiii'.>> riii |)i)iiti) iriaiiili-. I'l'li/iiii'iito Niiiillliaiitrsa;;)rri'H- \h"i'> iiir.-'iM'railaH ^Ao linjr |Miiirii piiiN aM'it ill- lartu |m)|i|IIi' a tmla a ;;iii'na |iirri>iliMii Lviii|>ti>iiiasi> arti>M|ii'i-|iai'ali)i ioN i|iir inaiiil'i'staiii u rxtailu ilr traiisif :'ii>i'ri)ii>tit iiriri riiiiio lima ilii liininiit tiuila i|iif >iil»liliir a fithiiini' mi i.ritri>^ii. ( > ,M';>iril() aliHiiliitu iiao i'S riitru [;i~, iiariiiH iiioili-iiia.i. tnrtiilaii, l>i-;;l. iiid in., liv. :!", rap. I'.) Portaiito <> »'I»M>H>iit() diriiin'iitt'. iiiliiiittido .stMii «'\(M'|M;riit no |no.s«Mite ;irr.. iiilo |mmU' com vrnhulc iiioial .scr ii(linittitlo. A niiiliciii oil iiii iniiilriiciii do iiiiiii.stro d'cstado *|iic aiu-toiisa o a«-to, iifio dcstioc iit'iii o |4'lciMi'iito moral malrtico na ]M-.ssoa do aiictori.sado, iicm a it'spon.sabi- lidiidc dirt'rta qiic Ilic icsulta do aldiso »iiif t'cz «lii .« paiticiilari.sar |(».s niiiiistros d'r.stado i|iiaiido lossi'iii aiictoit's diriM to.s lios lartos a (|ue o mcsmo vN s«' rclcn'c »'iii ycral. no art. lit.')', os I'liiM'cionarios ,sii|k»- j.'KIl,'] ritMT.s ipu' oid('iia.s.>i('m ao.s snis inl'criori'.s iini acto criiiiimjso •lam- Iti'iii a<|iii di'\ iaiii cllcs .sn- partinilarisado.s, tjiiaiido simpU'smcnto (I iiiictorisaxm')!!, v r todos (»s ac'ios dircctos on indirci-tos d»' pioxocacAo ; 1 ' (^)iiaiido llio lalta a Jiisti«;a pain a;i-,i:icssao : L' (^>naiido iifio llic laltaiido a jnstica, icsiiita maior mal jtolitico c material contra a iiacao dc rccorrcr a sDitcdas armas : .". (^Miando piovoca dirccta on indircctamciitc scm ter (ic aiitcmrio cah'tiiado as t'oivas da rcciproca dcl'c/.a c ata(|nc. Taiito maior c a cxtciisao do dirciio politico, que sohrc dcclaracfio de aiicrra a cnita, no art. 7."» ^ ".»' concede ao ]M>der cxecntivo. seiii (Icpciidcncia de delii)cracao das camaias ic^^islativas, (|nanto maior e iiiiiis csi>ecial deve sera rcpr«'ssaolcyal contra os ministros d\'stado, or tal forma a iiacao em immensos sacriticios. ditlicnldadcs e l)eri;;'os. ;•'><»>] *IV)rtaiito, se o pre.seiite art. toiiia como circiimstancia diri- meiitc e em terinos ab.soliitos a aiu'torisacao do }»-overiio, para a |tro\oca<;rio a ;j;neira on rcprcsalias. a Jnstica «' a politica pediam «|iie o ((ul., iiicriminas.sc o facto (la auctorisa(;aoem si mesmo, qiiando abnsiva jxM inaleHca on ciilposa 4'ontra os meiiibros do j»abiiiete que d'ella par- licipassem coiiio auctores on cunipliccs. Se OS crimes que os ministros de estado pod«'m commetter no cxor- I icio de siias fuiiecoes tr-em iiina iiatureza especial que deva .scr estudada e tratada para uuia lei particular, cumpria entao eliiniiia-los completa- inoiite *\o cod. e iiao os compreliender, ja por detormi iiacao especial, cnino se fez no cit. § un, do art. 14.'i" ja como a cada passo por deter- niiiia^'oes geraes absohitas "/»(/<> o portmjttez, todo o/unccionario puhlkd''' soni resalva algunia dos iiiesinos ministros, o «jue inuitas vezes, coiuo vereiiios. Hies torna o j-od. de irri.soria, absurda on impossivel appli- ('aijao. Kil (;(> |;;(;-}; Tj;f.. "V of \VAS||1N(;T(»X — J-A{T.i;s .''COMrANYlXU •Art. l.'itl. ii;ii*' o t; iniiiniso lor csniujicii'o, sciii ('\i»iil.s(» t('iiiporariaiu(Mi'( kst<' ait. piin'fu scr tirailo, (pianto a ivdacrao. do art. L*L"' do i'ml !V-ri. Vi. : S^TiMi: |iiiii!t i',f iiK'it i ;rimj>fs arim't's. ci.^n;:! oil eiiruN', litit i'ii;4ii;{iT nil fiiioli'i' s«riii»-« 101 Tiutiiitioiis sjiii-* (iidif nil aiijnri'^at ion dii yom tTiii'iiK-iit. IVla rollocai-ao quo ali tern rsii* art. c fora d<' diivida (pn' soMicntc »■ Jipfilicav*') ao ('usotMn «la lei sc dcvia «'on.sidt'iai' .viaMMitc o laetii iiiatci'ial. com alisdafcuo do m-u tiai. -Mas < 'iiaii\raii •■ 'Idif, I'liiorii' thi Cod. !* somcntc ijiiando oi o tim nao c lioncsto, on sc i iiicsmas, (pianilo um au.\ilio d'csta naluic/.a podcria ou sal\a la> on 4lai- a "Ucna uma sohicao mais rapida c mais Itonrosa. i) nosso ponin apro\ -itou a nicnminacao nao so apphcando ;i d< ;ios iccrutamcntos para sci'\ico militai' cstran;;ciro, mas tambcm ai!i|»li siiifloa ao SCI-. l.;o maiitimo militar c nao mllitar <'on\oitcM ilo assim cm delicto o o vccac solu<' t'actos movalmcn.c licitos. Sea violaic loia dc am caso in\t;cn!c n-V» lossc para rcjudlif o pcii^io immi 'tcnic la patria atac ida. pcla ;^uciia ii;lciior ou exterior, t'oi adop (.'.»<»<•! lada. ho cod. «lc 1. !7. a imi imimn-iio do ^■od. l"i. c ddiuixo d;i mcsm.! peua dc n,(Mt»', I'foitiltia jioi/' tandtciii esse cod. implicitaucnt*' os recnitaM'.cntos (i;i sUistamcnJos )»arau scrvi'.;«)cstran;;tMni, nuis asH-ioiisava todos osestor<;(t> iiidividuaes dcsta natu(<'/a, cu caso ui;i('ntc dedclc/a interna ou «'\ternii. O ( i»d. I'cn. do ISra/d c omisso e Ui'io o ccnsir.amos ])or isso, Mu' itou- Ke .t iiicrimiiiar ;:('rahiu'ntc. no art, T.'S , o fio-to dc hostilidades, contia Hiiltditos dc o'ltia Macao por modo tal (luc sc compromvtla a pa/ on si- |)i'«ri'oi|iiem vcpT'. salias. () '.\n\. Ilc^p. art. IIJ N(». <> so pmiiu. dun ttimifs ih' liina jtotviuia iniinitnt. \\ porcm omisso tamlicm iia li.V|»<»- 1.|je«c lU' «pu! t»atu cstci iio.sso aul. CaiH-ordam jiori'm cm andtas as liypotlu'ses. {\\u^ tttdavia disliii;;u«'m on J'od. da hardcnlia, art. l^l , c o das l>uas Sicilius, art !(!!>. t> da .Saidcaha, iia primeira li\ pothcsc, impoc n pcna tcmporaria *!• n'l'lusao -luidii. ; das \\< KITI I niiiio dc I (ic ilois a Ci'lili M' liili'miili (h >(-1 ill HKI I SoS Oh I'oiisiilera assim col iiriia no rinalni (iiuicia CI Mrnjllnuit IMCilo rec Ccllli l|ll <'l |iiiiii, <'<> Ksta ol (Ic cstado t|iic da in ^'U ;i)i.sj da* art tiijiie um ilcrcito ci o cud. sc ] Todaxii ims.No ait. vista do <| (^Mianto (If (|uc sc rniuo a d< Uyj,:\v scm sc iissold; 1 liiovcl I .sc'(|iiestra c toitc. ruda\ ii (Ic (|ue sc ■>cii aiU'tt lihcrdadc, ('\cita as s •ctestam ; ;iiisoIuiisri •I iitopriei Imrrot. ip 'III ycir-'io I'oi.S (;u I'llc com liltcrdadc i'osto if ( OlNTKi: CASK )F TIIK IMIKI* STATKS. 61- irrliisiio ;i traballtD.s l\tiv:uloi<. coiil'on'iu' ;i.s cinuinstjiiicias. «• iia ^se- Miiiitl:i. a <'«' inort*'. () (las Diias Sirilias iinp'-x' tatnlxMii n'rsta ultima liypotlic^^*' a pfiia <1«' iiiortc, mas iia «l<> iiosso art. a pciia .Ic t'xilio tt'm|>i!'.ari<>. KIT \o iiKxltTiK) cod. »la l!a\ H'lji. art. .'>0(J'. N<). I , sf 'ailia luna staii( ialmciitr (MHicordantr, rlassilicada (•(lino (Ic criiiH' dt' trairao no tpiar'n ^vah <• portaiito piiiiida com a jiciia (If dots a oito aiiuos dc prisfio: Ci'liii i|"' '■"•'•"•Icrn sccri'tt'iiiiMit tics Hiijcfs ilu rdsaiinic ;mi M-rvic*' irum' itu\**anrv M- liilirdilti- ilrmi'iht mi iiii't jui'trni iii'Vii>'< iiliini (I, »t;.i llrSIKUI-l. Nos otitros cod. (la Allciiiaiilia. com idacrio ao critiic dc traicao, .sao fitiisiilentilos I' puniilns initm ftt-iis actus prcparatoj ios o.s ici-rntaiiicnto.s iissiiii como as compras dcaii'ias c dc miiiiicoo. A ut«-suia douiriiia .se ailia no cod. da rru.ssia ^ (it'. riiialmcntc no cod. da Austria, art. 77 . tamlw-m si^ ciictuitra ccncor (iiUicia com csic nosso art., mas •• .so para rcmct tcr para a lei militai <;ma >iniilhant(' iiu'riininacfu) c i)orlaiito rcstticta a<» cstado da ;;iicrra com a iiiicao rccrutantc. Ci'lni i|ni enroll' . Iinnitiii-s |M>iir tin sfi'vicc militairc t'trniiy;('r . ; . i-s( ]\\^f- t'l |iiiiii, I'liiitoriiK-iiii'itT aii\ loi^ iiiiiitairi-K, |i;)r !•' |iii iiii'itiiiii-. K.sta obscrvacao tbi I'cita por ('aml)accrcs nas di.scii.ssrM's do con.seU..» dc cstado sobi'c «» Cod, Ten. l-'r. roillic porcm icspondido poiM. IScrlicr, (pic da inst'rcilo no cod. nao rcsidta\u inc(tn\cnietitc. Mas cntao i. dar- jju*.' o cit. Chauvcau ct llcli<''. «\ssu incrimina(;rio ticon .scm utili- ;i(».S] dadc: p motivoal^'um liindadxccp(;ao para que c.-sta disposicao lomc lo^ar cntrc as dc ilcrcito c! iiiunal comman. V. uma dcro<>acao ii ordcin da^ matcrias Ibrcm militarcs os culpados do ciimc prcvisto n cstc iKis.so art., nfio podciao sci' jnlnados pclos nossos tiibiniacs militarcs em vista do (pic disp('M> (>sic no.>so cod. no art. Hi . (^>uanto a pcmlidadc. rcc(Milicccm(*s (pic clla c approprnnla aos di'li<'tos (Ic (|iic sc trata iTcstc art. tanto pclo (pic rcspcita a dc laisaocorrcccional, coiho a dc mnlta. \\ uni d(i> poucos ca.sos cm (pic a pcna pcciiniaria tcm Ic^ar sciii vicio dc conlisc.i. .Sc;ii mcios pcciiniai:o> hTk* .>«• ifciuta, n.lo sc ass(tldada. nai» .sc assalaria nciii sc la/ assalariar. < ) dinliciro c acta lic o >''i|ai>stiar e em liaritturiia com o art. Nl do cod., ccitametitc uma multa (■ tortc. I'ddaxia o attentad( node scr mais on nieiios mraxc. as circiimslancias roceditncnto cxcita as sympatliias de urn publico ilhistrado, e dc lodos o.s liomcns(pie ictcstama lyrannia.a injusti(;a, ii iisurpacao. IJccrutar para rc.st«»raro alisolui'smo. adjudar uma coinpiista. restabclcccr a impiisicao. destniir ii ptopiicdade on o credito d(> uma na«;rio. e nm attendad(» (pic cxcitii liorror, «|iuMletcstam todos os (pu* prc/.ain a ordcin, a paz v. a lclicida«lc lilt iLicn-'ro lium.Mio. I'ois (;uc.' ih'M^ incrirunaise o soccorro p(utal mcio a tiiiia nacau(pii' aiii"°uctn B '"'*' *'<*"> tbivas dcsioiiaes ])ara niantiT a sua inilc{>cnd(Micia ou a .sua MMTiladc on a Icjfitiinidadc dc nm jaincipc .' I'osto isto. a |tciuilidi dc coiiiiniiiada scmpn' no sen niaxiiiio .sc torua 4- '"^ 4 m p^f ::' i 62 TKKATV OF WASniN(JTON PAPERH ACCOMrANYlNCi vi<'i(»sii, por isso ([lU' assitn so tonia iiidivisivol. Nocossariaincnte daj lo^ar a luniirse com (Iciiiasiado ri^^or, tanto a cMHitraveiirao (|U0, tiiibj urn tiiii iioIm'c c ^'ciieruso, (uiiiio a (|U<' tiiilianin fiia i^iiobk'e aluuniiiavcl Alom «lisso, mil rccnitaiiiciito oi taiit<', (huiio para <> scrvii/o militar on naval dc unia narao ostranj^oiia. A liUonladc! do eoinnicrcio rociproco, que! tanto rtnivt'in «' sr di'vc favoicciT t'litiv as naroes, desculpa semprciij violarwo d(> Ulna tonnalidadc dc aiictorisacjao. Km espcciilarocs inon^antis. coin dcpcndcncia dc viajjens dc mar, nini dia, uiiiii liora *sct(rcdo iiicsiik*, (|U(m mnitas vczcs prciso }iuar sf^icdo (pic »'• a alma c a vitliij dc similliaiitcs jMiipiczas, n'pu;,'iia a ' art. sc dcvc ciifcmltT do scrv i'd r/r _r/»('»TCf ; o fdtiiii |iiii t'liiiihiiiii'iiti) <|iii' (I ctiiiliariii sfii.-t iiiii iilisiirdo dt- tal urdnii ijiitt wiut <■ |iiissivilj Niippor (|in' (1 li-;;islii(lor () <|iii/i-.ssc s!iiicci(al\ .> i> rcsiicilo <• ini'it'cido loiivn: (;if II iliiilaiiiii> ao jovcii JiiiiMoiisiiltii, iiao sciimv nit" /"(/(((/(ciifm no coiiti'Xto do art. nixi'ui concliidnitf jiara n-sti i)i;;ii' a sua di.M|Kisii;ai). I']iiilioi'a clla si-ja iiiiia aluTiavAo i!r tiido )|iiaiit(i SI- ai'lia ]«';^i.slad(> fin oiitio.s cud. a siiMilliaiitc rcspcito, (-oiiio .soiiifiiti- aijiii H*' iiii'i iiMiiia lima roiitravi-nrfio. co l<-<;isladur podia ttT fir, vista a necf.-i.'sidaiif dr iiiuriidia<;i-iii tanto para o.s nos.sos na*. ios (!<• jfiicrra, <'onio nKTcaiitcH iiacionacs, nud I'fpntaniosa disposirao lao al>sni(la como part-cc a priincira vista. Ali-ni ttt- i|iu'()ii- [ICl] ciiilairfntodc niarinlia;;('ni incnantr (|naiido nacional "n.'io itrfjudica o ifcriit:i- i:'i-iit<- d'ldla para o sitv ii,';t'ira <' imii incio di- Militraliir ao scrviro naoonal. 1^ tanto inais i>to assiiu proccdc, nti vista do ri'>riilaiiicntii d«' W d«' .\;f(ist(i (]f l"^!!".!, uidiMiaiido no art. Ill" dtt caii. '•'•" <|iit' os innios iiirrt'aidi's scjaiii »'sriiij>nlo«.aini'nlf v i>itados para "inc iiao h rrin iinti iiihiirns /)(((7»7i«i s .s(/;» iiirmhuc.f i|iM', no caso dt" Sc cin'ontrai'i'iii, o capilAn do porto os cntir;;!!"' loj^o cm fiistodia iid ;;ado df policia, i\ litn dc na priiiH'iia occasiao os it'incttrr para o arsenal d.i iiiai'inlia. paru scrcin finlian-adosnos iia\ ios da corua.tM-ncanc^ando. ciiiart. addicioiial. o nicMiio capitao dc ta/iT todas a.s dili;;cnt'ias (lossivcis para tcr scni|ii'c nin mappa di- todos OS ntai iidn'ii'OH, com (/((7((r((v"" <'" I'loniro cum qui -( iioii miliar purit o sirrirn iln iiftti. nil a coinpi'clicncao do sciviro riiaiitiiiio (>straii<;i'ii'(>, <'orii (|iianl(> nao nn litar. MH ijrriil moriliiiii'. podi' scni o tij;iiiado absiii'ito coiisidcrar-sc cxistir nas palavr: s(|^l^i^<• itiililitr OH iiKiritiiiio fhii.Kjn pi'incipaliiH rii> porijiic por cstc iiioilu [t^T'J] Ilea a 7ii//(i (/( iiiiiliiriiiiriin iniiiiniiiada 'aipii cm rcla'.'i" ao (■(■ rii/di/^', como tiini iKis. \^\> 1" c "J" aiiicccdciilcs a icspcito dos rcciniadov on acataiitcs, com dcsi;; por iiicUior dill iiacao cxpicssa dos n.iv ms nn riiiiih >•. Km todo o c.iso raconlicccnios (pic a rcdccc.m n.i<> c Ima. mas tt cai' a lei, para ipic sc rct'oiinc, mmc lanvar iii,V> do iiliiiiio dos rcciii sos, o aiaiiinciiio pn; iilisiii'du, para ipic a sua di'-poMvao littcral si nciilralis<-. hura lc\. scd lex. A 'Him. aiijtla por csla coiisidcracriu .sc a;;;ii;iva n \icio da p<'nalidaiii'. Natl .so \fiu a scr piinidos com a incsma pi-ii;i I'actos divcrsos cm jLTravi dad«' pcla iiit('in;ao, ma.s lactos divcisos cm ;:,ra\ iiladc por sua iii('."«iii.i natnrc/a. Ksta incriiniii.icrio tciii o .s(>ii t'lindainciito nas doiitriiias' Vattrl. iii\ ocadas pclo «i(»\('i no aiiici irano cii 1 T'.t'i. no <'omcro da ;iucira ciiropca c iiicorporadas cm iiina lei do conjAifs.so publicada cm IT'.H rc\ ista »• rcstaludccida cm ISIS. Por csta lei c iim tldicto nao sn aii^iincntar a torca dc iim norio ihfiiinri; dc pai/. nao iiiimt;;'o, incparai iima cxpcdicao mditar contra esse pai/. eoniotambcm as.salariar on recrutar piira nm ser\ icocstran^'ciro lU' t<'ira| on dc mar. ICste cxcinplo da America (bi bem dcprcssti .sc;;iiido pela (Iran I'-ir taiitia no act o do |iailanicnto, oO' Cb'O. Ill, cap. oU , intitulado, '-Acto ]mi:i | inipedir o alistamento on rccrutamento" dt»H siibditos de S. M. para scr COUNTER CASK OF TUF, I'NITKP STATES. 63 vi(;o estraii};«'iroou o armainciito e of|uipiiiiu'nt(» iios (loiiiinicis tie i;}7;»J S. M. iriuiia iutt'iiraodt! *jjfiu'rra som iicrmissao (1«' S, M. A razao fiuulainental cm <|U(^ sc liriiiam N'attcl e NVoKio para ron- (IciMiiar OS recriitaiiH'iitos scin auctorisarao do j^ovcnio, «'• (luc ostes sao iiiiii I ju'croyativa cxclusiva da soboiaiiia iiiii;riu'in, scin ptM-ini ssao ox|>i('ssa, po(U» IcjiitimannMite cxtTccr ciii tcnitorici »U> oiitro «'sta«lo. Mas tixlas as ]»i«'ro<«ativas liomcm. cm quanto cst«' o nao ajiyrcdia.o m»'smo S4* «lcvia dizcr dc niicrio a inicaiK \'Mi\ *.Mas csta ai-jiumcntacao tamln'ni nao coihc. po'.qnc sc c(dlicsso para o caso, ticava scnd«i talso (» dircito natural )|uc nfio sti nTio iiicrimiiia tanto a dcfc/ii pcssoal. como a dc outra peseta: prtn<-ipio ihlctplado n'cstc nosso Cot! art. 1 1'. Ntt. .1 c outios :irt. rtincoidantcs; mas muito pcio contrario condcmna cnmo imniuiiil o tado d'atpicllc que pivscncia dc bracos cruzados a liita dc um com outro Inuucm c a mortc ((II tci'imcntos ::ras«'S ('■:■ im d'cllcs scm llic acmlii' podcndo. Nada d'isto poicm ii'iuh ■.♦•r applicacao ao scrvico niaiitimo mcrcantc ('III tempo dc pa/., c.u que naoc dc prcsamir a simuiacao o tVaiidc cm favor (iii ^iicrra. lanconrlu'^ao puis csta inci iminacao comprclicndc lactosdc (liveisa j;ravidade c naturc/.a qiu- convcria disciiminar v punir divcisa- iiientc sc;iundo a qualidadc «lo dt'licto. como «'ra dc jnstica, a {{iw rcsiste a tlis|)osicao p(Mial do art. cm ra/fio do maximo cm que para tod(»s c tixada. (,>iianto a nntdilicacao i\\u' .sc cncontra no ^^ un. considciamo.N adctpni- (laesta solucao do l.';;isladoi'. (j>uand(» o n'crutantc c unt cstranv:ciro. c scin vistas al^jjumas liostis contra nos.a cxpulsao do rcino i- «> proccdi- ineiito (MM' mais convcm. li nao tem a por tempo que nao c\ced«'ndo o nmxinin df i\o/.o iiiinos. pixlc s.';.tnndo as circunistancias. rcdu/ii- sr ate tr«*s anno^. c«»n- l(Miiie o art. ■">(», •r-fii •[T iiiii'.hit um coin: AMI COM.MIINI Al;ll>. Thiol ij of' iiitiriitiliniinl rit/lit, i. Ihi ."tittiitts timl crim- inal lau's of ancient and luofli rn nations, /ircMrntnt to l.'is Iinittrial Maj- I'sli/ Ihiin Pciiro II. I!niiicri>r nC Itrazil. In/ /'. ,1 /'. />// Silrn Vcrrau. Vol. I V. ( lAsbon, ls.-,7,; />/». isj. J.ll. Aktule 1 is. If any I'ortnj^ucsc snl»)«'ct shall, l».v any acis wliatso- t'Vcr not authorized l»y the ;rovcrnmcnt. expose (lie st itc t*» a dcclara- 'itMi of war. (»r expose |*ortii;:n*'sc sul»jc<'!s t(t rcpnsals from any ttirei;!,n powtM", saul otlcmlcr -^liall he ciHiucnnM'd tc temporary bam- '1?^ (M rifKATV OK WASIIIM/ION I'AI'KIJS A(( ( )MI'AN VIN(; isliiiu'iit, if siicli war or siicli n'idisiilsbccanicd into rth'ct ; ami it' siicli war or siicIi iTprisals Iir not canit'tl jiiti> rfVi-cr. In* sliall he (•(Hi(U'iiiiit'il to corrrctioiial iiii|M'isoiiin*Mit tor a tcitii not to \n' less than out', yt'ar and not to I'xccctI tlircc ycais, witlioiit <'xi't'|>tin;;' any I'uitlicr pnnislinuMit wliicli saiil otltMidcr may incnr, if tlir acts he has coniniittt'tl Ik* a criiiic |>nnish('(l nioif scvcicly I>y law. ( Art. l.'I», No. }. iSic. ; Art. .'51), No. t. v^c. : ( 'onstitntional Charter, Art.!), i 2.) The h'ttt'r an7, and th<^ S[>anish statute, have <'onsidered both cases as liein;;' om* sin;;lc olfeiise. Tlui provisions oi the ;ilu>ve-nn'nt ioiM'd article are to tlu' sann^ etVect. IJut wu do in)t think that there he sutlicieni reasons for such provisit>ns, and we eonsid«'r that the I'reneh statute, jind those which ha\e been copied thereon, have taken a more proper vIjmv of the (pnvstion. If, umler the provisions ol said arti<-le, a material fact <'ant assuin<>a ciindnal character iiidessi; be eventually followed by «'vil results, the severity of piiinslinnMit is to be measured on the ;iravity of the consequences of said fat!ts. N«)W, if such conse»iueiu'es are of a more serious charactei- in the event H ,.|,..,,.| of war than in that ot reprisals, when not {general nor continueti. H | |.'177| it was necj'ssary that there should be a dilference in the 'imlict ment, in order that there be also a ditl'ercnce in the punishment, which is nt>t to be so severe in the latter case. There- i,< another considerable dillerenc<' in the I'rench statute, article Hi SI, as re;;ards the mati'rial fact. It is not sullicieiit that such fact he not antlnuized by the •••overnment ; it is necessary, moreover, that it Im' in its(>lf of an hostile character, ipardes actions hostile Tl sanu' wold:-., and the latter icipiires, further, that the. tact be such as t be (pialifu'd a i limc by law. \par (|uel(pu' crime on par des actes li().> tiles.) When the <|Uc.slion was to explain whether an aci was hostile or not, the law (lid not deicriniiie thosr which wcie to a»um(> that chaiactci and thost; which were not, but left them to the to decide upon ihat tpu'stion, at'ipiitt in;; the dclcndants w heiu'Vei tli< case was that of a'-l"; bciu;; illicit only for that neualive rea.son thai tlir act was not authoi'i/eo\crnnn'nt. a rea:<»Mi which cannot hi' admitted as bt-in;^ contrary to tlH> constitution: in fact, the anthori/i tion of government is only necessary when claimed t*u oitaiii and d acts, and not in an iimletermined m.uinei, and the law tt>lerat*'^ and permits whatever it does not prohibit. The Spanish statute did not keep the term •■ the I'rcnch st i; |.'57S| ute, (hostile,) but instead of the W4uds " non Apprim\e,s *|hii Ir ;i»>uvernenienf ," it says " noautcni/ados coaip<-';«'nlemente," (in permitted \\\ competent ant liont.N ,^ and thu' It d «H" not re<|Uiri' anthori/ation of the ^jovernmetit when the t.u-t is anthori/ed b.\ vhi<-h dispen.ses with any other authorization ; antl in the pres«>ri it was nut lu'cessarv for said statute to usi- the w«nd '• hostile,"' ai.-. tlK ;iVi volves al Sicilies. Tlie lii tioiK'd 01 iiK'innhen aiitliori/a nation, si Thus it as to <,'iyt^ n(!ver he i ment, and a rea.son, It is wi which ini<: hut it is I pre i;{7!)| T foiii (lilferent ^ .statute, tl volvin;^' "a suits, thee TIUI.S, Ml more defec hits not aein{f po.ssi (|ileiices, di »'Wji prop* This erim [soever ajfai le statutes of Sardinia and of the Two Siiilies have employed the Hi mere insult •rovocation Iroiii w«'ro (I I \e !'!-^<»j pMeal erinni will he able il'<), Nos. .-{ <|neiiees do (It ,ii!ic|(> L»o, l»'i. the St <"i the ea.ses It.is ilecidod ♦ one. red tl iiil..,. .,1 the Ji itukMl the "-•'u. d to j Th(» crimination under said arti<*le did not assume the ♦same form. Not cudy ilid it not make any ditt'erence betweeu tacts of (lillerent jj'''>vity, fallin^if thereby into the same error as the Spanish statute, the Hrazilian statute, Mud our own statute oi' ISM, bit in in- volvinj; "any cases whatsoever" it has still been the {jnmnds lor law- suits, the criminality of which has not and cannot have any moral truth. Thus, and considered under these two points of view, the arti<;le is more defective than those of ISrazil, Spain, and our <»wn <»f 1H:S7, and it luis not adopted what was proper in them, neither has it imitated, nor dearly jjointed out, nor amplitied the prescriptions of the Fiencli and Italian statutes above mentioned. As rcjj^anls the penalty, in addition to the jjreatdany:<'r of a liiwfiil act Iteiufj possibly incriminated, the confusion of the two eventual conse- (jneuees, different in gravity, is the cause of the same pniiishment not licin^ proportionat<« to the facts whi(;li have provokeil the n>prisals. This I'rimination, in its widest acceptation, involves any otVense what- I soever ajjainst a forei^yn subject or forei<. il the provisions of the above mentioned Italian statutes, and 111 •i.,j,.d the defeirt i)f a similar (UM-laration in the Hrazilian statute re- Mr id Co olU'Uses committed apiinst hrazilian subjects. II'*- liavarian -tatute, article ;}tM>, iiuiiniinatts the act of the party kk> Inis ^iven not only a just reason, but even an occasion, a facility, [f»» uuly a pretext for a Ibieijfu nation placinresent article, we shiilll observe that our criticism bears more on the wiutls than on the «loctriiK' of said article; becanse, thou};h it involves in punishment the provoca- tion troin which arises a declaration of war, as well as that which is tliel cause of reprisals, it se<'ms to leave unpunished the provocation to hos- tile acts, wliieh «lo not assume the character of a declared war, nor that of an attack or individual oltense a;>ainst rortugnese subjects. Tltisj omission has appeared to be a very serious one in a penal statute, esp«'«'ially in luesence of article IS of the ficneral provisions which forl>i(l| t(» amplity its constru"tion beyond its terms, thou^^h I he reason tor pun ishineiit be identical or even },'rcatei'. Ilowev*'!', as the reprisals involvt^ all possible means for a nation toj obtain satisfaction of the oltense it may have sulVered, as they msjy I»of ne;;ative or positive, and these may be general or special, against tlio ])ropeity of the nation, or that of its individual subjects, the word ^'iv pri.sals" involves the idea of liostile acts. IVIoreover, the woi'il.s|^| (.'5.SL'| '• declaration of war'' in the arti<^le are to be •considered as equiv aleiit to the declaration of hostilities, which may be preceded livl the seizure or arrest, whi<'h may be withdrawn when satista«;tion is obi tained, but are essentially involved in the expression *- reprisals." Jiiit the real fault we hud in the wording of said aiticleisthat it leads to suppose thiit a war cannot possibl' break (uit without being pre viously declared. Siu-h is indeed the ]trinciple acknowledged by ancieiitBii Uid modein nations; but in practice it has been .seen and it can happen^ antlior tin or a j>rov( can.ses of parties, c( liiilliieiice i Hut tlii.s pfuds the lie oU'eiisi for :Wt) thei i>ggi It would iiiiisiiiiien tate, who lidister si ii<;li antlni .Ahavovei lie aiitliori iticafivo «!a ill cfidang t'l— that is If the am r to any ot t'l'Sdii who irhoiitacri It' priiicipa »' ('(iiisifh'rc '<• <»f article Theielbre, n'si'iit arti iialeiice of i<»y the mi.> ect lespoii nitv. ihat war docs In gin in fact without ai.y reprisals (»r any pievi«Missoleinii| declaration, whether th' ollended nation be aggressor or attacked. Thus, the words ot the article "to a «le<'larati(m of war" ought to l»fl coriect«'«l by the wtuds ^'U* a war." ('' Am nnedeclaiation ni antreavi:i^i';nNl a rcniiemi de rexistence dc la guerre n'est necessaire pour h'galiscr Ic- hostili(«'s.") (Whcat«)n, Droit int«'rnati«uial, tome i, p. 1-'TJ>.) When, then, the war is not preceded by a declaration, it is the fact of war itscl(| that dispenses with, and prejudges or latlu'r expresses the declaration; and it is in such way that the present article i> to be uiah-rstood. There are more grounds to observe that in the words used by tlie| legislator, "any riMtugucsi' subject," wlii«'li arc an imitation [.■{iS;Jj the words " tout i'lancais'' •in tlic l-'reiich statute, there seems be a concliiHive argnnii-nt for involving therein the ministers nil the state; but that this aigiimeiit losrs a great d«'al of its power iiil consopiciice ol aitijh's 1 i<», 117 and llS,in winch thf same words, '• iiiiv| PoituyiM'sc subjects," are employed as an entity ditVcreiit titnii tlu'cnti' " ynMinment," and thcieloie dilVeH'iit Irom the iwisons who ar«* pai^ there f. tt appears to rcHult from the es|)ecial woriling of this artkrV, that tl ministers ot the state can only hv indicii«i for the crimes umlcr arlic'H TtH and lis, when they ha\<' authoii/.t «| the lints loi which "any 1'"^ tnguesesubjccL" is generally liable to punishment, as diiect and princi|ii iisr l*i'rtnjr||,,.v, iiMiiiial ai'U A Will ii ^1 ill ^i> iiiiii'l li'-if III th,, ^' W-llhclcNs, I ' III lillii' III' fm- ■'''■ <rinci|)al cause or one of th(> principul lea uses of said fact, the ministers of tiie state hein;; then eoiisid<>red as |ji;n'ties, coauthors, or accomplices to such fact, on account of thi-ir {jreat [iiilliience and in conformity witli tiu' ^cner-ii riil4's of artich's 'J't and 2t». IJiU this sliows the «h'ticiency Jiud in<'oiierency of tlie statute as ro- IpiUtls tlu> ministers of tlu^ state. If they he considered as partu's to tiic olfens*^ in a simihu' de<:ree, they onyht to ht^ pninsiied more severely for tiu^ sauu> fact than their codelenthuits, hecaus(>. the abns(M>f ;;si| their power and the want •of hnalty on their i)art is as well in ajjyravatinj; element as in. the case oi' section 1 of article 1 1."{. It woidd he unjustitiable that any I'ortn^fiu'se subject could escape xniishment in ('overin^ himself with the anthority of the minister of state, who is the remote cause of hostilities and n'prisals, ami that said iiiiiister should be allowed to remain unresptmsiltle for having ;rivun sii(;li authority in dir«'ct opposition with artii;le 2'M. Moreover, under this arti»tle L'DS, with r«';iard to the direct offeiuler, tlie anthori/ation of the {government, in oKh'r to be eonsidenul as a jiis- ^iticative cause of the crimes from which have arisen stu;h results as iill endanjjer the safety of the state, nuist be of sin oblij^atcny charau- ^(•r — that is, such as will inv»»lve correlative: obedience or an onler. If the aiithori/atiiui \n' contrary to the fundamental law of the state, }!- 1(» any other law, it is optional, and as su(;h it is iM>t an exiaisofor the [)frson who has made us(> thereof, and who mi;>'ht have not done so kidioiitacrinu*, espe(;i:dly if there be no hierarchi(;al connection between kite principal otfender and the minister of the state, suirh as the latter ,.(' coiisideretl as a superior, as is demonstrated by the argument of No. ^(i of artitrle L'O, and of No. o of arti<'le It.' Tlieretbn', the absolute elenuMit admitted without exception by the Itrcsent article cannot be admitted with moral truth. The ill-will oriui- triidcnce of a minister of the state who authorizes an a<'t does not de- stroy the mischievous nutral eh'inett in the peison so authorized nor tho lii-ecMcsponsibility which arises from the aluise of his liberty and ac livity. |3<)) " It would liavc Im'cii (•i>iivfiiitiit that tlii' stiitnlc Iiatl t'xci'|>ti'il tlmst' acts of «li-lViiHn or ))rovocatiiiii wliicli the f^ciirial dflff^iitcs ot" the noviTiinicnt may, in HsiMil ni'ci>sHily, Ih; oliliHrcil to coiniiiit, thoii){li not t'Oiii|>etiiit to do ho, nor liciii^ pru- ^ioiisly auMiorixcd for tliut N|iiM'ial |Mir|ioN«>. Till- ;;ovfriior ot'onr dominions a'uroad, evon ni'onr provinces and imval .stationHdiH- Riit tVom tln! y lorce ofarms any .attack, or even, ^1 miler to nuiintain the national diunity and interests, take t lie initiativt; ot' hostilities ii'inisais. — (Oitolan, Ijiyles interiiationahs. Iiv. :{. cap. \\, I'rin. yen.) ihiM, in accordance with what we have said, the words of the article, "Any I'ortn- ii»' siihjcci w ho shall, liy any act whatsocxer, not aiithi)ri/"d liy tin- ^^overninent, |Hisc ||ii> stato to a declaration of war,'' nii;;hl he conveniently coriectid as follows: [Aii\ l'i>rln;;nese siiliject not anthoii/.cd liy the ^ov crniin lit, wlm shall, Ity any hostiln iiiiiiiiial acitt w hatso.-ver. expose the slate to a war." \ war itself is nothini; moie than a stati* of general and conlinned reprisals, '^ I ill >'i much as w hat is allow id to one of t he liclli^^i'i'ciit jiar't ics is considered a.s licit to the othi I. - (Schalm/. Droit ihs mns enrop., Iiv. iJ, cap. I, p. '2i I.) jNi^cit helcNs. there is a limit to the priii'iplc as rc;>ards those nations which keep || Ml time ot ijwitce, a w ai like apparatus on land and on sea; and whos.- armies and Vn^. confonndnt;; hy their atlitodt^ the preventive state with that id' permanent li! less precise manner, on ncconnt of their liiin^ .-iltle, at any time, hy hiiddiMi hi)-!" and secretly fitrwarded, tocariy into elfect a naval aliack or an invasion, I'liii' words, " dcclaiatioii of war," have no inori- the s.mie sense they iisi'd to have in joiiiT liniC'i, wlicii siii'li declaratinii w.is an intiin.ilioii inaile to a iiaii.>n on its own liiiiiiiy, tliroiijrji 11 herald-at aims, ov a iiiesscn;,>cr, as if it were a cliall 'ii)r '. '!'ho lliiiin form ceu.sed to lit) {Muvliccd altotil tho middlo of tin; seventcuiitli uiMitiiry, '1] i I J 1 1 m 6» riM'.ATY oy WASllIN'OTON — I'Al'KUS ACCOMPANYING 1)^ i. Moreover, in the Huiiie iiiaiiiieruH section I of article 143 poiuts out to tliu iiiiiiiMters or llie state wiieii tliey are direct aiitliorn of facta to which same Hection referH, and asartit^lu li)S points (generally to all superior tunc tionaries, who have ordered any criminal act too their subordinates, in the same manner ou*;lit- they to be pointed out too when they havu merely authorized such fa<;ts, and been thus the cause of warunil repri sals, by ;;ivin^ to another person a letter, a diploma, or instriw; | |.'{8UJ tions such im *to be prejudicial to » foreign nation, or to its sub jectH. In such (;ircumstances, a minister of thti state is criminal cither bv treason or by imprudence, and he is always responsible for all direct ori indirect acts of provocation : ilrst, if his a)j;p;ression benot jnstitied; secondly, if, thou{<[li it be,justitleolitical and nuiterial injury on account of its havin<; resorted to arms; thirdly, if he provokes in a direct or indirect manner without having previously calculate«l the respective forces of both parties for attack | and defense. So much the greater is the extent of the political ri};ht, as regards the I declaration of war, ^iven under arti<;le 1'), setstimi !), of the charter, to the exet'jitive power, who is not restrained to discussion on that point in thel le;;islative chandlers; so much thej^reater also and more especial niustbel the le^al penalty iniheted upon the ministers of the state who ^:ive rise,! by provocations, to reprisals a;;ainst the country, and, in conse(pieiice| theriM>f, involve tlit^ nation in enormous sacrilicis, dilliculties, and dan ^ers. Moreover, if tht> prescMit article considers as an absolute impedimeiit| the authori/atiou of the pivernment for a provii them, neither in an esixcial manner, as in tlie above-quo[i(l| section I of article 14t{, nor in a^riMteral andabsolute nuinner, as it happeiiil at every instant, (any l*ortuj?nese subject, any public functionary,) witliT is to nient [;W7] wluMi.iii plai'o tliiTfdf, )i|i|H'ar*u(l th« (UicrecH for war, oftic.ial iiotictMif which il ^ivtMi all iiaO<*i>s. wIiimIh'I- toes, allies, or lu'iitnils, aiitl in a<'i-iiin|»aiii)-(l with iiiiinr itt'Ntrt tir fxpoNilioii nt' jiiHtilic:iiiv, anil wasmily solctunly declared in May, 17r>ii; and in tlio ne;i;otiati(iii*l whi(;h took place in ITlil, between the coartH (d* ViMs.'tilht.s and Londoii, with i<-;;anll to rcNtitntion and coni|iI (:t'"| It is tli'l iieli Nil''! cimIoiI ''4 il coiistil ri'lalioii* «, tiiit. 1 I out liny ilofi'Jisiincft wliutsoever for said inini.^tors, nr;ninsit wlioin, as wo shiUl HPio ill a gnnit irmiiy placos, tliti statnto providtis in a manner irriH- ory, iibsurd, and of impoHsible application. AuTiCLK I'tVt. Any jxTson who, without thii nntliori/ation of the govern men t, shall rcn-rnit or procnre to bo recniittMl, hire or procure to 1m! hired, men for a foreijjii military or naval w^rvice, or shall procure arms, or ships, or munitions for the same purpose, shall be (condemned to the maximum of correctional imprisonuntnt and to the maximum of time. Only SKCvrrox. If the olVemler be a foreigner, he shall be tem- porarily expelled from the country. This article appears, with respect to its wordinjj, to have been copied from the arti<'le 22 of the French penal statute : Siuoiit iMiiiis do inort ccnv (|iii iiiirotit li'V*' on fait lever (Ion tniii|uH l.'iOl I <*'■ niiinitKMiH Han.s ordt'o on anlorisati(Mi dn "(ronvernunKMit." I{y the construction of that arti(^le it is not doubtful that it can I only be enfiuced in cases where it may be proved that such recruitinpf had for object to disturb the internal safety of the country. The court of cas- sation at I'aris, in its i)roceedinss of the l.'Jth of February, lias decided tiiat such proof was not recpiired, and that the law being silent, the ma- Itoriiil fact alone was to be considered, excluding entirely its obje(;t. I'.nt Chauveau ami llcli*'^ (Theorie du Code IVnal, cap. 18,) show that hills (loctriTie is altogethi'r contrary to the law, and that the legislator cannot have intended to inttict capital punishment for offenses of other Icliaiiicter. Such a penalty could not be Justified as coiKrerning enlistments for a JforcigM <'ountry. This fa7, with the same liiu'aning, but with atli on niiy otict \vlio Kliall, ^iiliin tin (('iiitorv of Spiiiii, recruit iiicii tor tiic scrx i«'«' of tlu> siriiiioH of an Ims tilr |>o\v«'i. We .«-liall tlifrrloro omit it. witli r»';;ar(l to onr inrsciu arti«'I«'. Tlu' staint*' of Sanlinia, article LSI, ami that of tbo Two Sicilies, cdn cur with our two «M.ses, iMiwei'n wiiich, however, tliey make a dilVcr « iM-e. In the fii.st case the Sardinian statnte iiillicts tenipiMarv rechisioii or the ;.':ille.\s, ac<-oi, Imt in that of our article it intlictH teni|)onuv exile. 'l"lu' modern Havarian statute, article IWO, No. I, provides fur sin oll'ense which is suhstantiallv the same, and is tunisidered as treason at I tlie tonrth de;,M-ee, and punished as such with imprisonment for a tcniij of two to six years. CVlni qui enroliT.i wfri-toiiirnt «1«'B HiijctH dn lovninno an Kcrviro iPHiie puhnmirr hi- ligt'raiilf rtratnjirr.ou qui pri'lua aitic tt UHiiiiiUiute d «» rviruhur hoh attturimi pour \'v\i- cutioii (li; M-s il<'SM-iim. Under the other (ierinan statutes, in eonnei;tion with the crime oil treason, urv vnnxidiird anil punislud as luutuj prcparntortf (t(u\ l^ilitj thirittt the rivruHiiuj iwnX pur*chasesof arms and munitions. Tiiv same do |i:Hiitoiy act: tioii ii l.i!'7| *ili !.1!»."^| *of til recriiitiiiL' nation. (.'•7m( qui niiolv di.-i hountw* /Htiir iin umicc mililiiirv I'lniiKjcr * ' cjii/oniiiini'iit itiix loin iHtliluirtM, pur Iv imnvoirmililuiri:. This ohservation was piescnt<'d Ity ('aml)ation as insert in^ said provision in the common law. It would he a deni;>°ation of tlii' order of matters which was propose. [.'JO.")] As i(';;ards the penalty, that of correctional im*prisonment ami the tine, we acknowled;ie that it is appropriated to the olfeii.-i' under said artich*. It is one of the very lew cast's where pecuniiiiy punishment has not the inc(uivenience of beinjLT coiiiiscation. Without Iiecnniary means n«i one does recruit, no r. To re»;ruit in a for eij;n couMtry for raisinjj the cry of lil)erly, of independence, or of le^'iti luacy, is an enterprisi' which ex mihI tli:it it j.s II lllll\\illlsli|ln|il|< ii'Mslllf. \\i; (Id I lr:tsii|| f,,|- Ijiiijij liiMclfd DM III,, s ill'- Icyi.sliitor iiii llHII'llillltlllCII, III ^ill|lll(l ;i|i|i('iii' at i* iidi )iiijii(lii-ia ^iip|.|ic,| with III I '1 li'li it;l| liiiicl llliilc lllic ri';;iilat ■"■'• l<> Ik- lllilllltcl ' 'if. illlil. iC jiiiy iiiiiii< (liati ly iiiti "11 "ilniiiiy, sell, ^' >ti ol till- Co liiiii is ImiiiiiiI III »!iili:titioii i •';:.iinst flu. lociu iiniitidiieij, Willi I .\ii.vho\v, wi) acl 't itioro pioiier t(t '' iU/illllUIits, till Jictoiy Willi till' II COl'NTI.R CASi: Ol' Till; UNITKU HTATK8. 71 lisli tiic iiMinisitioti, to dcstioy tho propcity or ncdit of aiiotlicr nation, this is a jTiuH* wliirli t'xcitt's li(»rror, aiilin;^' with niieipnd forces in order to maintain its intlu- peiideiice oi' its lil»erty,«>r its le;;itimate |)iince.' |;i!l(i| *rpon tliese promises a jK-nally wliicli always tlireat«'ns with the maximnm (d' ]iniHslMnent is a vicious one, as it cannot lie di< vidcd. It necessarily eanses a too se\('r<^ punishment to lie indicted on the olVcn«ler whose a, one (hiy's, line hoar's delay., nay miscarry a ;<()od bnsint'ss, rnin or render worth- less a connnerciai operation which woulil otherwise have proved most prolitalile had it lieeii mana<>cd in due time. Tin; secret itself, which is dlteii nci'essary to keep, the secret which is lln^ soni and liltMif sntdi iiiidertakin<>s, will not permit to lu> piirticnlar aliont tlu> delay for pre- pinatory a«tts, Inniaiyi 'itlinntl |no nlic prill I lline i'" Itatatr lie eir| lor h a for] hu blic i-nit iiil ■ Mr. l.cvv coiitiiiil.s thill siiiil iulicln is to In- iiinlt'isloiHl jih luoviiliii^iiiily fur wiir- iikf s«'i virf ; lit- j;riiiii(ls Ins (i)iinion (in tlic fiicl Unit tlic niiifunv wdiild Ik- no ali- Miiil tliiit it i.s iMit |Hi.>^silili> III .siip|iiiM' iliiit the i('i;i>lat(ir wniild h:i\i- riiiultd it. ISiif., iiiitwitlisiiiiiiliii^ ill! the r('h|it('t iinil '( rvtil ailniiiatidii we )ia,v tn the ,viiini<; Jinis- ciniMilt, \\(;(liMi(it Mf in tlif \\-i<'iis. \\'(i«' it even an alii'iratimi Ikiim all tlial has lircii riiai'ti'd on till- siiiiJiM't ill otiii'i' st at lit is, as the iiicriniinatrii (ai-t isonlv a ilcliinincni'y, lip li'^iisliitor iiia.v have (•(iiiNidcit il llir in (•cs.vity ot niaiiiiinfi oiir own iiu'ii-ot-war aial iiMicliaiitnicn, anil we do not, tliriiloii', coiisidri' said |iiovi>i(in to Ix- so ali.siiid as it ^!llluld a|)|i('ar at lir.st. 'i'lic rrciiiitiii.i;; of sailors lor tlic national iin rrantilr sliippiii;; ]« not ]iii'Jiidit-ial to till* iri-niitiii;;' lor till* navy, lint niorrovi i nnr nun-ot'' war can lio Mi|i|iliril with men IVoin our mrirhant-vi'ssids. wliili', on tin* lontraiy. tin' irciiiitiii;;' 111 Init inn mrrcliaiitmcii drjirivcs oiir navy of sailors. And it is >o wi-ll I In- oisf iliaf, nnili It In- iT'^iilalioiisor tlii'IliMli of August, \>'.\'J, article ll'.ol ill apt IT ;'., all meieliaiitnieii .ire to lie niiniilely seafehed in Older that lliey do not idiKf I'mhi'initi .\(tilsilile dili^eiiie, in oiih r to have always u list of all the -uilms. irilli (hrhiruliiiii of llir )ii>>«lur of nun niwit irlioin loif moil nihoit for the s(rrkf of Ui, tU, I. ' ' 'fliiis, the iiieaiiiii;r of forei;.;ii naval service though not military, hut j/iird/ Koi/ccflcH- n'/v. can, without appi urance of ahsiiK!;; • , |. ' ronsideicd ;is invoheil in the wiiids llie more that in this way Ihe fact of hiilitinij ntil(r 01 foit:ii;il hornl narhr," so n ijii-iinllioii:')1 '^ 'V- 'j^^Sf ,^ >J" '■? It i 72 TKKATY OF WASHINGTON — PAPERS ACCOMPANYING Vattel, claimed by the American (lovernmeut in 1793 ia the bef^iiiiiiiijr of the war in P^urope, aud which have been incorporated in an act of Congress of 1794, corrected and re enacted in 1818. Under the provisions of said act it is not or y an oftense to increase the force of a vessel of war of a friendly conntry, and to prepare a mil- itary expedition against said country, but equally to iiire or recruit rnoii for any foreign service on land or on the water. The example of America was soon followed by Great Jiritain, by ;iii act of Parliament, (59 Geo. Ill, cap. 59,) known as "An act to prevent the enl'.stment or recruiting of His Majesty's subjects for foreign sor vice, or the armament and equipment within His Majesty's dominions, with an intent of war without His Majesty's permission." The principal reason upon which Vattel and Wolf ground their opin ion in condemning enlistments without the authorization of the gov- ernment, is, that recruiting constitutes au exclusive prerogative of sov ereignty, which no one can legitimately exercise, without express leave, in the territory of another state. [400] But all the prerogatives of sovereignty *have their Just limits. It does not extend further than what is required in order to accom- plish the social object. If the enlistment be not prejudicial to the na tional military service, if it does not free the recruits of the tribute of blood they are to ])ay to their country, where is, then, the ofiensc against its prerogative ? The federal constitutional act of Germany, signed at Vienna on the 8th day of June, 1815, permits, by article 18, all subjects of the con federated states " to enter the civil or military service of any of those states, provided that such right do not interfere with the obligation incumbent on said subjects to enter the military service in their own country if required to do so by statute." The Americans have amplifled the principles of natural law, claimiujit in favor of their absolute neutrality, that as a man must remain in peace with another man who does not assault him, thus also a nation must behave toward anotls^r nation. But this argument is not right in the present case, because it would assume that the natural law is false, which not .only does not incrimi uate so much personal defense as that of another person (a principle which has been adopted by our statute, article 14, No. 3, aud [401] *other articles concurring with it,) but it condemns still more, as being immoral, the fact of a man who remains an indifferent looker-on to a fight between two of his fellow-creatures, and allows one of them to be killed or severely wounded, when it is in his power to assist him. But there is nothing therein which can be applied to service on board of merchantmen in time of peace, when there is no appearance of au} concealment or fraudulent preparations for war. In short, this crimination involves facts of different gravity and dif ferent character, which it would be convenient to discriminate from each other, and to punish in a different manner according to the char acter of the offense, which would be consistent with justice, but cannot be done with the penal provisions of the article, the same maximum of punishment being enacted for all offenses under said article. With regard to the amendment in section 1, we consider this solution as adequate to the legislator. When the recruiting agent is a foreigner, and does not entertain any hostile views against us, the most proper course is to expel him from the kingdom. [402] And this penalty has not the same *iuconvenience as the above COUNTER CASE OF THE UNITED STATES. 73 mentioned ones, because being only temporarily inflictetl, without dec laration, the foreigners are to be expelled from the country for a term of years not to exceed twelve years, and which can, according to cir ciunstauces, be reduced to three years, in conformance with article 3G, m] 'No. : --EFFOKT.S TO PRESERVE TliE NEUI'RALITY OF THE AZORES AND MADEIRA. Mr, Ilarreif, Iniitcd Staten minister, to ^fr. iStncard, Secretary of State. [Extract.] Legation of the United States, Lisbon, October 3, 18G2. Sill : After iuy No. 157 was dispatched on the 29th ultimo, I had a per soual interview with the Viscount Sada Barrdeira, the minister of war, who is also acting as minister of foreign affairs during the absence of the Marquis de Louie, in reference to the outrages at the Azores, the conduct of the Portuguese authorities there, and other matters con- nected with the general subject. I carried with me some of the testi- mony bearing on the important points, and submitted it to him with explanator.y comments. lie was frank enough to say that the islands in question had been used and abused by corsairs and pirates during centuries ; that they were exposed and unprotected, and therefore might be so employed again ; and that our best plan would bo to send a sufficient force there to protect American ships against threatened depredations and 1 404] to punish criminal *offenders. I informed him that two war- steamers had already been ordered to the islands, and that the sloop-of-war Saint Louis was ready to sail; but I had detained her a day for my own dispatches, and offered him that opportunity of communi- cating with the Portuguese oflBcials. Ho thanked me for the courtesy, but said it would be impossible to prepare any instructions within the time nam3d, and that the authorities of the Azores were already pos- sessed of the views of the government through the royal proclamation of last year. I called his attention particularly to the report of a project to establish a coal depot for "confederate" cruisers on the islands, saying that it was part of a plan to equip and arm against our commerce in flagrant disregard of the king's proclamation. It was agreed between us that I should address him a note on the subject, directing attention to the points most requiring prompt consideration. A copy of that note is now inclosed for your information. It needs no explanation at my hands. ^'o effort has been spared and no precaution neglected which care and prudence could suggest or provide for this emergency. In fact 1405] all the resources at my disposal or discretion *have been ex- hausted, and I may say, without egotism, at lefist energetically, if not wisely. I am, sir, very respectfully, your obedient servant, JAMES E. HARYEY. Hon. William H. Seward, Secretary of State. ■ % ?; ; J ( f ■1 ;l i ■■ ''A 1 k ; 5 ':!?» ■''el mm! ■ f ■ J.. 1 '? 74 TREATY OP WASHINGTON PAPERS ACCOMPANYING Mr. Harvey f United States minister, to Mr. Seicard, Secretary of State. Legation of the United States, Lisbon, January 20, 1804. Sir*: The accompanying copy of a note from the Duke do Soule, itt answer to one which 1 addressed to him on the 14th instant, in refer- ence to the arininj? of piratical cruisers in Portngnese ports, was only received hist niy.ht, thonj;h (hited on the IGtli instant. 1 have the honor to be, ik,c., JA:MES E. HARVEY, lion. Willia^i II. Sewakd, Secretary of State. V^l'i Mm III . 1 ivi I - : f,< |IiicIumii'o.| Dule de I oul', minister of foreign affairs, to Mr. llarcey. United States minister. [Translatiou.] Department of FoREiaN Affairs, Lisbon, January 10, 1804. [400) *I have had the honor of receiving the note which you weri' pleased to address nie nnder date of the 14th instant, n'.aking known to me the information you had received, that the English bark Agri|>pina was carrying to the Azores a cargo of munitions of war for the supply of confederate cruisers. Being thus apprised of the contents of your aforesaid note, it is my duty to inform you that under this date, I address the ministers of the interior, linance, war, and navy departments, iu order that, w'ith all urgent speed, they may adoi)tthe most energetic measures to prevent the furnishing of such articles to confederate vessels. I avail myself of this opportunity to renew the assurances of my most distinguished consideration. DUKE DE LOUL15. James E. Harvey, Esq., li-c, d-c, tt-c. The Duke de Louie, minister of foreign affairs, to Mr. Uarrcy, United States minister. [Translation.] Department of Foreign Affairs, lAsbon, January 23, 1804. [407J With reference to the note which you were "pleased to address me under date of the 14th instant, requesting that preventive measures might be adopted with regard to the English bark Agrippiiia, livhich, according to information, purposed carrying to the Azores a cargo of munitions of war for supplying the confederate cruisers, it is my duty to inform you that the minister of the interior has advised me, in his communication of the 20th instant, as having forwarded, on that same date, to the civil governors of the district of the Azores and Ma deira, ii portario, of which a copy will be found inclosed. COUNTER CASE OF THE UNITED STATES. 75 B3' the contents thereof, yon will perceive that proper instructions have been furnished to the aforesaid authorities to enable them to thwart the intentions and 8i>eculations of all corsairs inimical to the United States. Tiiese same onlers may, for greater speed, bo forwarded by the cor- vette Saint Louis, as you propose, and to this end 1 have the honor of transaiittiug the same to 30U to be sent to their tlestination. I avail myself of this opportunity to renew the assurance of my most distinguished consideration. DUKE Dli: LOULT^:. James E. ITativev, rfr., rfv. '■I [40.^1 '[Inclosure.] Instructions to the governors of the Axores and Madeira. [Translation.] Ministry of the Interior, Second Department, LiaOon, Royal Palace, January 20, 1SG4. The inclosed authentic copy of a note from the minister of the United States of America at this court, having made known that the Englisli bark Agrippina conteinplates carrying to the Azores a cargo of muni- tions of war for supplying confetlerate cruisers, which are to go there to receive them, in order to continue their depredations on the com- , merce of the United States in the same manner as the aforesaid bark did before in 1802, in the bay of Angra, ami it being further made known that the parties implicated in these nefarious undertakings pro- pose to establish a regular de|»ot in one or more of the smaller ports in the said islands, with the view of organizing therein armed expeditions lioatile to the aforesaid Uniteil States, His Majesty the King desires that a knowledge of the alx»ve be con»municated to the civil governor of the district of Angra de Heroismo, and ordains that, taking into his most serious consideration the contents of the above-mentioned note, and the reclamation therein contained, the same civil governor shall adopt all such measures as may be necessary to completely [409] *put a stop to the aforesjiid «lesigns and intentions on the part of the enemies of said United States ; and for this purpose he ia to co-operate with the directors of custom houses and captains of ports within the district under his charge, so as to act with a mutual accord, to which effect orders, with strong recommeiulation, have been sent to them through the respective departments. An immediate account is to be rendered, through the department, of all that may be done or put into practice on this subject, with the understanding that His Majesty makes the civil governor and bis subordinates responsible for any neglect or omission in such a grave and delicate affair. DUKE DE LOULr^. True copy. OLYMPIO JOAQUIN DE OLIVERIA. Department of Foreign Affairs, January 23, 18C4. True copy : EMILIO ACHILLES MONTEVERDE. Ml u li:! {;:. J a i- l1 76 TREATi' OF WASHINGTON PAPERS ACCOMPANYING The Dvle fie Ta)uU^ minister of foreign affairs, to Mr. Harvey, minister of the United States. [TrarB'atlon.] DEPART^raNT OF FOREIGN AFFAIRS, January 23, 1864. In addition to my note of this day's date, I have the honor of inform- ing you that throngh the navy dej)artment the most positive 1 410] orders have been tran8*initted to all the authorities dependent on the said department, in the sense of your note addressed to mo under date of the 14th instant, and that probably a man-of-war will start for the Azores to aid the aforesaid authorities. I avail of this opportunity' to renew the assnrauces of my most dis- tinguished consideration. DUKE DE LOULTO. James E. ITarvey, Esq. >i Mr. Harvey, United States minister, to the Duke de Louie, minister of foreign affairs. Legation of the United States, Lisbon, January 25, 1864. Sir : 1 have had the honor to receive your note of the 23d instant, communicating a copy of a portario, addressed to the civil governors of the Azores and Madeira, founded upon representations made by me in reference to the designs and movements of certain piratical cruisers, reported as intending to rendezvous and equip at the island possessions of His Majesty against the commerce of the United States. It is my duty and pleasure to say that the instructions contained in that portario are consistent with the friendship and good feeling which has so long and happily subsisted between Portugal and the United States, and which it is to be hoped may not only be still longer |411] continued, but united even more closely *and strongly. The United States ship St. Louis sailed yesterday for the Azores direct, intending subsequently to touch at Madeira. Her com- mander is charged to deliver, personally, the dispatches to the various authorities at the islands, which your excellency, at my suggestion, ad- dressed to my care. I avail myself of this opportunity to tender the assurances of ray most distinguished consideration. JAMES E. HAEVEY. His Excellency the Duke de LouLti, Minister and Secretary of State for Foreign Affairs. Mr. Harvey, United States minister, to Mr. Seward, Secretary of State. [Extract.] Legation of the United States, Lisbon, January 30, 1864. Sir: The Duke de Louie addressed me a fourth note, (of which a eopy in translation is inclosed,) yesterday, on the subject of my recent repre- COUNTER CASE OF THE UNITED .STATES. 77 seiitatioii, ami from which it appears that the entire authority of every department of His Majesty's ffovornment has now been seriously and energetically invoked to prevent rebel cruisers from arming or e(pilppiug in the island ports of this kingdom. I have the honor to be, &c., .TAMKS E. IIAIIVKV. Hon. William V. Sewakd, bev 'tary of State. u t n [412J * Tlu- nuke (Ic Louli, mbmter of foreign a^iiirx, to Mr. Ilarveify Ignited States minister. [Translation.] J)ErAKTMENT OE FOREIGN AFFAIRS, January 29, 1864. I have the honor of infm-ming you, in addition to my notes of the 23d instant, that the minister of ftuance informs me, in a communication of tbe 20th instant, that on the same day the most positive orders were being sent to the directors of custom-houses iu the Azores Islands, to the ettect of their adopting, under the severest responsibility, all such measures as may be within their reuch, to prevent confederate vessels from supplying themselves with munitions oi' war in the custom-ports of said archipelago. It is my duty further to inform you that the minister of war has advised me under that .same date that, notwithstanding the orders already transmitted to the general commanding the tenth military division, which were communicated to you on the 2d December, 1862, he now again recommends the aforesaid general to employ the utmost vigilance, and to give his most positive orders, .so as, by cooperating with all the other local authorities,, to frustrate all plans and attempts of the confederates, and thus maintain a rigorous compliance with the decree of July 29, 1861. I renew on this occasion the assurances of my most distinguished consideration. DUKE DE hOlJLV:. Jame.'< E. Hakvey, E.sq. '5 t ■ ! ■ ■y im h [ll.ij *Mr. Harvey, United States minister, to Mr. Seicard, Secretary of State. Legation of the United States, Lisbon, lebrnary 2, 1864. • Sir : i transmit herewith a copy of a note (iu translation) which the Duke de Soule has addressed to me, stating the Portuguese war-steamer Mindello had been dispatched to the Azores to carry out practically the recent assurances of His Majesty's government of an intention to pre- vent the arming or equipment ot piratical cruisers in Portuguese porta against the commerce of the United States. 1 have the honor to be, &c., JAMES E. HARVEY. Uoo. Wm. H. Seward, Secretary of State, I ■■■is ■ii ! 'i 78 TREATY OF WASHINGTON PAPERS ACCOMPANYING ... ' ■I Ijll* Tlie Dulo dc Louie, minister of forciqn affairs, to Mr. Harvey, United States minister. ^ [Translation.] • ])EPARTMENT OF rORFlUN AFFAIRL% January 2'J, 1SG4. In addition to the notes addressed you on the 23d and 2Uth instant, I liave now the honor to inform yon that on the 20th instant tlie Portu- guese steamer of war Mindello h^l't this port bound for tlie Azores, in order to superintend the execution of the orders transmitted to the respective autiiorities regarding the punctual compliance with [4141 the decree *of July 21), 1803. ,. t-^^s* I rene\/ on this occasion the assurances of my distinguished consideration. DUKE DE L0UL15. James E. Harvey, Esq. No. 3.-LIMITATI0N OF ASYLUM TO THE FLORIDA AT FUNCHAL. Mr. Harvey, United States minister, to Mr. Seicard, Secretary of State. Legation of the United States, Lisbon, May 24, 18C4. Sir : I transmit herewith translations of various correspondence be- tween the authorities of the island of Madeira, the commander of the rebel cruiser Florida, and the United States vice-consul, in reference to the supplies which were furnished to the Florida at Funchal in February last. I have the honor to be, &c., JAMES E. HAKVEY. Hon. Wm. H. Seward, Secretary of State. i I [415] '[Inclosnre.] Oorernor Perdigao to the captain of the port of Funchal. [Translation.] Civil Government of Funchal, February 2S. 1864. Most Excellent Sir : I have just been informed, by an official com- murication from yourself, that the ship Florida, a South American corsair, sailing under the so called flag of the Confederate States, whi(;h have not been recognized by us, has entered and is now at anchor in this port. In view of the decree of the 29th July, 18G1, a vessel in those circum- stances can only enter the ports of Portugal when compelled thereto by foree majeure ; and as such case has not happened, nor is it invoked by the commander of said vessel to legalize or justify his stay in this port, I find myself comx)elled, in vouformity to the la.r, and in obedience to all ^1 COUNTER CASE OF THE UNITED STATES. 79 those principles of loyalty which are duo to the flag of a friendly nation, to request that your excellency will be pleased to intimate to the afore- said commander to leave this port with all possible speed. Your excellency will be pleased to keep me informed of all that may occur in carrying out the present commission. God preserve your excellency. The civil governor. JACINTIIO ANTONIO PERDIGAO. His Excellency the Captain Of the Port of Funchal [416] •[Iiiclosnre.] • The captain of the port of Funchal to Governor Perdigao. [TrjiDsliition.J Funchal, February 28, 18C4. Most Excellent Sir : In compliance with the orders received from your excellency, I have intimated to the commander of the war-steamer Florida to leave this port within twenty-four hours, and in reply to said intiiuatioii 1 have received from said officer a communication, of which I have the honor of transmitting a copy to your excellency, wherein the said commander declares he was forced to come into this port in want of wnter, bread, and coals, and that consequently it is impossible for him to quit this port without those articles. Your excellency will decide Avliiitever is Just, aur Pvrdhjnn to the chptaln <>/ the port. [TraiiHlivtion.] Civil (Joveunment of Fuxohal, Fvbruarif 21), 18G4. >rosT '.Excellent Sir: On view of your coinnmnication, whoroiii yon iiitoriii inc that yon had intimated to the commander of tliesliip Florida — Soiitii American corsair — to (juit this port, and make known liis reply, whereby he aiU'jyes the existence of/orct' majeure in Ids being short of i)ro- visions, water, and coals to navigate, it is my duty to iidorm you that 1 consider that ship only entitled to protection under the ^t^'iit'nU i L'()| *lawsof humanity; and I understand that, accordinjito said laws, we need not deny to any one the uecessary means of subsistence, and therefore ayree to his being furnished with such provisions and water as lie may re(iuire, but cannot do the same with regard to coals ; whereas said shi|) being built on the mixed system, and being therefore enabled to navigate by means of her sails, as she no doubt has already done, and as is evident from the fact of her having taken eighteen days in loining from Brest to this i^ort : and it not being consistent with my duty that she should, within the territory contided to me, be permitted to furnish herself with that article in a greater quantity than what is necessary for her to leave this port, attain such a distance oil' as not to l»o prejudiced by the ship of war of the United States which is likewise now at anchor in this port, and for the purpose of cooking on board, I think that I am only authorized in allowing her to be furnished with twenty tons of coal; which quantity, although not sufficient to put I her in a position of causing damage, is nevertheless sufficient to avert any danger to which she might, by chance, be exposed on leaving [this pore. In this sense your excellency will be pleased to communicate with the I commander of the aforesaid corsair and apprise me of the result. God preserve your excellency. \m I *The Civil Governor, JACINTHO ANTOXIO PERDIGAO. His Excellency the Captain 0/ the Port o/FuncJial. [IncloBure.] Oovernor Perdigao to tlie director of customs. [Translation.] Civil Government op Funchal, February 29, 1864. it port. ■ j(Qg.p Illustrious Sir : Having been informed by the captain of [liis port that the commander of the ship Florida — South American lorsair — now at anchor here, had declared himself unable to leave this Wt in compliance with the intimation made to him by my orders, seeing jliat he was in want of provisions, water, and coals ; and I having re- ]<)lved that in view of the duties of humanity, which must be extended 6 a— II I K 83 TREATY OF WASHINGTON PAPKUS ACCOMI kNYINO to him and which . tlag in whose waters he is now^ riding at anchor. He. however, has asked me that, following the example of what is done in tho portsof other nations, all means might be employed toward obtaining that j the United States war-ship in this port may only leave this port twenty four hours after his departure ; and it being my desire to maintain com I)lete impartiality, thus communicate the same to you, hoping that you will agree with the commander of the American corvette now here, so i as to comply with the said request, which I consider reasonable and in I harmony with those principles of equity which are due to all. Be pleased to acknowledge receipt of the present dispatch and to| reply thereon as you think fit. God preserve you. The Civil Governor, JACINTHO ANTONIO PERDIGAO. Most Illustrious Vice-Consul of the United States. COUNTKR CASK OF TIIK rNITEI) STATKS. 83 [.['ii] •LIiicloHiiri'.] The captain of >he port to (torenmr Pn-digao. [TriuiHliition.] Fi NCIIAL, March 1, 1.S04. Most Exckllknt Siu : 1 have tlio honor of informiii}; your excel- lency that the Aineilciiu steamer Florida left the port last nisht, about 8.30 p. III., having received the provisions and water which she desired and the twenty tons of coals which y«)nr excellency jierniitted lier to take. (lod preserve vour excellencv. JOAQUIN PEDRO DF CASTKLIiUANCO, Post-Captain H. A. and Vaptain of the Port. His Excellency Don Jacintiio Antonio I'eudkjao, Cii'il iiorvrnor of the District of FunchaK (». r> II No. 4.— CASE OF THE STONEWALL AT LISItON. Mr. Harvey, United States minister, to Mr. Seward, Secretary of State. Lecsation of the United States, Lisbon, March L'8, 18(;.">. Silt: I have the honor t<) inform yon that the rebel cni'^jor 142.')] Stonewall, a most formidable iron-clad ship, •entered thisjjo ♦ on Sunday eveninfj, the 20th instant, having left Ferrol the pre- vious daj\ As the flag which w i-; llanute«l from her mast-head was en tirely unknown here, and somewliat resembles that of the IJussian .service, she was generally suppo ihI to belong to that navy ; and, in fact, the real character of the vessel was not ascertained positively until the next morning, when certain individuals, calling them.selves officers, published their disloyalty in the streets in gray uniform and arrogant language. As soon as I was informed of the identity of the craft, immediate steps were taken, personally, to have her ordered out of port, and thej* were followed later in the day by a formal note to Duke de J.ouh', now inclosed, (marked A,) which will explain itself. As.surances were given without hesitation that the vessel would be required to depart within twenty-four hours; and I have occasion to I know that the orders were at once unide, and the notice officially com- 1 nuuiicated to the Stonewall. Large inducements were held out to procure enlistments in Lisbon. As much as £10 sterling monthly wages, and jC1."» bounty were ottered, liiit only one misguided and dissipated victim was secured, and he bj' a process of kidnapping. The fact only came to light too late to be visited with the penalty' which I should certainly have assisted in see- ing enforced. [426] *I also communicate herewith, marked E, a copy in translation of the note of the Duke de Louie, in reply to mine of yester- 1 day's date. These papers and this general statement concerning the cruiser Stone- wall since her presence in the Tagus will enable the President and the j Department to appreciate understandiugly the official proceedings which I were adopted to meet an exceptional and vexatious emergency. I have the honor to be, sir, your obedient servant, JAMES E. HAKVEY. Hon. Wm. H. Seward, Secretary of State. ■'h ^m -n* , ■ if'i Ml ''I 84 TREATY OF WASHINGTON rAPERS ACCOMPANYING ^l ■ II ,!: : DuJply, and within tweutyfonr hours, ho should proceed to sea. Said term expired this afternoon. On perceiving this morning that the vessel was still at her anchorage, a naval oflicer was sent on board to ascertain the reason why she had delayed her starting. The said officer, on his return, stated that if the Stonewall had not started within the prescribed time, it was owing to her not having taken in all the coal, and there being to-day a strong current the commander was afraid that a slight derangement in his capstan might prevent his weighing anchor ; and the latter further declared that as soon as the current might diminish its intensity he would quit the port, and this he ett'ected about 10.50 a. m. Eegarding the supply of coal, against which you insist, allow me U> observe that the vessel being a steamer His Majesty's government could not avoid, with good foundation, that she shoukl be provided with that article, for the same reason that it could not deny to any sailing-vessel, in a dismantled state, to provide itself with the needful sails. In reply to your third request, and to what you say regarding the English [428] brig *Fairline and the schooner Mertou Castle, which were about sailing for Lisbon with munitions of war, chains, and anchors supposed to be destined for the Stonewall, I hasten to assure you that His Majesty's government, having greatly at heart not to give any mo- tive which might alter the friendly relations and the good harmony which happily subsists between Portugal and the United States, has not hesitated in adopting all necessary measures, through the depart- ments of marine, interior, and finance, to put a stop to all such plans. I avail myself of this opportunity to renew the assurances of my most distinguished consideration. DUKE DE LOULE. James E. Harvey, Esq., &c., (be, &c. « [431] *I v. — BRAZIL. CODIGO CRIMINAL. Parte II. — Dos crimes publicos. TiTULO I. — Doa. crimes contra a existencia politica do imperio. Capitulo I. — Dos crimes contra aindependencia, integridade c dig nidade da na^'ao. Art. C9. Provocar, directamente e por factos, uma na^aoestrangeira '■"Sj COUNTER CASE OF THE UNITED STATES. 85 les, lias TLE. ingeira a (Icclarar a giiorra ao imperio, se tal tleclara(;rio se veiificar e se seguir a jjiierra Venas. — No grau maximo, dezoito anuos de prissio com trabalho. No gran medio, doze annos, idem. No grau r. inimo, seis aunos, idem. Se da provocaoilo iiao se seguir a declarayao da guerra, ou se este, posto que declarada, se ujio veiificar, ficaudo a na<;rio sem damno ou projuizo : I'enas. — No grau niaxiiuo, seis annos de prisao com trabalho. j432] No gran medio, quatio auuos, idem. No *grau miuimo, dous annos, idem. Se para ufio se veiificar a guerra declarada, em consequencia da pro- vocaj^iio, por preciso algum sacriftcio da ua9iio, em prejuizo de sua iii- tegridade, dignidade ou interesses : Fenas. — No gran maximo, doze annos de prisao com trabalho. No <,'rau medio, sete anuos e seis mezes, idem. No gran miuimo, tres annos, h\em. Art. 73. Commetter, sem ordem ou autorisa^ilo do goveruo, hostili- (ladescoutra os subditos de outra iiayao, de maneiia que se comprometta a ])az ou provoquera represalias : Fenas. — No gran maximo, doze annos de prisao com trabalho. No gran medio, seis annos e seis mezes, idem. No grau miuimo, urn auno, idem. Se, por t.al procedimento, algum brasileiro soifrer algum mal, sera o rc'O cousiderado autor delle, e punido com as penas correspoudeutes alem da sobredita. Art. 74. Violar tratados legitimameute feitos com as ua^aoes estran- iioiras : Fenas. — No grau maximo, seis anuos de prisao. No gran [133] medio, tres aunos e seis mezes, idem. No gran *minimo, um auno, idem. Art. 82. Exercitar pirataria ; e este crime julgar-se ha commettido : § 1". Practicaudo no mar qualquer acto de depreda«*ao ou de violencia, qner contra brasileiros ou contra estrangeiros con quern o Brasil ufio e.steja em guerra; § 2". Abusando da carta de corso, legitimameute concedida, para prac- ticar hostilidades, ou contra uavios brasileiros ou de outras nayoes, que nao fosse autorisado para hostilisar; Fenas. — No grau maximo, gales perpetuas. No grau medio, vinte an- nos de prisao com trabalho. No gran miuimo, dez annos, idem. § G". Aceitando carta de corso de um goveruo cstrangeiro sem compe- teiite autorisa<;no : Venas. — No grau maximo, oito annos de prisao com trabalho. No gran medio, cinco annos, idem. No gran miuimo, dous annos, idem. Art. 84. Tambem commettera crime de pirataria : § 1". O que fizer parte de qualquer euibarca^ao que navegue armada, senj ter passaporte, matriculada equipagemououtros documeutos 134] que provem a *legitimidade da viagem : Fenas ao commandante. — No grau maximo, desezeis annos de I'ri.sao com trabalho. No gran medio, dez rinos, idem. No gran mi- iiiiiio, quatro annos, idem. Fenas a cqnipaffem. — No gran maximo, oito annos de prisao com trabal lio. No grau m«''dio, cinco annos, idem. No grau miuimo, quatro [annos idem. — (Codigo criminal do imperio do Brazil, pelo Dr. Carlos Antonio Cordeiro. Rio de Janeiro, 1801.) [For the circular of the Brazilian government in the original, with joomraentary thereon, see Apontameutos para o direito iuteruacioual, I por Antonio Pereira Pinto, torn, ii, p. 38G.] «:*,:•. \ 0' ftps m J' .1 • I.. ■ I- •p N I- Hi I!J I -■T hi v^Vm 86 TREATY OF WASHINGTON PAPERS ACCOMPANYING 435] '[Translation.] CRIMINAL CODE OF BRAZIL. Part II. — Of political crime. Title I. — Of crimes against the political existence of the empire. Chapter I. — Of crimes against the independence, integrity, ami dignity of the nation. Art. G9. — To provoke directly, and by acts, a foreign nation to de- clare war against the empire, if such declaration is verified and is fol- lowed by war : Punishments. — In the highest degree, eighteen years of imprisonment with labor. In the middle degree, twelve yeavs, ditto. In the lowest degree, six years, ditto. If, from the provocation, a declaration of v ar does not follow, or it', although war be declared, it does not take effect, the nation remaining without injury or prejudice: Punishments. — In the highest degree, six years of imprisonment Avitli labor. In the middle degree, four years, ditto. In the lowest degree, two years, ditto. If, in case war declared does not take place, but in consequence of tlio provocation, there should be necessity for any sacrifice, on the part of the nation; in prejudice of its integrity, dignity, and interest : Punishments. — In the highest degree, twelve years of ini- [436] prisonment with labor. In the middle degree, ^. seven years and six months, ditto. In the lowest degree, three years, ditto. Art. 7.'i. — To commit, without order or authorization of the govern- ment, hostilities against the subjects of another nation, so as to com- promise peace or provoke reprisals : Punishments. — In the highest degree, twelve years of imprisonmoiit with labor. In the middle degree, six years and six months, ditto. In the lowest degree, a year, ditto. If by such proceeding, any Brazilian suffers any injury, the accused shall be considered author thereof, and i)unished with correspondonr punishments in addition to the above-mentionetl. Art. 74. — To violate treaties legitimately made with foreign nations: Punishments. — In the highest degree, six years of imprisonment. In the middle degree, three years and six months, ditto. In the lowest degree, one year, (litto. Art. 82.^ — To exercise piracy; and this crime shall be deemed to have been committed : 1. Practicing on the sea any siet of depredation or of violenec whether against Brazilians or against foreigners with whom Brazil is ! not in a state of war ; [437J 2. Abusing letters of marque legitimately *conceded to prat' | tice hostilities either against Brazilian ships or those of otiur jiations without authority to commit hostilities against them : Punishments. — In the highest degree, galleys [or imprisonment with I laborj for life. In the middle degree, twenty years of imprisonment | with labor. In the lowest degree, ten yearw, ditto. § G. Accepting letters of marque from a foreign government without | competent authorization : Punishments. — In the highest degree, eight years of imprisonment | with labor. In the middle degree, five years, ditto. In the lowest dc gree, two years, ditto. Art. 84. Also shall be deemed guilty of the crime of piracy : 1. Whoever makes part of any crew which navigates armed, without I t'ino, comet COUNTER CASE OF THE UNITED STATES. 87 bavi'ig passport, role d'equipage, or other doeninents which jirove the legitimacy of the voyage : Punishments of the commandant. — In the highest degree, sixteen years of imprisonment with labor. In the middle degree, ten years, ditto. In the lowest degree, four years, ditto. Punishments of the crew. — In the highest degree, eight years of irapris- oument with labor. In the middle degree, live years, ditto. In the lowest degree, two years, ditto. [438] [See claims of United States against Gre.at Britain, *vol. 7, pp- 107-llC, for translations of divers circulars issued by the Govern- ment of the Emi)eror of Brazil for the observance of his subjects for the years 1854-1872. J it [441] v.— SP AIK Xo. 1. Penal code. No. 2. Case of the Stonewall. ii.i: No. 1.— PENAL CODE. Codigo penal reformado conforme al te.vto official, con notas y ohscraaclones, par ]). Vicente Uernandez de la Eua, (Madrid, 1800,) pj). 110, 111, 113. Art. 148. lil que, con actos no autorizados competentemente, pro- vocare 6 diere motivo a una declaracion de guerra contra Espaila por parte de otra potencia 6 expusiere a los Espanoles a experimentar vejaciones o represalias en sus personas 6 en sus bienes, sera castigado con la pena de prision mayor, y, si fuere empleado publico, con lade lot'lusion temporal. Art. 151. Rl que, sin autorizacion legitima, levantare tropas en el icino i)arael servicio de una potencia extranjera, 6 destinare buques al corso, cuahpiiera que sea el objeto que se proponga 6 la nacion [442] 6 que intente hostilizar, sera *castigado con las penas de prision mayor y multa 500 a 5,000 duros. Art. 150. 101 delito de piratoria cometido contra Espafioles, o subditos do otra nacion que no se halle en guerra con Espana, sera castigado con la pena de cadena temporal, en su grado maxiino a la de muerte. /v7 codigo penal, concordado y comentado por Don Joaffuin Francisco Pa- checo, tomo 11, pp. 01, 02, 0(1, 97, {Madrid, 1870.) Art. 148. " Rl (pie, con actos no autorizados competentemente, provo- care 6 diere motivo a una declaracion de guerra contra Espafia por parte de otra ])otencia, 6 expusiere a los Espanoles a experimentar ve- jaciones 6 represalias en sus personas 6 en sus bienes, sera castigado con la pena de prision mayor, y, si fuere empleado i)ublico, con la de re- elusion temporal." Cod. esp. de 1822. Art. 258. lt!l que, sin conocimiento influgo ni autorizacicm del gobi- cvuo, cometiere hostilidades contra los subditos de alguna potencia aliada 6 neutral, 6 expusiere al estado por esta causa o sufrir una decla- racion de guerra, 6 a que se hagan represalias contra Espanoles, sera con- ^1: • ». ■■■wn 11 rpT *i m [ K- n 88 TREATY OF WASHINGTON PAPERS ACCOMPANYING (leuado s'l dar satisfaccion pilblica, y a reclusion 6 i)risiou tie dos ;i [443] seis afios, y pagara una luulta ij'ual a * la cuarta parte del valor dc losdauos quehiibiere caiisado; todo siuijerjuiciodeeualquieraotrii pena que merezca por la vloleueia cometida. Si por electo de dicliaa liosti- lidades resultare iiumediataniente 6 hubiere resultado al tieiuiw del juicio una declaracion de giierra, scrs'i castigado el reo con la pena de depoi t;i cion. Comoitario. 1. Ko es coiuun en el siglo XIX que se declaren guerras per provo caciones particulares ; pero si pueden dar estas niotivo a reclaniaciones niuy fundadas, que se conviertan en represalias. Caso de desateii derse he aquf, pues, la aplicacion i^ractica del artieulo; aqui como puede liaber lugar a esa prision mayor 6 A esa reclusion que se indicaii. 2. Estoscastigos sou indudablemeutejustos. Quien expone a su patria. quieu exi>one a sus conciudadanos a los azares de una reclaniacion de tal genero, de las represalias que pueden ser consiguientes aun de las hostilidades que uo son iniposibles, merece sin duda una ejemplar y severa eorreccion. Seria el colmo del escaudalo que sus couipatricios o el estado sufriesen las consecuencias de su mala obra, y que el riese entre tanto presenciandolas en quietud y seguridad. [444] *Art. 151. " V'A que, siu autorizaciou legitima, levantare tropas en el reino para el servicio de una potencia extrangera, 6 desti- nare buques al corso, cualquiera que sea el objeto (]ue se i)roponga 6 la nacion a que iutente bostilizar, sera castigado con las penas de prision mayor y multa de 500 a 5,000 duros." Comcntario. 1. He aqui dos accioues: la de alistar tropas para servicio extranjero v la de destinar buques al corso, tambien en provecho de una causa ex- tranjera, que la lei podia autorizar 6 reprimir, segun los principios que le i^luguiesen. ])e lieclio, la conciencia bumana no senala estos actos como criminales, y la mayor i)arte de los cckligos nada dicen acerca de elloa. No habia una necesidad de constituirlos en delito ; no la babiu de iinponerles las penas atpii senaladas, ni aiin, en rigor, ingunas otras. 2. Sin embargo, comprenderaos, y lo que es mas, ajirobamos el sisteiiia de nuestra ley. Parecenos bien que los Espanoles no tengan esa t>icul tad que disfrutan los habitantes de algunos «tros pueblos, de armarv alistar reclutas, para pouerlos al servicio de una potencia extrana ; do destinar bu(]ues al corso, para servir los intereses de esas misnias [445] potencias. Es la guerra de por si una *eosa bastante gi-ave, v pueden coniprometer mucbo a la i)atiia los armamentos que en esta se ejecuten, para que nos i)arezca bien que pueda cnalquier in dividuo Jirrqjarse a veriflcarlos sin autorizacion. La ley no debe <]uerei' que derramen su sangre los Espanoles, si no i)or causas que pueda y deba aceptar Espana ; la ley no debe (pierer, no debe permitir, sub- (litos (1(^ otra iiacioii qiio no se lialle en fjuena eon Espansi, sera ea.stigado con la pena de (;adona teniporal, en su grado niaxinio a niuerte.'' Comintario. 1. La pirateria es «le ]»or si uii crimen tan bajo conio fern?;. 1^1 es robo, ^1 es latrocinio del baMdolero, mas on major escala y con [440J todo *el aumento de males y de peligros (jue trae iiatnralniente el elemento donde se empreude y ejecuta. La depredacion es su ]»riucipal objeto, pero las violencias de toda especie, y la muerte misma, son su acompafiamieiito Decesario; el cafion y el abordaje, indispensa- bles.medios de su obra; los desiertos del mar, teatro de sus proezas, nos iiidican bien todo loque eu e.se ejercicio debe baberdo barbaro,de desal- niado, de horroroso. 2. Como el oceano no pertenece a naciou alguua, todas las naciones se ban creido con derecho para castigar este crimen, que a todos lieri.a y alcanzaba. Todas le ban eastij^ado. Unas le ban escrito en sus codigos con su propio nombre ; otras le ban aplicado las penas generales de las muertes, de las violencias, de kjs robos que le constituyen. Pero en iiinguna parte se lia mirado con iudulgencia ni con indiferencia a esos bindidos y ladrones del agiia, rpie, sin otra ley que su gusto, sin otra au- toridad que la de su propio poder, ban recorrido saquando, violando, (lestruyendo, el naturalmente pacifico espacio de los mares. Donde (liiiera, la conciencia bnuiana lia inspirado y aprobado su castigo. 3. El articulo 15G de nuestro c<'>digo, adoptandt* esta universal cos- tumbre, ba senalado una pena general al delito de pirateria, [447] donde (juiera *que se cometiera. Sin embargo, no ba sido tan absoluto al designar las personas contra las cuales se ba de liaber cometido. No ba dicbo, i>or cierto, que cualesquiera que sean estas, sera del niismo modo criminosa y punible la accion. Le ba limitado 6 decla- lado tal cuando ba recaido en Espafioles, 6 en siibditos de una poteni'la (jue no se balle en guerra con Espana. Cuando la pirateria se ba ejer- cido en dauode extranjcios que son, o que eran enterices ? enemigos nuestros, la ley ba callado, y no ba <]uerido reconocer como delito so- uiejante accion, l^os motivosde esto son evidentes: no bemos de ir no- sotros a asegurar los mares en provecbo r parte deotra i»otencia «'>expusiere a los Espa- i Holes a experimentar vejaciones •» represalias en sus personas 6 en sus l>icnes, sera castigado con la i>ena de reclusiion tenipural, si fuere fuuci- [onario del estado, y no siendolo. con la de i)rision. "Si la guerra no Uegare a declararse, ni a tener efecto las vejaciones 6 [lepresftlias, se impondran las penas respectivas en el grado inmedia- [iiiente interior." ARxfcuLO 150. " t-ll que, sin autorizacion bastante, levantare tropas I'll el reino para el servicio de una potencia extranjera, cualquiera que h^ea el objeto que se i)roponga 6 la nacion a quien inteute hostilizar, sera v»i !'■ * -I ! I .1 i i ii: H' l- h'-t; iii^ 'ii I ; i lift' 111- '^l iB.-J. ,' i 90 TREATY OF WASHINGTON PAPJ^RS ACCOMPANYING castigado con las penas de prision mayor y multa de 5,00(^ a 50,0(H)| pesetas. " l5l que, sill autorizacion ba.stante, destinare biiques al corso, sera cas tigado con las penas de reclusiou temporal y mnlta de 2,500 a 2o,(KH) | pesetas. Ulcmentoft del derecho civil y penal de Esparta, precedidos de um\ [440] rcsena historiea de la legislacion €s*pariola, per los doctorex ]i.\ I'cdro Gomez de la Serna y D. Juan Manuel Montalban, [Madrid. 1871,) tomo 3, j>i>. 241, 242. (Page 241.) Art. 14. V'A que, con actos ilegales, 6 que no estcn autorizadusl competentemente provocare 6 diere motivo j'l una declaracion de guerra contra Espafia por parte de otri' potencia 6 expusiere a lo> Espafioles a experimentar vojaciones 6 represalias en sus personas 6 en sus bienes, en cuyos casos estanin comprendidos los que invadieren iinj pais extrano y cometieren en «''l actos de violencia asi como tambien lo> que ultrajaren a un enviado extranjero, sera castigado con la pena dn reclusion temporal, si fuere funcionario . ;fil que, sin autorizacion bastante, destinare al corso, sera castigado co!i| las penas de reclusion temporal y multa de 2,500 a 25,000 pesetas. [450] Tolerar el le*vantaniiento de fuerza en un pais en favor de deter | minada potencia, puede ser ya un acto de hostilidad mas 6 meno> abierta contra otra. El delito de levautar tropas para insurreccion eiu'i reino no esta comprendido en esta disposicion, pues corresponde a laj categoria de los que se cometen contra la seguridad interior. CAl'lTULO IV, (pp. 240, 247.) Art. 155. El delito de pirateria cometido contra Espanoles, 6 siibdito<| de otra nacion que no se balle en guerra con Espana, sera castigado coii| la pena de cadona temporal 6 cadena perpetua. Cuando el delito se eometiere contra subditos no beligerantes de otwl nacion (pie se halle en guerra con Espana, sera castigado con la peii.i| de presidio mayor. Este delito, comprendido antes en el ca])itulo anterior, es uno de lo?| nms odiosos ublic functionar}-, he shall be punished with temporary rechision." Art. 151. Whosoever shall, without legitimate authority, raise 452j troops within the kingdom for the ser*vice of any foreign power, or shall fit out privateers, whatever may be his object or the natioti ijrainst which he intends to commit hostilities, he shall be ])unished with imprisonment, and fined from five hundred to five thousand duros. Art. 156. "Thecrimeof piracy committed against Spaniards, or against Mibjects of another nation which is not at war with Spain, shall be pun- ished with the maximum of temporary irons or with capital punisli- uieut."' The penal statute coordinated and commented hi/ Don Joaquin Francisco I'acheco, vol. 2, jji^j. 91, 92, 96, 97, Madrid, 1870. Art. 148. " Whosoever shall, without having been i)erinitted to do so by competent authority, have provoked or given motive to a declara- tion of war against Spain on the iiart of another power, or shall have exposed Spanish subjects to sutler vexations or reprisals against their [lersous or properties, ho shall be punished with imprisonment: ; and if such person be a public functionary, he shall be punished with tempo- rary reclusion.-' — Spanish statute of 1822. Art. 258. " Whosoever shall, without the kuowledge, authority, or liermission of the government, have committed hostilities against any al- lied or neutral power, or shall have exposed the state to suffer for 453] that cause a declaration *of war, er if such hostilities shall have been the ground for reprisals against Spaniards, he shall be con- demned to give public satisfaction for such offense, and to reclusion or iin[)risonment for a term of from two to six years, and shall pay a fine tqual to one-quarter of the amount of damages he shall have occa- sioned, without prejudice to any further punishment whit'h he may be liable to incur for the violence committed. If said hostilities shall have brought on an immediate declaration of war, or if such declaration shall have preceded the time of the trial, the offender shall be punished with nausportation." Commentari/. 1. It does not commonly happen in the nineteenth century that wars iuc declared'on account of private provocations; but such provocations may be the grounds for justified (jlaims, which, in case of misunder- >tandiug, may cause reprisals. This is a case for the practical application '•fthe article, and of the imprisonment or reclusion which it provides. 2, The above penalties are undoubtedly justifiable, for whoever exposes his country and his fellow-citizens to the dangers of such claims to the reprisals which may be the consequence thereof, or to the hostili- ties which it is not impossible may follow, is no doubt deserving o -Si i I r I ■'III ;i I t m 92 TREATY OF WASFflNOTON PAPERS ACCOMPANYING 'i ■, sovero «ainl exemplary punisliinent. It would be most scandalous [151] that his fellow-citizens or *tlie State should suffer the coiisc quencea of his misconduct, while he should make a Jest of it and quietly and safely Avitness the result. Art. l.'il. ''Whosoever shall, without legitimate authority, raise troops within the kingdom for tlio service of any foreign power or shall fit out privateers, whatever may be his object or whatsoever the nation against which he intends to commit hostilities, he shall be punished witli imprisonment and fined from 500 to 5,000 duros." Commentary. 1st. This article ju'ovides against two distinct acts: that of enlisting' troops for a foreign service and that of fitting out i)rivateer8 with tlie object also of giving assistance to a foreign cause. The law may authorize or prohibit such acts, as is thought best. In fact human coil science does not i)oint out these acts as being criminal, and most statutes do not mention them in any way. It was not necessary to look upon such acts as an offense, nor to punish them by the penalties flxod | in this article, or indeed by any other penalty. 2d. Nevertheless we understand the system of our law and approve I thereof. We deem it proper that Spaniards should not have the liberty, which is enjoyed by the inhabitants of some other places, to arm and enlist recruits for entering the service of a foreign iiower, nor to fit out | privateers to the same purpose. War is in itself a fact of too serious a character, and such armaments may too greatly endanger | [455] *the safety of the country, that we should think it fit or justitia ble for any person whatsoever to embark in such an enterprise | without being duly authorized to do so. The law must not allow Span ish blood to be shed, except for causes such as Spain can and ought to defend. The law must not allow nor permit such open plots against I nations or countries which have not given this nation any ground for complaint. There is always something mercenary and anti-chivalrous | about these levies of men which does not admit of any patriotic feeling, except the mere love of lucre. It is good that the law should correct | the bad and depraved instincts which individuals may attempt to propa gate through the nation, and it is well that it should uphold the honor of our name and the traditions of our Castilian faith. Art. 150. "The crime of piracy committed against Spaniards, or | against subjects of another nation which is not at arms with Spain, shall be punished with the maximum of temporary imprisonment or with capital punishment." Commentary. 1. Piracy is in itself a crime as base as it is cruel. It is the robbery and theft of tlie freebooter, only practicnl on a larger scale, with all the inoeased evils and dangers which are the natural result of the ele- jiient where it is practiced and carried on. Depredation is its prin- [45G] cipal object, *but violence of every description and murder itself are its necessary attendants. Cannon and cutlasses are its indis- pensable means of action. The deserts of the seas, which are the scenes of its deeds, might easily demonstrate how barbarous, profligate, and j shocking is its practic. 2. As the ocean does not belong to any particular nation, all nations or nanie COUNTER CASE OF THE UNITED STATES. 93 ' f ;. have coiifsUleied tluMiist'lves as entitled to imnisli that crime wliicli in- jured and reached each one of tlietn. All have alilco punished it. ,Somo have proviiled against it in their statutes, and called it by its proper name ; others have punished it witli the jjeneral penalties de- Diuiced against murder, violence, and robbery, which constitute piracy. hint nowhere has the law looked with indulgence or indifference upon these banditti and robbers of the waters, who, with no other law than their own good pleasure, and with no other authority than their jiiwii power, have overrun the naturally peaceful seas, ransacking, violating, and destroying on their way. Throughout the world, human Icoiiscience has iiisi)ired and approved their punishment. , Article 150 of our statute, in adopting this universal custom, has ik'iiouiiced one general penalty against the crime of piracy, wherever it may be committed. It is true the provisions of oui law have not [457J been of a so absolute character witli re*gard to the persons against whom the crime may have been committed, and it has [not provided that, whosoever these persons may be, the act sliall be tMlually criminal and equally liable to punishment. It has limited its provisions to the case when the crime shall have been committed against [Spaniards or subjects of a power which is not at war with Spain. The law is silent for the case where piracy has been committed to the |iiijary of foreigners who are, or were at the time, our enemies, sind such acts it has not deemed proi)er to consider a crime. The grounds thereof jure obvious. We are not bound to secure the seas for the profit of jour enemies. We are not bound to punish the harm and injury they Iraay have experienced from other enemies ; it would be too great and Itoo contradictory a kindness to deal out protection to them against Ithose who, as it were, are performing our part. I [158] *Api)€nillv to the commentaries oj Bon Joaquin Francisco Facheco on the penal statute, or neto statute, with commentaries on the ad- ditions thereto, hy Don Jose Gonzales and Serrano, {Madrid, 1870, p. 10.) Art. 147. " Whosoever shall, by unlawful acts, or without having been jpermitted to do so by competent authority, have provoked or given Imotive to a declaration of war against Spain on the part of another Ipower, or shall have exposed Spanish subjects to suffer exactions or re- Iprisals against their persons or their properties, he shall be punished rvith temporary reclusiou, if he be a functionary of the state, and if he |l)e not such, with imprisonment." " If the war be not declared, and if the vexations or reprisals be not [carried into effect, the respective penalties shall be of the degree imme- jiliately below." Art. 150. " Whosoever shall, without sufficient authority, have lev- lied troops within the kingdom for the service of any foreign power, phatever may be his object or the nation against which he Intends to Icoinmit hostilities, he shall be punished with imprisonment and fined jlrom 5,000 to 50,000 pesetas." •'Whoever shall, without sufficient authority, have fitted out pri- Ivateers, he shall be punished with temporary reclusion and fined from |i',500 to 25,000 pesetas." |[W,9] *Elements of the penal and civil right of Spain, preceded by a his- torical notice on the Spanish legislation, hy the Doctors Don Pedro \Gomez de la Serna and Don Juan Manuel 3Iontalban, {Madrid, 1871, vol. \pp. 241, 242, 246, page 241.) Art. 147. '' Whosoever shall, by unlawful acts, or without having I ' t i 1 *',' \: t ,1.: * ' ., I J r^w 94 TRKATY OF WASHINGTON PAPERS ACCOMPANYING |! -■ been permitted to do so by competent authority, have provoked or given notice to u declaration of war against Spain on tbe part of unother power, or sliall liave exposed Spanish subjects to suflfer vexa tions or reprisals against their persons or their properties, by which .acts shall be understood whoever shall have invaded a foreign country and whall have committed therein acts of violence, and also whoever shall hr.ve insulted a foreign ambassador, he shall be punished with tempo rary reclusion, if ho be a funcitionary of the state, and if he be notsucb, with imprisonment." '' If the war be not declared, and if the vexations or reprisals be not carried into effect, the respective i)enalties shall be of the degree iiu mediately below." Art. ].>!. " Whosoever shall, without sufticient authority, have levieil troops within the kingdom for the service of any foreign power, what ever may be his object or the nation against which he intends to com mit hostilities, he shall be punished with imprisonment and finod [4()()J from *50() to 50,000 pesetas." " If any person whosoever shall, without snflicient authority, have fitted out privateers, he shall be i)uni8hed with temporary reclu- sion and fined from 2,500 to 25,000 pesetas." I'erniitting the levying of an armed force in a country for the benefit ot | some power nuiy be in itself an act of more or less open hostility toward smother nation. The crime of levying troops for exciting an insurrec tion within the kingdom is not embraced in this provision, because it I is considered as being a crime committed against the domestic safety oil the country. Chapter IV, (pp. 24(;, 247.) Art. 155. "The crime of piracy committed against Spaniards, or against the, subjects of another nation which is not at war with Spaiu, shall be punished with temporary or perpetual irons." " When the crime shall have been committed against non n.olli^ereiit subjects of a nation at war with Spain, the penalty shall be t' 3 gal leys." This oft'ense, which was formerly forbidden under the preceding chait ter, is one of the most odious which can be committed ; it endangers tk siifety of private persons, sto])s the maritime intercourse and all nier cantile transactions. The very place wliere the offense is committed makes it still more alarming and fearful. It is to bo noticed that [401] there is no penalty denounced against the offense* when commit ted for the injury of foreigners at war with Spain. The statutes of all countries have adopted this restriction, on the principle that it is not unlawful to cripple an enemy on laud and on the seas, not only l»,v means of regular armies, but also by means of forces commanded by private persons, to whom letters of m.arque have been issued. Tbe amended statute considers piracy as being a crime, and denounces against it a severe penalty, when committed against non-belligerent sub jects; but duly authorized privateering is lawful, if against belligerents, and is not to be mistaken for piracy. r4f>2] Mr. Ferry, I Siu : r rec( ling me that Conn III a for wived also j) doali. Copit J tbe consular jsome hlockad jtbe inclosed consular agen 1 to the charg«' I consuls at (Jj points a Gov( of the pirate f I itif which a co |iiioniiiig song I showf ,I6;{J riffe, oi the Lai |iiii(l the royal iiul sent to mlicate in m.> I ill preference understood J Her Majesty's |s('lf see how g ii;,;ain as a pri could Jiave bul it'clai ition ag i'ii'ate in her ) Ivessel had con: Jlier authorities the motive of ; Mr. Benavid tlie (corsair 'I 1 insurrection in naiii as a privateer. The article tirst of the roj-al decree of June 17 Icould liave but one meaning, and though my government had made nx) licclai ition against Spain for the lirst arming and ecpiipping of this I'irate lu her waters, unbeknown to her authorities, yet, now that the Ivcssel had come again within her jurisdiction, and within the power of llier authorities, if she were again allowed to depart, could not fail to be Itlie motive of grave reclamation from the Government at Washington. Mr. Benavides said, what you wish, then, is that we should disarm Itlie corsair ? I said, what would you do if an armed force engaged in liiisiirrection in France should pass the Spanish frontier ? Mr. Bena- |vi(les replied, we should take away their arms. I then asked if there was any motive why this corsair should |[IC4] be treated otherwise ? Mr. Benavides *said, in his own opinion, there was not ; and, besides, this particular ship seems to be doubly guilty. I added that, in my opinion, she must at least be disarmed completely, [lioth under the dictates of international law and the provisions of the nuinicipal law of Spain. Mr. Benavides took my note and said that he ^oiild attend to the affair immediately, and have it set right this day. 'shall advise you hereafter what course is taken by this government. With the highest respect, sir, your obedient servant, HORATIO J. PERRY. Hon. William H. Seward, Secretary of State, Washington. ■4 1 I ■^ ' il ^^Hp< . -^ ^^K£ K' ■ ^^B^ 1 1 ^^^ J ^^S K 'tiii ■^B^*< ^ 'f |m 'V ' 'I'll l' \ "\^m . * t^^y -*» UlitH ^ffl w^wr 96 TUKATV OF WASHINGTON I'AI'KUH ACCOMI'ANVINO 1- n Mr. Jicnachles, miniHtcf of Jot'cifin o(f'(iirn^ to Mr. rrtri/, United Statn rhart/i' d'a^lfuin's. [Tiaiishition.] J)i:pai{t.mi':nt of State, Madrid, I'nUue, February 12, 1 Mr. Seirnnl, Secretary itf State. I(w] •[Kxtract.] Lk(;atio.\ or tiik TJmtkd Statks, Madrid, Fihrimry iM, 1S0."». Sut: 1 liavi' the honor to transmit, inclostMl, the transhition of Mr. r.iiia\ itU's's note to me ()f the I'lst instant, in reply to mine of the IStli instant, wliieli was forwardetl as inclosure C of dispatch Xo. KJS, of I't'briiarv -l>. This note eonfirms the resalt announced to yoa in that ilisjiatcli. Last ni;iht in company I saw Mr. lU-navides and ini|uir»'il ol liiiii if tliis note was intended to be tlie end, or wliether repairs on the Stonewall would ever be recommenciMl in this Jurisdiction, Mr. IJena- vides said no, that this was the end of repairs on that shii), and that such was the meaidn^' of his note. With sentiments of the highest respoct, sir, your ol)edient servant, lk)KATlO J. TLUKY. Hon. William IF. Skwaud, Secretary o/ State, Washington. / . I II J' [Inelosiiie.] * \Mr. liennviiles, minister of foreiyn affairs, to Mr. Perry, chnrgi' (Vaffaire*. [Translation.] Dki'Aktment of State, Madrid, Palace, Feltruary 21, 1S05. Sir : I have bad the honor to receive your note of the ISth in- t()8j stant, in which you are so good as to *maidfest to me, referring; to telegraphic di.spatehe.s of the consular agent of the riiitcd (f^tivtes at Ferrol, that after the termination of the repairs on the iron liul steamer Stonewall this vessel is still not in a condition to take the pas, because of certain radical defects of cnstrnction which you sidicit kniiy not be i)ermitted to be remedied in the ship-yard of the said port Y Ferrol, nor in any other in Spain. Tile reasons w hich you present in support of your wishes have been duly (Iipreciated by the government of the Queen, which, being convinced of Its duty not to separate its eoiuluct from the line marked out for it in Ihe royal decree of June 17, 18(il, has dictated the proper orders that |t be tlius done in the case to which you refer. The miinsterof marine, confirming the orders previ' islycommunicateil. jluit the repairs which might be made on the Stonew.iil should not be such ^s to better her military or seagoing qualities, has instructed the naval 7 A— II p if -1 - fa* ' 98 TREATY OF WASHIiNGTON PAPERS ACCOMPANYING authority at Ferrol to strictly comply with tliose orders, and not to l)crmit any other work on the said vessel than that qualilied l>v [40!)] tiie commandant of naval engineers *as indispensable to repair tile particular damage which obliged her to come into the puit where she now is. I take pleasure in believing that yon will find this resolution of Ilcr Majesty's government in accordance with the suggestion of the note t(i whiih 1 reply, and I avail myself of this occasion to renew to you the assurance of my distinguished consideration. A. BENAVIDES. The CiiARGK D'AFFAIRES of the United States. i^ ' ■■ ^tii [470] *Mr. Perry, United Statefi chnn/e d'affaires, to Mr. Benarides. min- ister of foreign affairs. Madrid, March 7, 1805, Sir : I have the honor to inclose copy of a dispatch received from the consul of the United States at Liverpool, wiiich informs me that about thirty men, formerly belonging to the i)irate-ship Florida, engagtd in tiie military service of the rebel faction now in insurrection in tiie United States, are, or soon will be, on their way to join the iron-clad vessel Stonewall now at anchor at the port of Ferrol. Fortius purpose it was supposed they would be sent by steamer from Calais to some port in Spain, but it is also very possible that they may proceed by land from that iilace to Ferrol. In laying these tjuits before your excellency I have to beg that tbt l>roi>er orders be issued to Her Majesty's authorities on the frontiers dl Fiance and I'ortugal, and at all the i)orts on the Atlantic coast, not to permit the entrance into Spain of these men in the military service ot the so-called Confederate States for the purpose of joining the arnnd e.\i)ev repair »e puvt of Hcv note to ou tbe DES. COUNTER CASE OF THE UNITED STATES. 99 (if the Grava ; having answered the former tliat not one of said indi- viduals had enlisted in the vessel nnder his eoinmand, and that, in ob- strviuice of nentrality, of the seventy-nine men of the '-rew with which slie entered port the sai«l brig now liU'i■•■ ^eH' \ -l i" iJHt I ; { fi ' ': ^:. : -r; f.: r ,.■ !i" ^■'y-H •' J '> ■- ; •' .h • . ^ 1 ■■'■ -• };■ 1, is. * .'4 i 'V'l » '-' -i' S ■! tv S !■ . '•■ ■ ■ u Mi!i Ill^llill 100 TRKATY OF WASHINGTON PAPERS ACCOMPANYING tliat her sca-goiiiff qualities do not permit her to sustain tlie movement ol" a heavy sea, slie has returned again to the port of Kerrol, and will seek to obtain froiu Her Majesty's authorities permission to make tlic rejjairs whieh she needs. Your excellency will call to mind the note which I had the honor tn address you on tlie 18th of last month, and that in which your excel lency was pleased to reply, dated the 21st of the same month, as will as the verbal confirmation you gave me, saying that the Stonewall would not be permitted todo any more work or repairs in the Span [474J ish ship-yards than those repairs which she had already *ternii nated. I had the satisfaction to transmit these assurances iinnic diately to the Government at Washington, thus attenuating the impoi tance of the conflict marked by my protest of the 0th of Febvuan, which made the government of Her Catliolic Majesty responsible for the consequences which might follow from the grant of repairs of this ves , sel. I now come to inform your excellency that, in effect, tlie constructor | of the Stonewall came from Bordeaux to Ferrol, and after an exam ination of the vessel indicated the work which was to be done, for whidi he said that the ship oiight to apply to enter any dock. I had also tliei resolution arrived at, relative to this work by the so-called Comman(l(i[ Darron, commanding this naval department of the Confederate States of America, whose headquarters are at Paris, where Captain Page, iii| the Stonewall, repaired to consult upon this business. The movements of the Stonewall recently, toshow that shecannotkeep the sea in the state in which she now is, are clearly connected with tlusi I antecedents, and we ought to expect i m mediately her demand to Her Miij j esty's authorities to be permitted to begin the work. Hut I rely in com Ijlete security upon the good faith of Her Majesty's government, amll since the assurances which your excellency has been pleased tn |47oJ give me by word and writing, I know that *no work of repaii>[ whatever will be permitted to this vessel, within thisjurisdictioii,! besides the re])airs she already received in February, and that ' Imf sea-going . Sir : I have the honor to inform you that as soon as I re«;eived yo" note of yesterday relative to the confederate steamer Stonewall, I coiul municated it to the minister of marine, charging him that under nopri^j text should he permit any work whatsoever to be done on said vesstl " I avail myself of this occasion to renew, &c., &c., A. BENAVIDES. The CnARGi5 d'affaires of the United States. COINTER CASE OF THE UNITED STATES. 101 476] *Mr. Benevides, minister of foreign a fairs, to Mr. Perri/, Uniteri (States charge iVaffaircs. Depahtment of State, Madrid, FdUu-e, April 1, 18(»5. Sir: I have the honor to inform you that, according to the report ilivcMi by the cai*tain f^eneral of the department of f'errol, to the niin- j jster of marine, the Stonewall left that port on the 24th of March last, lit liiilf-past 10 o'clock in the morning, accompanied by Her Majesty's I frijrate Conception. At noon the frigate being within the following limits : Cai)o Prior. I north .")3o east, Coriinna liglit, south .'^2° east, and the Stonewall about one mile ahead, about west-northwest of the meridian, the Conception stopped her engine, lowered and raised her ensign, with a cannon-shot, to [signify to the confederate vessel the extent of the jurisdictional zone, and then steamed back slowly to the mouth of the port of Ferrol, where she remained to watch the movements of the Stonewall, which vessel came back about 2 p. m., hoisting Spanish colors at the foretop as a signal lor I communication. Tiie commander of the Conception says : Tlicy sent the luato, to nie to ask perinissiou to return to the entrance of the |[477] harhor and conunnnicate with shore. I rel'nsed permission, and said as "tliey had re])aired dauiaKt'S) and gone oiit withont new accidents; tiiey conhl con- Itiiiiifi on their coui-se. Tlie boat went hack, hut soon returned, insistin<>; on tlie de- |iii;iii(l. I a{j;ain refused, and ad(h'd that it was an abuse of li()si)itality. I altorward >tiiun('d a litth; north of nunidian, ami lindin<;the Stonewall nine or ten miles nortii, [lit 4oclockI returned to this port, (Ferrol,) where I anchored at Inilf-past 4. hi communicatiug toyou these details, as another proof of the desire lot' the government of the Queen my lady to comply strictly with tlie Idiities of neutrality imposed by the royal decree, and to preserve and Idiltivate the good relations existing between Spain and the United liStates, I repeat the tassurance of my distinguished consideration. A. BENAVIDES. The United States CiiarctE d'affaires. 4781 * V I .— S W I T Z E R L A N D . Xo. 1. Code penal federal. Xo. 2. Notification concerning neutrality, 1859. Xo. 3. Neutrality ordinance, 1859. Xo. i. Report on neutrality, 1859. X(,. 5. Foreign-enlistment act, 1859. Xo. (I. Message of the federal council concerning the maintenance of niMitnility, 1870. Xo. 7. Neutrality ordinance, 1870. Xo. 8. Message of the federal council concerning the maintenance of pt'Utrality. |4S(),181] 1"^] »Na. 1.— CODE PflNAL FriDfiRAL. [Extrait.] SecoiVDE partie. — Des diverses espi^ees de crimes et de delits. TiTRE II. — Des crimes et des delits contre les etats etrangers. Art. 41. Quicouque viole uu territoire etraager, ou commet tout autre 102 TREATY OF WASHINGTON — PAPERS ACCOMPANYING ■Mi actc coiitraire an droit des gens, est puui de remprisouiiemeut ou il^ raineiule. Akt. 42. L'outrago public envers niie nation etrangvre ou son sou verain, on un gouvoineinent etranger, sera puni d'une amende qui pent ctre i)ortee a fr. 2,000 et, dans des cas graves, etre cumulee avec .six mois au plus d'emprisonnernent. Les poursuites ne peuvent toutefois Otre exercees que sur la demande-du gouvernemeut etranger, i)ourvii (pi'il y ait reciprocite envers la confederation. AiiT. 4;3. L'outrage ou les niauvais traiteinents eserces envers le iv presentant d'une puissance etrangere accredite aupres de la conledt'ia tion, sont punis de deux ans au plus d'euiprisonnement et d'une aiueiidi qui pent s'eleve : a 2,000 francs. [483] *Akt. 44. La poursuite et le jugeinent des cas pr^vus aux ar tides 41, 42 et 43 n'ont lieu que sur la decision du conseil fedenil confonuenient i\ Particle 4 de la loi fed^rale sur la procedure penale ilii | 27 aout 1851. Ainsi decrete par le conseil national Suisse. lierne, le 3 fevrier 1853. Au noni du conseil national Suisse. Le President, HUNGEEBCLEE. Le Secretaire, SCHIESS. Ainsi d(k',r«!te par le conseil des etats Suisse. Berne, le 4 fevrier 1853. Au noni du conseil des etats Suisse. Le Fresident, F. BRIATTE. Le Secretaire, J. KEli^-GElnIA^'^, si f. •■ " V- No. 2.— NOTIFICATION DU CONSEIL ¥Fj)fAi\h CONC^ERXANT EA NELTiiA LITf: DE LA SUISSE, (DU 14 MAKS 1859.) | Bien quo les etats de I'Eiirope jouissent pleinement aujourd'hui (lo« bienfaits de la paix, I'on ne saurait disconvenir que la contlance (lausl;i| stabilite de cet etat de clioses n'ait subi un ebranleinent et q\\"\ [484] n'existe des motifs d'admettre *que la tranquillite generale poumj ('tre troublee par hi possibilite de graves evcneuients. ])ans de telles conjonctures, la Suisse doit a sa diguite, a son caraottie d'etat indei)endant et libre, couime i\ sa constitution politi(iue et a soul organisation, de se prononcer a temps et sans detour sur I'attitude qu'elltj se piopose d'(jbserver en regard dc certaines eventualites, suivaiit position qui lui est faite par sa situation,* son histoire, ses besoins iiiU*| rieurs et ses rai)ports avec les etats etraugers. Le conseil federal le declare done de la manirre la plus formelle, si Inl paix de I'Europe vient X ctre troublee, la confederation suisse defeiuliil et maintiendra, par tons les moyens dout elle dispose, I'integrite et lal neutralite de son territoire, auxquelles elle a droit en sa quality d'etatl independant, etqui lui out ete solennellemeut reconnues et garanties pari les traites europeens de 1815. Elle accomplira loyalement cette missioiij envers tons egalement. Les traites de 1815 ddclarent, en outre, que certaines portions du terl ritoire de la Savoie, qui font partie integrante des ^tats de sa Majesu| le Koi de Sardaigne, sont comprises dans la neutralite suisse. [485] *11 resulte en effetdeces traites, savoir : ladeclaratiou des hautesj jT^n'i COUNTER CASE OF THE UNITED STATES. 103 puissances dn 20 mars l?: .rantie de la nentralit*' periK'tiielle de la Suisse et de Tinviolabilite de son tenitoire, que les parties de la Savoie desij^iees dans ees aetes sont au benefice de la meine neutrality que la Suisse, avec la clause speciale que, "toutes les fois que les puissances voisines de la Suisse se trouveront en etat d'Iiostilit(''s ouvertes on imniinentes, les troupes de sa Majeste le Roi de Sardai<»iie qui pourraient se trouver dans les provinces neutralisecs, se retireront et ponrrout, a <'et etiet, passer par le Valois, si cela devieut necessaire ; qu'aucunes autres troui>es arnu-es d'aueune puissance ne iH)urront y stationner ni les traverser, sauf celles que la confederation Suisse jugerait s\ propos d'y placer.^ Les dispositions preciteesdes traites g^neraux ont 6t6 expressement confirinees dans tons leurs points par le traite special, qui a etc conclu lelO mars ISIO, eutrelaconfi'deration etsaMajestc leKoi de Sardaigne. Sideslorslescirconstancesle rcclanient,et pourautant que la uie- [480J sure sera n«'cessaire pour assurer et defendre sa neutralite et *l'in- tegfrite de son territoire, la confederation suisse fera usage du droit qui lui a ete conterepar les traites europccns d'occuper les parties neutralisees de la Savoie. Mais il est bien entendu (pie si la confedera- tion recourt a cette niesure. elle respectera scrupnleuseinent, et sous tons les rapports, les stipulations des traites, et entre autres (!elle qui dit que I'occupation niilitaire suisse ne jiortera aiicnn i)rejudice al'aduiiuis- tration etablie par sa Majeste sarde daus les dites provinces. Le conseil fc(l«*ral jets de cette nature a proximit(' de la froii- titre, sous peine de conllscation en cas de contravention. Los amies et les munitions qui seraient apport('*es d'ltalie sur terri- toiie Suisse, soit par des r(^'fugi(3S et des d(jserteurs ou de toute autre iiianiere, devaient aussi etre saisies. fitaient exceptees de cette nu^sure Its amies de vo.vafteurs munis de papiers r(3guliers ou de retugies qui se U'lulraient iiniiKidiatement dans rint(5rieur ile la Suisse. L'achat et en g(^'n(3ral la prise de possession d'armes, munitions et ob- ji'ts d e(piipemeiit qui seraient apport(^es en deca de la trontiere fureut iiiterdits et ordre (3tait donn(3 de s(^Mpiestrer de tels objets. Le passage tut interdit aux individus aptes au ])ort d'armes qui voii- ilraiciit euiprunter le territoire Suisse pour se reudre du territoire d'une les juiissances bellig(3raiites surcelui de I'autre. Ces gens devaient ('*tre (uiisigues dans l'int«jrieur de la Suisse, a moiiis qu'ils ne pi(}I(}iassent ictourner la d'oii ils venaient. Ces dispositions sont absolument con- t'oiiiies au principe de la neutralit(3 proclain(' et n'ont pas besoin d'autro justitication. La d('*tense mise surle transi)ort d'armes et de mii- i'So] nitions *est foiuk'^e sur le droit des gens, et il c'tait pareillement indispensable de tenir les riifugies sous une stricte surveillance 't tie ne pas permettre qu'lh^ abusassent de I'asile qui lenr t^tait lib(kale- iiit'iit accordc', pour menacer les parties belligerantes ou rendre plus dif- ficile la surveillance des frontieres par nos propres troupes. Notre kommandant de division, que, dans I'intt^ret de I'unitc' d'action, nous avious charge du maintien de la police des iefugi(3s, re^-ut pour instruc- tion de luoci^'der avec human' e et d'avoir (''gard aux circonstaiices par- liculieres, et nous pouvons certifier qu'it cet ('gard il a 616 fait tout ce l'iue Ton pouvait raissonablement demander dans des conjouctures aussi jtlitlicik's; naturellenient ou n'a pu thiter que certaines inesures fusseut jtrtiiivces trop rigoureuses par la population int«3ress(ie, qui n'(}tait pas a UM'uie d'apprt^cier impartialeiuent la position de la Suisse dans ses rap- l>orts iuteruatiouaux. Pour piouver a quel poiut il a ete teuu compte «1 '( < I ■ ;f^ ' ( 1 •^.1 liif^ 106 TREATY OF WASHINGTON' PAPERS ACCOMPANYINO do8 clrcoTist.mcos partionlioros, il sufflt arer proinpteinent tonto errenr event nelle, les [)crsonnes interessees ont tonjonrs en le droit dc jiresente'r de suite lenr reclamation; mais on a pu pres('iant8 sur territoire suissc par dcs r(''lii;>i«''s ou dcserteiirs, oil dc toutc autre iiiaiiirro, soront paroillt'iiuMit siMpu'stivs. Akt. I. II est iiitcrdit (I'acilu'tor ou en p'lu'ial «U! i)rt'ii(lre jxisspssioii (rariiics, do iiiat<'Mic'l dc jjiicrro otd'objcts (iVMpiipciiit'nt appoitt'-s par dcs (It'siMtt'iirs jiardt'lA la tiontit'iv, etlcsobjetsdo ectto nature sennit saisis lois ineiiie qu'ils .seraieiit trouves entre lea mains de tienu's personiies. Akt. 5. Les r«''tngies ou d«'!serteurs arrivant sur teriitoire Suisse siM'oiit iuternus a une distance conveiiable. Pour le eas «)u leur iiombre sorait considerable, il en sera iininediatement donnc connaissance an (Oiiscil federal, (pii avisera aux inesares necessaires. Soiit except«''s les feinnies, les enfants, les malades ot les personnes ties, ajiees et (idles dont on a des motifs snflisants d'admcttre (pi'elles se comporteront traiHjuillement. '){)'•]] *Ijes refugii's ou deserteurs qui ne se soumettront i)a8 aux ordres des autorites, ou donneront d'ailleurs matiere j\ des reclaina- rioiis, seront imniediatement renvoyes. Akt. (». Lit passage de gens ajites an port d'armes par lo territoirn Suisse pour se rendre du territoire de I'line des puissances belligcrantes sur cclui de Tantre est interdit. Les individus decette (!at<''gorie seront 'uvoyes dans I'interieur de la Suisse, X nioiiis qu'ils ne preterent retour- lu'r sur leurs pas. Akt. 7. Les gouvoniements des cantons frontieres, ainsi que les coniinandants militaires en lonction, sont charge's de I'execution de la l»rt''sciit(^ oidoniiance; le departement di coininerce et des p«'^;iges est charge de I'execution en ce qui concerne la circulation interdite d'arines ft (le materiel de guerre a la t'rontiere. licrne, le lOjuillet 1870. Au iioux du couseil federal Suisse. Lo Frcmlcnt fie la Confedrratinn, T)''. J. DUBS. Le Chaneclier de la Coujederation, SCHIESS. ■.;jr 'ii^ « ^ f 'I? [51)4] "No. 8.-MEvSSA0E DU CONSEIL Fl';DfiRAL A LA HAUTE ASSEMBI-^.E Vf.Df)llXLi: CON'CEKNANT LE MALNTIEN J)E LA NElJ'l'UALITfi SUISSE I'EN'DANT LA GUEKUE ENTRE LA FRANCE ET L'ALLEMACiNE, (DU 8 DEcEMBRE 1870.) [Extraits.] Monsieur le Prt^sident et Messieurs: L'artide G de I'arrct^'i fi'deral du 10 juillet dernier, relatif au maiutien de la neutralite de la Suisse, est aiusi con^u : Le ooiiseil ft^ddral rendra compte a I'asseuiblde ft5(I6ralc, dans sa proeliaino rduiiioii, tie I'usage qu'il aura fait des pluius poavoirs qui lui sout coulcids par lo prdaent arrets. Le conseil feddral a Phonneur de s'acquitter de ce mandat en vous souiuettant le present rapport, et, des I'abord, il constate avec i>laisir •lue jusqu'ii present la iieutralitd Suisse n'u point et«5 mise en question par les 6tats belligerants. Les mesures Jl i)rendre en vue du maiutien de notre neutralite ont fort occupe le conseil federal et ses departements. ISous mentionnerous ce» luesures dans I'ordre des departements qui en ont pris I'initiative, mais, afiii de lier les id^es, nous recapitulerons d'abord brievemeut les faits anterieurs ^ I'arret^ federal. ■':■' 1 I * • ^! -. \ * 1 4 t >mK' ^'■^m 1'' r'm w . i. < Pll -J ^ m >lll i^ ■ i i mB U^. ,. umm 110 TliKATY OF WASHINGTON rAPERH ACCOMPANVIN'O l.lU.jJ Di's los ju'omierp symptoinoa dn conHit cwtro l.'i Franco ot l;i Pi iissc Ti piopoH tie lii caiididatiin' an tion»? d'lCspajfm', nous avoiis (MI soiii (Ic nods tcnir aiitaiit quo possible an conrant (I(> la situation, soir l>ar nos I«'';;ations, suit par d'antrt'S sonrct's qno nons avions a iiotrc (lisposition. Lcs rapports qni nons parvinrcnt ni' retardt'nMit pas a nous «MMi\ ainjirc (pi'il nVtait pins possible «lo son^er li nno solntion paciMque dn dlllt'rcnd, ot, dos le 14 jnillt't, nonsprinu's l('sdis|>ositions ni'dossaircs ponr <|nc la Snisao hi-, tronvat i)r«"'to A (h't'endre sa ntuitralitc) an nioniont oil la {^ntMTc^ oclatorait. Nons avoiis en drjiY I'oceasion de fairo connaitrc sY I'assembleo fV'dorale Ics eontro-dedarations do la Franco (dn 17 jnillot) et, do I'AUoinagno dii Nord, (dn liO Jnillot,) ainsi que la notification provisoire do la nontralitii snisso, dn 15 jnillot, (t'onillo fod«''rale de 1870, toino 3, pp. 11, 12 ot l.'{.) Los gonvornoinonts de la France et de I'Alleinafjne dn Nonl, ainsi (pie cenx dos antres (;tats bellifforants, ropondiront o^alomont sY notre iiotillcation dn 18 Jnillot, en reconiiaissant «rnnc inani«'re al)solno la nentralito snisseet ondonnant I'assurancoqnVllos la rospoctoraiont ccm- scioncionsoinont. Los antros pnissancos ropondiront o^ialoinoiit [■)(»GJ s\ notre coininnnicationjos nnos on •annoiicant sinipleinent Jnillet on nons infonna (pi'il se faisaitdes enrdlemcnt.sihxuH los can- tons de Vaud et do Geneve ponr le coinpte do la France. En cons(;- qnence, nons adressames, sons la date dn 1"" aont, nne circnlaire i\ tons les cantons, (fonille fodorale de 1870, tome .'i, p. I."}?,) ponr lenr rappelor que cos enrolements portoraient atteinte a la loi fodorale du .'id Jnillot 1859, snr le service militairo a rctranger, (recueil oHiciol, 0, [507] p. 300,) et qu'ils seraient de nature a compromettre la *neutralitt'' de la Sui'sse dans les circonstancos actnelles. En consequence tons les cantons ctaient invites ii s'opposer energiquement il toute ten- tative de recrutement. I)es bruits d'enroloment de Suisses pour le service dr la France nons sont parvenus encore sous uue autre forme durantli^ gucire. On aurait enrole desiiuUvidus ii fToneve ponr nne lo!>iou hanovri'iine et auxfron- tiercs dos cantons do Berne et de Nenfchatel pour h. c!iii eiieij;i(pie dans les antoritt'S et les fonetionnaires des cantons |jiiiisi que dans le personnel des pea<;es. Par nne circulaire speciale dn -0 septembre, nous avons attire |f")10] sur ces faitsTattention *de tontes les aiitorites de i)olice descantons, ct nous leur avons recommande d'aj^ir d'un commnn at'cord avec Ill's enqiloyes des peay;es federaiix i)our une surveillance ellicace des llidutieres. La prenve que in^ns avons atteint notre but se trouve dans le nombre Icdiisidcrable de sequestres mis sur des armes et des munitions, i)rinci- |l»alt'iiient dan>s les cantons de Nenfchatel, «le Vaud et de Geneve. On a Jiourv n partont si ce (pie le sequestre soit maintenu pendant toute la |(iiui'e de la guerre actnelle. Quehpies renseijjnements relatifs jY l'ort>anisation de la contrebande |(le jjuerre sur une vaste tichelle dans la Suisse occideiitale nous out en- Sa<;e.s a envoyer sur place uu commissaire special avec mission de I'eu- luerir du veritable etat des choses Aprt's avoir expose en detail les mesures qn'il a prises en vue de la Idt'teiise de la ueutralite Suisse, le conseil federal eroit devoir terminer le present rapport par quelques observations generales. Le raaiutien de la ueutralite presen te de graudes diffieultes, ne fut- [511] cedeja que parce qu'on ue possede pas de regies precises interua- tionuies sur les droits et les devoirs des neutres. On sait, par ex- ample, qne I'Angleterre et TAmerique du Nord*n'ont misaucuu empeche- lieiita I'exportation des armes etdes muuitions destines aux belligeiauts, m 112 TRKATY OF WASHINGTON PAPERS ACCOMPANYIXG 4. "St J : taiulis quo la Snisso, a troiivo qii'elle ne pouvait coneilier cette exporta tion avec s;i maiii«'ro de coinpiondre la neutialit«''. IJieii quo le ((iin nierce «les ariiics en Huisse out a soufliVir dc. «!ette appivciation scvni (It's devoirs dii iioiitro, le coiiseii federal a cm devoir persister dans cctti' interprefatioii, parce que, d'uiie part, elle est coiiConne a la lijiiic (]. conduit.' suivie dans des cas analogues, et que, d'autre part, elle se troiivi plus en harin(uii«5 avec le sentiment i)opulaire. La position lies neutres a toujours 6tv difficile. Le iieutre doit defendiv son droit, et tenir la balance ej>ale entre deux auis les anciens temps Jusqu'a lepoque actiu'llc les comhattants ont cliercbe a entrainer dans la lutte meine les dieiixl immortels, et a les attirer de leur cote. II n'est pas surprenajit des !(ii<| qu'ils sV-tlorceiit de nu'ttre dans leurs interets les etats neutres, spect;i teurs de la lutte, et de s'assurer de ce qu'on ai)pelle lenr neutraliti "bienveiilante,-' qui, de I'autre cote, est taxee de neutnilit*'* "malveill ante." La uuerre actuelle a montre um> Ibis de j)lus avec beancuup de vivacite suivant le point de vue anquel on se placiiii. j et que cliez nous les cris de joie du vaiiupieur n'aient trouve partbis'tjiii de tres t'aibles eclios. La Suisse a etc souvent ex[)osre, a ce propos. ai d'amersreiuoches d'un <'bte comme de I'autre. L'Allemagne du Sud ml pouvait <'OMiprendre pourquoi les Suisses allemands n'accueiilaieiit i»;i> avec une joie egale a la sienne la deCaite de la France; et ClaiihaM: s'exprimait assez durement sur le fait que la Suisse ne portait pas secouis a la nation Irancaise. Nous savons respecter ces sentiments, niais(ti! I doit aussi etre juste vis: avis de la Suisse. La Suisse a fait de cruellt-l exjit'-rieiu'cs jusipi'a ce qu'elle se soit familiarisee avec I'idee deiit^ |5I3J plus se meler des querelles du*dehors; elle achoisi elle-memclnl jxtlitique de la ueutralite longtemjis avant que rEuroi)eeut jujici propos de sanctionner cette politique. Justement parce qu'elle est p;ii tagee <|uant aux races, aux religions et aux interets, elle ue pent intd venivactivement dans les guerres entre les autres etats san.s provors. Lii politique de la ueutralite n'est done point une loi iniposee a la Suisse jkii IV'traiiger; elle est bien plutot la cousequeuce de son organisation interieure. CVst pourqiu>i la Sui.S!-,e .1 dans cette guerre manifeste le caractw particuher de sa natij ;517, 518] j LAWS AN THAI ' 'U 517,518] ADDITIONAL MEMORANDA TOUCHING NEUTRALITY LAWS AND THE EXECUTION THEREOF IN COUNTRIES OTHER THAN THE UNITED STATES AND GREAT BRITAIN. wm 'Am •.■iioj Xo. 1. Ortl So. 2. Cir< Xo. 3. Let Xo. 4. !Not No. 5. Ger So. 6. Ext No. 7. Lav Nu. l.-ORDO: OBLIGATIO: TEMPS DE ( Xo'is, Chr< [.J20] Quo de nie d'antres puij ordoniiauces eircoustaucci (le CCS reglem servir de rec ilonnee aux j teuir en tou I'tat.s, et que luent aux de seiublable. ] suivaut soit < leur conduitt que la iieuti raeree et s\ la l)ar la preset (le iios dits s nous et publ AiiT. 1. Qi faire ] [j-'l] place I d'autr procurer un pour Texped iivertis, au co strangers on notre passep AiiT. 2. Ci seau qu'apr< Art. 3. F i'aut etre not inencement I'Europe, la j lie uos pays, •.-ilDj •VII.— D E N M A 11 K. Xo. 1. Oraiuaiice of May 4, ls03. Xo. 2. Circular, May I'O', 182:3. Xo. 3. Letter, April 20, ISTA. No. 4. isotice, July 2.5, 1870. No. 5. General instmction.s. No. 6. Extracts from jtenal co. AiiT. 4. 11 landia, pour se ]>rocuror le ccrtilicat ci-dessus eiiontM-, .u- presenter ])ardevant le magistrat de la vdio on jdaco maritime d'oii lor; expedie le navire, ou bien dii lieu de la residence de la pluparr [522J des proprietaires ; *ceux-ei seront tenus de certifier ou tons per sonnellement, soit par sermeut de vive-voi\, soit par formule de serinent ecrite et signee de leur propre main, ou du moius le proprii taire i)rinci])al au noni de tons, que le navire est vraiment a eux, ton> ensemble nos snjets, appartenant, & qu'il n'a A son bord aucune con trebande de guerre qui soit pour le eompte des puissances belligi rantes ou pour celui de leurs snjets. Art. 5. J)urant le cours d'une guerre maritime etrangere personne nee sujet d'une des puissances qui s'y trouvent impliquees ne poum etre capitaine d'un batiment marchand naviguant sous notre passepon royal, ii moins qu'il u'ait justitie d'avoir acquis le droit de burgeoisie dans nos royaumes ou pays, avant le commencement des hostilites. Art. G. Tout capitaine marchand qui veut etre admis a conduire un navire muni de notre passeport roytil doit avoir acquis le droit de boiir geoisie quelque i>art dans nos etats. Sa lettre de bourgeoisie devra «'tri en tout temps u bord de son navire. Avant son d«'part du port oii It passeport lui aura ete remis, il sera tenu de i)reter sermeut, suivant la formule i)rescrite, quVi son su & de sa voloute il ne sera rien commis ou entrepris relativement au dit navire qui puisse entrainer quelque [523J abus des passeports et certificats qui lui out ete delivres. *L*actf de sermeut sera euvoyeau departemeut, competent, avec la requite pour la delivrance des passeports. Mais en cas que cela ne puisst deft'ectuer par raisou s 'absence du capitaine, le proprietaire du navire sera tenu d'en douner connaissance au dit departement, & notre consul ou commissaire de commeice dans le district ou le capitaine se troiive pourvoira sous sa responsabilite a ce qu'en recevaut le passeport il prite le sermeni ordonne. Art. 7. II ne doit se trouver a bord des navires munis du passeport ci-dessus ordonne aucun subrecargue, facteur, commis ni autre oflBcier de navire sujet d'une puissance en guerr , Art. 8. La moitie de I'equipage des navires ci-dessus specifies, y com iiri^ les maitres & contre-maitres, sera compose de gens du pays. S'il uii' ve que I'equipage d'un navire devieune incomplet en pays etranger par desertion, mort ou maladie, & que le capitaine soit dans Fimpossi bilite de se conformer ii la regie susdite, il lui sera permis d'engager an- tant de sujets etrangers, & de preference ceux des pays neutres, qu'il eu aura besoin pour continuer son voyage ; de maniere, cepeudant, que le nombre des sujets d'une puissance en guerre qui se trouveront ii bord du navire u'exeede en aucun cas le tiers du nombre entier de [o24J I'equipage. Cliaque cbangement *qui y aura lieu, le capitaine sera obligd de le faire inserer, avec explication des causes qui I'ont rendu necessaire, dans le role (I'equipage appartenant au navire, lequel role sera diiment atteste par le consul ou commissaire de com merce, ou sou d«'degue, dans le premier port oil le navire entrera, pour que cette attestation puisse servir de legitimation au capitaine partout oil besoin sera. Art. 9. Les actes et documents ci-apres si»ecifles devront toujours etre a bord des navires pourvus de notre passeport royal, savoir : Jje certificat ordonne par I'article 2 ; La lettre de constriction, &, si le navire n'a pas ete construit pour eompte du proprietaire actuel, il y sera joint le coutrat de veute ou let- C'OINTKK CASE OF TIIK IMTEP STATES. Ill n neiracliat. Le premier do cea deux actes et le second, s'il u eii lieu, accouipaguerout la reijuete do IVriniiteur ])Our obtenir le piisseport; Le passeport royal en latiu, avec les traductions y ap[)artenante.s; La lettre de jaugeage ; Le role d'equipage, duinent verilie par les oflieiers a ce conipetents ; . Les charteparties »S: les connaisseniens concernant la cargaison : v\: .ntiii Tattestation du bureau de douane etabli sur les lieux oii elle a ett' prise. .',L»j] Art. 10. La lettre de Jaugeage sera exprdire par des *ofticier.s a ce constitues dans les i)laces niaritinies rt'te le sermeut ordoune ci-dessus, mais I'affreteur & le capitaine seront •le plus obliges de douner conjointement une declaration differeute de la declaration generale de douane, dans laquelle seront si^eciflesle genre, la quantitf^ et le prix de ces marcliandises. Cette declaration sera veri- K^;?'- V'., ■ ^t\: ■ - i,[ m ■! . 'a'. ■ ■■• j^ » ..■ i§ is. / pM wmw 120 TREATY OF WASHINGTON PAPER8 ArCOMPANYING M»»« IH ^6e par les officiers de douane si rendroit d'ou le naviro est expcHlic, aprc'S (luoi I'officier de douane a cc competent la fera incessainment par. venir sY noire chanibre generale des douanes, ponr servir a coutroler vV a constater I'arrivee des niarcliandises y speciH(^*ea, an lieu de leur des tinatiou y enonce, li moins que I'arrivee u'en ait ete empechee par cap. ture ou detention violente, ou par qtielque autre acculent, de quoi il seni fourni preuve suflisante. Lo controle s'eft'ectuera de la manierf. qui suit: Le freteur de ces marchandises devra fournir une attestation par ecrit de notre consul ou commissaire de commerce, ou de leur fonder des pouvoirs au lieu [>our lequel le navire est destine, on. i\ leur defaut, du magistrat competent ou de (luelque autre personne publiquement autorisee et qualitiee pour cet acte; laquelle attes tatioji certiftera I'arrivee du vaisseau et le decliargement des [528J marchandises conformement A la declaration 8U8-mentionareille entreprise, ni d'avoir part ou interet dans ce genre d'equipement. Aucun armateur, auciiu capitaine, ne doit permettre qu'il soit fait usage de son navire pour transporter des troupes ou munitions de guerre, de quelle espece que ce puissc etre. Au cas qu'un capitaine ne puisse empecher que, pour pareil service, il soit abuse de son navire par une force irresistible il sera tenu de protester, d'une maniere solennelle et par acte authentique, centre la violence qu'il n'a pas ete en son pouvoir d'eviter. Art. 17. Lors
  • . :{:$, Null h IJivcr, and mlv'. tist'd lor Mtiiiti>vi(li-(i, and awail liiHtiiu-tioiis from tliis Dfiiaitiiiciit. I will thank yon to inform me at the earliest jii-acticalih' nioiiiciii hat Inrliicr action, if any, is rej Deiiartmeiit by 'Slv. Tassara, the Spanish minister liere, o!i the siili,iiTt[ of a vessel at New York called La (Orientale, whi(;h, supposinjn iui '" be intended for the service of the republics of Chili, ho re«]iie,sts iiiayl'el detained for e.xamination. The re aeUiiowled.^e tlie re('eii)t of Mr. Tassara's note tif yesterday's iliitc, relative to the vessel called l/i < )rieiitale, and all<';;cd to he of a Mis|iit'i(»iis character, now lyiii;; at the port of New York, and advertisiMl Id sail for Montevideo, hut really, accordiiij;' to Mr. Tassara's belief, for service in the cause of the Chilian j;overiiinent. Ill reply the nndersi;;iied has the honor to inform Mr. Tassara that liis i'e(piest for the detention of the vessel referred to until her real des- tination can be made clear has been complied with. Tlie midersi^ned olVers to Mr. Tassara on this occasion renewed assiu- aiices of his verv hi;4h consideration. WILIJAM H. SIOWAIM). Scfior Don (Jahuii:!, (Iaucia v Tassaha, tlv., clv'., ilv. iVl'tJ •GEXHKAI. TAI'.LI-: OF CONTKNTS. Neutrality laws «»|' Denmark. Neutrality laws «»l' IMiissia. Neutrality laws of K'nssia. Neutrality laws »)f Netherlands. Neutrality laws of Sweden. Neutrality proclamations, «S;c., oi' Ura/il. -Meiiioranda relative to Miranda J^xpedition. Case of the Meteor and Oriental. ;iM(), G.-)!] •TilE MICKCIIANT SIIiri'INtJ ACT, ISJl. [Kxtiuc'tsa] ANNO IlKCIMO SKI'TIMO KT DKriMO OCTAVO VIC TOIO.K inua.V.r.. C'liAp. CIV, — AN ACT to imu'iid iiiid coiisolidiito flic acts leluting in iiurohaut-slrip ]iiiig. — [Kt August, ldr)4.] 1. This act may be cited for all imrposes as "The Merchant Shippiiiij Act, 1854." i f9mf rwp 164 TUKATV OF \VASHI\({T(>\ — I'AI'KIJS ACCOMPAXVING <»»• I i 'I ii. ■-+ L'. Ill tlic const riK't ion siikI lor the purposes of tliis :ict (if not iiicon sistnit witli tli4' contrxt or suliji'ct iiiiittrr) tlit> following ti'iiiis simli liavt' tlic K-sjicctivt; iiieaiiiii^s liciviiiiiftcr assigiiiMl to tlieiii ; tliatiistn sa V :•♦••• \ ••Tlic tn'a.siir,v" shall iiicaii tlie ('oiiimissioiu'is of Ilcr >rajt'sty's tr('ii> urv, '^ Tlic ailiiiiraltv'' shall mean the lord liiuh admiral or tht; (*( Mllllllv sioiicis for c.xcciitiny his olVicc. '• The lioani of tiinlc"' shall mean the lords of the t'ommittci^ of piiw coniicil appointed for thcconsidcrat'on of matters rclatin<; to traiU' aiil foreign plantations. {*>'>-] and seamen, and shall he anthori/ed to carry into execution the inovis. ions of this act, and of all other acts relating to merchantships aiiil seamen in force foi the time being, other than such acts as relate tn the revenue. » * # # * IL'. All consular oflict'is, and all ollicers of customs abroad, and all local mariiu' boards and shipping masters shall make aiMl send to tin' board «>f trade such returns or reports on aii.v matter relating to r>iiti>li merchant shipping or seamen as such board icipiircs; and all shippin; masters shall, whenever rcipiircd by the board of trade, pro«luce to smh board or to its olhccrs all olhcial logbooks and other documents wliith. in pursuance of this act, are delivered to lliem. 1.'5. 1C\ cry ollicer of the board of trade, and every commissioned onicci of any of Her Majesty's ships on lull pay, and every llritish c(nisiilai ollicer, and the registrar geiu'ral of seamen ami his assistant, and even chii'f ollicer of customs in any phu'c in Ilcr Majesty's iloininions, ami i'Very ship|ting master may. in cases \vher«' hehasreas(Ui to suspect that the provisioiis of this act or the laws for the time being relating to iiici chant seamen and to navigation are not complied with, exercise the Ibl lowing yctweis, that is to say: [(i.".'5| *lle may rccpiire tlu' owiu-r, master, or any of the crew of any Ibitish siiip to i)roduce any ollicial log-books or other docuini'iii* relating to such cvcw or any luembcr thert'of in their respci-tive i si(m or cont lol. KiSS Me may reipiiic any such master to |>roduce a list of all persons m board his ship, and take <'ttpics of such ollicial logbooks, or docuinoiits or of any part theicof. Jle may muster the crew of any such ship. lie imiy summon the mastt-r to appear and give any explanation ciiii ceiningsuch ship or her crew, ov the saitl ollicial logbooks or dociimciitv And if. upon re(piisiti(m duly made by any person so anthori/ed in tliiit behalf as aforesaid, any person refuses or neglects to jiroduce any siuli t('iiii<,' an oath, re(pure every persim examined hy him to make and isciilie a ii liisexiiiiiination. And every witness so summoned as aforesaid shall b(^ allowed sncli i\l»(Mis('s as would b»' allowed to any witness attending; on subp(ena to !.'iu' eviden(;e In'fore any court of record, or if in Scotland, to any wit- ness nttcndin;;' on (Mtation the {!ouit of Justiciary ; ami in case of any ili"*|iiitt' as to the amount of such expenses the same shall be n'feri'ed l»y ilic inspector to (»ne of the niast«'rs of Her Majesty's Court of (^)iiet'n*s r.t'iicii in I']n^Iand or Ireland, or to the (^)ueeirs and lord treasurer's itiiii'iiibrancer in Scotland, who, on a r«'(piest made to him lor that pur- jMisc under the hand of the said inspector, shall ascertain and certify the proper amount of such expiMises; and eveiy person who refuses to iticiid as a witness before any siudi inspector, after having been re- i|iiir('(l so to do in the manner hereby directed, and after liavinj;" had a tt'iidcr made to him of the expenses, if any, to wliich heis«Mititlcd asafore- said, or who refuses or nc};lects to mak(> any answer, or to yive any ii")ti) return, nv to pi-oduce any document in his possession, or *to make or subscribe any ilectlarations which any such inspector is hereby iiiipdwei'ed to retpiire, shall for each such offense incur a penalty not i\c('('diii<>- ten pounds. 111. Kvery i)erson who willfully impedes any such ins|>ector api)oiiite^' ^;^^ 1.0 If:"^ IM '■ 11^ |3.6 I.I 12.0 1.8 1-25 1.4 11.6 ■• 6" ► Hiotographic Sciences Corporation 23 WEST MAIN STCEST WEBSTER, N.Y. USaO (716) 872-4503 w. V MP, ether with tlie governor, lieutenant-j-overnor, or other person administering" the government of such islands respect- ively. (,'!.) In !\[alta, Gibraltar, and Heligoland, the governor, lieutenant- jjovenior, or other persou administering the government of such places respectively. (4.) At any port or ])lace so approved as aforesaid within the [(JGOJ limits of the charter but not under the *government of the East India Company, and at which no custom-house is established, the collector of duties, together with the governor, lieutenant-governor, or otiier person administering the government. (.").) At the portsof Calcutta, Madras, and lionibay, the master attend- ants, and at any other port or place so api)roved as aforesaid within the limits of the charter and under the government of the Eas^ India Com- pany, the collector of duties, or any other jierson of six yeirs standing iu tlie civil service of the said company who is appointed by any of the governments of the said company to act for this puri)ose. (tj.j At every other port or i)lace so approved as aforesaid, within Her )Iiijesty*s dominions abroad, tlie collector, comptroller, or other principal otlicer of customs, or of navigation laws; or if there is no such oliicer resident at such port or jilace, the governor, lieutenant-governor, or (itlier person administering the government of the possession in whicli such port or place is situate. ol. The governor, lieutenant-governor, or other person administering the government-, in any British possession where any ship is registereertorm- [OOlj ance of any act or thing relating to the *registry of a ship or of any interest therein, be considered in all respects as oc<'upying the place of the commissioners of customs; and any British consular otlicer shall, in any place wh.'re there is no Justice of the jteace, be au- thorized to take any declaration hereby recjuired or permitted to be made in the presence of a justice of the [)eace. # # # # 3.1 Every api)lication for the registry of a shij) shall, in the case of in- tlividuals, be made by the person re<]uiring to be registered as owner, or l»y some one or more of such persons, if more than one, or by his ov their tluly authorized agent, and in the case of bodies corimrate, by their duly authorized agent; the authority of such agent, if appointed by individ- uals, to be testitied by some writing under the liaiuls of the ai>i)ointers, and if appointed by a body corporate, by some instrument under the eouunon seal of such body corporate. 3G. lJef(»re registry, the ship shall be surveyed by a person duly ap- pointed under this act, and such surveyor shall grant a certiticate in the jlonu marked A, in the schedule hereto, s|)ecifying her tonnage, build, JHiiu such other particulars descriptive of the identity of the ship as may jhoni time to time be required by the board of trade; iinO such certiti- Uate shall be delivered to the registrar before registry. tr A- :ister book; that is to say: (1.) The i)roperty in a shi[) shall be divided into sixty-fonr shares. (2.) Subject to tlie i)rovisiona with respect to joint owners or owners by transmission hereinafter contained, not more than thirty-two individ. ujils shall be entitled to bo rej;istered at the same time as owners ot any one ship; but this rule shall not affect the beneficial title of imy number of persons, or of any company repre.sented by or claiming iiiukt or through any registered owner or joint owner. (.'3.) No person shall be entitled to be registered as owner of any frac tional part of a share in a ship, but any number of persons, not exceed- ing five, may be registered as joint owners of a ship, or of a share or shares therein. (4.) Joint owners shall be considered as constituting one person only as regards the foregoing rule relating to the nun»ber of persons entitled to be registered as owners, and shall not be entitled to dispose in sev- eralty of any interest in any ship, or in any share or shares therein, in respect of wliich they are registered. (5.) A body cori)orate may be registered as owner by its corporate name. [GG3J 38. No person shall be entitled to be registered *as owner of a ship, or any share therein, until he has made and subscribed a declaration in the form marked B, in the schedule hereto, referring,' to the ship as described in the certificate of the surveyor, and containing the following particulars; that is to say : (1.) A statement of his qnalilication to be an owner of a share in a British ship. (2.) A statement of the time when and the place where such ship was built, or (if the ship is foreign-built, and the time and place of building not known) a statement that she is foreign-built, and that he does not know the time or place of her building ; and, in addition thereto, in the case of a foreign ship, a statement of her foreign name, or (in the case of a ship condemned) a statement of the time, place, and court at and by which she was condemned. (3.) A statement of the name of the master. (4.) A statement of the number of shares in such ship of which he is entitled to be registered as owner. (5.) A denial that, to the best of his knowledge and belief, any un- qualitied person or body of persons is entitled as owner to any legal or beneficial interest in such ship, or any share therein. [G64j The above declaration of ownership shall be *made and sub- scribed in the presence of the registrar, if the declarant reside within five miles of the custom-house of the i)ort of registry, but if beyond that distance, in the presence of any registrar or of any justice of the peace. ##**«*» 40. Upon the first registry of a ship there shall, in addition to the declaration of ownership, be produced the following evidence; that is to say : (1.) In the case of a British-built ship, a certificate (which the builder is hereby re(piired to grant, under his hand) containing a true account of the proper denomination and of the tonnage of such ship as estimated by liim, and of the time when and of the place where such ship was built, together with the name of the party (if any) on whose account lie has built the same; and, if any sale or sales have taken place, the bill or bills of sale under whioU tho ship, or share therein, has baeoma vested in the party retpiiriuy; to be registered as owner, COUNTER CASE OF THE UNITED STATES. 169 (2.) Ill the c.Tse of a foreign-built ship, the same evidence as in the case of ii British-built ship, unless the person requiring to be registered as owner, or, in the case of a body corporate, the duly appointed officer, (ieclares that the time or place of her building is unknown, or that MiJ] the builder's certitieate cannot be procured, in which *case there shall be required only the bill or bills of sale under which the ship or share therein became vested in the party requiring to be regis- tered as owner thereof. (3.) In the case of a ship condemned by any cop^.petcnt court, an offi- cial copy of the condemnation of such ship. 41. If any builder willfully makes a false statement in any certificate hereby required to be granted by him, he shall, for every such otfense, iucur a penalty not exceeding one hundred pounds. 42. As soon as the foregoing requisites to the due registry of a ship have been complied with, the registrar shall enter in the register-book the (ollowing particulars relating to such ship ; that is to say : (1.) The name of the ship and of the port to which it belongs. (2.) The details as to her tonnage, build, and descrii)tion cojnprised in the certificate hereinbefore dire(jted to be given by the surveyor. (3.) The several particulars as to her origin stated in the declaration or declarations of ownership. (4.) The names and descriptions of her registered owner or owners, aud if there is more than one such owner, the i)roportions in which they are interested in such ship. * # * * [CGG] 44. Upon the completion of the registry of any *ship, the regis- trar shall grant a certificate of registry in the form marked D, in the schedule hereto, comprising the following particulars ; that is to say : (1.) The name of the sliip and of the port to which she belongs. (2.) The details as to her tonnage, build, and description comi)rised iu the certificate hereinbefore directed to be given by the surveyor. (3.) The name of her master. (4.) The several particulars as to her origin stated in the declaratiou or declaraiions of ownership. (5.) The name and descriptions of her registered owner or owners, and if there is more than one such owner, the proportions in which they are respectively interested indorsed upon such certificate. « # « « # * * 53. If any registered ship is either actually or constructively lost, taken Ity the enemy, burnt, or broken up, or if by reason of a transfer to any jiersoiis not qualified to be owners of British ships, or of any other matter or thing, any such ship as aforesaid ceases to be a Britisli ship, every person who at the time of the occurrence of any of the aforesaid events owns such ship or any share therein shall, immediately upon obtaining knowledge of any such occurrence, if no notice thereof has already been given to the registrar at the port of registry of such I'iOT] ship, *give such notice to him, and he shall make an entry thereof in his register-book ; and, except in cases where the certificate of jiOKlstry is lost or destroyed, the nuister of every ship so circumstanced iif'afoivsaid shall immediately, if such event occurs in port, but if the I !>aine occurs elsewhere, then within ten days after his arrival in port, Uieiiver the certiflcato of registry of such ship to the registrar; or, if {there be no registrar, to the British consular officer at such i)ort, and li'ueh registrar, if he is not himself the registrar of her port of registry, or such British consular officer, shall forthwith forward the certificate ["o delivered to him to the registrar of the i)ort of registry of the ship ; and every owner and master who, without reasonable cause, uudies default " : i vi ■ 170 TREATY OF WASHINGTON PAPERS ACCOMPANYING in obeyinj? the provisions of tins se(!tion, isliall for each offense incur a penalty not exceeding one iiundred ponnds. [COS] *CEUTIFirATES OF MOUl'GAGE AND HALE. 7(). Any registered owner, if desirous of «lisi»osin8: by way of niortsiigo or sale of the ship or share in lespect of wiiieh he is registered at any place out of the country or possession in which the port of rc'gistry of such ship is situate, may a[)[>iy to the registrar, who shall thereupon enable him to do so by granting such 4;ertilicates as are hereinaltci mentioned, to be called, respectively, (!ertiticates of mortgage or ccitili- cates of sale, according as they purport to give a pov r to mortgage or a j)o\ver to sell. 77. Previously to any certificate of mortgage or sale being granted, the applicant shall state to the registrar, to be by him entered in the register-book, the following particulars; that is to say: (1.) The names of the jjcrsons by whom the power mentioned in siidi certificate is to be exercised, and in tlu^ case of a mortgage the maxi- mum amount of chaige to be created, if it is intended to fix any such maximum, and in the case of a sale the minimum price at winch a siile is to nuide, if it is intended to fix any such minimum. (2.) The spe(!ific place or places where such power is to be exercised. or if no place be specified, then that it may be exercised any- [GG9J where, *subject to the provisions hereinafter contained. (o.) The limit of time within which such jmwer may be exer- cised. 78. No certificate of mortgage or sale shall be granted, so as toautlior- ize any mortgage or sale to be made ; At any i)lace within the United Kingdom, if the port of registry of the ship be situate in the United Kingdom ; or at any place within the same Brithh possession if the port of registry is situate within a Brllhk possession ; or, By any person not named in the certificate. 70. Certificates of mortgage and sale shall be in the forms marked respectively M and N, in the schedule hereto, and shall contain a state nient of the several particulars hereinbefore directed to be entered in the register- book, and in addition thereto an enumeration of any reg istered uu)rtgages, or certificate of mortgage, or sale affecting the ship or shares in respect of which such certificates are given. 81. The following rules shall be observed as to certificates of sale ; tliiit is to say : (10.) If the ship is sold to a party not qualified to be the owner of a British ship, the bill of sale by which the ship is transferred, the corti- ficate of sale, and the certificate of registry shall be produced to [670J some registrar or consular officer, * who shall retain the certificates of sale and registry, and, haviiig indorsed thereon the fact of such ship having been sold to persons not (pialified to be owners of Bnthk ships, shall forward such certificates to the registrar of the port appear- ing on the certificate of registry to be the port of registry of such ship; and such last-mentioned registrar shall thereupon make a memorandum of the sale in his register-book, and the registry of the ship in such book shall be considered as closed, except so far as relates to any uusatisfled mortgages or existing certificates of mortgage entered therein. 11. If, upon a sale being made to an unqualified person, default is made in the production of such certificates as are mentioned in the last . rule, such uuqualifled person shall be considered by BriUsh law as hiiv- f^ COUNTER C'A8E OF THE UNITED STATES. 171 ill" acqnii'od no title to or interest in the sliii); and, fiirtlier, the party 111)011 whose iip[>liciition snch certifteato was <>rante(l, and tlie pci'soii.s ( u'lrisiufi' the power, shall each incur a penalty not exceeding one hun- dred pounds. !)4. Every rpj.istrar iu the United Kin;i;don. shall, at the expi- [IhI] ration of every 'uonth, ami *every other re;;istrar shall without delay, or at such . 'ated times as may be fixed by the conimission- H'sof iK'li form as they may direct, of all rejL!,istries, transfers, tiansinissions, liiDitjra^jes and other dealinjis with ships which have been registered by 111 coinnnuiicated to them in their character of re;:^istrars, ans ; and such ollicer simll thereupon inscribe such name on the clearance or transire. And if any ship attempts to proceed to sea without sui-h deai-ance or trans- ire, any such officer may detain her until such «leclaration is made. 103. The offenses hereiimfter mentioned shall be punishable as fol- lows, that is to say: (1.) If any person uses the IJritish flag and assumes the British national character on board any ship owned iu whole or in ]»art by any [iJlL*] persons *not entitled by law to own liritish ships, for the i)urpose of making such ship appear to be a Ibitish ship, such ship shall be forfeited to Her ■Majesty, uidesssuch assumption has been made for tlie piujjose of escaping capture by an enemy, or by a foreign ship of war iu exercise of some belligerent right; ami in any proceeding for eiitorcing any such forfeiture the burden of proving a title to use. the liritish flag and assume the British national character shall lie upon the person using and assuming the same. (1*.) If the master or owner of any British ship does or permits to be (lone any matter or thing, or carries or permits to be carried any pa- pers or documents with intent to conceal the British character of such sliip from any person entitled by British law to inquire into the same, or to assume a foreign character, or with intent to deceive any such person as lastly hereinbefore mentioned, such ship shall be forfeited to iler Majesty ; and the njaster, if he commits or is privy to the com- liiission of the offense, shall be guilty of a misdeujeanor. (•').) If any unqualitied person, except iu the case of such transmitted interests as are hereinbefore mentioned, acquires as owner any interest, either legal or benetieial, in a ship using a liritish flag, and as- [073] sumi'iig the British character, such interest *shall be forfeited to Her Majesty. (4.) If any person, on behalf of himself or any other person or body I of persons, willfully makes a false declaration touching the qualitication lit himself or such other person or body of pt.'sons to own British ships or any shares therein, thedeclarant shall beguilty of a misdemeanor ; and the shii» or share in respect of which such declaratioii is made, if the hame has not been forfeited under the foregoing provision, shall, to the I'xtent of t he interest therein of the person making the declaration, and un- less it is shown he had no authority to make the same of the parties on hehalf of whom such declaration is made, be forfeited to Her Ma- jesty. S'^ ■ ,.( ■'■^"M |F \ . : •:ecomc suhjt^-t to forfeiture as aforesaid, and brin;; her for adjudication l)efore the high court of admiralty in EiujUm^l or Irtlnnd or any court having' admiralty jurisdiction in Uer Majesty's dominions: and such court ui;iy thereuiion make such order in the case as it may thi!ik fir. ainl [C74J m.iy award to the offi*cer brinjfinj^ in the same for adjuditaiiitii such portion of the proceeds of the side of any forfeited ship or share as it may think right. 104. ^o such officer as aforesaid shall be responsible, eithtr civilly or criminally, to any person whomsoever, in resjiect of the s«'izure or de- tention of any ship that has been seized or detained by him in puisii ance of the i)rovisions herein contained, notwithstanding that such ship is not brought in for adjudication: or. if so brf>ught in. is dedan-il not to be liable to forfeiture, if it is shown to the s;itisfaction of tbc judge or court Ijefore whom any trial relating to such ship or such seizure or detention is held that there were reasonable gionnds for smh seizure or detention ; but if no such grounds are shown, such jud^e »r court may award payment of costs and damages to any party aggrieve*!, and make such other order in the premises as it thinks just. [G75J •SHEPPrXG-OFFICES. !No. 122. In every sea-iwrt in the United Kingdom in which there i> a local marine board, such Iwjard shall establish a shipping-office or shipping-offices, and may, for that pnri>ose, subject as herein mentioiiwl. l)roeure the requisite premises, and appoint, and from time to time remove and re-appoint, suwrintendents of sucli offices, to be calletl shii>- ping:inasters, with any necessary deputies, clerks, and servants, ami regulate the mode of conducting business at such offices, ami shall. ;>uit- ject as herein mentioneil, have complete control over the sitme : ami every act done by or before any deputy duly apiwinted shall have the same effect as if done by or Ijefore a shipping-master. No. 123. The sauction of the board of trade shall l>e necessary, so far as regards the number of persons so ap[>ointetl by any sneh Uxral marine board, and the amount of their salaries and wages and all other es- l)enses; and the board of trade shall have the imme«liate control of such shipping-offices, so far as regards the receipt and ]»ayment oJ money thereat ; and all shipping-masters, deputies, clerks, and [C7CJ servants, so ap|)ointed as aforesiiid, •shall, before entering upon their duties, give such security (if any) for the due i>erfonuance thereof as the board of trade requires: and if in any case the Iwanl of trade has reason to believe that any shipinng-master, deputy, clerk, or servant appointed by any locjil marine l»oard does not proi»erly discharge his duties, the board of trade may cause the case to be investigateer i)erformance of his duties until another i»erson is properly appointeil in his place. No. 121. It shall be the general business of shipping- masters, aiv pointed as aforesiiid — To afford facilities for engaging seamen by keeping registries of tbeir names and chanicters ; COUNTER CASE OF THE UNITED STATES. 173 '.i. to bogiu To su|HTinteiHl and faiilitate t!ioir engagement and discharge in nian- im heieinatter nientioned ; To provide means lor securing the presence on board at the proper times ot men who are so engaged ; To facilitate the making of apprenticeships to the sea .ser\ice; To perform such other duties relating to merchant seamen and mer- cbaiit ships as are hereby, or may hereafter, under the jiowers herein contained, be coinmitte. The master of every ship, except ships of less than eighty tons registered tonnage, exclusivly employed in trading iK^twcen iliticrent ports on the coasts of the United Kingdom, shall enter into an agreeuMMJt with every seaman whom he carries to sea from any jMiit ill the United Kingdom as one of his crew in the manner hereinaf- id mentioned : and every such agreement shall be in a form sanctioned 1>y the lM)ard of trade, and shall be dated at the time of the first signa- ture thereof, and sludl Ix* signed by the master before any seaman signs tlie siiiie. and shall contain the following particulars as terms thereof; tbat is to say : 1.! The nature, and. as far as practicable, the duration of the intended vdvage or engagement. 1'.) Tiie number and description of the crew, specifying how many are eiigage^l as sailors. i:3.i The time at which each seaman is to be on board or work. (4.) The capacity in which each seaman is to serve. (.").) The amount of wages which each seaman is to receive. i]7Sj *(♦>.) A scale of the ])rovisions which are to be furnished to each seanmn. 1 7.) Any regulations as to conduct on board, and as to fines, short allowance of provisions, or other lawful punishments for misconduct, rliicU have been sanctioned by the boar(i of trade as regulations proper to \)Q adoi>ted, and which the parties agree to ado[>t. And every such agreement shall be so framed as to admit of stipula- tious, to be adopted at the will of the master and seamen in each case, .'.s *•» advance and allotment of wages, and may contain any other stipu- lations which are not contrary to law: Provided, That if the master of aiiv ship belonging to any British possession has an agreement with his crew made in due form according to the law of the possession to which sncU ship belongs or in which her crew were engaged, and engages sin- gle seamen in the United Kingdom, such seamen may sign the agree- ment so made, and it shall not be necessary for them to sign an agreement in the form sanctioned by the board of trade. •i71»] 'No. loO. In the case of all foreign-going ships, in whatever part of Her Majesty's dominions the same are registered, the fol- lowing rules shall be observed with respect to agreements ; that is to say : (1.) Every agreement made in the United Kingdom (except in such cases of agreements with substitutes as are hereinafter speciallj' pro- viileti for) shall be signed by each seaman in the presence of a shipping- master. ■-'.) Sucli shipping-master shall cause the agreement to be read over and explained to each seaman, or otherwise ascertain that each seaman understands the same before he signs it, and shall attest each signature. (3.) When the crew is first engaged the agreement shall be sign'id in 'luplicate, and one part shall be retained by the shipping-master and the other part shall contain a special place or form for the descriptions and m 174 TIJE.VTV OF WASHINGTOX r.VPEKS ACCOMrAXYIXG ir si;rnatnr<'s of substitutes or porsons ou^Myctl subscfiucutly to tlio fus- (U'piirtun* of tlH> ship, aiul sliiill he dcliviMcd to tiic luiistcr. [C80] •(4.) lu tlic Cijsc of sul)stitut('s cu^jufii'*! in tln' place of scannn who li;\v«* iluly siy:m'i«'emtMit, iiuy «h'atli. (|cs,.| ti(»ii.or oilier unforeseen cause, the en;;a<;enu'nt siiall, when piacticiilii,., l>e nnule hefoie some shipi)in;4:-iMastei' - to for the boarding or lan(liii;.Mt otiicers of the customs, and may also api)oint ]>laces to be suHt'iaiKT wharves Ibr the lading and unlading' of goods by sufferance, in siith cases, under such restrictions, and iu such manner as they sliall [6S2] see tit, and nuiy *also direct at what particular part or parts di any harbor, dock, quay, or other place in any port, ships ladni with to'»acco or auy particular cargo shall nutor and rt under tluMr directions, may station officers on board am ship while within the limits of aay port iu the United Kiugdoai. • ♦ *"# * # * LII. Tlie captain, master, i)urser, or other person having the cliarse of any stiip (having commission from Her Majesty, or from any forei;ii state) having on board any goods laden in parts beyond the seas, shal on arrival at any port iu the United Kingdom, aud before auy parttfj such goods be taken out of such ship, or when called upon so to do by any officer of the customs, deliver an account in writing, under his liaiul to the best of his knowledge, of the quality and quantity of every pack- age or parcel of such goods, and of the marks and numbers tliereou, and of the names of the respe(!tive shippers aud consignees of the same, aud shall make and subscribe a declaration at the foot of such accouut, 1 declaring to the truth thereof, and shall also truly answer to the col lector or conii)troller such questions concerning such goods as shall be | required of him, and on failure thereof of such captain, master, [083] xjurser, or other person, shall forfeit the sum of one huu'dred COrXTER CASE OF THE TXITTID STATES. 175 i)ttiiii(ls: Mild all such ships s1i;ill lie lialtlo to such soiirclu's iis mer- (•li;iiitslii|>s JUT liiildr to, siixl tlir olliccrs of tlu' ciisttiiiis may iVct'ly (iittT ainl j;o oil lioiiiil all such sliiits ami luiij^ from tlu'iicc oil shore into the (Queen's warehouse any {^oods Couml on board any such ship as iitmcsaitl, siihjcct, iicv«'rthclcss, to such ic};iihitions in rcspc<'t of sliips of war hcloiijrinj; to Ilcr Majesty as shall, from time to time, he directed ill tliiit respect hy the commissioners of Her ."Nrajesty's treasury. As to the exportation anr coastwise of such ship of her last voyajic, and shall also (li'liver therewith an entry outward of siurli ship, verilied by iii.«, sijjna- tiire. in the followinji- form, or to the same etl'ect, and containing (H4] the several particulars *indi(;ated, or reipiired thereby: ♦ * ♦ And if su<*h ship shall have commenced her lading' at some other pDit, the master shall deliver to the searcher the clearance of such ;;(i()(ls from such other i>ort ; and if any goods be taken on b«>ard any sliip at any port before she shall have entered outwards at such port, iiiiU'ss a stitteniiifr order, when necessary, shall be is'Sued by the proper olliccr to lade any heavy goods for exportation on board such shii),) the master shall forfeit the sum of one hundred pounds. « * * * * * * CXXVI. The shipping bill or bills, when tilled up and signed by the txiiorter or his agent, or the consignee of the ship, as the case may be, ill such manner as the proper oflicer may require, and countersigned oy till' searcher, sliall be the clearance for all the goods enumerated therein; :iii(l if any of such goods shall consist of tea, spirits or tobacco, the ex- jiorter or his agent shall furnish to the searcher an account thereof, ciiiitaiiiing the number and description of the packages, and the respect- iv(Minantities contained therein, which, when certitie«l by the searcher, shall accompany the ship, and have the same force and ettect as the coiket in use i)rior to the passing of this act ; and if the exporter or his iiireii': shall require a similar certiticate in resj)ect of any other goods shipped f«)r exportation, the searcher shall, on its being pre- [liSj] *sented to him for that purpose, certify the same in like manner: Prorided alirays, That if any such certificate be re«piired to be in itiiy particular form for jjoods destined for the Zollverein or any other foreign state, or under the name of "cocket," such certiticate ma^^ be so prepared and denominated. ***** • * As to the shipping of stores for the use of foreign-bound vessels: CXL. The master of every ship of the burden of lifty tons or upwards, departing from any port in the United Kingdom upon i^ voyage to parts beyond the seas, the duration of which out and home shall not be less tliau forty days, shall, upon due ap])lication made by him, and upon such terms and conditions as the commissioners of customs may direct, receive from the searcher an order for the shipment of such stores as may he required and allowed by the collector or comptroller for the Hse of such ship, with reference to the number of the crew ami passen- gers on board and the probable duration of the voyage on which she is about to depart; aud all demauds for such stores shall be made la such w ■ u- -■1 ' . 'i 1 't' %■ I' t-A l\^ ; I M hr I ! ■ i m liili 17G TIIEATV OF WASIIIXGTON PAl'KRS ..CCOirAXYIXO form and inannor as sneli colloctor or coiuptrolk'r sliall rciiniic, aiid Kliall hv siffiKMl by the master or owium" of tlic vessel; iiiid niter [GSO] sneli stores are •duly sliipped the master or his a^eiit simll nmi^,. out an account of the stores so shipped, topjetlier with any othir stores tlien already on board, and the same, when presented to tlic searcher, signed by him, and coJintersiy:ned by tlie colIe(;tor or «()iii||. troller, sliall be the victnalin;i^ bill; and no stores shall be shipped idf the use of any ship, nor any articles taken on board any ship be tltiiiitil to be stores, except such as shall be borne upon such victualin^j; bill. As to the clearance of ships outwards: CXiil. If there be on board any ship any jjoods, beiiif? part of fli(> inward carjjo reported for exportation in the same sliip, the iiiastcr shall, i»efore clearance outwards of such ship from any i>ort in the United Kiuf^dom, deliver to the searciu^r a copy of the report inwards of such j^oods, certitted by the (collector or comptroller; and if such copy be found to correspond with the {joods so remaining; on board, tln' searcher shall s^\gu the same, to be filed with the certilicates or cockcts, if any, and victualing bill of the ship. CXLII. Before any ship shall be cleared outwards from the Uiiitcij Kingdom with any goods shippe the dnitlitnitc liiU of lailin;>- so i-iM|nii-(Ml sliall not lie liable to any .stamp duty. OXIdll. ir any ^oods liable to duty on inipoitution, or taken ironi the Wiireliouse to be exported or entitled to drawback on exportation, wliicli are enumerated in the contents of any ship, shall not be (iS'.IJ didy shippiMl betbre the departure of such *ship, or shall not bo duly (tertitled l)y tlie proper (dlicer as short shipited, such jjoods sliall be ibrfeited; or if any .su(di }><)ods shall In; tak(>n on board such ship, not bein^ enunu>rated in such content, th(> master of siudi ship sliall Ibrfeit the sum of live pounds in respect of every paitkaj^ni of such limiU; and if any p:oods duly shi])ped on board such ship shall be l;iii(l('(l at any other place than that for which they shall have been cleared, unless otherwise ac(;ounted tor to the satisfaction of the com- missioners of customs, the master of such ship shall forfeit a sum equal t(i treble the value of the floods so landed. (JXLIV. If any goods shall l»e ship]>ed, put olf, or water-borne to be shipped, without beinj; duly cleared, or otherwise contrary to the i)ro- visions of this act, the same shall be liable to Ibrleiture. (!XIiV. IJelbre any ship shall depart in ballast from the United King- dom for jiarts beyond the seas, not having any goods on boari) •' au'pt stoms from the warehouse borne upon the victualing bill of such sl/ip, iioraiiy goods rei)orte shall answer to tl;r 'wllector or comptroller such (pu»stions tofh- jilliO| iiig *her departure and .] *Tm-: sm»iMJ<:MKNTAL customs coxsolidation A(rr, 18.-)."). [Kxtracts.] ANNO DECIMO 0("rAVO KT DEt'niO NOXO VI«'T0IU/1'; llE(ilN.i;, Cap. XCVI. — AN ACT to t'oiisolitlatc certain aftn, anil othcrwist! ayicnn tlio lawsdf the cnstoms. anil an act to rcl' tin- riM-cipt of FTer Majesty's cx- clicfincr at Westminster. — [14th Anj>;nst, l^Tj.^).] IX. Xo goods shall be shipped, put otl", or water-borne, to be sliipiKil for exportation from any port or place in tlie United Kingdom, except on days not being Sundays or holidays, nor from anyplace except .some legal en or cause to be opened, and to examine all goods shipjjed or brought for shipment at any place in the United Kingdom, and the opening for that purpo.se of packages containing goods upon whicli any draw back of custonis or inland revenue is claimed, and the weighing:, repacking, landing, (when water-borne,) and the shipping thereof, shall be done by or at tlie expense of the exporter. X. Any exporter of goods who .shall fail, either by himself or his agent, to deliver to the searcher a shipping l)ill, with duplicates thereof, of the goods exj)orted by him, as prescribed by the one hundred and twentylitth section of " the customs consolidation act, 1853," shall for- feit the sum of twenty pounds. XI. If any shi[) having cargo on board shall depart from any port without being tluly cleared, tiie master shall forfeit the siun of one hundred pounds. »#♦«»# XVI. The powers and authorities now vested in the commission- ers of customs w ith regard to any act or thing relating to the customs C'OUNTEU CASE OF THE UNITED .STA'IES. 179 or to tiaiCE KKOM MELUOIJIINE AND CAPETOWN, SUBMITTED TO Till] AlflUTHATOKS ON TllH IjTir OF DECEMBER, ISVl, BUT NOT INCLUDED IN THE EVIDENCE THEN PIUNTED. [OOS] *Mr. Adainson, vouskI, to Mr. Darin, AsHistant Secrctarij of State. Consulate of the United ^^tates of America, MelboHnw, ISeptenibt'r 2."i, 1871. 8iK : I have the honor to acknowledge the receipt, on the l.'Jth in- stant, of dispatch No. 14, dated June 2'J, 1871, from the Hon. AVilliam Iliuiter, Acting Secretary of State, and of the inclosnres and documents therein referred to. 1 am instructed to procure such further evidence as it may be possi- ble to obtain in regard to various facts in connection with the visit, at this port, of the armed steamship Sea King, otherwise known as the confederate steamship Shenandoah, in order more fully to establish the dainis of the United States before the tribunal which is to sit at Geneva. In explanation of the want of fullness in the documents about to be pre- sented to you herewith, I may be permitted to say, that the time be- tween the receipt of the honorable Acting Secretary's dispatch and the departure of mail, now about to close, was too short for the neces- [(iOOj sary investigations in a matter of such impor*tance ; that, having but recently arrived here, I was comi»elled to depend mainly on the assistance of Mr. S. I*. Lord, a loyal citizen of the United States, long a resident of this port, to whose zealous co opi ration I am indebted for the evidence herewith. Also, that beside the many deaths which have wcnrred, a largo number of those who could give valuable evidence have long since left this port, and that most of those still here decline siving the desired information, eiiher because it might be prejudicial to their private business, or to the interests of Great Britain, the country ir'i '! ■ i , 180 rUK.VTV OF WASHINGTON PAPKUS ACCOMPANYING to wbieli they owe alleffijince. I may also state that without a coiniuis tsiou from tho courts of Great Britain, directing the taking of depositions, it seems ditticult to take dechiratious here that would b'; evidence in tiic courts of England. With the above explanations 1 now submit the inclosed deposition of George Washington Kobbins, of Sandridge, near Melbourne, (inclosurc No. 1,) declaring that he saw the Shenandoah at this port in 18Gr», and identifying that vessel as the Sea King by the name on the stern as well as bj' the statements made to him by two of her ottlcers, his acquaint ances. f700| Mr. Kobbins also saw the Shenandoah *on the government slip at Williamstown; saw working-men going to and from her, and positively declares that additions were made to her crew, naming two of the men. You will particularly notice that he reported the shippin;; of the men to the water-police, who said they were i)owerless to inter fere without directions from the head authorities at Melbourne, thus confirming the statement of Mr. Consul Blanchard in his dispatch ^^), 4, of February 2',\, 180."). Also, as showing the i>artnership of the gov ernment of this colony, the sworn statement of Samuel P. Lord, es(j., ni this city, (indosure No. 2,) repeating under oath the statement contained in his letter to Mr. C^onsul Blanchard, which appears as inclosure Xn. 4!), with Mr. Blanchard's dispatch of February 23, l.StJo, giving stroiii; evidence of the unwillingness of the Crown solicitor and other oHiciiils to receive information wliich might make it t)»e duty of the governineiit to sei/,0 the Shenaiuloah, and generally the unfriendly feeling of tlic goveiinnent of this colony as towards the rnited States. You will also please noti(!e that Mr. Lord identities as an clliciiil 1 701 1 book or document the printed book entitled "The Victorian * Man sard," whicli was luocluced at the taking of his ositioii, ami which will i»e forwarded herewith under se[>arate cover, marked .} A. I also inclose the sworn statement of Samuel P. Lord, es(]., (inclosuif No. 4,) showing the fact that said vessel was coaled and repaired at this port, which more fully explains why the articularly the debates in the legislative councils of this colony during the stay of the Sheuaii doah, as reported in the Victorian Hansard herewith, (see pages [702] 2(J4, 284, 300, and 304.) On page 204 it will be seen *that the Hon. Mr. Berry (now the treasurer of this colony) called the at- tention of the government to the case of the Shenandoah. He identi fled her as the vessel called the Sea King, which sailed from Loudoii about the 8th of October, 1804, asserting that there was abundant evi deuce of the fact, and inquired whv the coufiscatiou of the vessel was not carried out under the neutrality i)roclamation. He pointed out to the honorable chief secretary that the vessels destroyed by such a vos sel would at some future time be claimed by the Americau Govermneut from the British government, but unfortunately his ])ropheti(* utter auces were not heeded. COUNTKR CASK OF I'HK UNITED STATKS. 181 The partnersbip of this government niiiy well be interre«l trom the reply of the chief secretary, Mr. McCulloch, (now Sir James McCiilloch,) which follows Mr. Berry's remarks. The same partnership is also clearly shown ill the ^^ cheers from ail imrts of the house"" which followed the subsequent remarks o*' Mr. O'Shannessy. It is also shown in the extremely tardy action of the government in regard to comjiiaints made that the [70;3| Shenandoah *was increasing hei crew in this port. The honorable chief secretary, Mr. McCulloch, in his explanations made in the house, February 15, 1805, (see Hansard, page 361,) says, "The govern meut found they could not shirk the (piestion." It was apparently their desire to do so, and his history of the case seenis to show that eventu- ally they did sliirk it. i much regret the impossibility of obtaining direct testimony on many important i>oints. The second deposition of Samuel P. Lord, eaq., states clearly the fact that Mr. II. W. Langhmds, who is substantially the Liuiglands Foundery Company of this ])lace, admitted to Mr. I^ord that lie made the repairs on the Shenandoah at this port, and that he paid one J. K. Collins the sum of three hundred pouiuls sterling for steve- dore work on said vessel. Mr. Collins did at first agree to (lepose to his share in the transaction, but on second thought declined. (See his letter attached to inclosure ><'o. 2.) Tliat rhe Shenandoah was repaired on what is known as the govern- ment slip is not denied by the then chief secretary, (see remarks of Mr. IMcCidloch, Vi(;torian Llansard, i)age '^^ii,) but I believe that 1704] at that *time the government slip was leased to a ])nvate com- l)any. For reasons In reinbefore stated, 1 cannot obtain sworn declaration as to the coaling, although the facts are a matter of general notoriety. The recruiting of additional crew, at this port, may be considered as admitted by the chief secretary, (see Victorian Hansard, jiages 304, JO.!,) and the fact that (^aptain AVaddell knew that men were Joining his ship here is indicated by his refusal to allow the inspector of police to ;'.) on board and execute the warrant for apprehension of the man "Charlie," and that Captain Waddell gave his word of honor as an olti- ceraud a gentleman that there was no such person on board, although hiteron it will be seen that four men were (letecte'»iK:^'ri ^^HnvKSixIm' ' r Hv ilSMi wCWt^ . HSliJiiUilL^ '<; 'i ■ViitfllKlilni I9r.' 1 A EifiaiiSir miles, tbe government of this colony, in the person of one of its members, furnished ssiid officers with free passes over the railway. Kespectfully submittinp^ the forejjoing, 1 hs'.ve the honor to bo, sir. yours, &C., TUO^fAS ADAMSON, Jr., I'mted States Consul. lion. .J. C. Ji. Davls, 'Assifitant Secretary of State, Washiuffton. P. y. — At the time of writing the above, the de[»osition of H. B. Don aldson, marked enclosure No. 5, was in the solicitor's hands, ready ( 700] for INIr. Donaldson to swear to ami *subscribe. I have made every effort to have itcomi)Ieted, and now, atl p. m., my solicitor comes with the document unsigned, stating that Donaldson refuses to sign niitil he receives £.10 for doing so. I will barely liave tinie to mail this; in fact mav have to send it to Svdney to be mailed. TUOMAS ADAMSON, Jr., United States Consul. Affidaiut of G. \V. liohbins. To all to whom these presiMits shall come : I, Henry I'enlceth Fei-gio, notary public by royal authority, duly authori/ied, admitted, and sworn, residing and )nacticing in the city of Melbourne, in the colony of Victorin, do hereby certify that Winrield Atteuborough, before whom the atlidiivit of George Washington liobbins, on the other si all nets by him, tin said Wintield Attenborough, done in his said cai)acity or otiico. [707] *full faith and credit are due, in jiulicature and thereout. In faith and testimony whereof, I, the said notary, have here unto subscribed my name and set and affixed my seal of office, at Mel bourne, in the said colony of Victoria, this twenty-fiftii day of tSepteni ber, in the year of our Lord one thousand eight hundred and ■ ?veiity one. [SEAJ,.| TTENUV PENKKTII FEHdIE, Xotary I'nhlic, Melhonnie. I, (leorge Washington Itobbins, of Sandridge, near .Melbourne, in the colony of Victoria, stevedore, make oath and say as follows : 1. 1 have been in business in Sandridge (port of Melbourne) as a stevedore ever since June, one thousand eight hundred and fifty-three. 2. 1 saw the vessel Shenandoah in the port of Melbourne in one thousand eight hundred and sixty-five. The name Shenandoah 1 per ceived ha*! been painted over the name Sea King ; the p.iint having worn ott", the original name was plainly disclosed. The vessel was pop ularly known in this port as the confederate ship of war Shcuan doah. [708| *.'{. 1 knew the paymaster of the Shenandoah and one of the engineers; I first became acquainted with them in New Orleans, in the United States >>f America. Tliey told me the Shenandoah wis originally the Sea King. They asked me to take in the coals for tlu' COUXTEK CASK OF THK I'MTED STATES. 183 ship, but 1 refused, on the gromul, as 1 told tlicm, that there was one American flag Hying when 1 left the Crown H(dicitor, of a large number of men about violating the neutrality laws of the country;" at which he replied, in a sneering and most insulting manner, " I don't care; 1 want my dinner, and I am going to have it ; there are plenty of magistrates round town ; go to them." When 1, seeing that you felt bitterly the insulting manner of .Mr. Ourner and wishing 'o spare yon a continuation of it, said, "Let us then go and set- the attorney-general. ' Mr. Oui'ner turned his back on ns and walked oH". When ont- side the gate and about a do7,«!n paces down Collins stniet, he turneer, 187L W. ATTENBOKOUGH, A Commiiwioner of the Supreme Court of tlie Colony of Victor ia for taking A ffidarih. i J' • •■* i 111 $' I, Samuel Perkins Lord, of Collins Street west, Melbourne, in the colony of Victoria, merchant, make oath and say as follows ; that is to say : 1st. On the 21st day of September instant, I s;iw Mr. .J. K. Collins.of Sandridge, near Melbourne, steve it to be true, that he was the stevedore of the confederate shipSheiian doah while in the i>ort of Mellwnrne, and thint he took on boanUur coal when here, and he at the same interview oflei-ed to furnish me wiili a copy of his account against the ship, but on my afterward applyiiijjin him for such copy account, he refuse.s Austin Mouteath on the other side written pnriK>rts to have been sworn, is a eonunissioner of the supreme (•onrt of saiil colony for taking; affidavits, dnly appointed in that behalf, antl that name W. Attenborough, subscriben, the said Winfiehl Atten- Itoroujih. done in his sjiid capacity or ottice, full faith and credit are due ill Judicature and thereout. In faith and testimony whereof I, the said notary, have hereunto sub- soribe«l my name and set and atlixed my seal of otHce, at Melbourne, in tbe said colony of Vict. Donaldson, of Sainliid*re. near Melbonrne, aforesaid, ship-chandler, carrying on busi- ness as II. U. Donaldson & Co. 2. On being applied to by the said firm <)f llennett & Attenborough lor information jis to supplies which they had understood lia«l been made by the sjiid II. IJ. Donaldson in the beginning of the year ISO."), to the vessel (then in this port) known here as the confederate shij) of war Shenandoah, the sai«l II. B. Donaldson juomised to send, and did send, to the said firm of Bennett & Attenborough, a document which he stated was tlie duidicate of his account against the saitl ship furnished by him to Captain Waddell, who was then her captain. [722] ••>. The said account was so placed, by the said II. B. Donald- son, in the hands of the said tirm for thei)urpose of euiibliug the said tirm to have a copy thereof made and verified by his affidavit, to l)ensed in support of the claims of the American Government against the British government, known as the "Alabama Claims." 4. The sjud 11. B. Donaldson stated, when so applied to, that he haourne, in the colony of Victoria, this 2r)th day of Sep- tember. 1871, before me, W. ATTENBOROUGH, A Commissioner of the Supreme Court of the Colony of Victoria, for taking a^^davitn. ii ^^ # ^; • a 1 i !;i 18X [72:5 J Jan. •>- TKKATY OF WASIIIXCJTON — PAl'KKS ACCOMPANYING •A.; Sanduiduk, September lil, 1S7I. (iiHHis nhiitpvil : SiiKNANDoAH, confederate war ateainer, Boiijflit of H. B. Donaldson & Co., Wliolesalc and retail Hhipchandlern, ctv. To HKl is,„ tVct (> x H T X (iflooiiiifj =:1,*^()0 lent, :{()« IH o 'l"o J,\ teet ;{ X W red piuo -.^^ 75 loetjIWt 1 •,' ' ;{ .... Kt (i F.li [T-»4] l7-r,1 To 4 assorted iiails, 2't; W — ii-inch i;ut, iiaiU, 1«. IW To /„, ;';. 1 i f«i't t) X U T X Cr. bowels, GH7 feet, :{0« To r< pieces c. pine, I'id feet HO*. — jCI 10«. tjrf.; 17 feet l» x ;{ pine, 77 feet, ;W«.— '-Mm. \M To ,".,, ,\ feet 1.1 X i do, "JOD. %\x.- ,C",'. H».h. ; ,'; , ^, feet W x W deal. 14.") feet 4 inches, To ^'.. feet 1» X \ ,' , hlackwood S To ,"„, ',. V feet 11x1.',; V, I'l' l«'«'t :? X '-i deal, l.'>() feet 11 inches, nu. «. \d T»» J, feet 7 x l.',,*21 feet \\ inches, ")«. M. ; 5 2-inch clasp-nails, 'h'.M I'o 1 ;ji(is.s 1 ),-ineh iron screws, lf»«. Itif/. ; 'i (Z 7 brass buttons. I.s. ',tf/.; 7 brass screws. (W.; It dozen .l-in«;h i)on sen- ws, Ix. — ;{« 'I'o4dozen v-inch brass screws, 1«. — 4**.; 7 .•<. (W. — ()«.; W Oidy drawer-locks, 7n To ] set cltiiks. JL'".> (w >.MI.-M.\KKI!S' |)i:r.\UT.MI',NT. I'o lilt fathoms .")-ineh 1? rojte, JL'8 l.")>i. ; 1 settinjj-tid, :? x 7 iuclu!^ at bottom. 0\. KN. (2-20, U.) 12 To marline prickers, :Vs. — 4)*. ;.')(» seaminjj-needlcs, t^H. 4W (• r«» (! sail hooks. ! 'I'o .">(• gallons lime-juice, ."is. — i,'12 lO.s.; !(*(• gallons rum, 4.v. 9x .' ;?() *To 40 fruits. £ 1 .")m. ; 2 kejjs pickles, :'.() gallons, £5) 1(» To 2 cases white lead putty, £2 Kis 5 To 2 boatswain's calls, silver, IHn 1 To •"* globe lamps, assorted sizes, £7 -Is.; 2 lead putty, £5 12« 12 To 'I pieces 1 lamp-tape, 12« To:{l c. leail juittv, £".> 16.s 9 To 1 c. lead putty, £2 KJs.; 'i,^ cotlee, .')f 17 To 4:$ gallons .lanniica rum, £10 4«. 'Ml.; 20 Jars table-salt, l.lx 10 To H 15s.; 600 soup and bouilli, £27 lO'*. 9l5 To 4 c. preserved potatoes, £10] ; 2 dozen blacking-bru8he.s, 30 ; :{ extra and bond 14 To towels, 4, 15 5 To labor paid, £121 121 To 1 dozen bra.ss buttons, 9». M.\ 3 do/en do. knobs, 368., 220, lis, Od. 2 To 3 gallons bo. oil, 18s.; 1 c. white lead, 48« 3 To 7 patent driers, lO-s. (W.; ,"7 feet 1 1 x :J red deal, Is. 14rf 2 2 U 3 12 4 Is 1 : •) 1: \ 7 ',1 II II 14 1: II t; K I 11) r> .'» 1 •> II i:t M •1 r. \'l k; I' ;> II II 12 II 1(1 II If) II 12 II 16 n 111 4 19 !) 17 II .") II 4 17 II r> I) G 1) 4 ti COrXTKli CASK OF Till: IMTKl) .STATKS. i.sy lr«5. Kfb. 4. Feb. 3. Ffl.. 4. hO.. To 1 4 ffct 21 X 1 rt'dar, \i».; V.) iV-et i:{ l.v '. >, do., 10 pounds *i-ineh, (KWfi ". To rtf «lo., 4». ; Hi ]>ieees :i-ineli brass butts, tiO:{ To r> dozen i I screws, '»«. Hrf. ; '> do/en 1| brass do., iJTti 4H. M.... To 2 dozen 2i brass do., JC't '2m. (irf. ; ;{ brass eabiu-loeks.jJOx To 24 nails, assorted, 12'*.; CM feet sbelvinjf, 'Vh. Ox. i:U To ;">:{.". feet lumber, «j i,'" 0«. SW. ; 212 feet l-ineh e. pine, :iO, .i, 2. Ci. :M) To .V. ^ i"4 f«"«'t <{ X U T X ( J boards, r)02 feet, '.V>m W Al;i>-I!0<»M — MKSS OliDKI:. To 24 dozen Alsop's ale. 12x. 12rf. ; 8 dozen pp. Tennent's do.. 'jH.Ud To :j dozen sberrv,(i«. I'm?.; 4 dozen Jobnston's claret, UCiOx. (W/. lo, fi To 1 bag eojiper. 140, .i'7 llx. «t. Orf To 2 large wash-basins. Cm. 11^/. ; 4 ilozen AUsop's ale. jC2 <«/ To 1 case 2 No. 2 Moselle, JL'2 17«. (W. ; I dozen brand v. best, il'i VM. 4(1 ^ SINKHII'.S. Kntre bonds. To 4 cases Geneva. ,i;40: 1 log-book. 7 t. U'xl 4 7 To 2 cases Geneva, .C 40; 20x 2 <• o To 4 eases Geneva, jC 40: 208 4 n .!• *. rf. l'.» )i II 10 )) «> (i •J 1 4 I 4 •J 4 II • » • 1 12 1) 1 1.'. 10 l.-| 111 ,. 17 s ,** 17 ^ l.'l 12 i:{ 11 :{ 1 1 1 r> 1 t'l 1.-) 11 :{ 4 4 <» it) 14 10 l:! 17 r> I r> 1*1 14 II :{ 12 4.' KXGIXEKR. To 4 kegs soft soap, 256s. lOJ 10 CAIT.MX. To 1 doz. mongers-all, Us. Cul; 1 long oil-skin coat, 30s. 1b To 1 oil-skin hat. Ah. ; 1 pr. I. R. boots, Xw 1 11» 10 i:i 10 / •> II II li I'l i) [:'27] nsGo. Feb. 7. To (5 cask lime, 54.^ ; 12 w. w. brushes, OO.s II ;-) To 1 fire-engine and hose Feb. li. To l?i Galen thimbles, 2} in score for 7-inch rope, 4« To I fine bniss padlock, 4». lOrf. ; 1 oil-feeder, 4*t. (W 5 1(5 To (i beeswax, 21 ; 6 letherage, '.)*. ; G galls, turp., 4s. 17rf (» ;{ 6 IG 15 To .i lamp black, 9 ; (5 blk. lead, Gd. ; 6 red do, 4 black G(? It) To 2 doz. brs. screws, Is. 6d. ; hooks, 12.v. ; 2 doz. sheets emery is To one saw for cutting metal " 10 G To 4 bull's eve lantherus, £2 2x 2 2 To 2 U-iueh I br. match-blocks, 558 5 10 To 1 shoe-block 1 'An: I- ^:^'i' lilf'' ■ i; ■AM m f 190 TIJKATV OF \VASIII\(JT()N PAPHKH ACCOMPAXVIXC; 1 ) 1 II (1 ; i» HHIl' ( ONT. IVl). I), li) ;')()•> Slip. Nliclviiij;, 7h. H)d. ; 4r>:» T. T. A X 1 n;(liil. Hs.; ooi) Hi X 1 1 hattcii i»iin' 1 ,« o Id 10 To'^l) in. dcinl-Iockx, I'i**; ; iron chest liandlcs, l-^w 1 Ki n To I (h>/. '.t \ 4 ill ho. ciihiii door ho()i(H (i I'.i n To () Ih. "JJ in. miils, :!n. ; ;{ jirs. !i in. Iirs. hnttM, l(« n 1-^ o 'l"o ;{ doz. :'.f in. his. Ncrcw.s, -If. (W.; I\ ./„ ;J x "J deal, 'J.'< (i i;i i; Hi 1.") I J [72H] -IHC..'.. Keh. ;). To I'i dozen '|-iiieh iivni screws, I'.N.; 7 ihtzeii !|-inch hrass do,, I4« Ftdi. Id. To is nails, assorted To 1 wool hrad, '.h. ti(/.; 12 slieets saiid-p'iiter, '2'*. M •>i To I ;jross 1} 1 screws, !».•*.; 12d feet cedar. ld« :; I'.t ii To i.M'eet llU:ninroii jdiie, 14n.; ,', feet :ix-,iinch, !-x() I ,> i; •24 17 To ;{ horns' tnrniiij^, (!«.; ,'', feet '.\\2 deal, Cw. (u/ (i Vi u .')d feet, i:*. Feb. i:f. To'il.', wron^jht nails, (w.; (i I'i nails, :t d [) n :{ I To ,', i:5x-J deal, 7.'. l.'i d 11 :; 'J'o () hrass 7-inch locks, 21«.; (i do. do., 1"2«.; 5i do. do., .">« 1 b n To ii dozen iiiaho;iany knobs, .')». (W.; 4 pairs "2 A-incli brass butts, i2/< '. d i: ii To 4 dozen iron screws, (w.; :{ brass cap-locks, ld«. iul d hi (, :j«J To I dozen small hrass screws, l«. iul (t 1 r, t Altl'F.NTKKS' SIOliKS. Feb. Ui. To (i sheets pure copper, iiN. y.s. .. S .'. '>!^ ii» ■ :; To yo iViinrh spikes, t)N. f'f?.; (i dozen I screws, assorted, (W d IJ ■( 4 To 400 feet llx:} pine. £18 fix. 8rf 1- ti s 1,100 feet, 4. To 100 feet :K;5 soft scantling 1 ,"> To 4S4 feet lA-inch pine boards ;{ (> 1 To:{001 :5 1.') Feb. l.\ To 1 wash-basin, ')n.; I wash-jujr, os 10 To 1 wash-basin, 'w.; 1 wash-jii;;-, 5«.: .scales 10 [72!>J I (I *To ■'•, I, ,}, and J-inch Huron pine, 120 feet To i, ^ feet, 2.lx2iinch do. do., 10,1:50 feet, 7» To turning To 7 pounds nails, assorted, '.Is. i\d.; 2 bells and sjirinys, 7s, M.. . (i :{'J To 2 cajjes, Us.; "2 pnrchase-cranks. 4«.: 4 pillars d 1 2 It; To 4 headers, 'Zs.; 2 pulls of wire che 1) (1 l;i il I i; II '.I II (1 i; 1) :; I'.i II 1) (1 VI li II It II II 11 Ij I I'- 1) ll 17 I'l (1 ll'i (I 1 ll II 1-^ ■< 1- I'l ■^ 1 ,") 1) 1 w :? ir. 1 II (1 1.') Ill 11 i:i (1 10 1 2 II 1 14 » i; 1' 1 II -. 10 3 "TTo . r.u 19 information on the sah- {(ct, for tiiose that furnished her witii aid and <'omfort during;' that pe- riod a I'e not willinjj to a(!kno\vh'd^e it; sueh as I have heen ahh^ to ob- tain, 1 transmit herewith for the information of thi' Tnited States (Jov- ClIlUMMlt. 1. Tiiat I have examined the records of tliis oHice thoronjihly, and' (iiiil no remonstranee from ,Mr. tlraham to Goveinor Wodeliouse, after Aii^'iist 4, 18G.'J, a copy of which is attached to tiiis dispatcih. L*. Th(^ amount of eoal received on board tlie Ahibama in March,. ISiil, at this port, was I'OS.] tons, as jter (h'position No. .">; no re- pairs were ma(h* at this time; the eoal wasshipix'd onboard by Will- iam Anderson «S: Co., who acted as her ajjent at this port and Simon's liny. .■>. She did not siiip any crew at this time, bnt tlnring her stay [VM I in Simon's 15ay, in September, l.S(>;3, she *shipped eleven men ; the- party who Mhipped them has gone to the diamondtields. I. Tlie crew of the Tuscaloosa weie i)aid off at Simon'.s Town, by Messrs. W. Anderson & Co., as i)er allidi'vit Xo. 2; the olHcers w nt from iiiTO to Southami)ton, in the mail-steamer, of which Messrs. \\ . Ander- son & Co. are the agents. r». The Florida did not visit this colony. Finding it ditlicnlt to ob- tain information from iitside parties, 1 ap[»lied to the governor, and ii't'oived an answer from him regretting his inability to furnish me any, as the vessels in question were viewed as men-of-war, and treated as siicli. 1 then sent a man to the custom-house, and they refusetl to allow liiiii to examine the records. I addressed the governor again, asking ppnnission to copy the manifest of steamer Kadie, of September 17, |1SJ:5. 0.1 rei;eiving permission, I hsid copies taken liere and at Simaii's Town, as per depositions three and four. The supplies re(?eived by the ] Alabama in 18(J;J were shipped from this port to Simon's Bay, as [»er man- litest of steamer Kadie, the re}>airs as perrt in August, 18G3, I heard. [that the vessel required calking, and 1 we • on board to see Captain- Semnies. I arranged with him to do the w /rk required within a period Df five days. 1 calked her topsides and uecks, and when the work was *i4i mw]\ 192 TKEATV OF WASHINGTON PAPERS ACCOMPANYING \F< i ■*'iM gajf i m ■ B coinpleteil, I was paid the sum of forty pounds and fourtoeu sbilliii<,',s by the pavnmster on hoard the vosael. A. K. BLUKK, Budge ct* BlurJCf Shipirrujlifn. Sworn before ine at Simon's Town this 7tb day of October, 1871. P. H. MAKTIN, JuHfice of the Fence for the District of Simoti's Toini. Colonial Ofi-'Ice. October M, 1871. Sir : In reply to your letter of the 2l8t instant, I have the honor t(i inform you that in accordance with the request made therein, the gov ernor has authorized the honorable the collector of customs to allow any person sent by you for the purpose to examine and to make a copy of the manifest of the steamer Kadic, both at this port and at Simon's IJay. [ have the honor to be, sir, vours, »S:('., (HIAIILES .MILLS, (Si^'ued for the) Colonial Scerctur\j. |733j *\V. W. Kdoecomij, Es»j., CoriHul for the i^niteil States of America, Caite Toun. A true copy from the original exhibited to me this day by W. W. Kilgecomb, Esq., United States consul, Cape Town. Cai>e Town, iS'ovembor 1*, 1871. I seal. I (r. .]. DE KOSTE, Notary I'lihlic. No. 2. Ill the matter of the confederate steamer Alabama. (lordou Jlennick, of Simons Tovvn, maketh oath and saith. that this deponent was a resident in Simons Town, in the colony of the Cape of Good Hope, in the year 18G3. That whilst this deponent was living tbere. to wit, on the 8th day of August, 18G3, a bark or vessel called the Tns caloosa, under Confederate- American colors, was brought into the port of Simons Bay, by the then Con federate- American steamer Alabama, commanded by Captain Semmes. That said bark or vessel rcmainediii said port a considerable time. That whilst there the men of said bark or vessel Tuscaloosa were paid ofl' find received their wages through the firm of William Anderson & Company, who carry on business as [734] merchants at the aforesaid *port of Simons Town. GORDON EENNICK. Sworn at Cape Town, Cape of Good Hope, this 20tU day of October, 1871, before me. KEES FISCHER, Justice of the Peace of Cape Town, COUNTER CASE OF THE UNITED STATES. 193 No. ;j. POUT OF CAPK TOWN. Xo. 23. Coiitt'iit in the steamship K.ulie, J. Fowler, master, for Siaions Bay 15e Town. R. D. NORDEN. Sworn at Cape Town, Cape of Good Hope, on this the third day of November, 1871, before nie. R. LESURE, Justice of the Peace for Cape Towh. 13 A— II « < I .. Ul vt m n'^ 194 TREATY OF WASHINGTON PAPERS ACCOMPANYING No. 4. I hereby declare that 1 have this day examined personally the lopoit at the customhouse of the arrival in this port ou the 10th Septeinlicr, 1803, of the coasting steamer Kadie (in the year 18(l.'i.) It states aslol' lows: From Cai)0 Town to this \)otx and liack to Cape Town, liavin;; on hoard to hi- sliipphi to tho Ahihaina : 180 tons coal, 7 hands poils, 12 t'wt. 2 <[is. Ihs., .'> harrels nun. •,*■: gaUons, :{ hales nierfhandisc. Sij^ned hy (.'ol lector of ciisto7iis. G. W. BliOWMXG. Si<;ne, on this 3d day of! vember, 1871, before me. II. LESUHE. 'lustkr of the Peace for C No. (5. Fron, ]Mr. K. S. Atwell's book, bread and oiscuit baker, Cape Town: [738J *Ararch 24, 1804.— To 1 3,000 pounds biscuit supplied to stofiiiu r Alabama, for account of Messrs. \\'illi;im Anderson, Saxon »!s:Co. Raphael Daniel Norden, of Cape Town, Cape of (Jood Hope, niakctli oath and saith, that the aforegoing is a true and faithful extract iiimit by this deponent from the books of Mr. R. L.Attwell, bread and bisciii; baker, Cai)e Town. R. D. NOKDKN. Swiu'n at Cape Town, Cape of (Jood Hope, this 3il day of NovtinUM. 1871, before me. R. LESURK. Justice of the I'eace for Cape Town. COUNTER CASE OF THE UNITED .STATES. 19 y United States Consulate, Cape Town, October, 1871. Sir : I have the honor to bring to your notice that the Department of State, Washington, has called npon me to collect information rela- tive to the proceedings of the confederate vessels which tonched at the Cape during the years 18G3 and 18G4. more especially those of the Ala- iiania. I tind I cannot obtain particulars of the stores and coals supplied to the Matter vessel except from the custom-house records. I ihoiotbre request that you will be so good as to direct a return to be made of all supplies which have been shipped oii board the .Vlabamiior other confederate vessels, specifying the quantity entered to jmII] *each, and by whom supplied. 1 shall teel much obliged by your early compliance with tliis request. J have the honor to be, sir. iN1AL Oifu e, Octohrr 17, 1871. 8iu : 1 have the honor to acknowledge receipt of your letter of the !ith instant, Mherein you request that instructions may be issued for pivparation from the custom-house records of u return, showing all sup- plies shipped on board the Shenandoah an3 and 18. But if, from some oversight, you have not received such instruotions, and if you decline the resi)onsibility of making a seizure, I would most respectfully protest against the vessel remaining in any port of this colony another day. She has been four days in one bay of the coloiiy already, and a week i)revionsly on the coast, within three leagues ol'tlu' land, and has forfeited the right to reuuiin an hour longer b^- this broach of neutrality, fainting a ship does not come under the head of nens sary repairs, and is no ])ruof that she is unseaworthy, and to allow iui to visit the other ports after she has set the Queen's prochunation on tlie subject of belligerent rights at defiance, would not be regarded as in accordance with the spirit and i)urpose of the document. Yours, with most distinguished consideration ami obedience, WALTER (lliAHAM, United States Consii!. His Excellency Sir IMiiLii' E. WoDEiKdSE, Governor. True(!opy of the original on lile at this oftice. [SEAL.J W. W. EIKIECOMBE, United States ComuL Cape Town, Oeioher 12, 1871. COUNTEK C^\.SE PUKSKNIKD ON TIIK I'AIM' oK I'lli; GOVERNMENT (IF HER BRITANNIC MAJESTY Tl> THK TRIBUNAL OE ARBITRATION coNsmriKD UNDER APtTICLE I OF THE TREATY COXCHTDED AT WASHINGTON ON THE 8ru MAY, 1871, BETWEEN HER BRITANNIC MAJESTY AND THE UNITED STATES OF AMERICA. ■' # Hi Hi ■ [iiij Vessel; (il'lllM-f Opiiiii I'ropos Eli'ect inter Allcget Exteul treat ]a\T. (A, 1 (» What i 1. Cast •I Viol Deeii trc Case ;.. Viol Si f'oriN Corn 1. Lat( Kxp( Wall IK Feui; Raid Secoi VM Milit Recapi [iiij ^TABLE OF CONTENTS. PART I. IMl:(il)ICT(1I!V STATI-.MK.Nr. Vessels to which tlio cliiinis of the United Stiites rt;lat(> (liMKMal chaiactor of the cvi(hMK!e athluciHl by the United States. Oliiiiions of contemporary writers quoted 1)y the Uniti^l States. .. edition. J'rospnt (ulition. I'age. I Paye. 20;? 204 205 PART II. .VHUUMKXT 01 TIIK IMTKl) .STAIKi oN NKilllAI. DL IIKS. Pnipositions aflirmed by the United States EtVect ascribed to British laws and rcj^uhitions as interpretations of international law Allo|u;ed duty of a government to enforce its own laws and regulations. Extent of neutral obligations as deduced from the three rules of the treaty of Washington, and from general i)riuciples of international law (.v.) Original ecxuipment, Ac., of belligerent vessels in neutral ports (D.) Admission of belligerent vessels into neutral ports First limitation suggested by the United States Further limitation suggested by the United States What is "due diligence" «> 11 207 209 21:1 215 11 216 1:$ 218 15 220 l(i 222 21 228 I'ART III. l'Ui:CKI>r..MS Al'l'EALKU To IJV TIIK I MTKl) s' AIRS. ]. Case of the Swedish ships, 1825 ~. Violations of American neutrality in l/l):?-'!)! Decisions of the commissioners under the seventh ariiclo of the treaty of 1794 Case of the (Jassius ;. Violations of American neutrality during the war carried on by Spain and Portugal againit the Spanish-American colonies Correspondence between the United States and Portugal Correspondence between the United States and Spain 4. Later violations of the American neutrality laws - Expeditious of Lopez agf^iust Cuba, 1850-51 Walker's expeditions against Mexico and Central America, 1853, 1K')5, 1857, 1858, 1859, and r^^OO Fenian raids against Canada Kaidof 18G6 Second raid on Canada, 1870 I'aidof 1871 Military expeditions in aid of tlie Cuban insurrection Recapitulation 24 232 25 234 29 240 :u 241 :n 242 32 243 34 246 •M 248 30 248 37 250 40 254 41 255 44 258 45 260 45 260 47 262 H \ J*.':i'V 200 [ivl VAKIOl's COMI r AIM" «•» TREATV' OF WA.SHIXGTOX. •PART IV. TIIK I \!T>:i» *-TATF> AO %IX-.r (iKRAT BKITAIN MIXIIImN'* «»K \V.»I^ I'A'.E 4-. r: -TRAHIC Iv AriiiH uml military Miii»|»litr> purcha'-^l l»y the I'liitwl 8tat«^ Arms iiixl military »iip|»li(r!t |iiirclia.'«*-h ;;<»verum«-iit •>• KestiictioDs on coaling; at N;\-vaii »>:'. OriU'iH of t!i<> I'lst .Faniiarv. l-rri. in r>-laIion to Xa-^^an »>.'» enrva iitioD. •■i:u-- I'ayf. /•a. "ill *:: FART V. IIIK .--.rMIKi: »NI> Xa.-IIVILI.K. The Suiiit«>r The Nashvill.- FART VI. THE H.«»KII»A AXI» AUISAMA, PA'.K I'i. ■ The Floridii The Alabama FART VII. THK I.EoKr.IV AXI. "HKXAXtwJAH. TbeG..or«ia The fJ ThcTallaha«e»-....". l"-.' The Cliickamauiia lo.! The Retiibiit ioii ]"4 fv] FJIRT LX. KIXKITIOX «iF CoMKHEKAT}: «. Iiri^ii:- IN r.s;Ti~ii r«»!:T-. The Sumter and Nashrille IfC Execution of the nilcf* of Jauaarj' ;il. I?»i2, at Nass;m lo*.* The Florida at Xassan '..... llo Execution of the rules of Januarv M. l-»y. in other . idonies 11! The Florida at Barbados ' Ill United States vessels at Barbad<.'S ll'J The Florula at Itermuda 1 F'. The Chickamanga at Benuada HI United States veswls at Bermada ll'» The Alabama at Jamaica .. 11»; The Alabama, Georgia, and Taj»caloof Got«l Ho[>e lir> United States vessels at the Cape of Good IIoi»e 117 Kecapitulatiim 117 Course pursued bv other foaiitries Ill* 1. Hollaml .". 119 COUNTER CA.SE OF OR HAT HRITAIX. t ..iirse pnp»ntd by other countries— Cnntinnod. •J. Hnizil ;!. Ktis.-i:» 4. France Hie Kappahunnock The Moiu-wall 5. Spain and I'ortngal l'AI?T \. toNCM SloN. Kn'apitulation t»f the arfjiinient for Great Britain t .impensition claimed liy the I'nited States. General iirinciple lUims lor private losses llainis for national los?es by the destrntlion ofpultlic projjerty in the . rnftetl .States .' r»ira» for expenditure alleged to have been incurred in the pursuit o! coutederate cruisers Claim of the United States for interest Krtapitulatiou of precetliug remarks on the measure of compensation . ' 'Dcludinj; remarks ANNEX vA.) Vote on the Jjuestion rt-ferreil to at psige 12. ^equipment of belligerent virssels in neutral i>tirtsi ANNEX (B.) Til? Brititih and American foreign-enlistment acts ANNEX (L-.) i'i>»ition and duties of the law-ofticers of the Crown in England i:;? 141! 140 l.-il! 201 (Jeneva I'rosrnt cilitioii. • ■diticu. J'aje. rape. 12(1 :wa 1-21 :Um l-'l :U34; r.>t> :UKi 122 :U!7 12:'. :?C7 124 :if.9 i:!i :J78 i:!4 MW :!8() i:c :!87 140 :«H 141 :'>»> 141 ::u:; :?<>5 40;^ 4(W I?; wnaiiw ■11 Thf ^i luiual of Miltuiittt' .ippoars To tlie lliitish C ii'plywlii lIR'Ut (li.s First, be I'lite i.s rant; tli iioii. inu-s tenor of jiease: ai lit" a uy we tlic prope plied thai trued l)y the Ciove nity was it as of ri duct. >^eitlit'i >ubj('ct ol rorrespoii ieet, ])viu the positi I lie rescr^ wliieli wil VKSSEl IJ.T JJl in fact, ju had ton tour vess •Sbeiiaiuk respect ol ted 8tatei account < ■wcoiiut ill anv 111 ■11 *PAUT I INTRODrcTORV STATEMENT. The xoveniinoiit oi' Iler Uiitaiiuio Miijosty now presents to tlu* tii- I'liiial of arbitration its connter caso, or reply to the case |.,,t i -ii.ir»iu-> >iil)mitte«l on the part of tlie I'nited States, so far as a reply •"■ ■'••'"•'■■"' iippoars to be necessary or admissible. To the second chapter of the American Case, which imputes to the lliitish Uovernment hostile motives, and even insincere neutrality, no u'ply whatever will be ottered in this counter case. The l>ritish jjovern- iiR'ut distinctly refuses to enter upon the discussion of these charges. First, because it would be inconsistent with the self-respect which ( vt'iy jrovernment is bound to feel; secondly, because the nnitter in dis- imte is action, and not motive, and therefore the discussion is irrele- vant; thirdly, because to reply, and to enter upon a retaliatory exposi- tion, must tend to intlame the controversy which, in the whole tone and tenor of its case, the Jiritish government has shown its desire to ap- iieaso: and lastly, with respect to the charges themselves, if they were lit" any weight or value, the IJritish government would still contend that the proper reply to them was to be found in the proof which it has sup- plied that its proceedings have throughout, and in all points, been gov- t nied by a desire, not only to fulfill all clear international duties toward the Government of the United States, but likewise, when an opportu- nity was ottered, even to go beyond what could have been demanded of it as of right, in order to obviate all possibility of cavil against its eon- duet. Xtither will this counter case contain anv reference whatever to the >ubject of indirect losses. Jler Majesty's government is engaged in a (onospondence with the Government of the United States on this sub- ject. ])ending which this counter case is ])resented, without prejudice to tlie position assumed by Her ^Majesty in that correspondence, and under the reservations more particularly stated in a note accompanying it, whiih will be. at the same tinje. delivered to the arbitrators. VESSEL.S TO Wllini THE ("LA1M8 OF THE IXITED STATES RELATE. ; ^:i^ Her JJritannic Majesty's government believed itself to be, and was in fact, justly entitled to assume that the claims which it had to meet would be found to relate exclusively to the th-'i^ntioMhHi'.'.l'- ioHr vessels known as the Florida, Alabama, Georgia, and"^ m i«reMH. Shenandoah, or some or one of them ; these being the only ships in respect of which claims had been nmde by the Government of the Uni- ted States agaiu.st Great Britain. It apj.cars that, besides claiming on account of all of the.se four vessels, the United States now claim on •icconnt of nine other vessels, none of which are alleged to have been i'l any njanuer armed, fitted out, or equipped for war within British i i> 'tk m] -'it M- 4 204 TKKATY OF \VAS||IN(JT()X. territory. Tliroc (»f thcso nn' Htart>«l to hjiv«} boeii captured, ariiH'd.iin,! einploycil as teiidors by flio olllcer coiiiiiiaiHliii;; tiiti Florida ii(i ically known as the Alabama claims, an(i that no complaints in rcsiMir of them oufiht to be considen-d or received by the arbitrators. Iln Britannic ^lajesty's jiovernment, however, has not thou<>ht i)r()p(^i hi raise this objection. It contents itself with directin;;- the atteiitioiini the tribunal to the fact that neither in the course of the war nor dm iuff the lonj; i»eriod which has elajtsed since its conclusion lia\t^ any claims whatever been made upon (Ireat Ibitain by the l.'nited Stativ oi\ aci'ount of any of these v«'ssels. Then; have been further introduced into the list of claims losses lo: captures by two ressels, namer mentioned in the Case, and expenses said to hav(^ been incurred in tin pursuit of a third, (tlu^ Chesapeake,) as to which the (.'ase is e(iiially silent. ll<'r Majesty's j^overnment i>resinnes that this has been dom' throuftb inadverten(!e. No award can be madt^ which shall compiclicinl or take into account tlu' acts of vessels as t() which the I'nited Stait- have not even allejied any failure of duty. GENEUAL CIIAIIACTEIJ OF THE J:V!Di:XCl',. Ir woubl be suj)erHuous to remind the tribunal 'ihat the coiicliisinn- at wliich it will arrive must of necessity l>e formiMJ, im' upon what the (lovernment of the United States ni;iv allej^e, but upon what it shall be able to prove. Nor can ii be necessary to i)oint out that, while it is not the duty of the trilnuial to a[)ply to the evidence i>roduced on either side ndes drawn IVoin the law or meth.o«ls of orocedure established iii any i>articular state, tiic (jredibility and vabu» of that evidence must i'.^vertheless bt's tried hy those <]feneral principles of reason and jastire nhich are ap]>lical>le M all testimony, in whatever forum it may b • <./rtered, for M'hatever ]»iir pose, or uncier whatever circumstances. Hiu. it may be ctuivenient tlmt the attention of the arbitrators should at the outset be diiected to tlu' character of some portions of the e\ iden<;e on Avhieh the United Stato rely. Much of the evidence adduced on behalf of the United States lia^ been also laid before the arbitrators by (ireat Britain, either as sn|i ])orting the case of iler Britannic Majesty's government, or as formiui; part of the ollicial correspondence and other materials of wMch it was proper that the arbitrators sluuild be in possession before proceedinj: to adjudicate on the matters referred to them. Much, therefore, of the evidence on each side i.s common to both, though the two parties difler in the use which they respectively make of it. I.. IH ml Ch.:t 1.1 th.- tVllll-IM- ilui-.'il l>.v Ih. I COrXTKlt CANl; (tl- (IRF.AT niMTAIN. 205 Anion;;: tlw otliiT diH'iiinnitary <'\ idcnco cited or icCt'i'n'd to in tho Ciisc t»f tlic Uiiitrd States iin' n'|Miits iiiiii,smIs or idiisiiliir ollleei's of the ('idled Statrs, who wcie «lm in;;' the war, or hiivo >iiii'0 heeii, resident in jiorts within Her Majeslv's dondnions. Ol'theso iit'i'soiis it may l»e assumed that they were gentlemen wortliy of eredit wiit'ii rclutin^' anything witldn the ran^e of their personal knowh'il^e. As to statements iinnh' hy them on I lie authority of others the eredit to be attached to tliese mnst depend in every ease on the knowled;^o ,111(1 vcraeity of the inforniaiit, in»t on tiiose of tlit^ report<'rof tlie infor- mation. Statements made on tlie ground of alh'^ed notoriety or |Mihlie riiinor are evidence only — and that of a very vayiie ami nnsatisfactory kind, since little reliance can he placed on assertions which, from their very nature, there (!an he no means of testinj;' — that a nnmher, x'H'itter iirk'ss, of persons who are themselves unknown, and whose creilibility ,iu(l means of information are likewise unknown, helieve, or have re- porttMl, a supposed fact to he true. Jt should he added that these iilliw'rs were, as was natural, zealous — sometimes to indiscretion — in (lie cause of their (lovernment ; that they shared to the full, with their (oinitrymeii at home, in the excited ami irritahle feelin;js which are ^t'licrated hy civil w ar, ami were, like their (Jovermnent, tirmly impressed with tlie erroneous idea that all rtrmetl vessels of the Contederate States iiii^rlit, ill Ibrei^jn ports, to ho, regarded and treated as piratical. The .ulmissioii of a confederate ship on the same t«'rins as a United States >lii|) was hy itself, in their view, an otleiise against the IJnitJ'd States; ,111(1 this error led them into many misconceptions and colored tiirougU- iiiit the reports which tln-y addressed to their (lovernment. The (lOvernment of the United States has a|>pended to its Case, iiul has frequently referred to ami invoked as evidence aj^aiiist (iroat Jhitain, a mass of coiilederate, i)a|)ers, the ftrealer i>art of .vliicli consists of correspondence said to have jtassed between per- -oii.s who were hired and employed durinj;' the war for various piir- |i(isi's hy the CfUifederate j^overnmeiit and olhcials of that }>"overn- iin'iit, while the rest is of a private ami still less authenti(; char- acter. jNIost (if these papers are said to have been "captured 5J *at the takiii*;' of Kichmond, ami at other times ;" and they, or such i)ortions of them as the (iovernmeut of the United States ii;is tlioufiht tit to make public, are now made known to Her Britannic Miijcsty's (iovernmeut for the tirst time. Of the authenticity of them ;iii(l of the manner in which they came into the possession of the • iDvcrmnent of tin? United States. Ilcr l»ritaimic ^rajesty's p)vernmeiit liiis no knowleilyt' whatever beyond that wiiich it derives from the iliovo-iiientioned statement, which it w illin,^ly accepts as true. Of the iicrsons by whom and the cii<-nmstances under which the letters were >vritt('ii, and of tiie character and cre, and have in fact been often inthienced by a bias, tli<' precisi' causes of which it might be ditlicult to ascertain. This alone is siilli cient reason why weight should not be assigned to opiiiions j)ut lorwrnl jtost litem moiam. Wi ;••] * P A 11 T I I ARGUMENT OF THE UNITED STATES ON NEUTRAL DITIES, rKorosiTioNf> ArFiimr.D ev i iik inited st\ti:s. Ill Tait III ot' the Case of tlie Unittnl States an oiuloavor has been iiiiido to furnish the arbitrators with a definition of the dn- p^,;,. ,,. .A,g„. tieswhic'h Great IJritain, as a neutral power, was bound to ;T;t[/„'nf.^tru'i'i«.' observe toward the United States during the war. At the '"'• ,lo>;c of an elaborate dissertation on this subject, the Government of ilie L'uittHl States sums up the conclusions which it conceives itself to have establishe\ill be (.'ase of the Uiiitfil,.Stat('~<, pp. Jio d '< be j;eneiiilly trm. fcliat a beilif;ereiit ixnver has a rijiht to call upon the neutral shitc to make changes in its dou/jstic lejiislation. "1. That a neutral '^ bound to use due diligence to prevent the littin;; (uit, arming", or ecp.ipping within its jurisdiction of any vessel wiiu]^^ it has reasonable ground to believe is intended to cruise or ciui'v mi war against a rower with which it is at ])eace. '•o. That -a neutral is bound to use like diligence to prevent tliocdu. struction « i such a vessel. "0. Tiiat a neutral is bound to use like diligence to i)revent tlio di' partPiC from its jurisdiction of any vessel intended to cruise or ciirn on war against any jmwer with which it is at peace, such vessel liuvini; been specially- adapted, in whole or in part, within its jurisdiction, t" warlike use. "7. Tliat a neutral may not permit or suffer either belligerent to innki use of its ports or waters as the base of naval operations against tin; other. " 8. That a neutral is bound to use due diligence in its ports or waters to ])revent either belligerent from obtaining there a renewal or augmentation of militarj- supplies, or arms for belligerent vessels, or the recruitment of men." (rreat Britain adheres to the three rules inserted in Article VI [CJ of the treaty of *Washington, and accepts them in the words in which they are there expressed, while it considers those rules as exceeding in some material res])ects the obligations which, indepeiid ently of them, could have been established by international law against a neutral power free from all engagements on the subject, direct or in- direct, with a V)elligerent. The l>ritish government is willing to (liscus> the construction of these rules, but declines to admit any deviation from or enlargement of them. The statement that a neutral government -'is bound to use like diligence to prevent the construction »>f such a vessel" a]>[)ears to Her Majesty's government to be such a deviation orenlaiirc nient. It is, in fact, a sim[»le interpolation. Nor ciin the i)rop()siti(iib numbered 7 and S be accepted as a curcect representation of the secoml and third rules. '• !>. That when a neutial fails to use all the means in its jxtwertu prevent a brea(!h of the neutrality of its soil or waters, in any of the foregoing respects, the neutral should make eompensaiion for the in jury resulting therefrom."' The IJritish government does not admit this projiosition as it stands. but it agrees tliat, where an ai)pre('iable injury has been directly I'aiiscd by a vioIat'Mu of a (tlearly-ascertained international duty, suitable veiia- ration o> giW to be made to the injured party. "• 10. That this obligation is not e di^posited so as to release the lia bility of the neutral even by the entry of the ollending vessel in a port of the belligerent, and there becoming a man-of-war, if any part of the original l'rauart, within its own territoiy, but is to be (It'tMiiod a continuin<; default, or series of defaults, during; the whole or ritish j^overnnient ninst demur alto<;other to sueh a doctrine, as uidcnown to international law and opposed to reason and j>rinciple. AUGIMENT OF THE UNITED STATES. — EFl'ECT ASCRIirED TO UniTISII LAWS AND UEOULATIONS AS INTEIIPRETATIUNS OF INTERNATIONAL lAW. The differences which exist between the Iicitish government and that (if the United States arise partly in the statemeiit of prin- ciiiles, but more in the application of them to facts admitted iinii-T/hATi '■!„'!! of proved. The latter government has prefixed to its twelve iM-.t, ,.t „.i. - pnipositions a lengthened argument, which appears to be il('si;,nied to i>rove that, if not true in themselves, they are true against Ciiciit Britain ; ami that, if true in themselves, they ought to be :'.;';>''"d aj^aiust her with exceptional and pecular rigor. This argument ai>- iniirs to the Briti .h 'government to contain errors of the gravest kind. The source ^^' :• <- errors is manifest. The Government of tlie Tiiitcd States ■ • icistied to rely upon the three rules embodied in the treaty, coiqiied witu the general principles of international law not inconsistent with them, as sutlicient to sui)port the claims urged against ilrcat Britain. It desires, therefore, to persuade the aibitrators to apply to the conduct of CJreat Britain, not the general standard of iieu- tial obligation which, under corresponding circumstances, they would apply to the United States, or to any other power which had accepted those rules, but a stricter and more rigorous standard, drawn from the iiiiinicipal lawsof (Ireat Britain, from administrative acts of the British ;;overmiient, or from declarations of Ibitish statesnu'U. The positions contended for by the United States are in substance as tollows : 1. The municipal laws of Cheat Britain and the admlnistrativvi acts (if her government are to be •. i^gardetl as defining as against herself her niiic('i)tion of her iuternation;il (.laties. AVhat these laws or acts prohibit, she nuist be assumed to reravd : -^ prohibited by the law of nations, and hy that standard she iw. t '•• tried. In short, where her couce])tion oi international duty, thus ii;o;t (<••> appears to fidl short of the common standard, it is to be disregavi' ' :; in every other ease it is to be assumed iis the measure of what sh •■ ' .. to other nations, though not as the measure of what other nations owe to her. 2. Independently of this theory. Great Britain is under an in- "] ternational obligation to *ex<'eute her municipal laws a.ni 'Mjforce her proclamations and ordinances where they aie for the auv ii: tiiffe of other nations. ;{. In the performance of these duties Great Britain is bound to use ■due diligence," by v ' ii h is meant ni exerc'se of active vigilance and ill! ertectnal use of a.. •> means wiihin the power of the government. 4. Failing to use this '-^ 'Higeiice, Great Britain is bound to make eonipeiisatiou for any iuju;; iC^uLing from such failure. It is necessary to state these position^ clearly, because they are ex- liressf'd with some vagueuess iu tlie Case of the United States. 14 t~n ■;."« (itiBsi ^■i If 4 I I" w '■ 210 TREATY OF WASHINGTON. that whatever the laws of a "-iirity or interests of otlici rohibit by force of an inter > as groundless as it is itii Such, then, is the general measure of neutral duties which the Gov ernnient of the United States itas adopted, and endeavors to i»'rsii;iii,. the arbitrators to adopt, in support of its claims against (Ireat llritiiin, To state the lirst of this series of positions is to confute it. Jf it wtn. u true assumption that the municipal laws of a state, wherever ^tlitv inohibit acts which may aflect the security or interest of other st'itis. must have been founded, not on considerations of policy and expcdicucv. but on conceptions of international obligation, it wouhl nevertlulcsslM' impossible to contend, with any show of reason, tha*^, by these (;()ii(c||. tions, and not by the general rules of the law of n-Viions, the statcwas to be judged in any international controversies in which it might bcconu. engaged. Such a rule, it is evident, would i>roduce the most fantastk consequences. In place of a common and e(pial standard of obli<;iit:oii. we should then have a varying and uneipial one, varying with tlie nations to which it was applied and with the notions of duty whkli they might from time to time entertain. It would be as reasonable to contend that a e(lient to [uohibit, in relation to other states, acts not l)roliibited by the law of mitions. The theory of the United States would assume that this never is or can be expedient. This observation ajjplies with all its force to those municii)al laws which are sometimes styled "neutrality laws.'' Such laws belong to tin class whici), in the codes of some European nations, are described ns having for their object the protection of the internal and external security of the state. Thus, by the i)enal code of France it is made an offense to levy or enroll sohlieis without the authority of the govern nient, and i)enalties of various degrees of severity are denounced against any persons who, by acts not api)roved by th - government, may have exposed French citi/ens to reprisals or the state to a declaration of war. These i)rovisions have been adopted in the jienal code of the kingdom of Italy, in that of the Netherlands, and by other countries. The law known in England as the Ibreign-enlistment act of 1S19 be longs to the same class. The considerations ou which it is founded are thus stated in the preamble : Whereas tho ciili.stiiioiit or eiif^iiffciuiMit of His MiiJost,v',s subjects to .servo in war ill lorci^fii service witlioiit His Majesty's license, and the Uttiii;^ out and e(iiiii)i)iiii,'aiiil anninff t)f vessels by His Majesty's subjects without His Majesty's license, for waiiiki' operations in or a^uiust the dominions or territories of any foreign prineis st.ite, m jmtenttite, or persons exercising or assuming to exercise the powers of governiiiL'iit in or over any foreign country, colony, province, or part of any province, or against tliu «hij)s, good's, or mereluindi.se of any reign prince, state, jiottintate, or persons iifon'- Httid, or their subjects, mai/ he pnJHdiLial to and tend to indaii referred to, but has letraiiied from j'Xtractiny ? It is this: hi vuikliKj Ihe fdrcfiohig rcannmciKhiluni.i ?(•«• hurc not fill oiirnclrcx Ixnnid Id ('o»*iVic irhtllirr ICC ircrc ciricdiiit/ what cmild arlnnllij he n(jiiiiril h;/ iiitcrnalioiKil line, but \v(\ ,iit. of opiiiion that, if llio'^e reeoinineiKhitions should be adopted, the municipal law ol'tliis realm, availabh; for tlici enforcenK-nt of ntMitrality, will derive increased etliciemy, and Mill, so far as w»< can see, have been brought into conformity with your M;ij('st\'s international obliit is prohibited, bv the lii\\' t^f "fi^'i'^'"^' In some oisi's this niuy bo so; (iommonly it is not so. iJiit the iu;ts thiMnselves, wlietlicr tlit'y li;ii)p(>n to eoinciih^ witli rules of iiiternationol hiw or not, are vohiiitary and discretionary. Tlii'y are done in exereise of a ri'ov«M-nm(uit oM,<;ht, a.v against (Ireat Britain, to be held to be prohibited !)y the law of nations. Thus it is asserted' that all the acts prohibited by the 2d, r)tli, (Jth, 7th, and 8th sections of the foreign-enlistment act mnst be held, as against Great Britain, to be acts which a nentral goveinment "ought," or "\vas lioiind," not to permit to l)e done within its jnrisdiction, and were viola- tions of the international dnties "of a neutral;" that the foreignenlist iiienta( tdeiinesand recognizes the "princii>les and dnties'' "obligatory (111 the nation in its relations with other powers;" that the act of ISTO was '• intended, at least a.s against the British (/orfrnmrnt, as a re enact- ment of the law of nations;" that the restrictions placed by the Jiritish novenmient on +he stay of belligerent vessels in its ports ai'c to be re- ;';inled as commanded by intcMiiational law, instead of being, what they really were, regnlations issued in the free exercise of the sovereign rights of a neutral power; lastly, that the supposed rules or ])rincii)les of international law thus extracted from British laws and ordinances may ;in(l ought to be ai)plied by the tribuind atjainHt (treat liritain, without lieliig recognized by it as api)licable under like circumstances against other neutral nations in general. Her Britaiiuic ]Majesty's govcrnnuMit declares, on the contrary, in the most explicit nninner, that the law to which it has submitted its con- (liiet, and by whi(di it has u»n by all civilized states, coujjled with the three rules embodied in the treaty ; that this law is to be gathen'd, not from Ihitlsli statutes or ordinances, but from the general consent of nations, evldoiieed by their i»racti(!e ; and that the laws and ordiinuices of Great Bt'itiiln herself can be apitealed to only for thesingh; pui'pose of proving that her governnuuit was arn»ed with sunicient power to discliarge its international dnties, and not for the purpose of extending, any more than of restricting, the range of those duties. AUGU3IENT OF THE UNITED STATES. — ALLEGED DUTY OE A (SOVEUN* MENT TO ENFORCE ITS OWN LAWS VND REdULATlONS. At page 211. of its Case, the fJovernmeut of the Uuitev»'rtiiii''rit [10] that a neutral is bound toenforce itslawsand its*"ex- ,„„,. ,„ „„„,„„, ecutive i)roclamation." It appears to conten«l for tin? "»ir<^^8''i't'"»^- siinie proposition at page 108. But, at pages 122, 123, it expressly guards itself against being supposed to adndt that (Jreat Britain, against whom this supposed principle is pressed, would herself, if the case were reversed, be entitled to the advantage of it against the United States or against other nations. The arbitrators, therefore, are solicited to assume tliat Great liritain was bouiul to enforce her laws and ordi- 1 Case of Uuited States, pp. 109, 110, UB, 12.'), 210, 212. ;l 214 TREATY OF WASHIXGTOX. Hm* ■': i ;l: ■II .1, . r- 1 IS' -I' u.TiK'es so far as ther werr* in favor of tin* United .States, with tlic im. ilcrstandln-; that the ritain. Ill (h't'iMiso of this extraonlinary snir^jestion it is pleaih'd tliat -in ITO.'j, duriiij; (len«'ral Washington's administration, tht- rej»res«Mitati\> of Great Britain in the United .States pointetl out to Mr, JettVr.son. win, was tlien Secretary of Stat**, aets irh'u-h trt-re I'rime'l by IHx Britunnir Majcstii''H govfrnment to lt*r 'brmvlun of ntutndlty' (h»ne in M-ontravi'iiiion of the PresiiU'nt's prric-hiniation ' of neutndity. and he inviti'«l the T'iiit«-«i States to take steps for the ri-pn*ssion of su«-h aets an«l for the n-stora tion of capture«l prizes.~and that •• it apiM-arsthat the United Statt'>«-oiii. l)lied with these requests." It will In- seen that the representations tlit-u made on the part of this eountry to tlie Uiiite«l States were foundtil , - the character of the aets themselves, which were deemed by the I>iiti>ii jl'overnnient to Ik? breaches of neiitrality. and not u|mu the fact tba: they were prohibiteil by the I'resideni's priK lamation. Further cmn iiient on this supposed precetlent. which will hereafter be examined lo: a ilifterent purpose, is hen* unnecessary. Tiie international duties which (ireat Britain acknowledjies towai.J other states she will at all times ln»ld hei-self entitled to enforce a ;:;iiii^; tliem. And she would not liaveexiM-i-ted that, umlerany eircumstaiJct-<. tiie United States could have taken a diflerent view. l)isrej,'ardinj; the attempt to conline the oi»eration of it to a sin^ltr power, Her Majesty's government cannot admit the pro|Nisitioii Auwhii-ii the (i(»vernment t»f the Unit*-*! .Stati-s contends. Setting aside tln>s^ eases in winch the law or ordinance s«-rves only as a means of enablin,' the j^overiimeiit to diseharge an antecedent international oblijratioii.aii'i eases in wiiich the omission to enforce it would Ix* an instance t>f willtnl partiality or a violation of an »'Xpress or tacit enjragement. it cannot W admitted that a state is iMonnl l»y any international duty towar u-.-ii a> for that of its own citizens : lH-«-anse it is a principle universally re< opnized that foreign residents obeyi'ig the laws aie entitled to tl.t- protee uiadt- tiy one government to aimtlitT in eases where no strict right exist-s. Nor is Her Majesty's goveriinn'iit disposed to deny that cases may occur in which, through a reasoiiaiiW contidence that the laws and oidinances of a particular state wouM If executed according to their tenor, l«isse.s may have Ijeeii ineurrol I'v another state or its citizens or subje<'ts for which some reparation uii^lii fairly and equitably be made. But the claim tor com i>ens:i tion in sueli eases arises from s|>eeial eircum>tances, and apiieals to iuteruatioual comity ar «1 an eulargeil gense of equity, not to strict right. Great Britain i. willing to go as far as any state ha.s ever gone in this dinx- tioit. The British governiueut lias uever deuied, ou the coutrary, it bas COUNTER CASE OF GREAT BRITAIN. 21.'3 at all times freely and reailily a«lmitte«l, that the United States had iv;iiial»le grnuuKl to e.\|K*et tliat the provisions of the foreiurse. and not fnun the municii»al law of Crre.it IJritain, nor from ad- ministrative acts or regulations of the liiitish government ; aiul these, are to he ajiplied.as aj;ainst Great Britain, in the same mann«'r in whicii thfV would be applied, under like circumstances, a^^ainst the United States or any other sovereiy ii state. iKiiUMENT OF TilE UNITED STATES. — EXTENT OF NEt'TRAL OIU.I- UATKtNS. AS DEDUCED FROM THE THREE RILES AND FROM GEX- EUAL PRINCIPLES OF INTERNATIONAL LAW. Ilcr Britannic Majesty's •rovernment proceeds to remark upon that (■art of the Case t»f the United States in which the Gov- e„„„ .„ ,„.,.„,, rruuieut of the United States has explained and endeavored ;i!;|',"J',rmn.hr.i,;';.i: •i support its view of the extent of the iluties of a neutral '"li ;;,"'/..'.,'!, ""in: 'l>l VhT tern itifin.il law. Tiif British fiovernment deems it riy:ht here to observe that the ques- liiius submitted to liie tribunal are not of an abstract or speculative iliaracter. The arbitrators have n»>t to consider and determine wh'.it :nhi might with advanta-jfe be laiil dowu for the re;;ulation of tlii» con- Liut of neutral powers during war; what, under sucli rules, woultl have ••wu the duty of Great Britain, or wliether Great Britain acted in accord- ance with that standard of duty. They have to deal with facts. Inju- ries are alleged to have been inllicted by (rreat Britain and sustained I'V tile United States. Iteparatiou is claiuied for tliose iiijuries. There cm he no injury without stuue violation of a duty actually existing at "lie time.' The arbitrators, before they decide against Great Britain, must be satisfied that there was such a violation of duty. They must lie satistietl, therefore, in the tirst place, that the alleged duty really existe«l. They must be satislied, further, that the violation, if any, was siuh that reparation may justly be awarded for it in money — that is, iliat it was the direct cause of some substantial and appreciable loss to tbe party claiming reparation. Tbt- general iiefinition of "p«/;w^"o^"/rt(f^•"al>plil■s to iiiteriintioiuil iiijmii's, as well i>to injurii-a inflicttnl ami siistaiued by individuals. '"Le dobiteiir ost en fante suit 'ia"il coutivvieut a Tobligation de iie pa.s I'aire, soil r^aaud il u'exociite j»a.s obligation •ir Ciire. soit quand ii u'a pas apporte dans rexocution on dans raecotuplis.senii-ut de oette ubligatiim tons les soius a(iX)|Ui-ls il «Stait teuu." — Lc Droit civil fran^ain, par Zvkaritr, ammote par G. Mtune tt Ch. Vtrgi, nee. 54d. 216 TREATY OF WASHIXUTOX. ■^^•• ■:1 ' Tlio nontral diitios wliicli it is ullofjod by tlio Uiiitod States thai y or in n'spect of vessels so aihnitted. The qiu'stion what nu'asure of diligeiu;e or care may Justly he di' niandi'd of a neutral j-'ovcrnment in the prevention of acts on ilie ]»iiit of its suUJi'cts or citizens which ari^ inconsistent with neutrality, iunl the «iuestion in what ca>on the rules. ]iy cominon consent the lules are, for the i)uri)oses of this arbitration, to l»i- [12] *taken as applicable to the case ; it is to be assuaied, witlimit disi»ute on either side, for the purposu of this arbitration, tliat the obligations whi(di they purport to express were such as (iieat Britain had undertalvcn to perform. Since, however, the (rovei'nment of the United Slates has thoajjlit proper to enter into the question at sonu^ length. Her Majesty's govern nient deems it not inqiroper to repeat here a statement already nnule iu its case luvsented to the tribunal. '*Tht* case," it was there said, ''of a vessel which is dispatched from a neutral port to or for the use of a belligerent, after having been pre- |>ared within the lUMitral territory for warlike use, is one which may bo regarded from ditierent points of view and nniy fall within the opora- tion of dirterent principles. The ship herself may be regarded merely as an implement or engine of war, sold or nmnufaetured to order within neutral territory, and afterward transported therefrom, and the whok trausjR'tion as falling within tiie scope of the principles applicable to the sale, manufacture, shipment, and transportation of articles contra baud of war ; or, on the other hand, the preparation and dispatch ot the ship may be viewed as being really and in eftect the preparation and coninieneement of a hostile expedition. The circumstances of eaib case can alone determine from which of these two points of view it may most fitly be regarded, and to which, class the transaction ought to he COrXTER CASE OF GREAT IJRITAIV. 217 i' ' psfifTned. But the diniculty of niawinji: a clear, i)ieeise. ami intellij;il>!«* line iH'twcen these twt) classes of transaetions has always been eeroof or ac- kii(iwleil;,'ment of a duty incumbent on neutral jL;overninents to i»revent ilieir citizens or subjects from supplyiufi belli^-erents with ships adapted tor warlike use. They would tiiid it, indeed, asserted, on the (Uiehand, that ainoii^ the duties of a neutral <;(>vernment is that of preventin;jf hostile exi»e«litions in aid of either belli^ierent from bein.y: or<;anize(l witiiia ami dispatche«l fnun its territory. They would not, on the other !i;iii(l. timl the sale ov delivery to a belligerent by a citizen or subject of the neutral of a vessel adapted for war classed amonjj the acts which the neutral fiovernment is bound to prevent, nor would they lind any ilistinetion drawn in this respect between the sale and diOivery of u Vessel l>uilt to order and that of a vessel not built to order,' It is true beyond controversy that, at the time when the events oc- iiured out of which the claims of the United States have arisen, the mere sale and delivery of a vessel adapted for war in a neutral port to a lielli^Xerent, and the mere construction of such a vessel to liie order and for the use of a belli<;erent, had not been int of the T^ritisli {jovornmont or any of its subordinato ofTifors, KiU'Ii a titiul(' or decision as to amount to culpaldc ii(.;r! li/icnce. It is material to he! borne in mind, in wMisiderinfj wliat I'acFs were l^nown to the fjovernment, what those facets proved or lUd imt l)i'ove, and what, npon tlie faets whieli were known to it, and on which alone it eoidd act, it was the dnty of the {jovernment to do. It haslteen already stated to the arbitrators, in the case presented to them on the part of (Sreat Hritain, that, in the Jiidfjment of Her Miijts- ty's p[«»vernment and its official advisers, the special adaptation of a ves- sel to warlike use was amonjjf the acts prohibited by the forei;;jn ciilist. meat act, provided there were sntlicMcnt proof that she was intended tor the service of a bellifj;erent, althou^jh the vessel mijj:ht not be actually armed s(» as to be capable of inunecliate employment for war. Tiie jtro- visions of the acts are not, as has been alrea«ly observed, to bere^'ardod as declaratory of the law of nations. IJat Her Majesty's jLfo vein input agrees that by the second clause of the lirst rule it was tlie intention of the hijih contracting parties to preclude any question on this point from beiny; raised before the arbitrators, with reference to the words "fitting out, arming, or equipping" in the first clause. (Jreat IJritain does not, on this or any other point, desire to raise or inK. witliin its jiirisdictitiii, of any vessel wliieli it lias i'eaHoiial)le f^romids to lieliove is intciKlcil to eniise or to cany on war aj^aiiist a jxtuer with whieli it is at peace; and also to use like dili;;eiiee to jireveMt tlie dei)artiire from its jurisdiction of any vesstd intcnili'il tu cruise or carry on war as al>ove, such vessel having beeu specially adapted, in wlmh' «»r in i>ait, witiiin such Jurisdiction, to warlike use. Secondly. Not to permit or sutler either Itelli^erent to make uso of its ports or ■waters as tlie base of n:ival opcjrations aj^ainst the other, or for the purpose of tlii; renewal or aiiii|)|ilie.s of arms or munitions of wai.) It is not a principle or rule of tliclinvof nations that the supplies ]>nrchase(l should be limited to tlie i|ii;iiitity necessary for enablinj:;' the vessel to j^ain the nean-st port of lifi' own country or of an ally. No such principle was ever, so far as lltr Majesty's government is aware, admitteil or eontendecl for by any maritime power. On the contrary, it has been tlu^ constant lt| practice •to allow belli;;erent vessels to re[)air, relit, and suj)ply themselves with stores and fuel, with the avowed intention of ciiiitinnin;'' to cruise. So also belli;i:erent ships may be eithcj- permitted iir forlndden, at the pleasure of tln^ neutral, to brinj;- in prizes, to retain ]iiiss('ssioii t)f them, or even to sell them, althoujih there can be no cou- ilciiiiiution of them as prize by any antlnuity locally situat<> within the iiciitriil territory. Special restrictions may undoubteai.\ qii'eii teiiiiis de j^iicrre. >,iiilli's liniitations eoiiscnties i>ar traite, les ports, les rades, ct les iiiers territoriales iniitrcs sdiit nil asile oiivertaiix l)atiiiMMits de j;iicrre ties l)('lli;;eraiits, siirtoiit lorsiprils >v ;in''S('nleiit (mi nond)re liniite; ils y soiit adiiiis a s'y ])roeiirer les vivres nect^ssaires it ii v t'liire les reuaratioiis indis]ieMsa1>l<'s pour riililes de la naviprielt' tlo eet otat on ilessnjcts; et a co titro on ist foiitlt^ a reclanier pour file I'liospitaliti^ dans les ports amis. "C'eiientlant il no taut pas perdre tie vn»; tpio chatine dtat, ayant la propritite et la liiilke tie ses pt)rts, est libre, en prineijie, d'en onvrir ct d'en fermer I'entrt'^e, solon iin'ille jiijjt; ctmvenablo aux interets on a la trantpdllite tin pays, et tine les ludlifjorants III' peiiveiit, i)ar consi^tiuent, on reclamer I'entn'^e, ptnir lenrs navires, ni ponr lt:s prises i|ii'ilsttiit lait(|irniH' aiiiu'c, fiiviint dcviuit .son oimciiii, vient hp rcfiifiicr snr tin tiTiitciii,. iiontrc clU- y <'st rcvui', il est vnii ; <'11<^ y tronvc tons Ics seconr.s (I'liuniaiiiti'. Mais I'annoo est dissoiitc, Ifs liomiiies (|ui lii coiiiitosiMit sont tlosarinos (!t oloiyiit's dii tliiViirc r.o la };mrio ; mi un mot, on n'niplit ks dovoir.s (I'lnunanitt! a ri'naid di's iiidividn., mai.s on n'ac.'rordi! pas I'a.sili' a I'arnii'o inis comnit' c()rj)». Lo ncntrt' (|iii, an lien d'ii;;;r ainsi cpu' Jc vicns dt- h' dire, accni'illcrait It's tronpt-s oi ncinics, Itsnr founiiiuit dis vivics, Icnr donnt-rait lo temps as tonsidt'io conniio. ncntro ; il niaiH|norait ii tons Ics (Icvtiin do son I'tat. I/asilo inaiitiino. an coiitraiit', consisto a roccvoir dans los radrs tVinii'is, nioim^ dans los i>oi'(s. Ics batiniciits dcs bollif;orants ; quo Iciir ontroo soit voloiitain'oii in^L.'ssitt'o par la toinpoto, )tar lo nian(|iio do vivros ou jtar tonto aiitro caiiso, inrineiiar la ponrsnito do I'oniionii. Los vaisscaux adinisiioiivoiit aoh^itor les vivros (|iii Iciirsiint iiOfossains, rcpaior los avaiios laitcs, soit par los aecidonts do nior, soit i)ai' Ic (.•oiiilwi, soifiiior li'iii's iiialades on lours blossos, piiiH xortir Ubremnit pour dllcr Uvrtr tk inmrKutr (■omlHit.s. lis no sont pas, pur conso([iient, souniis an ddsuriueiuent, couinie les tioii|it< de toiTo. "(ialiiiiii et Aznni attrilment eetto ditil'orenco h celle , a etro eiij;l(iii;i sons les Hots, iVe. Cot to oanso do dirtereneo pent etro viaie, mais elle no snilit pas imiir motiver cello (|iii existe. lOn etlet, si olio otait nnile. II est vrai ipie (ialiani propose do senmi'ttiv les vaisseanx ipii imititent do I'asile an dosarineiiu'nt. Mail il recoiinait i\v.>' ciiti' re;rl(. n'est pas adiiiise par les nations, (|n'elle est ('(Miipletenient nonvelle, et tiucleiniit nonibre d"exeinides. (pn Ton iionrrait eiter, do batinu'iits eontraints a tlesanncr \»w lioiivoir etre atlniis a .jmiir do Tasib^ dn ]i(iit nentre, s'appliipie a des arinateurs dont l;i condnite senle motivait ci-tte existence extraordinaire. " A/niii va beaneonp iiliis loin : il vent (pie tonto batinient ]diipie cetto rej^lo nieiiie aiix naviros dn coininerce. " II y a done a cetto ditlerenco immense nno jintro oansi^ qn'il est utile do rccherclii:. Je trois (pi'elle est tout eiitiere dans la (pialilii reconnii dn batinient. II est iiiic \si:iii, (•'est faire nn acte do jnridiction snr lo vaisseau ; lo jirinoe nentre n'a pas lo druit iK-li' fai'e. II jient rernser I'as'le ; il jient I'accorder senleinent sons eertaines ci>iint no act shall he «lone to make tin; neutral port a base of naval oiiera- lidiis Animunition and military stores for cruisers cannot he ohtained there; coal i;iiiiiiit he stored there for successive snpi>lies to the same vessel, nor can it he furnished i,r(iUt:iined in such supplies. Prizes cannot he hron<;ht there for condemnation. Vlie iipiiirs tliaf humanity demand can he ^iven,but no repairs slioidd add to tiu^ strenjjtli m cllicieiiey ry.' According to this interpretati'.n a neutral gcnernment which should Slitter a belligerent cruiser toollectany rei>iurs beyond what aieab.soluteiy iRces.Siiry for gaining the nearest of its own ports, or to receive more roal than woidd be eiKMigh for the same juirpose, wouhl 'omuiit a breach (it iK'iitral duty. It may, indee«l, sometimes be foinid convenient by iKMitral i»owers to imixi.se restric*"ions of this na.ture, mon^ or less strin- i^eiit, i»n the armed vessels of biMigerents admitteri;ain during the civil war. JJut such lestrietions were not then, and aie not now, dictated by any ride of iiiternatiomd obiigiition. AN'ere they to become such, and were the obli- Liiition to be construed against the neuti'al uitlithe breadth and rigor itir which the United States contend, it may be feared that neutral iMwors would rarely be secure against com[)lainrs and demands for coni- iHiisation on the pait of one belligerent or aiuHher. llaviiig constantly (luring the war used Urilish ports as ])laces of re.surt for its own cruisers, and having rei)eatedly obtained ftu' them tlierciii successive supplies of coal, which were consumed, not in retiirn- iii;; lioine, but in cruising, the Goveriiiiieiit of the (United Stafi's now aiipeiirs to represent this very act as a breach of neutral duty, ami to lini.l Ureat Britain liable for any ca.sesin whi(;h confederate vcs.sels may liavc succeeded in obtaining similar facilities. Tliis questi(ui, however, do<»s iu)t regard Great IJritain alone. The riovcrmnent of the Uniteii States has [ilainly f their history. They huv« iilsii ';;;ieed to bring those principles to the knowledj^e o.'" the «»tlier nKuitinu! powerN. i'wl to iuvite them to accede to them,"' h 222 TREATY OF WASHINGTON. Britannic ^rnjosty's j^ovornniont concurs in tliis view. The oxpvps. sioiis upon wliich tlic United States rely belonp; to a <'lass in coiiiiiinn use anion«f publicists, who, in attempting to deline the duties ot inn trality, are accustomed to enn)loy these words or others eciuivaUnt tn them, and of not less extensive meaniufy. Thus the phrase "basedf naval operations," employed in this connection, denotes the iisi' of neutral territory by a beilijjferent ship as a station or point of deicutiiic, where she may awiiit and from whence she may attack her ciicinv, That these ex[>ressions have not hithevto received tlie construction wliitii the United States would ]>ut u]»on them is certain. AVhether tliev;ii(. to receive it in future is a question which concerns not Great Jiiitain only, but all other i)owers which may hereafter find themselves neutral in maritime warfare.' FURTIIEU LIJIITATIGN SUGGESTED BY THE UNITED STATES. The Government of the United States insists further that the ftviionil Kuril,. r hm,' ,ti,.n ri<'lit (►f ucutral powers to allow free entrance into and (';;ivs> iniuMl.st',"t.'. " "" from their jiorts to bellij^erent ships of war is subject to one imi)ortant exception. This excei)tiou relates to vessels which have been orij;inally adai)ted for war wholly or in part within the jurisdiction of ;'l' )■ 'A (li.sliiiftion has soini'tiiiK's boiMi driiwii between .siicli liospitiilitios as hniiiainiy re(iiiir<;s to be j;i:intetl to all bclliiferent vessels and siieli as the neutral may eoiinili' or refiise at discretion. (See the oiiiniou of Mr. Ciishinj^, tluMi Attorney-G(!ner;d ot'tliv United States, on the case of the Sitka, Appendix to Britisii Case, vol. v, p. liilii.; " Whether or not," says Mr. Cnshinj^, "a neutral nation has the riji;ht to refiiw, aiisu- Intely the admission of any belligerent shi|) into her i)orts, is an abstract (picstiuii, which it is unne(.'essary to dis< iiss here. It snilices to say that the {General (liiticsdf liumanity r<'(|uire tliat the beUijieient be allowed to enter for the ]>nipose of esrapin;' from the rivat«! armed cruisers, aietu be admitted, with their prizes, into the territorial waters of a neutral ibr rrlni;i. whether from chase or fioni the perils of the .se.i. Tlii.s is a ipiesti«)n of mere temiioiiiiv asylum, ac<;erents, h«', haviufj; nndertakt^n more than Im can occomplish alone, mks to persimde oi' compel the neutral stat«' to join him. Or he cannot t tticiently attaik liis euiMiiy without »)ccupyinw is, that any hospitalities atibrded to belligerent vessels in neutral ]i(Uts, beyond tlose which Mr. Cushing described in 1855 as eoninianded by the dietatts vi huiuauity, uud obligatory uu all neutral powers, are violatiuua uf ueutrul duty. COUNTER CASE OF GREAT BRITAIN. 223 tlie nentral. It i.s insisted that the iieutiiil goveriuneiit is bound to seize iinJ detain snch vessels whenever they may enter its ports; that this i.s a erent, and by the non- iiirfonnance of which it becomes liable to a demand for compensation. Ill tlie view of the United States this also is a <»<'n('ral rule of iiiter- uiitioiial law, which existed before the treaty of Washington, binding; (III all nentral powers, and is expressly athrmed, also, as between the United States and CJreat Britain, by the lirst of the three rules. It i.s .stated as follows : A nputral jjovernnKMit is hon ml, first, to use (l:ie (liliiiage of the United States is framed with studied care to embrace every i)ossible act of adaptation,) the obligation, with its attendant liability, attaches on the nentral government. This duty .seems to have, according' to the United States, no limit of time. It applies to vessels which have "at any time" received any imrtial adaptation for warlike use in the biiild:ng-yards,docks, or water nt' the nentral country; it applies to public ships of war commissioned by i» belligerent i)o\ver ; and it applies to them indifferently whether the act or acta of adaptation took place after they were commissioned or 1)1 fore it, and before tiiey came into the possession of the commissioning; power. Literally, it nnght even be taken to apply to cases in which the adaptation had taken place for purposes totally unconnecrted with the particidar war or with either of tiu» Indligerents. Had the United States inteiuled to limit in any way their [lecidiar inter|»retation of the clause, they might have been expected to state the limitation. I»ut it is clear that they had no such intention, for tliey have been careful to employ the widest and most comprehensive language they could possi- bly ('ouiiiiand. It can hardly be necessary to say that this pretended oblijjation, whereby a neutral government would be bound to seize by force an.\ public armed ship which might enter its ports, and of which there might he reason to believe tliat she had at any time before received some partial adaptation for war within the Jurisdiction of the neutral, inoiitliely unknown to tlie law, unsupported by practice, and in direct ' CuHo uf thu Unitud 8tuteH, p. 103. » Ibid., p. 16a. VI 11- 224 TREATY OF WASHINGTON. conllicl witli the principles which have hitlicrto governed the admission of ])iil)lic .slii|).s of war into the ports of frieiKlly nations. Tliis wouhl ah)ne be sulhcicnt to condemn the interpretation of the second rnle snjLij<;ested by tlie United States, even if it conhl, with aiiv pla.isibility, be represented as tlie natnral meanin*^ of tiie words ciii l)h)yed. lint it is not their natnral njeanin};". Xo one who desired to lay down such a principle wonld clothe it in snch language. It is clcai that these words i)oint to a departure fcdlowing the special adaptation, while the hostile purj^iose still rests in intention, and the vessel mnv still, by due diligence, be prevented from quitting the neutral teniton to carry that pnr[)ose into execution ; and that they could not, witliuiit violence, be api>lied to a case in wlii(di the ship, having snccet'ded in effecting her departure and tnially quitted the neutral Jurisdicrtion, lias sul)sequently re-entered it at an indefinite distan(!e of time; when, in- stead of being merely "intended for warlike use," she is k lown to be actually engaged in hostile operations, and when her original ciiiuactei has been exchanged for tliat of ii public ship of war, recognized assiicli in the ports of other neutral states, and exenijjt as such from all ]w,\\ Jurisdiction. Unless a violation of neutrality had been established in due course of law against such a vessel while proi)erly subject t(» tlu neuti'al jurisdiction, the (,iU'stion of fact whether sucii a violation liail taken place could not, by any t\nm of proce(Mliiig, be investigated he tween the neutral power and the belligerciut whose Hag she bore. Kvtii if the i)roof of tin? facts, in f'oro eompcteiite, were as easy as it has hecii generally found dillicult, the belligerent power would Justly deny tin right of tlu^ neutral to exercise jurisdiction over a vessel foi-ming paitol its public maritime fon^e, lor the pur[)ose of any such incpiiry. And lo •letain a public ship of war in a neutral i>ort for a(tts done bet'drc in- had obtained that character, without any previous notice that slu". was not at liberty to come in ui)on the usual terms, would \w in itself an ait of war, and a plain violation of well settled rules of intern., tiuinil comity. Jler Britannic ]\raj(»sty's government observes with sincere regret tlia!, as in other parti(;ulars, so more especially in this, the (lovernnuMit of [W Uinted States, instead of accepting in a fair and reasonable sense iiiKs which the two powers have engaged to observe toward one anotliorainl to recomnuMid tor adoption to other states, seems on this occasion h\ have considered how they migh*- be iurned to the greatest advautiiyoiii the i)resent controversy, and with that view to have" strained the con struction of them to the very utmost. The undue extension wliicli It is proi)osed to give to the first rule does not accord with its plain [IS] and initural meaning, was never contem])late(l *l)y tlu' govern ment of Uer liritannic Majesty, and is altogether rejected In Great liritain. The British government concurs with the Governmen! of the Unitcil States in holding that a vessel which has bi'coint^ liable t() arrest ami seizure within neutral Jurisiliction, by reason of a violation of neutrnlitv, cannot relieve itself from that lial)ility by mendy removing to aiietlni place within the same Jurisdiction, and that the duty of the miitiMl goverinnent to seize and detain, where such a duty exists, would not \w allected, though the execution of it might without any want of due diligence be end)arraH8ed or prevented by the mere fact of siicli re Hioval. The orders issued for the seizure of the Alabama under be powers of the foreign-enlistment act would have been executed ;it (iueenstown or Nassau, had she gone from Liverpool to either of lin'*-*' places, exactly as they would have been executed at Liverpool it tliiy I i!illiill':'l^ Ml. m COUNTER CA8E OV GREAT IJRITAIN. 225 liiul arrived in time. But the Abibama, wiser, she touched for the first time at a port of a British colony, had for more than six months been commissioned and in active service as a cruiser of the Confederate jjtates; had, as such, foujjht a successful action with a United States war steamer; and, as such, has been received at the French island of Martinique, as she afterward was at Fernando tie Noronha, Bahia, and Cherbourg. And, in matters relating to the "'.tr, it was the duty of i;ieat Britain, as it was the duty of other neutral powers, to treat the Alabama in ex.actly the s.ame manner as, under corresi)onding circuja- stances, they would have treated a public ship armed and commissioned by a recognized sovereign state. Her Majesty's Government, in its Case presented to the tribunal of iirbitration, has stated the following propositions :' .Maritime war beiiij^ carriuc'i on by hostilities on tlio hi^jli sons, aiul throujjb tlio instrmueutiility (ordinarily) of vessisl.s cotnnii.ssionnd by imblic authority, a neutral power is bound to recognizo, in matters relating to tho war, coniinissions issued by iiieh belligerent and captures made by eaidi, to tho same extent and under the same lomlitions as it recopfnizes coinmissious issnotl and eajitiires made by the other. Where either bellijjerent is a coinniunity or body of persons not reeoj^nized by the iii'Utral power as constitntinf^ a sovtMMiijjn state, commissions issued by such beliiKerent ill e recognized as acts cmanatinjj, not inileed from a sovereign gov^^rnment, but from a |ursoii or persons exercising de facto, in relation to tlio war, the powers of a sovereign ;,'overnnieut. I'ubl'O s!'in3 .>t war in the service of a belligerent, <;ntoring the ports or waters of a luutral, are, by 'o practice of nations, exempt from the jurisdiction of the neutral |iiiwcr. To withdmw or refuse to nicoguizo this exemption without previous notice, or without such iM)tit;o to exert, or attem|)t to e how, wliere, or in what loriii the conmiissioning must be etl'ectcd, so as to imin-ess on the vessel the character lit a public ship of wa.'- What is essential is, that the appointuuiut of a designated ulli.erto the charge and connnand of a ship likewise designateil be made by the gov- .iniiient or the proper department of it, or nmhu- authority pro- piiated to tho military marine. A neutral pow«'r may indeed refuse to admit into its "Wii ports or waters as a public ship of war any belligtnent vesstd not commissioned in ispi'iititMl form or maniK^r, as it may impose on sucli admission any (tther conditions it Its pleasure, provided the refusiil be applied to both belligerents inditl'ereutly ; but iiiis should lun, be done without reasonable notice. llie act of commissioning, by which a ship is invested with tho character of a public -\\\\\n( war, is, for that lonrpose, valid and conclusive, notwithstanriing that the ship liny have been at the time registered in a foreign country as a ship of that country, may liav(^ been liable to jirocess at the suit of a i)rivate claimant or to arrest or 1 nititure under the law of a foreign state. Tiie commissioning jtower, by commission- iiii licr, incorporates her into its naval force ; and by the same ai;t which withdraws I'l rniiii the o])eration of ordinary legal process assumes the responsibility for all ex- isting claims which could otherwise have been enforced against her. J'lJ *The principle on which these rules repose is thus explained by Ortolan : '^'il s'agitdo naviros do guerre, la cotitume intornationale ost constante: ces navires ristent regis uni(|uement \ii\v la souverainete de leurs jtays ; les lois, les autoriti'^s, et ip jiuidictions de I'dtat dans les eaux duquel ilssont nu)uillesleur restent etraugeres ; "■' II ont avec cet <^tat que des relations inlernationales par la voio dos fonctionuaires 'I'' la localitd conipctents ptnir de pareilles relations. I'i'ttiMoutumo est-elle fondi^o en rais(»n ? l*ent-elle filnidefendue niAme an point de hill' tlicori(iue ? (>u bien mcrite-t-ello lo blAme que A— ir ' British Case, pp. 4, 'Z'.\, 24. Ilr h " m 226 TREATY OF WA.SIIINOTON. Le naviro «1e giinrre portaiit eu hoii nein line partie ilo la piiiHsancc piibli)|iie d^ I'^tat anqii«;I il appartioiit, un cui'|>4 orgaiiiH<'« . la mer territoriale, d'eniployer a leur <^gard les moyens de sflretd que leur voisinii". jieut rendre neeessaires, sauf a r^pondrc, euvers lY'tat ampiel ces vaisseaux aiipiirtiin. nent, de tontes ces mesures cjui pourront etre, snivant les dyt-Jiements qui les aiinim niotivdes ou la niauifire dont elles atiront etc ox(^cutees, des actes de tUTeiise uu de jtn^caution legitime, on des act«5s de ni<^liance, on des oll'enses graves, ou ni("'iiii) il- causes de guerre ; luais taut (,;'.'il les rev* '*• il doit respecter en eux la souvtraimi. etrangere dont ils sout une emanation ; it ar , ?ut avoir, par cons<-(|uent, la pn'ti'iitinn deregir les i»ersonnes (jui se trouvent et les lai.s qui s<^ passent a leur bord, ni de tiiii, 8ur ce biijs tronvi'. raient .1 bord, appartieunent a une unitii-re qui revieiidra plus loin, et dont lums tiiiid roiiH »'n detail. Mais nous pouvons, des a pr(^seiit, fain; observer <|ue jamais Ic idin. uiandant (I'un naviro de guerre n'appliquera le benefice de rexterritorialite ih sin navire en favour des malfaiteurs du pays, jias plus (|ue ranibassadeur I'exterritorialii' «1(! son b6tol et do ses equipages ; et que, dans le cas oii certains criminels seraiciit piii- veniis a se refugier a son bord, il existe des regies interuationalos relativemeiit a liiii expulsion du navire ou ii leur extradition. Eu un mot, I'inviolabilite qui est due en tons lioux aux luivircs do guerre coiiiiin' i une forteresso llottante de I'etat qui les a armds, renferinant un corps organise de li puissance publiquo de cet dtat, cette inviolabilitires de guerre soient sonmis al'observatin:: des reglements sanitaires du pays ou ils veuleut at)order. Les epreuves iniposrs iwr ces reglements sont des conditions miscs a I'admissiou des navires dans les eaiix din pays; elles ne sont uullement en contradiction avec lo droit d'extorritorialiti- doii jouisseut les batiments de guerre entres dans ces eaux. II I'csulte de tout ce (|ui precede (|ue, loin de desapprouver, au point de \\\c di''i pur(! raison, la coutume dn sion, or compel her to depart after having been refpiired to do so liv conq)etent authority) would be directed against her governiiiciit. nm! would at the same time, if done without previous warning, bean iiitVin | tion of a rec()gnized tuulerstaiuling, ou tlie faith of which she t'iit(wl. ' aiul on the observaiuic of which she had a right to rely. It', wliilf iM neutral water.s, she commits any violation of neutrality or other oliciisi against the neutral, force may uiuloubtedly bo employed in any win I ' Regies Internationales etdiploinatit! do la mer (4tli edition,) vol. i, p. I'.M'. WSI^ COrNTER CASE OF G^EAT BRITAIN. 227 wliich may be necessary in order to prevent or arrest the unlawful act iiiul to compt I her departure. But redress ought not to be sought against the ship herself; it should be sought, if needful, against her jroverninent. A fortiori, this is true if the ofl'ense were committed lletbre she arrived at the neutral port. Thus, of the violations of neu- trality conunitted during the rvar, the grossest and most flagrant 20] by far was that *perpetrated by the Wachusett in the harbor of Bahia. The Brazilian authorities would have been amply J usti- tied in tiling on that vessel while engaged in the act, and sinking lier if necessary. If she had afterward presented herself in a Brazilian port, they would, doubtless, have refused her admission ; but they would liave rightly abstained, even on such provocation, from seizing and detaining her. A niulto fortiori, the same proposition holds good if the act complained of were done before the ott'ending ship came into the possession of the commissioning government, or before she was incor- |iorated into its naval service. These principles are recognized by publicists and sanctioned by iisajjp. There is not a maritime power in the world which would not ivseut any violation of them ; and it would bo the duty of any naval (itlicer to lesist snch a violation, unless it were supported by manifestly superior force. They do not extend to prizes brought into neutral ports liy the belligerent vessel, if cai>ture fei « ' i- 22H TREATV OF WASHINGTON'. States and Great Dritaiu. aceonls with the foregoing stateiiieiiLs oi Ortolan.' [21j AUG13IENT <»F THE UNITED STATES. — *• WHAT IS Dl-fi DIU GEXCE ? " Passing from the question, what classes of acts a iieutr.>e:: holding that the words "due diligence" intnxluceil n« new or ad«litiijii.t obligation. They exact fi-om the neutral, in the dist^!j.> of which constitutes negligence. Her Majesty's government will not follow the Government of lu- United States through the observations which it has presented to tLr arbitrators on the nature and degrees of negligence, but will notice on': the definition which, at the close of those observations, it has atten)i>iK to supply : Th«> I'niteil Statt-> understaiiil iLat the iliii:i«-nce tibicfa is call«Hl for h\ tbe nilr. the Tri'sity «>f \Va.'>bin;noD is a dm- «Iili;i«-nte : that i.s. a ilili«ieiMf ]»mprtrtiiiiije« t. aud to the dignity aud strength of the power wbiih i? t- exereis»> it ; a diligence which >hal]. I»t the use of activ«- vi;filauce. and ol all rl- other iiieun.s in the powtrr of the !ieiitral. through ai] stages of the transaction, ytr^rr its soil from l»ein;i violatnl: a dili}:t-!u-e that shall in like inaun«-r deter desijiniu:: Uj^: from cnnimittiii:; acts of war uiHin the soil of the neatnil a^^ainst its will, ami iLi- possibly diai;;iiti:i it inti> a war which it wonid aviiijit»T- ' The ^ieneral inminnity of pnhlic shi|>» nf war from any foreijtn jnrisdictinn, civ:] criminal, is thus >tat«l in a work of acknowl»-.- | of any civil or criminal jnrij-liction l»iit that of the sovereign iMiwer to wliich iL-" lu'lonj; is nnifomdy ass«-rt«- ijet-n promptly nu-t aini condeiniied." is* \Vli»-at1. nl. l-:>'i: -If there W no express prohihition. ;i- ]M)rts of a frn-ndly >tat»- are con>iderrtl a-« oj«en to th»- liiihlic anneil and coinniiv.;.': . sliijis licloii>iiiij» to anoth>-r nation with wh«»m tfiat state i- at |»-ace. Snch sliii- cNfiiiiit from the jnri^lii-tion of the ItN-al trihiina]> and authorities, whether thev riii': the )iorts iiiwler tlie liceii.-^- inipiieti front the aii>-<-nce o( any prohibition, or uii-r .: exjiri'ss jiermission siipnlat*-fl by tr»-:ity." The pnnciple of the mle was laid dowj'" t'liicf Justice Marshall. ilt-Iivering the jiidgnient of the Supreme Court of the I'ait-. States, ill the case of th«- Exchange, a ve>s>^l lielouging to an American citizen, wi'^- liad been seized in a Spani-h |>ort by the French g«»verument and converted intoi}"- lic slii|) of war. ami whieh her original owner afierwaid atteinpte'*'' Such interfi reiice cannot take place without s^riwi.-ly aflvcting his |»ower and dijoiry The implied license. theref«>re. under wbieh such vess«-l enters a friendly port may w-l sonably l>e constme«l. and. it s<-eui» to the conrt. ought to be construed, as containis:! ait exemption fn»ni the juri^Iictitui of the sovereign within whose territory sbefUi»"l the rites of hospitality." (Crauch"* I>e|iorts. vol. \ ii. p. I'Xt.) The rule was al?oariinB!< r by Mr. Justice Stor>-. one of the greatest jurists who ever adometl the l'uifching's opinion nirnn | to above, (p. 16.) in the caseof tlu- Sitka. -Case of the Unite«l States, p. '21. COrXTER CASE OF GREAT BRITAIN. 229 ■^i t 1 -ritral to the most energetic lucnsures to discover any jmrpose of doing tlie acts Ibr- ..i.iru by it> {joo«l faith as a neutral, and imposes ui>oii it the obligation, when it re- r;v«*the kuowlMlge of an intention to commit such acts, to nse all the means in its ■...«er to prevent it.' Her Maje.sty*s government li.ts been unable to eollert from this tlefi- L:tioutlie information which it is doubtless intendetl to convey. It may rvailily be conceded that the care exerted by a {jovernment to prevent ■ iohuious of its neutrality should bear sonu' proportion to the probable >iiii.*e<|iienccs of such otten.ses. It may be conceiled also that the re- ijiousibility incuired by failiniiDction l>etween more dignitied and less dignified powers; it regards all sovereign states as enjoying cipial rights and equally subject to all i>nlinary international obligations; and it is tirndy persuaded that there > no state in Europe or America wliich would be willing to claim or anrpt any immunity in this respect on the ground of its inferiority to ..thers in extent, military force, or population. In truth, the arbitrators a ill have clearly perceived, from this .statement already presented to :uem on the part of Great Britain, that in a country which, with free ',*titntion.s, jKi-ssesses a large commercial marine and u very extensive >biii-building trade, the ditticulty of preventing enterprises of this na- ture is, instead of being less, far greater than in countries which are :i"t .so iKjpulous and w here these conditions are not united ; aiul Just aiiowauce ought to be niade for this ditlicnJty. The assertion that due diligence means a diligence which shall prevent the acts in question, ml shall deter men from committing them, if taken literally, can only M^ify that no government can be held to have done its duty which has Ml been completely successful. Of all the powers in the world, such a :r«t would most .severely condemn the (Jovernment of the United States. It not taken literally, it can contribute nothing to a serious d'scussiou. It has been .shown, by ample evidence, in the case presented on the part "lUreat ISritaiii. that the measures adopted by the British government iliti prevent and deter men from enterprises which would have violated •r inqteriled her neutrality ; all that the United States have to com- l.iiii of is, that these nu*asures proved inettectual to prevent or deter, in a very small number of cases, in which the agents contrivetl ~i to e.scai»e ob.>*ervatiou, *or the ditbculty of obtaining evidence was gi"eat. That due diligence requires a government to use all the means in its i»ower, is a proposition true in one .sense, false in mother : true, if it means that the government is bound to exert hon- |«>tly and with rea.sonable care and activity the means at its disposal; Jtalse. impracticable, and absurd, if it means that a liability arises when- jtverit is iMXssible to show that an hour has been lost which might have |l**n gained, or an accidental delay incurred whir-h might, by the ut- jnjo>t foresight, have been prevented ; that an expedient which might pjave .sncceede«l has not l>cen tried; that means of obtaining iuforma- jtion which are deemed unworthy or improper have not been resorted jt": or that the exertions of an otlicer or servant of government have [iM>t been taxed to the utmost limit of his physical capacity. Nor can we fail to observe that, in proi»ortion as we extend the duty Iff jtreveution incumbent on neutral governments, from hostile enterprises l^liieh aiv o|>en and flagrant to acts of a more doubtful character which ' Case of the United States, p. 15"*. :i r: 230 TREATY OP WASHINGTON. border Oil the line betwixt the lawful ami the uulawful, it becomos more and more difficult to exact from the neutral, in the performance of that duty, iH'culiar and extraordinary vigilance and activity. The duty of preventing the open assembling within neutral territory of an arinctl hostile exi>edition against a neighboring country is plain and obviou>. and requires only a prompt exercise of adequate force. But it is other wise when we come to acts of a different class, the criminality of which depends on a latent intention; such, for example, as the mere procuring; for belligerent purposes from the yards oi u neutral ship-builder, whost' ordinary business it is to build ships of all kinds for customers ot" al! nations, a vessel with some special adai)tation for war. There is nothins in the relation of a neutral to a belligerent to cast on the former tht duty of exercising, within his own territory, a constaut and miuut' espionage over ordinary transactions of comnierce for the protection of the latter. This relation, always onerous to the neutral, is, at the same time, it must be remembered, purely involuntary on his i)art. It i» forced on him by the quarrels of his neighbors, in which he has no con cern, or by their internal discords, when those discords break out into civil war. Iler Majesty's government has not fittempte«l a task which has Itai fled, as it believes, the ingenuity of jurists of all times and countiii'.-i- that of defining with any approach to precision, ai)art from the circiiin stances of any particular case, what shall be deemed due diligence m reasonable care. In its Case, already presented to the Tribunal, it \\a- stateil some general pro))Ositions, which it believes to be consonant witli justice, and supported by such analogies as may be fairly drawn Irom the private law of Europe a;id America.' It leaves it, however, to tlu arbitrators, who know what are the ordinary powers of governineiit>. what the ditticulties they labor under, and what may reasonably ainl wisely be expected from them, to determine, upon a careful consider,! tion of the facts, and on the same luinciples by which the Htatts t" which they themselves belong would be willing to be judged, wbetlici on the part of Great IJritain there has or has not been that want i : due care or diligence which makes repar.'ition a duty.-' On the question, in what cases and within what limits compensatina in money may reasonably be deemed due from a neutral nation lor in juries occasioned by such a want of care. Her Majesty's goveriiuien: will here only say, that the position of Great Britain appears to bo iiii> appi-ehended by the Uiiitecl States, and that the two decisions ot ;i: American court cited in the case have no bearing upon it.' Sucbn question; it is evident, is not within the cognizance of any inunieipiij tribunal, however respectable; and no municipal tribunal has atteini>tin to pronounce judgment on it. The Supreme Court of the United Stato. in the cases cited, decided only that of two armed vessels one bad Ittii unlawfully fitted out, while the other had received an unlawlu' aii;: mentation of force, within the jurisdiction of the United States, aini that prizes taken by each and brought within the jurisdiction ot tlu Unitetl States ought to be restored. The arbitrators will now be in a situation to judge what value to at tribute to the assertion, " that the principles for which the United State? 'Cast- ut Great Britain, j). ^4, urojtositioiisD, 10, 11 ; aiul pp. lOtt, U57. "■ J»n rt-ste," fays a distinj-nislieU Frcnoli jniist, treating of this «iil>jeet in toiiiif | tioh with private law. •' du re.ste, «oit t|u'il s'af^isse d'uue obligation de doinicr on c.r la ire. la protestation des faiites e^t, dans la jtratiqne. a i»tine one «piestioii dctin''' 1^ jKiint do fait y est ton.jonrs dominant, <|nand il n'y est pas tont." — Lari>inl'ii'>' j Tht'^rit 1 1 jtraiiifiie de" oMiijationn, vol. i, p. 417. 3 Thi- Sautissinia Trinidad and the Gran I'ara. Case of the United States, p. "JOo COrXTEK CASE OF (iKKAT MKITAIN 231 ^^wm cmtoiid liavt* boen recojj[iiized by tlio statesmen, tlie jurists, the luihli- lists, ami the U'gishitors of Great Jtritaiii; that they have the approba- tion of the most etninent authorities upon the eontinent of Europe; and ibat they have been reganled by the other powers of Europe in tlieir lU'alin^ with each other/" The truth is, that the alleged princi- :'.; pli's from which Her 3Iajesty's govcrn*njent has declared its dissent were never before seriouslj- asserted, and never admitted or loeofrnizeil by any power in Europe or America; that they have the >ii|i|K>rt of no publicist of authority ; that they are unknown in (treat Jlritain: and were, up to the time when these claims were brought for- ward, efpially unknown in the United States.- Casc of tli«' Unitwl States, p. 20.*. ■The fullowiiifj extract from l{c(lroliihition8 of international law. It is an abstract (»f the views . \lir»Mse«l in the "Considerations 8ur les Droits Hi-eiproi|iies des I'nissanees Helliyc-r- iiitt-s ft ties Pnissanees Nentres siir Mer," of Tetens, a w^^rk wliieh Mr. Keddie «les"the most free from national bias, and most impartial ex|>osition of the jreneral j'Tini'ipIes of maritime international law which has appeared in recent times:" • It is a wise foresii^ht for neutral ;;overnmeiits to obviate, during war, as far as pos- • Ml', all illej^al conduct on the part of their subjects, for the double advantaire of pre- -rviii;; tiiem from risks, and ol i>reventin;^ the suspicions of bellijjerents n<^ainst the ;r.iiUr>' wiio s:iil under neutral lla;;s. The conduct exhibited by .several individuals ;'i .1 neutral nation pnMluces naturally a ]ire8uniption for or a;;ainst their fellow-coun- rmien. which seldom tails to havo consequences favorable or unfavorable to the vc- -l?of that nation which the belli};er«!nt8 encounter. There is also a political rea.son ;»r iii'iitral ;;overnments watching their subjects in this respect. They cannot, indeed, iiiaiiift-st more authentically their perfect neutrality than liy clear and precise ordi- inn's for their commerce and navi;;ation durin;^ war, ami by a rigorous police, severely ■iiretteil against those who contravene them. The more they exert themselves to re- • raiii fnmil, the more tlu-y are in a state to pr<»tect their loyal sulijects, and to inter- i"~' with success in the cii-ses of just claims made by the latter against the cruLsers of :lii- l»»'lh^erent powers. "Wiiat ni iitrals, however, may do in this rcsp<'ct does not arise from any right ■Ujicli iiiipoM-s on them the oldigatiou of maintaining a more special surveillance over ;::rirsiil>jtMts during war than tliey arc in the habit of doing during peace: nor to ex- • ni.v a more extensive insj>ection ov(>r the legality of their conduct toward belliger- "iit;* than that which is jirescribed bylaw. In even alhiwing them to act entirely a.-. liifV choose, they in no manner infringe the rights of the belligerents, provided they ii not pretend otherwise to ju-otccf their contraventions. JSnt such indiflerence may ;;i«jiire IM-Iljgcrents with unfavorabh^ o]iinions. which it may be as well to i>revcnt, '■!»ci;illy if it be preponderating jioweis who are at war. ■'From neutral govenunents not being undi'r an obligation to obviate the abuses of t'ai ir Milijects. it follows that belligerents, whatever conde.scension they may have to •xpett lV.»ni them for that jmrpose. cannot reasonably rrquire them to extend their ::;':i»iire.s iii-yoiid what is in jirai-tice in these same neutral couiilries for jireventing iraiiils ln'ing committed on their own customs, and for checking the other deceitful t Miirivances for wial instructions might be ordered ; tribunals of in<|uiry might be established ■i;;uiiist tlif frauds of merchants and ship-owners, and more rigor might be shown in 'III- pnnisluiient of their delim|uencies. But tlii» cannot be demanded on the one side. Hid. on the other, it might be dillicult to grant it, because there might result from it "•ii>einn'iices inconsistent with the general spirit of the prohibitory laws of the state. At jpiist. this care must be left ti» the neutral governments, to whom alone it belongs tojmljfp what it may be j)roper for them to do with reference to the circumstances of ■ the war." % m s \2l\ *PART III. PRECEDENTS APPEALED TO BY THE UiNITED STATES. Ill 111 aid of its view of nontral duties and liabilities, the ^ovoriiiiicni of tlie United States has appealed to several ineer' iitsn i».,.w JO hy th. corded in history. These are — "" '"""" 1. A correspondenee which passed between the ;;o\('ni rnents of Spain and Sweden, in LSLM, relative to a sale of certain Swedish vessels of w ar, which the Si)anish govermuent suspected of haviii}- Ikch bought for the service of Mexico. 2. The correspondence between the liritish minister and the CJovcin nient of the United States, in 17t>.''., respecting the depredations piiu ticed ou British conmierce by privateers under the French Hag, litttd out in American ports ; the measures adopted in consequence by \\w tloverument of the United States; and the treaty of li)th Novenilioi. 179 1. .J. The complaints and claims urged by Si)aiu and Portugal against the United States, ou account of like depredations oii the subjects iiiid shipping of those two powers, by privateers titted out within the Uiiiteil States; and the subse. 102. There is a Victter ai'( oimt, containin{j; the ollicial correspoiKh'nce, (wliich iswanting inCnssy,) in Martens'sCii'i^f C(51ebres du Droit des Cens, vol. v, jt. 2",".), ed. IMCl. COUNTER CASE OF GREAT BRITAIN. 233 ovoniiiioiii The p^vcriimont of Sweden iiiHisted on its right to complete the sale. At tlie end of fonr months, after mueh correspondence, the contract was lesciiided m the reqnestof the purchasers, who aUeged that the vessels had been detained till too late in the year by reason of the recall of cer- laiii otlicers am! seamen of the Swedisli navy, who had previously obtained leave to enter the merchant service, and were to be employed on board lit' tlit'iii. The stipulated ]>ayment was excusetl; and the Swedish gov- iTiimneiit undertook to re imburse the imrchasers for money laid out on tlio repair and ecpiipment of the ships. Tiiattho government of Sweden was riyhtin not completing the sale, lifter circumstances of suspicion had been broii^h*^ to its knowletlge by S|min, there can be no doubt. It has always been conceded that a sale li\ a neutral government to a belligerent, directly or indirectly, of arms (ir munitions of war, or ships of war, stands on gv«nind ,()00 francs, but to above 2,500,{)U().'' Great Bi'tain has certainly nothing to fear from this comparison. The piTcl'ise by Her Majesty's government, at the price of £220,000, of the two iron-clads seizetl in 1803, has been mentioned in the British Case, and it has been stated (as the fact is) that in agreeing to this pur- chase the government was mainly actuated by anxiety to prevent by any means in its power, however costly, vessels of so formidable a char- acter, constructed in a British port, from passing, directly or indirectly, into tlui hands of a belligerent.-' The case of the old dispatch-boat Victor, sold out of I fer ^lajesty's nuvy in 18(>.'j, will be hereafter referred to.' There were in that case no cir- I'umstances to excite suspicion, and no reinesentation was made by the minister of the LTnited States to 1 ler Majesty's government. When it was iliscovered, however, that this vessel had passed into the hands of a bel- li;;erent, and that endeavors had been made to lit her out as a cruiser, orders were immediately given that no more ships should be sold out of tile navy during the continuance of the war. This decision was followed in tiie case of two vessels, (the Keymird and Alacrity,) for which an ad- vantageous offer was made to the admiralty in J)ecember, 180;>, and which it was desirable to dispose of. " It would be better," Earl Bussell wrote, "at the present time not to sell any vessels to private firms, as it ' See HoflFter, cited below, p. 145. This (listiiictioii is* iceoj^iiiztMl by all writers. There isrcitsoii to believe, liowevcr, from fiuts wliieh huvo bccoiui! notorious, thiit it w.as over- looivcd by the American Gcvernment durinj; the late war between France and Germany. '('use of Great Britain, p. 47. Ibi.l., p. 44. Infra, p. !•>.>. I I 234 mi i I TREATY OF WASHINGTON. is impossible to obtjiin any sufficient assurance in regard to wliat nii^'lit be done with vessels when sold out of the navy."' 2. Violations op American neutrality in 1793 and 1704. In the year 179.3 the neutrality of the United States was infringed, not only by captures, within their teintorial waters, of Jiritish An;pr,,''„'',!:'"tr,i4"y vcssels bv hostile armed ships, but bj' rei)eated and success- ful attempts to fit out privateers tor cruising, under the Freiich flag, against Great Britain, then at peace with the United States and at war with France. It must be here observed that the example of this mode of carrying on maritime war had been set by the United States themselves. The agents who were sent to Fiance in 177G for the purpose of gaining for the United Colonies the aid and support of that power in their struggle for indc l)endence, su(^ceeded in procuring and arming many privateers, wliidi they disi)atched from J^^rench jwits, with orders to cruise against (irear Britain, ami from which Jhitish comftierce suftered vseverely. It was natural to expect that when, in Februa y, 1793, the F'rencli lve)»nli lie declared war against Great Brit; 'n, France in her turn should try td imitate and jnofit by that example. On the 8th of April, 1793, a French envoy arrived at Charleston; he immediately proceeded to fit out privu teers, and four were fitted out, armed, manned, and commissioned witliiii American jurisdiction before tlie end of the month. These acts weiv open and undisguised. Houses of rendezvous were opened at Charleston for collecting crews, the vessels were suffered to pass the fort under ;i written ]>erinission from the governor of South Carolina, and there \va> reasonable ground to believe that, though nominally owned by Fren(!li men, they were really the property of Aineri(!an citizens. These vessels afterward brought in ]>rizes, which were condemned by pretended ini/.i' courts, jield within the jurisdiction of the United States. Applying to the United States the stringent rule whiidi that ]>o\v»'i imw seeks to api>ly to Great P»ritain,the Britisli govenuuent might undouht odly liave insisted that these were violations f neutrality whi<'l) tin Ameriican Government was bound to prevent ; that no imi)erfections in it> municipal law or executive organization could be pleadeing vessels in tlic Appendix lo llritinli ('asc, vol. v, p. 20t. * Ibid., p. ill. COUNTER CASE OF GREAT BRITAI! 235 norts of tlie iriiited States to cruise againr»t iiiJtions with which they were at peace was iucompatibl*^. with the teiritonal sovereignty of the United States ; that it made tliom instrumental to the annoyance of ihovse nations, and thereby tended to compromise their pooi-e ; and that he tbonght it necessary, as an evidence of good faith to them, as well as a proper reparation to the sovereignty of the coiujirj-, that the armed vessels of tins descrii>tion should" — not be detaine piin(it)!il Jijjpnts in tliis traiisavtioii were Ereiieli citizens. Hein;; within the ' iiitcii i'tiites at the moment a war broke ont between tlieir own anil another conntry, ;lu V lift* rmined to s<> '"f*» •'** «h>fense; they pnrcliase, arm, antl eijuip a vessel with iiieir <>>vi' money, man it themdelvi-s, recei\ e a lejjniar commission from their nation, (kjiart out of the I'nited States, and tlien commence liostilities by eai>tnrinjj a vessel. If niult'r these circnmstanees the commission of the captors was valid, the itrojierty. iKConlinjj to the laws of war, was by the cajttnre transferred to them, and it would be ;iii iiy;;;! ission on their nation for the I iiited States to rescue if from them, whether on i!it' liij;h seas or on comin;f into their }»orts. If the «'onimissioii w;is not valid, and con- ^■•|iifiitly the itroi>erty not transfernMl by the laws of war tr» the captors, then the vase wonid have hOt n cojrnizable in our courts of ailmirtlty, uwC thi^ owners mi^ht have ;;iint' thither for redress. S(» that on neither sn)»posit. ni would the (;xeoutive bo jnsti- iiiilile iu interposinjr.- Tlie American Government thus refu ed to take any measures eveu liirthe restitution of ])ri/.es iu^tually brought into tlieir i)orts by priva- teers e(piipi)ed and commissione«l therein. The acts coniplaineresented thrit th^'sa iuts were notorious and unconcealed, and well known to the local author- ities, lie exi>ressed his concern at the de;;ision at which the Govern- iiieiit had arrivetl, and added: I'ltr all these reasons, notwithstandiu;; the defeniice which he shall ever preser^■e for t!if sentiments id" this (JoverniuiMd, the undcrsi;{ned conceives himself Justified in ha\ - i i;;pntfit,iin(Ml a <'onlidciu'e that the (iO\ernment of' the I'niti'd States winild not luily iiMii' ri']in'sscd this insult olVered to its sovereijinty, but also that the airjfression on the ^llllil'^tN (if tiu' ' i'own of (iri'.it Britain wouhl have been repaired by the ri-stitution of osi'ls thus captured.' At the «late of .Mr. flelVerson's letter, and for a cojisiderable time atter\v;ir Jurisdiction was atlirmed ]>y a Judgment of tlie Siipreim' Coint, tlelivered on the IStli Feldiuiry, 170I. Owners of vessels unlawfully eupttired were in the mean time debarred from any ledrcss; .iiul to refuse restitution, unle.>s ihrongli the mediifi of the nunts, Wiis to refuse it altogether. Alti-r tlii.s a vessel was titted out and armed as a l'"n'iicli ])rivateer in Hie port of rhiladelphia itself, under the nanu» of the Little Demociat. ilie (ioveiiwin'ut did lujt j;ei/.eor r.<'tain her; it relied on an expectation tbat the FriMicli envoy wouhl not i)ermit her to sail. She sailed, h<»w- ever, iiixl engaged in depredatitMis on Jbitish <'ommerce. Kiliori (if the Neiiliiilif v Law (dmnii»iiiiicis, ji. !'.•; Appendix tolbifish Ca»e, \"!. ill. ■Ali|i.'U''.iN, to J'.rilisli Case, vol. v, p. '21'. Ji:'! , p. -ill. •. i 9 I, -ii ' m ■ n 236 TREATY OF WAHIIINGTON. On the 4tli August, 1793, circular iustructions wore sent to the col- lectors of customs witbiu the Uuited States, intended, though not ex clusively intended, to i)rovide against violations of neutrality. Accord. ing to these instructions, vessels originally lifted out by either beiligorem in ports of the United States were not thenceforth to have asyliun in any district of the United States. Any vessel contravening the riiU's laid down was to be refused a clearance until she should have foinplicil Avith what the governor of the State might decide in reference to lui, Care, however, was to l»e taken in this not necessarily or unreasonably to embarrass trade or vex any of the parties concerned. In order to guard against contraventions, the condition as to military eciuipnu'iitoi every vessel arriving in a port of the United States was to be asccr tained by aciMirate survey unuleon her arrival and again belorelun [21] dei)arture ; but no attempt was to bo nuide to inspect "any *ves sel of war in the immediate service of the government of ;i foreign nation.'' A schedule of rules was appended to these instruc tions; and it is material to observe what tl\ese rules permitted and wha! they prohibited in the ports of the United States, disregarding only some specific limitations which hnd reference to treaties then existing; between the United State.* and France. They permitted — 1. Equipujents of njerchaut ve.ssels by either belligerent, ''puie y lor the accommodation of them as such." 2. Equipments of vessels of war in the innnediate service of the jjov ernment of either belligerent, which, if done to other vessels, would lie of a doubtful nature, as api)licable either to i-ommerce or war. 3. Eorts, and ]uivateers which had been previously tittiil out appear to have bet'U sntl'ered to enter, relit, and depart unniolestod. Thus, on tlu' L'Mtli December, 17!».!, the IJritish ministei, .Mr. llaninioml. wrote to ,Mr. JetVerson : Tilt' (l.iiijrci' to l>f apinclMMKlfd I'ldiii tliisc lii^t-mciitioiii'il vi'sscLs ^niviitt'i'is ill<';;iill,v (ittfd out ill ports of tin- I'liitrd Statis) still ooiitiiiiu's to v\\st to !i viTy aliiriiiin- ut al <'harleston, was. on the vJIst of Anyiist, iteniiitted to return to the port of I'liiladi'lpiiiii for tlie second time, to remain there stnne days, and then to procet>d to sea for tli<' p"'- ' Api)endi\' to Hritish Case. vo!. v, pp. W.\ *270. COUXTKR CASE OF GUEAT BRITAIN. 237 .,11^, (if coniUKMicinj; now deprtMlutioiis, which, ns it aiipear.s from thf i>nlilio prints, ,1,,, j^iiow i)r«8t'cntiiifj in th« adjai-ont «eas; tliat Lc Petit Democrat, and La Carmag- nole botli fitted out in the Delaware, were permitted to j-nter the port of New York, and to coiitinne therein iinnioh-Hted dnriiif; a great i)art of the mouths of August, Sep- tember, and October last; that the hitter vessel is still in that in)rt, and that the I'oriiipr. having sailed from thence in company with the French lieet. under tli<^ ehargo lit Atliiiii'il S(!rcy, and having siiparated from it at sea, ])roci veral vritisli viee-coii.sul at Charleston wrote as follow.s, on tlie L'Sth November, j71U, to the consul, (who was then absent on leave:) ['2H] * Notwithstanding the laws of the United States are so guarded against any hreach of neutrality, the French here evade them, and arm as uuiny privateers IS over. Yesterday I acquainted the collector of the Federal customs in this jtort, who iMliivctcd l»y the Secretary of the Treasury to inspect all vessels in this place, and Ml' that none of them in any way whatever commit a breach of the laws — That the brig('ygm4, fitted for war in this harbor, but afterward permitted to clear iiiit as a merchantman, having been disarmed and her jiorts nailed up, had her guns >.iit after her in the i»riva(eer L'Ami r the above scliooner did, by cutting awiiy the old i|iiarti'r-ili'ck after she drops down, and getting her guns scut aftei her. Tliat a new jirizi- schooner, called the Swallow, vsas lilting in same manner, iiiid ti i'mviilciice sloo]), with many vessels of :i larger size, among which is the old Delaw ale iiijati' that was sold after th(> jieacc, and lilted for a .South Sea whaler. Also, a sloop lyiiii; on the stream, with a large i|uaiitity of gunpowder on boiird, supposed to be for ilii' |iini)iise of supi>lying the privateers.'' Tlie Cyfjnet eleared for Port au l*aix with a trillinjif earjio, tlu'ie ^cit i> comnii.s.siun, and on her return made .several prizes, whieli she sent into Charleston, and of whieh the local court refii.se«l to decree; resiitii lion. The dispatt^heH of the liriti.sh cousuIh at ('harleston and elsewhere in ' Ai>pendix to British Cas', vol. v, \ , 'in". •Ibid., p. aiMt. 'Ibid., p. 2^4. ^4 , H '' .i ( J, 3. 238 TREATY OF WASHINGTON. 1704, 1795, and somo subsequent years, repeatedly refer to privateers tittin^ out or increasing tbeir armament in ports of the United States, tlie difficulty of obtaining evidence against them, and the absence ot effectual means of repression. Thus the consul at New York, on the .'JOth November, 1795, after a complaint of a privateer (the Coquette fitted out in New York, which had taken four prizes, writes : When such vcssisls are fiUt'tl out in America in a .secn^t manner, it is difticiilt to iinj. iMirt' proof against tlieni, an pose of them to tiither of the belligerent ])owers without any i>reach of their iiiMitiiil- ity, provided none of those were in any niaiiucr concerueil in them after tlu-y bicaiin' cruisers. - It has thus been seen that iirivateors wen; fitted out, armed, and com missioned in American ports. These privateers committed cousideiabic depredations on IJritish shippinjn', and took many [trizcs. Let us now .see what was done as to the restitution of the prizes, and compensation for the injuries thus sustained by (Ireat iiritaiu. The final Judgment of the American (ioverument as to what was rioiit to be done in tliis nuitter was conveyed in a letter which Mr. .h'tt'eisoii addres.sed to the Jbitish minister, dated 5th September, 1793. The sub- stance of this letter was, that the Coverunu'iit recognized an oblij.;ati(iii to restore prizes actualli/ hroKf/Itt into its jittrfs after the 5th Jmic, IT'.io. if cai)tured by privateers which had been unliiwfidly fitted out within its Jurisdiction, or to use all the means in its power to do so. If, in any case, it had forborne or shouhl forbear to tlo this, it would hold itsdt bound to make compensation to the owners.' It recognized no otiiei obligation. We shall [)resently see how tiiis engagement was luidci stood. The promise or engagement contained in this hotter was expressly confined to prizes t)roiiglit in iifter the 5th .lune, 179,'i. The line of dis- tinction thus drawn, thougli intelligible as between the United States and l-'nince, bec.uise this was tiie date of Mr. .lefi'erson's proliil»iton letter to M. Gent't, was, so tar as the rights of (Ireat IJritain were con cerned, purely arbitrary, the prizes brought in before that date bein;; us unlawful, accor never perfectly comprehended the principles which could legalize the j»rizes antei'- 'Apitendix to British Case, vcd. v. p. '292. - Ibid., p. 21I4. 'Ibid., p. 255. COUNTER CASE OF GREAT BRITAIN. 239 ilcntly to that period, and invalidate thoHe which were made BiibHe(|nently to it. The list of those prizes annexed to the inenioriul will evince that (whatever may have been (ouet'ivcd by some) their value was not iuconsiderabh} ; but even if their amount had lieeii 1y tlie seventh article of the treaty of 19th November, 1794, after a recital tliat certain Iiritish subjects complained "that, in i„.,,-,m,»o(ti,.M..m the course of the war, they have sustained loss and dam- vTh,', 'AriMr'or \t ;ii.'e Itj reason of the capture of their vessels and merchan- f' '"^ " '"'J' ilise, taken witiiin the limits and Jurisdiction of the States atid brought iito the ports oi ihe same, or taken by vessels originally armed in ports 111 tlie said States,*' it was agreed that, "in all such cases where restitu- tion should not have been made agreeably to the tenor of the letter iiom ,A!r. .lett'erson to Mr. ITammond, dated at Philadelphia, September "i. 17!>'{, (a rl:vs hail licca subticquently broiuiht into an Ahicrican port. The own- \|>|irn(lix til Ibitisli ('use, vol. \ . p. 27('>. "All till- ildcnmints above (|U()te«l were of the date nt' \'\Y.\, the late.st of them of Novciiilicr '.J'i. 'I'iiey were all i»iibiie, and in the hands of the ne^^otiatois (if the pies- Mt treaty. Tliat treaty, which was Hi;i;iied in Novenibei'. 1T!'I. makes the letter of ""litt'iulier, IT'.Iti, the standanl of the enjjayements of the I'nited States ni eases of tiiis 'iiitiire, and directs us, in all cases where n'stitution siiall not liave been mad<< a^ree- iilily to the tenor of that letter, to proceed as in tiie other cases committed to us. 'i'iie ''iiiir of that letter appears to me to respect only cases oceurriiiju after th«> .'>tli .June, >ii(l coiitiiins no stipulation either of restitution or compensation in cases antei'i. ;■:■.(-■! I' 3!^ i: t 240 TRKATY OF WASHINGTON. era, therefore, of a vessel wliich the captors had destroyed at .sea wire entitled to no compensation.' 3. That where the prize had been brought in, no coinpensatioii wuM be chiiined if the claimant had not taken proceedings in a district coim of admiralty, and proved Ins case there by snllicient testimony, or if there had been any negligence or any delay in institnting or carrviii;' on such proceedings, or in enforcing a Judgment if obtaiiied.- [30J *The real etlect, then, of the engagement entinred into by tho(io\. ernment of the Ilniteil States as to restitution or compensation, appears to have been this. The owner of a vessel captured by a slii|, which had offended within American waters against the prohibitions of the United States Government, was at liberty to obtain, if he could, liy proceedings in a court of admiralty, a decree for restitution, and tlif Government undertook in that case either to use all the means in if> power to enforce the decree should it be resisted, or else to indeniiiiiv liim for the loss.' If lie could not obtain a decree, he had no redrow; ' Dticisioii in tlie t-asf^ of tln' .laiiinica, Martin, master. Ibid., pp. 'Ml et neq, ' "From tliin examination of tlie Icttt-r, wliicli i.s j>[iv«!n to ns for a rul«, it results tli;i; it was tlu! opinion of the I'rcsidcnt, therein expressed, that it was incnmhent on t'ni- I'niteil State.s to make restitntion of, or compenMiition for, all siieh veHml.i am! pioinrty belongini; to Hritisli siilijects as .slionld have In ii — lirst, captnred between the (latoiii ,lnne .» and AufjiiHt 7 within the line of jnrisdietiomil jtroteetion of the United .Stativ or even on the hifjh seas; if, secondly, Hueh captured vessel and property were liii)iij>lii into tiiu ports of th(! United Statt^s ; and, thirdly, ])rovided that, in cases of captinv on the hij^h seas, this responsibility should be limit«;d to eai»tnres made by vcssil- arined within their ]H>rts; and, fourthly, that the obligation of conipensatinii sluinln extendi only to captures nnult^ Itefore the 7th August, in wliich the United Statt'fi limi conft^ssedly forborne to use all the means in tlieir power to procure restitution ; ami that, with resjiect to (rases of captures made under the lirst, second, and third cirLiiiii stances above enumerated, but bnuiglit in after the 7th Aujjust, the President iiail dr termined that all the means in the )>o\ver of the United States should be used f»r tiiii: restitntion, and that he thought that compensation would be eipially incuinbiMit im the United States in such of these cases (if any such shoultl at any future time occur where the Unitetl States, having decreed rt^stitntion, and the captors having oppnseil or nd'used to comply with ov submit to such decret;, the United States should foibini to carry the saun) into ett'ect by force. "Sncdi was the promise. In what manner was that promise to be carried iutoctiVct ' It was not absolute to restore, by the hand of powtsr, in all cases whore ciiiiipl iiiii should be made; if it had Ikumi such, there would have been no want of eoinplaint-. aid France herself would have had a better reason for niiikiuj; them than any oih' i party. No, tiie itromise was conditional. Wo will restore in all those cases of chim ])laiiit where it shall be established by snllicient testimony that the facts are tin which tbrm the basis of our promise — that is, that the property claimed bdoiiiis i" liritiRh subjects; that it was taken tntlier within the lim^ of Jurisdictional iirott'LiiiMi or, if on the high seas, then by some vessel illegally armed in our jiorts; and that tlf propecty so taken has been brought within our ports. IJy whom were these facts i" Im proved? According to c^very priiK.'Iple of reasmi, Justice, or ecpiity, it l)('loii;,'s ii' him who claims the benetit of a promise to jirove that lie is the person in wliosi' lavoi or umh'r the circumstances in which the promise was intended to oi»erate ; aiiilsini' it is the jtarty promising redress who must lirst \ni c(mviuced by testimony "f lli truths and justice of the comidaint before the obligatiim of his promise can aiiplyan'. bind him to performance of the stipulated relief, ho is, of course, tin; jirojier lu'isunt" decide under what fmnis, and in what manner, the examination and jiroof of tlio' facts is t«) be conducted. Accordingly, every civili/.ed nation has establisiied lawsaii'i Judicial foiins for doing right, for redressing wrongs, and for restoring to the tni' owner properly which may have been unjustly wrested from him." — Decision in tli' case of the I'di/abetli, Ijoss, master. Ap|M'ndix to British case, vol. v, p. W'i'i. ' " It appears that by the expression ' all the means in their jtower," tliey meant, liH thost^ means which the Constitution and laws had provided for tin* redress of wnm; and force whenever it should be rendered necessary by any act of ojipositioii to tli' ordinary ccmrse of Justice. That although doubts nntertariued by a part of the Jnilkui establishment of its jnrisiliction in these cases had placed them fm* a time umlci tli' immediatt! eye of the Kxeciitive jtower, yet to the coinplaiiiant this produced miiiii )>ortant change, since the same examination and proof of facts was reijuired tovstiiji jish the justice of his complaint and to guiile the decision of the rresideiit, as wmiM COIXTEK CASE OF (JKKAT BKITAIN. 241 I tbe iiiejiiis used by the Goveruinent proved iueft'ectual, lie bad likewise no redri'ss.' Ho was equally without redress if bis vessel bad been plundered or destroyed at sea and not brought into an American port. II the capture was made before a certain date arbitrarily fixed, then, iltlioush the prize bad been brought within the jurisdiction of the I'uited States, the Government would do nothing to secure him either lesritution or indemnity. This is one of the two precedents on which the United States rely as .stablishing the proposition ''that when a neutral fails to use all thr menus in its power to prevent a breach of the neutrality of its soil or waters in any of the foregoing respects, the neutral should make com in'iisatiou lor the injury resulting therefrom,"^ and as justifying the iliiims it now makes against Great Jh'itain. AVhat the other is we 4iiill st'C presently. Let as now observe the terms in which this transaction has been rep- ivseiited to the arbitrator^ : I'lie (iovt'rniiiciit of (SeiiiMiil Wasliinjjtoii (Icti'iniiiii'd. Iiowever, as it liad lieeii in- .iiiit'd "f tln'sn att*;mpts at violatiiifj tlits sovi!r(!i«inty ,v vitssi-ls tIniH iilo;rii||y tittiMl ont, niannc*!, eipiipptMl, or coniiuis- •imiicmI witiiiii tli(^ waters of tiio rnitfd Statt-s, or. if uiiahlu to n'.storo them, thou to iiako roiiipt'nsation for thcin.' From this examination it ai»iH;ars * * tliat thu Uiiitoil States undertook to make Miiipiiiwition for tiie injuries resultinj;' from violations that had taken place wliere they had (ailed to »!Xi'rt all the in« ans in tlieir i)o\ver t(» prevent tlioin. It ;|] WHS siihsei|U(ntly 'ajjireed betweiMi tlio two oovi-mments that in eases where restitution of tlie prizes should ho impossihh^the amount of the losses should 1m- iHii'tiiiiied liy a method similar to that provided by the treaty of Washin^^tiMi, and iiitt ii money payment should be made by thu L'nited States to (irout Kritain in lieu -t'n'stitiitiou.^ TIh! Iriited States are aware that some eminent En<^lish publicists, writin^i; on the •il)iiH't of the Alabama claims, have maintaini*d that tlie ol)li uf the claim and paid the comjteusation demanded.' Her Majesty's government deems itself entitletl to ask whether these 111' correct re[)resentations of the facts sttited in the foregoing pages. One of the vessels equipped and armed for warlike use within the rmitory of the United Stiites was, after leaving it, commissioned as a jiiiblicsiiipof war of the French IJepublic, under the name of the Cassias. Tlio siibsetiuent history of the ship has been often referred to in argu- iiii'iit, and may be briefly noticetl liere. The L'assius h.ad sailed from the Delaware Itiver in .January, 1795, iiuve lii-eii rci|uired before the Jud^jcH. That after the IHth February, 17'J4, the decision •It the Sapreine Court liail rcmovc«l those doubts which had for a tiino inlluenced the oiiduet of sonic of the inferior courtH. And it does not appear that after thatdunision 'lifip was any delay on the part of th»» inferior courts in renderiu};, uor any opposition III tilt; ))art of the captors to the execution of their proct^ss or decrees, insomuch that tlu'ic uxisted no occasion thereafter to fullill the ultimatum of the i»roiuiHC by exerting iorif to cuuipol restitution." — The Elizabeth. Ibitl., p. ;1'27. "It appears frtiin the lirst part of this iiii|uiry that, in promising to use all the means III their power fi>r the restitution of vessels captured after that date, the 1 'nitod States lid not undertake to make compensation in case tliosi^ means should fail of their •Hwt."— The Elizabeth. Ibid., p. :W7. Cmv of the United State's, p. 'il'2. l'»id.. p. VMi. ' Ibid., p. l:tl. Ibid., p. i:{(i. I«! A— II I 1 1 •>4-> TBKATV OF W ASIIIXOTOX- ( nw ot ihf- r»**it after an onler to ««eiz«* lier had l>een ii^-iiitMl. avoiiliii*^' d^t^ tioii partly by artifice, and partly l»y tlin*atenin^ an arm.. resistance to tbe L'niteeen captureil by her at sea. ani>nd»Mi(«-,(i. too long for recital, and may be read in well-known IkkiIvsJ It is >".tt cient to mention : 1. That the Frr>ncli minister laid claim to the ship a< a pultlic .oliif. .. war, and refus«Ml to !m- a party t«» any pnM'cetlinjffj in the Iwal court*. .. to admit in any way their jurisiliction. He refuse to fun.'sli u\) proof of her allege*! transfer to his government, or of her character a> a public ship. Ijeyoml his own declaration, given to the Executive a* j act of courtesy, that she had l»e<*n s<» etimmissionetl at a certain «lat«-. 2. That the ius had lx*en armetl and e4|iit|i[>t^ within the L'nitetl States in violation of their neutrality, did not claiti any right to seize and detain her. but. on the contrary. instru«-t<-4{ jr. law otiicer to presi-nt to the court a "Migg-stion" (as it was techniiall. called) that, as a public ship, she «»ught to be release. at the end of which she was s<.»ld for a tritlingsum by order of thciJi.v eminent, after a prior ni>titication to the French consul-general, wh. had answere,.„.- "'• :> ''till larger .«-:de, for fitting out piivateers against Da hlrmTih. "r?/'.'.'-'' tioiis with which the Hepiiblic was at |ieace. The vessel* iCrV,r.'.i''..*mrr I!I^' •*^» tittinl itut wen' numernus. and ihcy ap|>ear to have \<^'. ^'"•'"' •■""'■""• for the most pait ownetl. as well ascumuianded and uiaunttl. by citizens of the L'niiwl Slates. The object of these ventures w.> plunder; the men employetl in them were under little or no disi-ipliiK- or control ; and they iyi)iiietime-s degeiienitetl into actual piracy. Irnr:. which, iii«leef Spain an«l l'ortuj>:ether T^irli evidence to support the char^L^cs. This c«M"respondence has l)t'eu rvtVm-il t«», but very ina«rcurat<'ly, in the Case ot the United States. Thus, a note of the Sth .Marcii. ISIS, atldressed by the l*ortujruese miii- :srer to Mr. J. Q. Adams, the Secretary of State, is nu^ntioned with the iiilloirin<; comment:' '^ The note making; this complaint contained nt-itlier priHif of the al!e«;ati«ms in the note as to the tittiu}; out of the vesseU in the United States, as to their Ihmiij; manned with America. is, 3'tr indications from which the United States conhl have discoveretl :bt»s«* facts for themselves." The note in question, w hich was very short, i-iMitained the following; passa;;e : "An extract of the documents that isrsivf these facts I have the lionor of inclosin<; in the annexed |)aper. Thf (litcuments themselves are at your disposition when re(piired."^ U.it Mr. Adams did not ask for the documents. He contented himself auli answerinjj : TheOf till" I'liift'tl !>tat«'.s having iisi-d all the lnoall^* in its imwor to jnc- vr-nt the tittiii;; out ami aniiiii;; ot" vt-ssels in their ports to cruise a<;;aiiist any nation vitli nhoiii they are at jieaee. and havin;^ I'ailht'nlly carried inti» ext-cution the laws -iac"«-r«*s«Tve inviolate the neutral and pacilic oliiijjations of this Union, cannot ■ '"oi'lt-r tt»«*lf lionnd to indemnity innii-^il or in Bni/il. as wi-U as in this country, could only serve as a foundation for t 'I'Mi-. ia il;iMia;5<*s. or I'or tlie pro>iM-ntion and trial of the |)ersons supposed to have '"-s alle>;ed in them, t^honid the parties conui siihiu the jurisilictioa t»f tlie I'liited States, there are courts of admiralty competent ■■■-.'(vrtaiii the facts upon liti<;itio!i betweiMi tlieni. to piiuisli the outra;ies which may •- 'I'lly pn»vf«l. and to restore the- property to its rightful owners, should it also be 'Uiit within our jurisiliction, and found, imioii judicial inquiry, to have lieen taken ::i'- iuinn»T represented liy your letter. I{> the universal laws of nations, the obli- ^jtioiexif iIk' American Government extend no further."' ••The United States,*' wrote Mr. Adams on the .{(Uh September, 1820, -had repre.sM'tl «*very intendetl violation" of neutral duties" wliich had l«»^ii Imnijrht InMiire their courts, awl stthstantinfeil btf tistimony conform- "Wf t't principles recof/nizel hy all trihunals n/^tiniilar jnri'ulietion.'''^ They aatl alsij enacted more strin^^eut laws. Bit it ha>l lii'en represented by • ^Vl• I'nite*! .Stat«-H r«. Klintock. '> Wli -atou, 1 14 ; United .States r<. Sniit h, ibid., l.'>:{ ; ' iitnl Slates r*. Furlon-;. ibid.. l*l: United .Srates rt. Jones, ;{ Washin^rton's C. C, ^'.•: aud the case of the otlicers and crew of tlie Irresistible, 16 Niles's Kejiister, '.iSG, AppeiHlix to British Case. vol. iv, No. .">, ( orrespondence respecting the Shenandoah, ^i''. A|i|M-udix to Case of the United .States, vol. iii, pp. Tm;! vt xj-jy. 'fa.'s.r of the Uiiite. Ibid., p. 1511. ' llMiL. p. ly*. 1 t- y 244 TKKATV OF WASIIIN(JT()N. I rortiijjjil that, in s|»itc oftlii'se iiowly eiiactt'd laws, tlie acts coinplaiiii'c, oft'oiitiiuiod t<> hv " both Irrquont and notorious;" it was altirnuMl that till' otlici'is of tlie (Jovcrnnicnt were " hikewann ;" that notorious as tin ollenses were, itwasdittieult to obtain the eviilence which was r«'»|uire(l: and the niultitu(h' of persons interested, directly or indirectly, in i»riv;i teeriiiff, interposed jjreat obstacles in the way of a i)roseeution. 1d;i note addressed to !\lr. Adams on the L'.'Jd November, 18l!>, by M. Coiti ;i de Serra, the grievances of Portugal were recajHtulated as follows: I liiiM- (III- liuiior t'ollowin;^ fat'ts iiixl coiisiilt'riitiiiiw: iMirin^ nmiv tliaii twoyt-iUH I liavd licoii olili\.. tfiiiatii- and i)i<;aiii/i'd dfi>r*-datioiis daily coniiiiittt'd on the pro)M>i'ty of rnrtiisniv >nlijtitH liy |»-o|df li\in8. and uitli sliip.s litti-d in |Mirt> •! [:>:{] till- I'nion. Xo till' rnin of the coinnieici- of l'oi-tn;;al. I do jnstiet; *tii, unil :iii. yrat«'ful for, th«! |)i«Mf«'dinj;s of th«' Kxt'iiitive, in ordor to pnt a stop i.i tin v ih'jin-dations, lint thi- I'vil is rather inri«'rtsiii;i. 1 can prexnt to yon. if n-iinin il. a Ij.i of lifty l*ortn;?n«'s«' ssliips. aiino.st all richly laden, some of tln-ni Kasf Indianuu. wlii,; have Ih-i-ii taken hy the.se people dnriii):; tli(^ period of fnll peace. This is not Ihi! wlm;. lo»« we have siistaini'd, this list comprehending; only those captnres of wliieh I |ia\, received otiicial eoniplaints. 'I'in* victims luive lieen many more, lusjilcs \ it)l:iti(iii»( territory liy landin<; and |)!nn three arnu-d sliijis of this natnre were in that port waiting; for a t'^vm able (Hcasion of sailing; for a crnise. Certainly, the j»eoi>Ie who commit thesr i\r»'v«i- an- not the I'nited States, lint luivertheless they live in the Inited Statt's. ami i iii).l,.' against ns the resonices which this sitnation allows them. It is impossililr to vit" them oth»rwi>o than a w ide-exteinled and iiowiitnl triiie of inlidels. worse .>lill tli;,i tho>«- of North Africa. 'I"he North Africans ni.-ike pri/cs with h'a\e of tlieii ^'ovi-r! iiient acenulin;; to their laws and after a declaration of war: lint the>c wor>e inliiltl- of whom I s|if:ik. make prizes from nations friendly to the I'nited States. ai;iiin>t tli' will of the (iovermncnt of the I nitcd States, and in spite of the laws tif tin- I'liit.r Stato. They are more jiowerfnl than the African iididels, lici .inse tlie wlioli- cdiist • liiirbary does not jiossess siuh a streiijitli of jirivateers. The,\ nnnn-rons ami widi! M-attered. not oidy at sea for action, hnt ashore likewise to kei p their f^roiind auain- the obvious and plain sense of yonr laws. sinc(> nnist jienerally. wln-rever tlicy h.n bivn called to the law, they have found abettors who have helped them lo evade th laws by formalities. I shall not tire you with the numerous instances of these fa «pprcss«'d by prayers for bread frtim rortuyuese sailors, thrown pennih'ssoii tb *hun-s alter their ships had been cajitured.' In the Case of the Unitetl States, the minister who writes tliih ••arne.'^tly and vehemently is representeil as "attaching little or in imi>ortance to the matter.'*- The reason given is, that he atlds that bi has chosen the moment to make a visit to Jlra/il. JUit, in the seiitoiitt* •whieii precede and follow, and of which no notice is taken in the (.'as* of the United States, he has explained why he chose to leave his postal that particular time, namely, that until, by amendment of the law, oi otherwise, the proper means should be found for putting an end to tlii- ** monstrous conspiracy," he found by experience that complaints wen u.sele?s, and should refrain from continuing to present them without l>ositive orders.' Tortugal asked (IGtU July, 1.S20) for the appointment of a joint com ' Ap|K-ndix to Kritish Ca.se, vol. iii, p. !">.'). -t'ajjo of the I'nited States, p. l-lli. ^ At p. Ufi of tin- Ca.se of the IJnited States, Marl l{us.sell is accused of liavin<; I'ln ]HMely ouiittiHl. in his correH|»ondence with Mr. Adams, to notice the promises iiiailf '' the American Government, that pej-sons ottendiiiR ti);ainst the Iuwh hIiouUI be jiriw fut»Hl. On the «on truly he exjtressly mentioncil this promise. (See Appendix tiita~ of the l'nit, lie is represented a^nj' pn>\ini:. assuming, assentiii<> to. all tin- arfiuments which he had sinijdy rccen iuelfectually r.njed in the former controxersy by riulu^al. roiXTKK CASi: OF (iRKAT MRITAIN. 245 :iii**ioii: liiit this was refused by the United States. '• Tlie iippoiiit lueot of ooiiimissiiHier:*,*'' it was replied, '• to eonfer and a«jree with the ministers «)f Her Most Faithful Majesty upon the suliject to whieh y»»ur AU'V refers, would not be <'onsistent eitlier with the Constitution «»f the I'liited States nor with any practice usual arnon<; eivilizetl nations. The iiulicial power of the I'liited Stiites is, by their Constitution, vested in their Supreme Court, and i»i tribunals subordinate to the same. The iiil : Thf ninlfrsi;^ii'il \> ■j,-< 1 ■ ivi- tn >• :i\ , .•iinl lu' ^iilnnits. t!i;ii if w.i- lii'- li' y ri-ason tlieii-of. M. lie Fitjaiiii II' would here let all to the lioiiorahle Mr. Wehsti-i's .ittiMition the state ol the negotiations het wi-en the two j^oveinmeufs o-i tills siilijeet. So early ;'.4] as the year l-l(i the Chevalier •('oiii'-a de Seira. His .M..»t I'aithlnl Majesty's |i!i'iii|totentiary. a|>|iri»ed .Mr. .lames .NIonroe. the then >eeii tary ol" Slate, nt* •'i-M- illegal .'(riiiaiiii-nts in Baltimore. In Manli. 1^1-', that iniiii>t r elaiiiied iii'leiii- ..lii-alion l>y tie- (otverniiieiit ol' I he l'nited States Tor the looses snstained hy rort'i^jiiesi! •'ilijects i"ioiii tli<- i-a|>lnies made l»y the said [nivateeis. to whieh a]i|iliealioii • iie Si-o- • tary ol" State, in a note dated the lltliolsaid .Maieh. re]ilieil that -the K eentive ::iviii^ ii-«eil all Its |to\ver to prevent the aniiiii!; ol" vessels in its ports a'^ainst n.itioiis nth whom it wa* sit peaee. and liavinj^ ]iiit into e\eeiition the aet^ of C'on^iess for -'■•■|iiii:; neutrality, it loiilil not consider itself ohli^ed to indemnify ion i^iii itidividiials ■•ir l'iN«.- arisin-j i'l-iiiii rapt iircN upon whieh the liiited States had iieitln-r i-ommand I'lr jiinsilietion. " Till- iiiidersiiriieil willin;;ly admits that if the K.vocutive of tli- I'niteil .States had 111 all its power to prevent the armiiii; of vessels within its territory, and tlieii sail- n.' from its ports a<^aiiist the commerce of I'ortiij^ul, no claim could have l»ecn .set up ■vor ill iM'lialf of I'ortiij^iiese snhjects .against the (Joverii neiit of the I'liitcil .States. 'ill that the only reiiiedy would have been against the wroiij^-dixTs. in the courts of law I the liiifed .States, ijiit, ill point of fact, the tittiii<;-init of these privateers was so '•toriuiis tliat.hy due dilij^cnee jiii the part of the iiovernment and thi; otlici rs of the I iiiteil States, the evil inifiht Inue lieeii jireveiited. It aiUK-ars to the iiiiilersi<;neil that the only i|iiestioii to he exaiiiiiieil is, whether the "•Vfrmiieiit of the I'liited States could, hy the exercise of a reasonalde de;;ree of dili- ^•'nci-. have prevented its citizens from sjoiiij; out of its jiorts in armed vessi-ls. to cruise i.Miiist ti.e commerce of l'ortu;rul,a friendly nation with which the I'liite.! States had ■vcrU-eii at jH-ace. and had iiiiinternipted comiiiercial relations. Tlie iiiiiK'r>i jxiw.-r of the UoveriimiMit." but that there was a " iie^jlect of tlie iieces.sjjry means •f *ii|>|ires-in"litiiiiis were commonly fitted out at that jmrt. Indeed, privateers were not only •^luililhil ill ISaltimore. hut they were ticciistoiiieil to hriiifi their captures there for ' .\p|M-iidix to Ih'ilish Case. vol. iii, ji. 1.'>T. f- B \m I :^f 2Aii TKKATV OF WASIIlXdTOX. ' ir J , Jl.i^i. Miilc. Till' (toMTiiiiiriit <>r tin- I'niti'il Stuti-s iniy,lit, liy the cxiTi-isi- of diii' i'iviitecrs troiii xallviii' lortli. " Tliti aiitlinriiii's of flic Siiit<' <>{' Marylnnil wcic rvidi'iitly lu'^ilij^ciit in iMriiii|ii||„ tlicsi- waiiiki- |iri-|iarati<)iis in tlii> |i(Hi of Italliinoif, and as no claim can ln' hhmIi. i,^ l'i>rtu;^al a^rainst lliat State, all c()ni|ilaiiits t'onnilcil upon the nc^liircncc of tlif Stuii anthoiitics nui.s|,iit' coniNc; he made against the (iovernmciit nt' llie I'liited SlatiM. ;ii,i| tliiM iMtviMiiuieiit is, theret'ore, as the nndersi};ne(l t't>nceive»<, liahle foi that im <<;l('i't.< To tilis dispntcli in) aiiswor !ii)iK'iiisloliiiv«> boon inado. Tlio (Itivcin incnt ol" tilt' I'liitt'tl Statos had icitcratod its roliisal to r«'tVr the cljiiins to a coimnissioii, ohjoctiii;;' that thoy were '• ohsoh'te."- It was. Iiow ovor, at till' saino tinio, jnossiii;;; ajfaiiist I'orttipil u chiiiii for ('(»iii|hmi Nation on account ot" an American piivatoor, tU'stro.vcd in tiio poitci Fayal in 1814 — a chiim, tiicrororo, which was of still earlier date tli;iii those of J'«)rtnj;:a!, and was afterward referred to arbitration and reje<-ted. The coini>lai]its and expostulations of the Spanish minister, Don Lujv de Onis, Averc^ still more fre;al ; bnt the snbstaiico ot them was the same. The notoriety of the acts e<»mplaiii('ii «if, the o|ienness with which they were done, tlie toleration of tlietii liv tin' anthorities, the refusals of the collectors of customs to act on evidence within their reach,' the diilicnlty which the Spanish consul- exi)erienc»'d in obtaining; any testimony against unlawful speculatinih in w liich so many persons were interested, were strongly and repeatcdh insisted on. These grievances Avcre tinally summed np in a iiot( addressed to ^Ir. J. Q. Adan)S on the Uith of November, 1818, in tlu course of the nej^otiations for the treaty of the succeedin«; year: \\'ljatc\er may l>e the forecast, wisdom, and jnslice cons]iicnoiis in tlio laws of III^ I'nited ^?tatcs, it is nniversally notoiions that a system of pillajii- and ajim'essioii li;i- been orjiani/cd in several ports of the Union ajjainst the vessels and piojierty of tin Spanish nation: and it isciin.illy so that all the le<;al snits hitherto institiifetl li\ Hi- Catholic; Majesty's consnls, in the courts of their rcsjiective districts, for its prevciitini or the recovery of the jiroperty when hron^ht into this country, have been, and sli are. completely unavailing. The artifices an«l <'vasions l»y nu-aus of which the Utt'i of tlui law has on these occasions been constantly eluded, are sutlieiently known, iiinl even the comhination »»f interests in jicrsons who are well known, anion^ wlioiii aiv .sonu" holdiii*; i)ul»lic ollices. AVith a view to alVord you and the President inon [:',."> "1 ctuuplete demonstration of the ahn.ses, aj^jjressions, and i>iracies ''alluded to, I inclose you correct lists, extracted from autln-ntie doeunu'Uts deposited in tin archivesof thishMjiitlon, exhihitiujrthe number of privateers, or jtirates, fitted out in tin I'nited States against Spain, and of tlio prizes brou>rht by tht'ui into the jjorts of tin Union, as well as of those sent toother ports, toj^ether with the result of the claims minlr l\v the S|tanish consuls in tlu' courts of this country. Amonjj them you will tiiid tin case of two armed ships, the Horatio and Curiazo, built at New York, and detaiiiod i» His Majesty's consul there, on the ground of their having on board thirty pieces nl cannon ouicealed, with their carriages, and a crew of l(i<,' men. On wliich occasioiiii was ]>retended that it could not be juoved that these guns were not an article of com merce, and they limilly put to sea without them, the extraordinary number of oilicTt* and crew pa.ssing for passengers. The number of privateers, or pirates, lifted out ami ))rotected in the jiorts ot this republic, as well as «)f the Spanish prizes made by tliiin far exceeds that contained in the within lists, bnt I only lay before your (iovcnnniiii tho.se of which 1 have certain and satisfactory jnoofs. The right of Spain to an ade(|ii:iti indemnity for all the .spoliations committed by these privateers, or ]iirates, on the Crowii and subjects of His Catholic Majesty, is undeniable: but I iu>w submit it to your Govern- nient only to ptiint out the extreme necessity of putting an end to these eontinnedad- ' Appeiulix to liritisli Casj-, vol. iii, ])p. Ki'), ItHi. - Mr. Clavt«m to Senhor de Figaniere e Morao, March :*)(), 1A')0.— Appendix to Hiiti^l Case, vol. iii, p. IGIt. ^An instiuciive s|)ecinieu will be foiind i>i the c(UTesponden«'e which accoini''"'"'' the note of Don Luis de Onis to Mr. .1. i). Adams, of November '2, If-IT, (see .Vpiuiub to the Ihitish Case. vol. iii, p. IIH.) It does not appear that any answer was ntiinii' by the Secretary of State to this application. <<)rNTER CASK UK ii, atxl of iiitliii^ shtnl l|ii--«- I'litiriiiuiis anil lla;;ianl al>Ms<-> ,iii| )\il>, iiy IIh> aiii)|ition of hikIi flVi-iliinl |)ii'riiiili<)iiH ami ifint'tliis as will piit it out ,:' the |Mi\vi-i' ol' ciipiility or iii;rfiiniiy to ili'li-at or cIidIc tlinii. In \'ain .shonhl \vi> rii- il,iiviii aiiiir privatiM'is lillcd r>< In tlic Case ot tlie Iiiitt'd States: The I'nited States nnderstand that the diiij^eme which is culled for l»y the rules of hr treaty of \Vashiny;toii is a tine dili;ience: that is, a diliu'ence proportioned to the .;i;;iiituile of the snhjcct.and to t he di<;nity and siren;;th of the power which is to Miiisc it; a iliii;;ence which shall, liy tin- nse ofaciive vi;filance, and of all the other iiaih ill the powei' of a neutral, tliroii;;li :ill stages ol' the transaction, prevent its soil Mini lii-iii;{ vi(dat<-d : a diligence that shall, in like manner, deter desi;;;iiin>r men from Miiiiiiittiii;;' acts of war n|>on the soil of the iieiilral a;;aiiisi its will, and thus possihis ;i;iu';;iiiy, it into a war wlii
  • iirpose of doiii;;- the acts forhiddeii liy •• liooil faith as a neutral, and iiii|ioses upon it tlie oldi^^ation. wiien it receives the ^Il()^^]cd<{e of an intention to comiiiit such acts, to nsi' all tln^ nwaiis in its power to iiiviiil it. \o (lilijjt'iice short of this would he due; that is, coiiiineiisiirutc with the iiicii^ciicy. or with tin? nia;;nitiide of the results of iie;;li;jence.-' Tlic r>iitisli <4overniu«Mit may In* pcnnitttMl to ox'incss their helief that ! tlii.sdefiiiitioii hatl been eoiiteiided l'«)r in ISIS l>y .S|iain and JNntujjal, I wdnhl liave been deemed by the (Jovenimunt of the United States to iwjiiiro iiinch quidilieation. it is anege, (.'ompeniiation w.is made by the United States to Spain tor injuries similar to tho.se whieli they assert that tlu>y have sustained from (Ireat IJrilain. No compensation was paid 10 Spain. The Government of the United States api)eiirs to eonfouud a rticiprocal remineiation, in ma.ss, of di.sputed claims not ascer- tained, and not admitted to be valid, with a payment, by set ofl', of , ^. ily occur in some ports of ihc Up'op, in coiisc<{Uciic(» of tin vafjiio iind arbitiiii'.v intcrimMiilioii wiiich it s.'oins the inciisiircs uiiti! r.ow adopted iiie suscej)tiblo of, usui by means of which thi; hiw i> eluded'' — in sliort, to amend its neutrality hiw — th(5 refusal <»t tli. Ainericaii (loveinment was conveyed in theses terms: ''Of the niaii; eoin{>laints which you have a«ldresselaint within the scope (»f thesti|udationsof the treaty." The complaint was. tiiat many acts had been ('ommitted which Wd, vi«>hUions of international law as well as of the treaty. 'J'!'" :i',s\vti was, that no sullicient i)roof had been .niven of thes»^ \ iolations. |r may be obserxcd that the claims of the l'nit<'d States a.ijainsi Spaji Mere founded on complaints \('ry diiVerent. and appari'utly of \ei v n. ferior force, to those urj^ed by Spain aj^aiust the c'niled States, li m;,, be further remarked Ilia? the treat;, oIL'Tth October, !7!*.~», iM're rcicii.. to, cont;;i'«cd, with other i)rovisions for tlif ]»rot<'ction of Spanisii com nierce, an ajiri'enu'nt that no citi/en or inhabitant of the ITuited SIatl^ shonhl ai>i>l.\ for or tak«' any coinniissiMn (»r letters uf marque lb)' aniiiu. any ship to a<'t as .i pii^att'i r a;:;ainst Spanish snltjects oi- tiieii |ii(i|. orty. from an\ state at war with Spain, and that any pi'rsou doin.u tiii^ should Ix" imnislied as i puate. The obligations of the I'nited S'.a;; - to S|)ain did ne!.. \i hiN.'^ I)!' iKi: .Vaii::;ic.\n .\i;i ri; \!.ii'\ law A.s ihe railed Slates ha\A' ajipealed to their history as ilbistratin. their concepti«>n of neutral duties, and oi" the measun-ii: th."''w"^;!!'''','r' dilijiciu'e which fhuse duties r<'((iiiic. it is necessary roivi-: to s«une later jiassaj^es in that histoiy. sfiowiuf;- the iiii|iiiiiii with wh'ih armed e\]>editions have been repeafe.Uy, and with little im no attempt at ct)nce;:lment, oi'^^ani/ed within the [ nited i'ttates. aii' k,i,..uM.i„. .1.. dispat«'hed theiic" aiirainst the territories of tiieml!\ in •■""•"■ tions. The expedition.^ to whicii llei' .Majest v's government desire moif im; tie/, from the United States are as folii;\ss: On the Hth Aiuvust, l.S45>, the rre.siden^ of the riiited States i.ssiiiu a proclanuition statinjn' that ''there is reason to b«'':eve tli;ii an armetl expedition is about to be litt* d out in tiie riiittii States, with iia intention to invade the islaml of Cuba or some ef tin Itrovinees ei Me.\ico,"and that "the best information which the lAOt" ine has b«eii able to obtain poiirls to the island of Cuba as the elijir: of this exj«e«lition :" and <'alliny' upon " every ofbeerof this (loveiniiuiii il'.iii I.nis di' Oiiis to .Mr. .1. i) A'laiiis, nitoixT "Jl, 1^1-, ^niijifinlix to lliiti.-li l"- Tul. iii, p. l','l»;) Mr. .l.(^ AdaiiiH to Don laiin i\v Oiii.x. nli adventurer, Lopez, whose preparations for a niaraudiuii iivasion of Cubii. with a view to its annexation to the i..„„.,-, „r.t.xi- liiitt'd States, had jjiven rise to this proelaniation, eon- """' '*'" ;ii)Ui'il tlu'tn un«ew Orleans 111 a steamer with about .■»()(> men, i'eeompanied by two other vessels, and, ,111 tilt' 17th, laiuled at Cardenas, a small town on the northwest side of the island. liOpe/ occupied the town, but shortly afterward troo|)s ar- i{\C{\ from Havana, and he was compj'Ued to rei'nibark, and escape«l 10 tin- I nited States. On the Jith May liOpc/ was arr«'st«'th duly, torty-two of the pt'rsons who had been «'n;;a;;ed «ith him in the attemjited invasion, and who had been taken prisoners. Aire lilicvatill auainsl Lope/, and lifteen others, for violating tin' act of ISIS, i'lii' Aiiu'ri<;in < loNciiimcnt, liowcxcr, faih'd in makin^i' out its ease ijiliiist one or two of the parties, and linally al>andoned the putsecu- ■idll.' No .sooner was Lopr/. at lil>erly. than he set to woi 1^ to or^u i/.r .tiiotlier expedition, of which an ai rcsiilriif in ill I'll i I II I Sluli'.--. \\ Ini wi'i'c iiioir III Irss ('(iiii'i'nit'll ill t llr |Hrvi(Mls ill v:i>iiiill ol' < ilhil, i»|i';iil 111' lifiliu ilisiKlllilUfil li\ ilN r;lilliri'. ll:l\c il;iilill alillsril llii' liiispif :ilit v kI' tilis tilllltl> li> illilUill^ it till' set-Ill' i>r till' ei|ili|>lllelit uC jiliotlier lllllihll'V expeilit lull .;.lill>! liillt )iii'.>e^siiill of Mel' ( ill llnlie M:ijesly, in S\ lliell tiles We're eiilllilelljllireil. iiliil. mill JiMiied liy eiti/eiis III' till- I 'iiiieil States. * ' " \'erv t'lirly in the iiioriiiii;; *>!' Ill' ;i(l iifAiiirnsl ii steamer, calleil the I'aiiiiM-ni, ili-|i:ii'teil t'lniii New Oileaiis lur Ciilia. !:iviiii;iin liuani n|)\\arx|M>iliti l't>reiy;in'rs. 'i'lie |ii-\'sims i't>m|iosiii;; it. iiiiwt'M-r. wt't' iiiosilv I'iii/eiis tit' ihe liiitt-tl States. * ' '{'he steamer iiiwhith :iii'y tiiilcrketl It'll New ( tileaiis si '.iltliiiv anil w ilhont a t'learanee. .M'tt-r tniiihin-; it Ki'\ West, she in'oeei'tletl In the coast ol'Ciiha, .'illil nil tile Ilijihl lietwt-eli the llth tiitl 1','tli tif Aiij;nst laiiili tl the )>eisitiis on lioaitl at I'laytas, within alioiit twenty 'i'ii;;iir> 111' Havana. 'I'lit- inaiii '(ihI.v of them )iiiiret'iletl tn. ami took piissessimi ot', an iiihintl Nillaiit'. .six leajiiie^i ili.stant, leavinii; others to follow in i'har;;e of tin- lia;jiiai;i-. '"siiiiii as the means of .ranNpoi'tation I'oiilil In- olitaiiietl. The latter liav iii 'licir line of iiianli tn eonnet't. themselves with tho main Imtly, ami liaviii;; iiroeeeili'tl ilMiiit ftiiir lt'a;.;iies into tlif itMintry, vvt-ie altaeketl, tni the nioinin;; of tin- lUtli. liy a khIv t)f Spanish tmops, jvnil a hlootly tiinlliit eiismil ; after vvliieh tln-y rt-tieattil to :lii'|iliii't' of ili.seinliarkatinn, vvlii-re altont lifty of them olitaim-tl lioatsanti rt--i-niliarki' «as earrieil intoelV'-ft on till' Kith of .Vny;iisf. " ' Aettiitlinj; to the reeonl '1 lilt' examination, the pi iMUit-rs all ailinitteil tin- ntlii'nm's iliaiyeil against tln-iii. ot' "iiij^liiislih' invailersof the islam I. At the t inn- of their trial ami exetiitioii the imtin '"hIv tif the invaders was still in tin- lit-hl, making; war upon tin' Spanish antlioiitit'H I'ltl Simtiish siilijt'l'ts, Affi-r tin- lapse of soiiit- ilays. Iteiiijr oveieomt- Ity the Spanisji "'"'ps, till y ilispevsed on tilt' •i\t)\ of .Vii^nsi ; l-ope/. their h-mler, was eaptnn-il some '''y^iil'li'i, anil exeenteil on tin- 1st of St-pti-mlter, Many of his remaininn foll<»\vers ""■ killed, ordied of linii;^er .iiiil fatijiiie, ami the resi wen- math' piisom-rs. Appendix to Hritisli Cast-, vtd. Hi. l{i-port of \t-iitru!ity <'iMiiiiiisMii>ii. p. '.'>\. ^-M 250 IKKATY OF \\'ASIII\(JT0\. "■»(#• liiit wliat ;;i\rsa pfiiiliar ci iiiiinalify to tlii.s invasitm y means like these arc far more ciipahlc than the i;r iiii- laiit and the iieeessitons whom they induce to iro t'oith as the osleiisihic parti"s in ij )iidi'ee(lin;i. 'riii-se oii;;inators of the invasion of ( 'iiha seem to have detcrmiiieil, win, coolness and sy>tem. upon an iiiiderlakin;; which shinild dis;rr;iee their country, vici- late its laws, and put to hazard the li\es of ill-inlormed and delndeil iiieii. \(>u will consider whether fntiirc le;;islation he necessary to prevent the i»erpetratioii of mii' otfeliscs in fill lire. \vai.m;i{'s i;\i'ki)iti(»ns aiiaixst Mi;\if'i'nied, and detefiniiit'd oii .mil Ct-rili'.il Aiiifi KVI. KV.. i«;.: 1H.VI. Mil. I Iwill i-> the eon(|iiest of tiie Mexican posscs.sions in Louei' (';il loi'iiia. The attempt was made in ( )ctohei', IS."*,!, 1(\ an expedition fiiiiii S;ii ^^, . V, l-'iancisco. The lililinsteis seized the town of La I'ii/., killfii '*'' seven of its defendeis, and wounded othei's, and «'omniittn: Viirions excesses. They wei-e fc (Mdoi'ced by anothei' expedition, wliicli sailed in the Anita IVom San l-'iiiiieiseo in Decemhei', Iml weie eveiitn all.v driven oiik of the country. The distiiihed state of Cent lal Ameiica made it the next tem|»tiii: |»tey. ami sehemes were openly planned in the I'nited Stales liv sii <"alled •• transit" and " emjoration" companies, for takin;^; forcible pH'> .session of it. Walker was ajiain piii, in commaml, and sailed from S;ii Francisco on the Ith of May, lS,i,), with his lilibnsters. lie arrived ii' K'ealejo on the !"»th of .iiine, iiiid, after various i«dventnr«'s, dm I'AH] inji' which he assumed the *title of Presideid, of NiciU'iJjiua, iiml was reco*>. the I'nited Slates Secretarv of State : I l>i:i'Ai!i mi:m or Sim i;. H (iiiliitiijloii, iSiplniihir l~. I"'" I'roin information rcccivi-il jit this Itepartiiieiit, there is reiiMoii to helievc tliai li" ies>. persons arc now eiiffatjed, within the limits of the United Slati'>. n Nctliiiy; on foot and iirepanii); the means for militarv cxpidiliiin*' he carried on aiiia, and *'"'" li'iea. repiihlics with whom the I nited Stales are at pc". e, in diri'itM" lation of the sixth section of the act of ('(m<;ress approved 'Ji'tli A] C'nciitir r*><|initi)a till* |iM III lliltlinnlii-^ 111 liw Wuf ttihfff »!' ' In liri'iifhl til i\ IWclllMIll-. Mil IHl; mil nni Icr Ih cijl htli section id' the said acl it is made lawful for the riv^iili'"' or Hiieli other jtersons as he shall cni|tower, to eiiiplo.v (he land or na\al loncs nl lli' United States, and the militia thereof. " lor the purpose of preventing; the ciinyiiii; " COrXTKK CASK OF GRF.A I IJKITAIN. 251 ■wm i' .iiiv Mifli ('Xix'ilitiiHi or fii(('i|irisi' IVkhi tin- ti-rriliuii's oi- iurisdictidii kI' tlii' 1 'iiitt-d 'r.iii's." ! Hill, lliricfiUf. (lircclcil !»y llii- rroidciit ti> •■iill vniir iittcnlioii to tlir Milijccf, iiiiil ,, uiui' .\iiii til IIS)- ,'ill iliit diVnjiiicc. niitl to iiv:iil voiiisi'lt' ol' :ill l<-<^it iiii.'itr iiicaiis :it iiii'coiiiiiiiiiiil, t(i t'litiircc llii'sr :iii(l till oilii-r ])riivisiiiiis iif t lir >aiil iu-t of 'JUth April. • i-. iliriiiiisl tliMsr wliii iiijiy In rniiiHl III I ii<;a;!;i'il in si-ttiii;^ on Cool or |ir<'|iariii}{ iiililiiiy I'NlK'ilitioiis aiiaiiist f lie trnitorifs ot' Mcxiro, Costa liica. and ol' Nicaragua, so iiaiiil'csti.v lucjiidicial to tiic national iliaractiT, and so injiiiioiis lo tiif national inter- Ainl you art' also licrcliy instriictid ]Mdiiiiilly to roinniiiniralr to tliis Diparlincni . iiiriifsi intoniiatioii you may rt'ci'ivc rrlalivr to siicli <'\|irditions. Ill Octolx'i', I.S.")!, lionl Xiipior, Jlcr M;iJ('st.v*s iiiiiiistcr sit \\ ;isliiiio- •dii. wiiriM'il (.li'iiciiil (Jiiss tliat lie liiid Ix'cii iiilorincd that more tliaii .',0(1(1 iiii'ii liad l)t'('ii cmullcd lor tin* invasion ol' ( 'ciitral America, I'linds I, 111 lu'cii suhsciilit'd to the ain<»niit of J^-rtO,! >(!(». arms had hccii piir- !i;iM'(l, and ovritnivs wvw bciiiu' ma(U' to propiiflors ol' shiiipiiio for ,1' lr;iiis|u»it of the foicc to the scene of action.' Oil tiic lOtli of No\enilier, Wallicf was aiiesied at New Orleans on a inn;:!' of \ iohitin;;' tlie nentralit.v hiws of th«' I'liited States. Ill' WHS liehl to hail in •■:<-,()(>(» (ahont CIOO) to apjiear on iir lltli hn- examination, and he went to sea on tlie following mornin;;'. ill I'liiharked, with •')(•(► nnarmed followeis, in the passaof i)oat from New Orleans to .Mol>ile. and in Mobile Ila.x the party w«'re met by a -!ii;ill steamer named the Hicks. and were by it transferred to the I-'ashion, ivcr vessel of ;L:reater e;'!'inity, with alionl (itty recrnits. who Joined lit'iii fioiii thecit.\ of .Mobile. TIm' I'nited States( ioMMiiment teleuiaphed H rlic I'edeial authorities at New Orleans to hir«' a steamer tor the pur- •iiii ol' the e\pe«Ution, and empowered tiiem al.so ti. ise the steam '.'eNC- ;.ii('iitter (if tiuTc^ was one on the station) for tlu' piir|MirM', Lord Na iici asked (leneral ( - hether any armed steam vessel of the national :i;i\v had been ordeict: ;o iiroeeed on this dnt\, ami was '111 ill teply that there was no sneh Ncs.sel at tlu^ dispo.sal 1 tlic administration. AValker succeeded in elfectinj;' a landino for iis liiiiid, who oeeiipied I'ort Castillo, bnt was himself interci'pted by III' roiiiiiiodore in <'oinmand of a I'liited States .sipiadron, and taken '1 As|iiitwall in a ship of war, whene*' h«' returned totln^ rniteil States. 1; iltHs not, liowever, appear tliat any le,L;al proeeedinys were taken i;riiiiist liiin lor hi.s open «U'lis«n('(' of the law. if .so, they could not liavt' been very eflicacioiis, as he set to work to pr«'pare for another expe 'litiuii on ii larycr .scale, and, in May, 1S.")S, the Presidents <»1 Nieara^Mia iml Costa liica appealed to the protection of intcrnatiomd law and ol 1 iiiii'. Mnoland, and Sardinia in an ollieial deei'ee : I 1>I\ V^. /( 1< ( //(((( f~.'i.-. V'liis, i^ri'sidi'iits dcs di'iix ri'iuilduiiirs df \icaian!i;i < t di- Costa K'ifi : ' uiisiiii rant oii'iiDi' nous flic invasion di- Ililnistii'iNaiiii'iiraiiis iiK'na) c ' iiiiincaii 1 ,\nii'i i(|iii' ( ciitralc mi |trt'|uili If toiitcs lis lois di\ incs ct ,m ,.„,„i < iiimiii,..., . '.Ml .viii.PHii. ' 'innitliianl i|iii' rAini-riiiiir Cciitrali', I'puisri' jiar liois aiis di' <..'.ii<'i •<• est dans fiin- ^''iiiicc di' sr di-li'iidrr sans Ic coiu'oiirs di' ri'.iiro)ii' ; ' "ii>iil(raiit i|ii'iinr di'lilii'i'ation coinnH'iici'T df-. d*t:i I'ii'a, a mis solfiinrlli'inrnt ics dnix ii'|iiil)lii|ih's son- la )>rnl<-«'tion Ar la ■ -iiiri-, ill- r.\nnli't»-ni- i-t dt- la SardaiKni' : ' iili lant, i-nlin, qiir li- pi-ril i-st iminini-nt. i-t iju'il i-st ur^riit di- la roiijiiri-r sans "i inlii- I'l-ll'il di's mrsiiri-s i|iii- ITS trois piiissaiiri's proti < trn-i-s iii;ii'roiit a pro|ios di- ■■.'iiiln-: I'liiinitiis pli'ins poiivoirs a .M. l'i''li\ Mi'll> di k riaiiiri en iioln- iiom li- cDiirour* • iii<'iliiit dr toiiH h-s liiUiiiM'iitH ill- ^iKM'i'i- <-uro| lis i|ii'il ponrra iriiroiitK-i' : ' iiiii-lioiidtiiii- rrspici inn CiHitrtM Ann-lira, l'r<-«i-iilrd tn l';irliaiin'iit J-'CiO. Lord • !"' Ill ili-iK-ral Ca.s.H. ( )i-tolM-r '.». K-T. f tm: 1 i ■ ■ •- |:' Ai '■• v.' 4' \ i. I ■|, ** 252 TRKATV OF WASHINGTON. [:{!>] *Ti(Mliarj;i'«>iissjM'rial»'m«Mi> dosollicitorroiivoi ii San .liiaii tlfl Nurtr iriim, (liMix ItatiiiuMits «lc la Htation frain.aist". dcs Aiitilli-.s; Et iiii'ftdiis Ics (Umix ioi>ii)»li<|iU'.s »l(» Costa liilai >|n'('ial<' ('• wliich the states in cpu'stion have experieiu-ed from civil war ami tiii eijiii advent uiers. Of the nativ«> population not less than lu.oiid;,; computed to liaAc perished in the contlicts of the last two years, whi:, more than (l.(M>t> straufters have sacrili(!ed their lives in the prosccutinn of criminal or visionary aims. The (lestructiou of property, tin- >ii. pension of industry, the sacritice of ei\ ili/ation. virtue, and liiij»iiiiic-», the diffusion of wrono- and sulferin;;' incidental t(> such a stru.^i^lc. iu- nu)re easily ima^^ined than described." (leneral Cass, in a note to .Mr. Lamar, the representative ol' the I'liii ; States in Central Anu-rica, - • 'oiii|M)M>il ol |icisoiis t'roiii (liUcrfiit coiiiilrii-s, a;iaiiif*l tin- tt rrilorv ol' Xirai;ii;ii.i. • not to lir (li'liictl. Iillt (liirili!; tin- wliolf i»roi'd i(|ioii il liy tlii-la»- as wril tiiroiijili )iiililic itroclainalions anaiiist siidi fiitri|)riscs ax li,s y:iviii,f tii lU'crssaiN diii'ctioiis to llic |iio|(cr oliicnx to pii's cnl tli"ir or;;aiii/atioii aiwl diMit nir, as liv iiiv okiiii; tlir act ion v iiiiiit..! its iia\ al I'l'ici'. it is iiiiii.'(('ssar> lo >ni)|h>rl tli('-.r assertions l(\ detailed ]oo:(l'>. 'I'lii'S aie a- \ii" known in Costa Ifiea and Nicaiauna as he- e. s inn ■limes, indeed, o-\ iii'.; to tiu' ili li- ' of (troof, it lias not lieili in tlie power of the (Jov ellllll'lll to airesi I ileM- e\|i.ilitii';iv Itnt I'Ncll when its rxertions lia\c not sneeeeded in l»l'e\ eiitinji llieir deji. II line, till . have been I'aii'ly and jiciicralfv siieeessrallv ilirceleil t i incseiil ir-eiiroic ■mi'iilxil'u,' and iiialei i.i! !'iom leMcliiiij; the ad\ eiitiirers w no had idiidcd ! he \ ieilane 'of ili- niii • >• of tlii^ law. » - ■ - Itnt the presidents of tlii'se re|iiiUrn's deal in spccilie I'aets as W(dl as in nine j;imiiI;i. allf^iatioi.s. 'i'hcy clmrjie '• that the (ioverimi'iit of tln' I'liileil States ha-, aii-iinlin; to ollieial I'epiirls maile to that of Co-it a K'iea l>y its minister plenipoteiitiaiN a I \\.\-\- iiijiton, dc.dareil it was nllerl.v powerless to pievenl pa^t a;tem;its l»y th • lilihii^tiiv or to protect the iieiilralit.\ ofCeiitral .Vm-iiea, owiim lo tin' insiitliiieney ol tli ■ law- (d"the liiit'd Stales on this head." 'I'his aeeiisatioii r: wholly without roiindation. NH sneli decdaiatioii w as ever nn l)y the (iovei'Miueiil oi' the t'nited Slates, It would have heen an aet at once nllatu;! and (d" I'alsit.N. As to the lilliciilties in the enlorc! meiit ol tli[»,e laws. tlic\ air ni denied, and have eiveii iniicli Ironlile to the (lovei nim-iit in the ett'orls u lia^ iiiiil< carry t hem into eltect : Init that they arc pnwerfss. or hive proved so, no one. a. ont of the I'niled Stales, has a rijj;ht to assert. The npresentativ es id' tin- Ciiilia .Vmerican States may Ik! called on a-; witnesses that, in all ea«.es where tln-y li''^' %\\v\\ iiiforination to the (iovernmeiil that mililai.v expeditions anaiiist that it'!:i<' Were aliont to he iinderlakeii, measures have lieen iiiiniediaieiy adopted to pii-^ their success, and to arrest and piiiiisli the olteiideis. Soinei .ui's tln-se ciloits failed, ow iiii;' to causes not w illiiii the control of the Coveruntf-nt, and -.oiiieiniir- have lieeii sncccssfnl. (JetuMal Cass at the same time denied that a fresb invasicui \iis ^ paiin;i.' Corrertpoiideiice respecting; Contra! America, presented lo Parliament Is'iiii. |ih."?t?'." ("OrXTER CA.SE 01' C.KEAT HRITAIN. 2.Ki tf iriiii II Irl'lipli' ( , V(l to, 1i;m lilt' tilihib oiiciliiitin: isliiiiiMit i>: •ick.-s of rill' vc for tin idcr ;\\i\>\<: (-iiliiiiiitii'> III' aiiil {<■] KMMdiiii, t'lirs, \\ii!:i n'(>Sl'C|ltin! y. till' sii- lliljt|lil|r>>, till' I'liit'ii ■f('inl.'!l -1. 'mii-4 >i.i;'- Niiaiimii.i. ■ , till' (illVi il, liy tin- la«v _\- ;riviii:t ti.' iiimI il'inct lll>lliVll|i lit' :iri' II- V.I lli.'.lu. • Ali.'iliii"; ■ ll.llllirr. !!:■ iiiiil> III II ' if I If nil- ■ ■ III ire jiVli. 1,. ;|N, ili'l'iHilllr. r> III Wii-I- • lilllill-Ii:- y (if 111" l;i«- ,1^ CVIT lllf •,■ of liiiu;t ||ir> nrr li'l Ills 111 (ill III! tllir. H. ' if till- l.lil ■' IT tll-'V 111" t tiiiii ifi;i' i-il to I'll liiiii- iiiiiimii" oil -.VU-- " I'll". !• Xotwitlistainliiif? this assuranro, Walker's iireparatioiiscoiitimuMl uii- listurbi'il mitil he was ajjain on tho eve of setting out with reeiuited •„iecs, when, on the .'JOth October, I'resident liuchanan issued a proc- iiiiiitioii very simihir to that jtublished in the time of Lope/ : Wlit'iiiis iiiforiiiation iiiiM ii'inlicd tiic, fioni soiin-cs which I cimnot ilisn-jrard, that iiain jii'isoiis ill viohttioii of tlic iifiitrality laws of the rnitctl States, art) inakinf; a 1(1 :itt('iiiiit to st't on foot a military cxpcditioii witliiii tlii-ir tonitory ajjaiiist Nica- i^iiii, a foioifiii statt! witli wliich tlu-y an- iM'acc. In oidci to rai.sf money for ei|ni)i- ,, .";; iiiul iiiiiintainin<;; tliis expedition, ]»eisons eonneeted tlieri^wilh, as J liave reason to »!m'vi'. have issued anil sold lionds iiiid other eontruets, ]>led liM'i issued a notice, in ]inrsiiance ot' his instrnetions, dated on the '^Ttli instant, • iliiililiii-i the citi/.eiis or suhjects of any nation, except, passen^icrs inteixlin;; to jiro- ..il tliroii;;h N'icaranna o\er the transit route I'rom occiui to ocean, t(» enter its terri- ,i\ witlntiit a re;>iilai' pa.^spoit, si;>ned l»y the proper minister or consnl-jicneral of the jmlilic roident in the eonntiy fnim whence they shall havede)iaited. Such )»ers(in>. :h tlii> cNcejition. " will he sio)iped and coinpelleil to return hy th sam<^ eii!iveyaiice Ml iiKilv them to the eoiinlry." P'rorn these ciicum^tances the inference is ii'irsistihle 111 iHiN(iii> eMffaned in 1 his cxjiedilion will leave the Inited Slates with hostile jiiir- ..!.(> :i^aiii>l Nicaiajfiia. They <'aniiot under the jrnise v hich they have a.ssiitn 'd that ••ny arc i"aceful einioiaiii>,, cKiiceal their real intentions, and especially when they .:,!« ill .iilvance that their landin;; will he resisted, and can only hi' accomplished hy : IMl |iii\vi'iinedilioiis of the .-ame character have openly expressed ;;.iii iiitciiliou to renew hostilities a;{aiii>t .Nieara;;ua. One of them, who has alri'ju'.y •nil tvvici) c\pelled from Niearai-iia, has invited. lliniii;;h the piitdie newspajiers. .\ riciiii citizens to emi^'i'ate to that re|inldic. and has desi<;nated .Mohilc as the place ; iciiili/viiiis and departure, and San .liian ilcl Norte as the port to which they are ''iiiiiil. This jicrsoii. who has renounced his allei;iancc to the I'nited .stales, and claims •iiIk rrcsideiil (if Nicaraitna. has j^iveii notice lo the collector of the port of Mohile ii;it 'Jiio iir :i(ii» of these (•iiii;rianls will he prepared to cmliirk from that port aliout the ildillr (if Novemher. Kdrllicsc and other •;(>od reasons, a;iil for the purpose of sa\ inj; Anu'iican citi/eiis Will may have hecn honestly ilcluded into the hclief that they are alioul loiiroceed to I N'' instrnetions" whi<'h tlie oniceisjtf tlie (roNernnient [^'•'iv oiijoiiied to carry out wtu-e the instructions to use " due (Iiliil(' in the sailinji schooner Susan, in December, l.Sr>S, with « h aijince, on the jn'elense of beinj;' bound on a iioastinjj;' voya;;e. Miccrssliil attempt was math' by tlie revenue cutter to intercept iiiii th«')'e seems on this, as on the former occasion, to have been 1> of wiir witii steam power avaihibU' to pursue her, and tlie part\ 1 til sea accordinjily, and the Su.san was joined unijioh'sted by tlie ^iiicii and tlie V. iisliin;;ton, with military stiucs. ill!' i'\p(«dilit»u afterward broke dftwii from the Susan beiiiy wrecked. \i '■■ 2r)4 TREATY OF \VA.SHIN(iTON. Wnlkor taiid liis band tlicn i)roco(Ml«Ml, in ^riivcli, Is.Vi , la lH.71 lilt. /ll'l- • I il -lil -i II (aliiornui, whence tlieywere sanl to liav<^ intended t(»!i»iik, a descent on INinta Arenas; but tliis attempt was not ''anied into jx, cation, and Walker retnrned to his usnal einph>yinent of organ izinjj^.v^ peditions in the United States. In November, IH'ti), he, for the third time, ehided the "dnedilijiciiK of the Mobile authorities, and an expedition set sail once more frdin th^r port in his old vessel, tin Fashion. Tiie Fashion pat back from want n; stor«*s, ami soiiie of the persons concerned in the expedition were ai rested ; but there is no report of their havinj? been punished, lie staitei! again in. Tune, ISOO, in the. John A. Ta.\lor, wasmet olfKuatan l>.vaii(ttlie'. vesvsel with arms, and elfected a landing on the Central American (•fta>t J lis <'areer was brought to a close by his being shot at Truxillo in Se[> tember, l.S(J(>. TENIAN RAIDS A«iAI.\ST CANADA. £if The first soci»'ty formed in the United States for i)urpost's hostile ti (Ireat llritain appears to have been tiie " Irish l{cpiil»li(,i! )ri«li It.-piihl,. Ml. mei. " Union. e;i, tr.ihl A 111 Si rhii-«i-tt« Kmi- Th«> coursi^ of allairs in Ireland pn vented the " Irish licpiihii Union" fr»)m carrving out any projects which it nmy have entcrtaiiiei!. and it was su(!ceeded in 18.") by the " Massachusetts hi>li Immigrant Aid SiM-iety,'' whi«*h held its first iionvcntioii ;i! r>oston, on the 11th of August of that year, and uiuler whose aiispin- secret so(;ietics were established in ditVerent |)arts of the United Stato iimmv s„i.t>. These secret sctcietic's continued under various names, '"''' nntil, in isr»1>, they wt're leconstitutcil as the IMio'iiix Sc ciety. The civil war interrupted their progress, but in 1S(J;J tlicy ii;:,iii: K.MiM, iin.th. r. promiiKMitly appeared as the "Fenian Urotherhood" at ;i ' ' public uu'cting, held at Chicago, in November of lliat veai |ll| *Tliis meeting was reported to have been attended In H"' M.-..IMU ;,t iiii.i- •l'''*'fi"**''^« K'pi'csi'ntiiig •circles,"' including twelve Imi: ''•'"'*"• military and naval circles. The sec«)nd annual i'ongrcss of the 'Fenian Urotherhood'' was liciii Al t'in< iiin.it I at ('ihcin!.ali in .lannary, iStM, wlu'u their president di clar«'d that thcv wvw "\irtuall.vat war" with i'2nglan(l,aiii. spoke of "this .American institution <'allcd the Fenian nrotlierliood." .\ congress of the I'enian jiiotlicrliood iiu't at IMiilade'|dii;M»n tin I..,. ..I ►.,i.:,„ 1^*1' *'' Ociohrr, lSt;,">, ;iiid r«'solv('d upon the issue e ' ""'- " I'cnian bonds," and the establishment of the Irish repiilili' at New York. 'I'lic head ccnlcr, as Im' was pic\ionsIy called, of tin Urotherhood was now st\Ic«l president of the Irish republic; tlieexecu tive council entitled thems<'lves •senators." with a prw den! ; a house was hired at a rental of «l,'-'0(); sceretaii"^ ! iepubli<' was 'l till* Irish n*iiiitili< ,il Nrw York, H'c; iir\ . Ill ln':»rr in till' MINI iif ( li'iO iIiiIImi ., reilcee lile six iiiiiiitlH after 'he iieUimwleil^jiiii'iil of flu' '' depi'iiileiui' iiT till' lri-*li Malinii, with iiit 'rest I'ln n lii« ilate hi'iei)!' iiieiii .ive, :il ^i'* I' lile oil lueHi'iiiatiiiii of tlii* Uiml at tin- ireii-mv ol' lln' Iiislif' eeiil. pi'i aiiiiiltii. pasalile on |ii'eHriiial mi |iiilili Irish Anierieun. i'ebniary II, ^^HK^. f lipn^f (ip^T COUNTER CASK (»F (JRKAT BRITAIN. 255 Asa int';i.sun' of im'cantioii ajjaiiist thv possihh* liostilo iiu'iusioiis of IVnians which wore bt'iii}; constantly tliicat«Mic(l, the Canadian jjovcrn- iiu'iit was conipclhMl to orte' should We planted, and which >|i;ill l)t> made the base of operati(Mis a<;)iinst ICn<4lauil lor the liberation ,il Ireland." "Colonel Ifobcrts |U'onused, within niiu'ty tla.Ns, to havts jlic ;,'reen llaj"" support«'d by the };''''utest aiiiiy of Irishmen up(»n which •he SUM ever shoue."-' At another meetinj;' at Pittsburj^li, Sweeney saitl : \Vi' iHiVf iiiailf lar^c )iiircliiiscs of jiiiiis and war inatriia!. IT ytm aif incpanil to ,;nrii lliij; will lie tlyinj; intlciicndcnlly to fucdom's lnti/c, and we will liavt- a Itasc of '{ii'ratioiis trotn which we ran not only t'niancipatf Irrliuid, Init also annihilate I'.ua- aiid. Jf yon Hnpjiort ns, I pledge my name, fame, property, and life to this li»dy eanse.' The American newspapers were full of accounts of the fermei^t anuuij; the Iiisli. The New York Worhl of March .". said, "The IViiiaii ftnuls are dispn)n(Mtioned to any pacili*- olijects. TiK'yiiiean war or they mean nothiuj;-. The houi'st ctuitributors suppose tlicv a!'' turnishin<; the siiu'ws of war. If the receivers of the money (Id not iiiteiul to apply it to this object, tlu'y are a set of sharpcr.s, prac- ticiiij,' on the cretbdity of tlu'ir followers, to levy a re\ enue bu' theii- own list'. If they really nu'an war, if, as is yiven out, they contemplate the invasion of Canada, this is a serious business, which cliallen;it'S the iliiMi^llitl'iil attention of all Irishiiieii and all Anieii<-an citi/cns." Tlial the Feinans ditl mean war was as plain as sp»'«>ch c(udd make it. The " 'rish Aiiu'ricair' r<'portcn iiiil S\ve('n«'y had anuoiuuu'tl that "considerable pmchascs of arms ami waniiatei'ials luul already been made, a.ul that lar;;e (Muitracts tor the [Mine had beei> entered into." IJoberts spoke w itli(*(il an attempt at |ilis;;iiise. "Now,"' he said, "there is but one outlet to liclaml i»y an niieil force, and that is on a section of this cotitineiit, where, too, the iKii^'lisli power toath the inllueiicc ol American power, must bt^ jiiiadc to conu' into the hands of the Irish people; Ibrtheoidy way we |iiiii strike at I'iU^lish ((unmrrce is lo have a place where we can have a ,i;ovenimeht of our own, even In tore it should be reco;;iii/ed virtu- ■j ally on liish soil. *\\ho will say that Andrew Johnson will not ieco;;ni/,e the Irish rcpultlic, evj'ii if it should be only in name, as ll'iii;; as we ha\e s(ul that \\v can claim as our own .' it is necessary to '.i\e some base Irom which we can ,seud aid to our brothers ,\lio are |MiiiMjr|J!,„ i;„. iii),.|.fy. w,. want a place fnuu which we cm sentl (uit Il.i,.| I.I l-XH'i. '•'tMri's|Miiidenee relating to t he I'enian insasion, laid Ijefoie the Canadian i'ailia- •''.■lillle, lf-(i',t, p. l:t',». Niw Vnrk World, .lannary 'J7, r^»>(i. \Vtiilil, I'elirnarv '-'". 1 « «!>, 25»; TKEATV OK W.\s||IX«,TOX. privatfcrs ii^aiiist Kii;;li}>li conmicri't* : uiid by that means. 1 think. • i-an take eiioii;;li to niaiiitaiii a •:overiiiiieiit for fifty years very lesj^^t ably." \Variiieetiii;:s were also beM at I'ortlaml. Lima. (< Hiio, ) Xew|M»r», M; ford, Waterfonl. aii wt-r* completed. Stores of arms and ammunition had l»een |ila<-eil at •-<•; venient stations alon^ thi* frontier, and the wonl had Imh'Ii ^iv«*ii tor.* attack. < >u the -»l>t of May the Fenians lN';;an the march : deta<;huiHi"« of L'oo and UMi men. calling; themselves railway lalMinrs on their way • the West. lM-;;aii to arrive at Duttahi and Saint Albans fixjui tin- laC' towns. 15y the evcnin;; of that day a Innly of Fenians, estiiiiateii .i upward of 1,m"»:», ha:l n-ache*! iSiifTilo. and. o?! th,* miirniif^ of th«- K of .lunc. 7."»» of them <-n>ssi««l over to F«»rt Erie, on the op|Nisiti- iuiik- the Niairani lliver. What then followetl is succinctly descnlu'd m dispatch lV«!:u L)nl Monck of the ith. pub!ishi*«| in the ** corrcspuiKtf ri< ' respectin;; thf recent Ffuian a::;n''*>>iou u|n»n r'.inadi." prcsciitcl ; Pailianiciit in Feltniary. I'>r tii'>|iiniior» who <-r<»>.'<*-tl tli<- fnnitD-r fn>iu i: ' falii to I'ort Krif on ilw inominv of Frnlay. .Iiine I. |»rw»vt-il t" !••• Ix-tweeu "«•• or:*' iiifii, ami Mfni to liavt* In^n wfll ami<-«l. I hail |>ri'Vion>ly liail iiifurmalion that ^ini** Mn-h a:t>-iii|tt wmhI^I shortly \t>- m^.- atiil -1 iiaity of voliiiit*^r« bail Im.-«-ii statioiwal at I'urt ('oiburii*- in aiili<-ip.'iriiin ••! . attaik. 1 liavf not yi-t liad lim*- tn receive f*ffi<-ial aeroniits of tL«- luilitarA- oj»trrati«iu<, U/ tniiii t)-li-<:i:i|>hi<- rr|iort.-« whi<-b havr n'aclH-- I am alilt- togivt- the follow iugiUt' UKiit of what iN-t-urrril. whicb I tbink may W •Muuileml autb<-iiti<-. lniin«-j>» nn-.- Colonel I'eaiiK-k. Kith regiment. C'hi|>j>e«ra is aliont nineteen luilef fnmi F<>ri Kr and tln-re is no railway t-imiuinu'eation Wtween the two plare». On arriviii;; .•iH.D.r- pfwa, Colonel iVai-'xk nH»vttl on in the direi-tion of Fort Krie. On the iu<»min; •' I Satnnlay. .Inne "i. the IkwIt of volnut*-er>i ••tatii>oe«i a* alreaaraliel to the ^'bore of I^ke Kiir. and «' in the roce«li-«l ttn foot, apiiaxently with tbt- intention of ejecting a juncti"«Ji '' ' Coioni-1 IVacock ami hi- foree. They I ante u|H«n the Fenians eneam|ie«| in tbe l>iL->fa and iwuiediately attackni ;~ Imt were ontiiunilien-ai an«l eoiu|ielk-«l to retire on fort Coll*»me. This oitum-tl- time on Satnnlay. 'iA Jnne. Colonel I'eacoek in tbe mean tim«- wa!> ailvaiieing in tlie direetion of Fort Kri*> t'l^-'- Chip|M«\Ta alonj; tbe luank.- of tbe Niagara River, iHit wa» not able to reach thr f-ni- plai-o iM'fore ni<;btfall. The Fenian."*. Iiowever. ilid not await bi* arrival, bnt recrosseil tbe riv«-r during : nitn Mr. Consul lieman». tvere iuimerities of tb^ I'nited States.. I am lia|»|>y to i»e able to inform you tliat tbe oftieers of the l'nite«l Stale* Cn'Vt: nient a|i|M-ur to have exerted theou^flvr^ to prevent any av«iMaue<- iM-iug ^iippii'-'i the inva«lt-r>. I transmit copi«»of tel«-j»raiu« receiveil oo tbL> sabject from Mr. tV-^ Henian.-. We have sixty-five itri'*»ner» in «.nri«r»*»s*-«»i««o. who bavc l«een by my dirit.tiiHi » •» niitted to the toium*»n jail at Toronto to await tiuL • WA'^f i|^,L I COUNTER CASE OF GREAT BRITAIN'. 257 think. » ry i«'>iHi • i«-|M.r».M ntiii in.tii iil'ona.ttio; IS liy ojw: il iiasswl .. i^Ciiiiadia: itioiix vrer» ivil at <-«i. iv»*n ti)r a; L'tarhuiHi"- lu'ir way : It tli«- lar;- •tiiiiatetl .1 r of thf U iitf iMnk" iciiIhhI iu I'Sitoinifii.- IVSjMlif.l i «tt' all tli< .lum 4. !-•• Stat"', f'lt y- tiff fn»iii ]' ' II "<«<• or :*• irllv \»- ii;* |i:ltlon tif 1- ftatioiiv !•"■ liiVVHl;;>U'- ••111 nil Nil" (iiai|i'> a&-- •iii K"rt Kr i\iii;; attu.^ | inoniinf ;.t I'oit I • ,ii«-. a!id«'' Iff: f hr ra junction ^ : ,tta«k«i ibti u«»iirn-«i''"-' "ort Kri>> tn-: lb th«: f<.'ra- .r «lurin§ I- iid. a- m"^" iat«-ly arn^'' ?tat» GoTiT Ij; Mll>J»l»^i ' m >li- '-^•-^ liu^tiou (» Ithink it is on-«litalilo. l»oth to the inilitary .iinl militia antlioriticH in Cniia«ln, that ;>T wt-ii* ill a iM»r»itiiiii witliiii twciity-tuiir lioiirs aftt-r tlic iIlva^il»ll of ilic piovinco, at itwintof the ♦•iM-iiiy's own m-lt'i'tioii. to jilaco opposit** to him siu-h a lorco a» com- :»!W hi* l»r»-<-ipitat<- n-triMt witiioiit •■vcii risking an fiij;amiii(iit. I shall not fail t«> s«mhI yon nioiv I'nii particulars when I .sliall liave riccivtMl tho olli- (il re|><>ns t'ruui the otlictTs eu^rajrud, but thu inaiii facts aru as I liavr stated thfiii I havf. Ac, Si;;!!.-.!) M(»N(K. Tbo vi«iil;un'0 of the authorities of the United States was not aroused until after the raid had oceiirred, when tin* raitlers w«'re slopped in their Mmit into I'niteil States territory, and the party, now rednt«'d l»y loss ami desertion to .'•T.'i, made i)risoners, with O'Neill, their N-ader, and their arms taken from them. 43] •The storesof arms at J'nifalo, Ofrdenslnirfjh, and Saint Alhans. were also seized by the L'nitetl States distriet marshals. On thr .>th of .June the arrest of the other Fenian leaders was oi«ler«'tl : and I'll the «»th the President issued a proclamation stntinj; that it hatl '♦fDiue known to liim that certain evililisposed persons had l»e<;nn to «et on foot, ami ha«l provide«l ami prepared, and were still enj;a;;ed in T^ovidin;: ami preparinj; means for a military expedition and ent«'rprise, -iiiiii •-x|HMlitio:i ami enterprise was to he carried on from the territory .iihI jnrisdicti«»n tif the rnit«'d States a;iainst liritish territoiy, antl ..nthorizinj; the T'nited States military forces and militia to h«' employed -toarrvst and prevent th«' setting; on foot and carrying on the expedi- ti'>n and enterpri.so aforesaid.'' On the same «lay on which this proclamation was signed, the Fenian r'rs4»ni'is at lintfalo w«'re released on tiieir own reco^jnizanci's; and, on •y Till. O'Neill and the two «>th«'r principal leaders were also released oD irail. Another band of Fenians made a demonstration near Saint Albans, but retreat e< I immediately on the appearance of a Canadian re^ifiment. .Several arrests were nnnle at Saint Albans, ami elsewhere; an«l Koberts, the |)resident of the Feniati semite, ami chief insii;;ator of the rjiil, was taken into custody at N«'w York. Ilis exatnination com- mt-nced on the 11th ; on the iL'th he was released on parole : and the dis nii-t attorney eventnally aban«loneo the proseention, from want of evi- druee. with the intention of preferring an indictment before tho grand jary. On the 2.3il .Tnly, the Ilonse of l{epre.sentatives of the T'nited States Ital>^ to iir^c uiMiii thf Caiiadirii aiithoritii's. and al>i> tin- Ihit i>li i^ovcinmfiit. ;>n-lKi»<-nf the Kciiian prisoii»T> recently raptun-d in Canada. i>«»/rri/. Tliai this House respe<'tfully leipu-st the I'resiilcnt to caiisi' the prosooii- ■•'.i' !iiatil>Ie with the puMic interests. In pursunnee of the second of the.se resolntions, tlie Attorney-Gon- «al iii.structed the di.strict attorney at IWitfalo to abandon the Fenian i-fvuswiitions there, and they were abandoned accordin;iIy. Thv pru.seciitiim was al.so withdrawn in tho eases of Sweeney, Spear, McMahou, and the other leaders of the Vermont frontier denu>nstra- Hon. will! had Iwon arrested, but released on boiuLs ol" >f. ^OOO after a i*.v*» detention; r.nd the intended indictment of liobert.s was dropped i>a matter of conrse. In (_K-tol»er the (lovernment decided to return the arms which had Wn taken fr!>m the Fenians. The New York Times, of the IGth of October, gives au account of tliw tninsiietion : 17 A — u *' 258 TRKATY OF WASHINGTON. i, 4. I*f|is|-f nrKI\\t.f», Motiihiy, nrhiKr]:,. In pnrsnatirc of onlors issued liy tln' At foriicy-(!<'iu'nil of tin- rnih-il Siati-. withtl. «-oiiriirrviir<' of tlir Scdftary of War, I'liitfil StJitrs lli.sti'ict Alloriif\ Itmi j.,,;, iiistinctiitiis to (it III lal Itairy, ( iiiiiniaiiiliiiM; ijn- militiiry tlistiict, to tiiin ov arms, to Im> a|>|>riivt'il liy ,liiii". N. K. Ilall.tiuil till' ariiiH sliall not ln' iisnl in violation of tlio nriitrality la\v«. 'Hi,', wiTf t\v«iil> l>o\is <»(». Tiiis jji-mial Kiiiir v ,. ])ritiiiii tiiat.as t)ic (o>\ i riiiiiint iiail aliaiHlotii>ii>aiiil ilollaih' wortli of amis liild at Kri<>, <>s\vi-o;o, riattsliMi^li, Malm. Troy, ami iiiIiit jilari's, will In- tiiniril om'T on tin- sanif ti-niis. It is >;\\i\ tlmt il,. arms will In- ->iiU\ ut Santa .Vnna. I*. <). l>ay anil T. It. (ialla^liiT si^ni-il the lioinj. These |m'isoii.s were well known a.s liuvinj; taken sni active pait in ]»roini)tiii;: tlie laiii, (lallaj^lier Iteiii;^' e(lit«ir of the HntVah* Keiiiaii Vol unteiT. The hoiid which tliey sij^iied wa.s, it is scarcely in'cess;nv i. |Miiiit out, a lucre lorin, a.s it woiihl have hccii utterly iinpraetii-aliii' t^ itientity the arms on another occasion. The alleged intention ot'.sfllin^ the arms to Santa Anna, who was then said to bi' ini'ditatinj; a ilcsccu: on Mexico, was a iner«' transparent pretext. The sirms tlo not seem to have been all restored until the followiii: year. This closes the account of the iirst I-'enian raid on ('anada, wliicli linl <-«»st tin- Dominion the loss of an olliccr and six privates ol' tiie (^u»Mir« Own \«iliiiitc»'r Ifillcs killed, and four olllcers and twenty seven im-: wounded, many of them mained for life. JSesides this bloodshed tliiii was the heavy cost t(» the country in pensions, orratuities, and payiiun; of claims aiisin;; out of the raiM) UAin ON CANADA. A renewal of the attack wtis threatened in the autumn ol ISiiO, ainl Sf<«»if.,jo.r... the Canatlian jrovernment wa.s obi ij^ed to form a caiiiiMi! »i». I'cn volimtecrs in the neiohborhood of S'iajjara Falls I'lutii An jjust to the .second week in Oetolier. The expense of this camp, ovrr and above the appropriated drill ])ay and loss to the industry el tli*- I»rovitiee fiomthe wiilnlrawal ol a lar^^j' numlu^rof men from tJieiitMiii pations, amounted, in money, to •"^'SU.OOO.' During the \ear 1S<»7 the Fenian IJrotherhood were occnpii-il in pi ■ m(»tin^' Fenian disturbances in ICnj^land and Ireland, in w)ii<-li llalpU'. Uurke, McCalferty, and otheis who ha muskets, am! ajrain proc»-e«led to orfjanize an expedition ajjiiinst ('anatla. In Novtiidter, 1.S0.S, a Fenian contiicss was held in IMiilatlclpliiii. ;iii'i O'Neill manhed throuj^fh the town at the hejid of Three rej;initnt^ the s«i styled Irish republican army, in jjreen unitbiins, numlteiin;'. ;i'| ^as reported, .'5,0(10 men.-' Durinj; the year 18(it> the I'enians were eiigajjetl in niakin;; ficsli mi! itary jMeparations. On the 7th of February, ISTO, O'Neill wrote ttt t!i>^ circles that a con<.jress of the Fenian Brotherhood was ordered to nut; | > Cannilinn Varlinnu'iitary Paiwrs. ' Iriab Aiuorican, December 5, lt:M>8. ""^f! COl'XTKR CASE OF GREAT KKITAI.V. 2r.o • in Nc^^ York on tin* Hth of Manli, iiihI desired tliciii to sciul none Imt tlic hot and most relinlili' men, and it' it l)e possilile "to let tliem lia\e a military lei'ord." The ateoiints received from various (juarters of (VNeilTs avowed in- tciitiotis. and the prohaliility of some attack liein;; made, rendered it titirssarv for the Canadian ;;overnment to lie on the alert. On the '.Mil of Apiil rt,()00 militia were called out. and t wo (*anadlaii ;^iiii Ixiats armed, manned, and iitted out, to crui.se alon;; the water iHtuiidary. On the I2th of May, the fjovernor ;;cncral, at the opi'nin;; of the Ca- nadian parliament, sai«l that "the information whieh reached my ;;ov iiiiiiiciit lr«»m many qiiarli'rs as t'i<.|>«-iid the kitlntiH corjnhs act, as well as to call out an armed force for ihf (leli'iise of the fr«»ntier." ''The vigorous steps resorted to, and the laihlalilc promptitude with which the native militia responded to the (.ill to arms, ciiilled the hopes of the invaders, and aveited the nien- atrd (Ultra ;;e, .so that I now entertain a san^fiiine hope that I shall not l»t' placetl under the nece.»«sity «)f c.\« rcisinj^ the jwiweis >»> intrusted to Ulf. In the third week in May the Fenian dotachmonts l»e;:an to «'ollect ami iiiiive toward the frontier. The first l)at<'li arrived at Saint Albans nil the evening; of the L'.'td, and on the same day another party made tlifir appearance at .Malon(>. i)n the L'lth Jie I'lesideiit issued a proc- liniatioii statin;: that it hid come to his knowled;;e that sundry ille;:.il military enterprises and expeditions were bein;; .s«'t on foot within the t'ii'itoiy and iiirisdictioii of the i'nited States against Canada, and tiiioiiiiii;: all oUicers in the ser\ ice of the Cnited Stat«-s to lueViMil tho«ie Miila\\l'iil proceeding's, and to arrest and brin;; to justice those en;,M;;ed ill tlieiii. On the L.'.'»tli O'Neiirs party made tlieir attack from Franklin, a \ilhi;:c near Saint Albans, but were at once repuls(*d and driven bark acnissthe Iroiitier. (>'N»ill was tiu'n arrested by the Cnited States Miiiislial. A detachment of forty-live men of the Fifth Cnited States liihiiitiy arri\ed at Saint Albans in the eveirni}: to preserve ortler. The end of the raid from Mahnie, in New York State, was the same. Tin- reiiians took up a position, stren;;thciied by a breastwork of loys ami a trench, just lieyond the Cnited States frontier, and, on beiiii; attarkid. broke into a disordi-rly lli;;ht acr«>ss it. Sf\fi;il of the leaders were arrested and a ipiantity of arms taken jHi>M'.v>ioii of by the I'nited Stat»'s authoiitics. Alto^Tther y,„, „., ,.„ tliiiteeii tons of arms are said to have been seized at tin. «"■"■■' *HK and one Ti)t)iie year's imprisonment and a similar tine. On the -t'lh of July the Saint Albans raiders were tried; O'Neill was sentenced t»» two dears' luiprisoninent and a line of i^lO; another of the leaders to nin«' months' inipiisonmcnt, and a ti'>" k|. .i*.'! ; and another to six months' im- I'ij prisonnifiit and a line ot *•!. The • proceed in;,'s ajjainst two others were post p«uieil. ihi he I'Jth of OctobiM' O'Neill and hi8 cnmpanion.s received an uncon'itiu al paid«m from the President. On the day on which Hie pard«>n \t as granted the President published a|»nMlaiiiation warning evil di.'po.scd persons that the law l"il»i(lding hostile I'xpeditions against Irienilty stales wuidd j-iJ^T'irrTh/iw lorthe future be riijorously enforced. "^'^ I P KM IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 144 1^ l^ «- IK III 2.2 :■ 1^ ill 2.0 1.8 1.25 1.4 1.6 ^ 6" - ► Photographic Sciences Corporation 33 WEST MMK 'jTREET WEBSTER, N.V. I4S80 (716) 872-450^ 5> %^* i^.. i/j 260 TREATY OF WASHINGTON. U tiii I Whereas divers evil-dispflscd persons have, at sundry times, within the terri forv or jn. risdiction of the United States, begun, or set on foot, or provided, or iin.. iti!rtK'i'.'''"' ' ''™'''' pai'«-'d) the means for military exi)editions or enterprises to be eanicd (in thence against the territories or doi. inions of powers witli whom tlii; United States are at peace, by organizing bodies prt ^ending to have powers of govcrui nient over ]»ortions of the territories or dominions «)f powers with wlioin the; I'nittii States are .at peace, or by being, or assuming to be, members of sucli bodies ; by levyini' or collecting money for the purpose, or for the alleged purpose, of using tlu; saint! \n carrying on military enterprises against such territorit!s or dominions ; by enli.stiiijjdi organizing arniei'c)W, therefore, I, Ulysses S. Grant, President of the United States of America, do herein- declare and i»roclaim that allpersons hereafter found within the territory or jurisdittiDii of the United States committing any of the afore-recited violations of law, or any sim- ilar violations of the sovereignty of the United States for which punishment is jirn- vided by law, Avill b(! rigorously piosecuted therefor,aud upon conviction and sunteiice to iiunishmont Avill not be entitled to ex))ect or receive the clemency of the Executive to ,-avc them from the consequences of tluir guilt, and I enjoin upon every oliicer (if this (lovernment, (Mvil or military, or naval, to use all efforts in his power to arrest, for trial and ])unislinient, every such oU'endcr against the laws providing for the per- foimance of our sacred obligations to friendly powers. Ou the 5tli of October last, less than a year after his release and after this proclamation, O'Neill led a third raid against Canailii. on the Pembina frontier, but was arrested by the United States troops, and this t-nie met with entire immunity, being discharjfed on the ground that there was no evi I circumstance of their carrying articles of the description above mentioued." (Mr. j Hammond to Mr. Jeifersou, May 8, 179;i.) — Appendix to British Case, vol. v, p. 241. Mr. Hammond's cautious language shows that ho understood the effect of a pimia- ination of neutrality as calling attention to the existing prohibitions, not as creating | new ones. The Government of the United States apparently do not understand this. He appears to have accepted Mr. Jefferson's answer without demur. The minister of the Mexican Republic, in IHG*^, when Mexico was invaded by a Frciich I army, urged the American Government to juohibit the export of mules and \v)i|;iMid "Which French agents were purchasing for tlie use of the expedition. Mr. Seward ri-| fused, citing the following authorities : Instructions to collectors of customs, issued ly Alexander Hamilton, Secretary of the TreasuriA August 4, 1793. "The purchasing and exporting from the United States, hj way of merchandise, articles! commonly called contrabaiul, being generally warlike instruments and stores, is Cwj to all parties at war, and is not to be interfered with. If our own citizens undertaJvetoj crrry them to any of these parties they will be abandoned to the penalties which the| laws of war authorize." — (American State Papers, Foreign Relations, vol. 1, p. 141.) Mr. Webster to Mr. Thompson, July 8, 1842. "It is not the practice of nations to undertake to prohibit their own subjects from I trathckinp in articles contraband of war. Such trade is carried on at the ri.sk of tliosej engaged in it under the liabilities and penalties prescribed by the law of uatiouso[| particular treaties." — (Webster's Works, vol. 0, p. 452.) . ■Jfr, Webster's ^^p^liiwpll^ COUNTER CASE OF GREAT BRITAIN. 207 employed only for carriage and not armed for war. Nor, again, does tlit'in'oxiiiiityof fi neutral port, whence tlu^ trade is carried on, to either Mlijicrt'iit country, make any dilterence in the duties of tlie neutrai (Tiivcruinent. Nor does it make a f those iiitiustoil with their yiianliaiiship, they wt-n- taken tnim '"'""■'"'"''"■"""'* their proper depositories and distrilmted throuj^h portimis ot' ilie c,,,,,,. try expected to take part in the contein.plalod rebt'llioii. In consefiiieiiL'e nl' tlie s.rimu loss thus sustained, tht^re was available at the eoiiiiueuceineiit of the outl)nak a iinuli less supply tiiau usual of all kinds. But throiif;h the zeul and activity of tlic Onlnain,. Itureau the embaiTassineiit thus ereated has lieeii in a ;;reat nieasunf ovcrcDHK;. .\s the capacity of the Government armories is not equal to the supply iifcilcd, cvin after liavinj; doubled the force of the Spriiifjlield armory, the D«'itartu»eiit fomul it ali- Holutely nticessary to procure arms to some extent from private inanufactiin is. ' ' • Some patriotic American citizens resident in Europe, fcNirin^ that the; coimtiy iiiiijlit not have a sutlicient supply, jjurchased, on their own responsibility, thniu^fli cD-niitii. tion with the United States ministers to En;;laud and France, a number of iiniirdvi.l cannon and muskets, and at your instance this Department accepted the diat'ls (liawii to defray the outlay thus assumed, A perfect battery of Whitworth six I'J-poun.l.r titled cannon, wit li '.{,000 roundsof ammunition, the muniticeut donation of sympatliiziii^ friends in Europe, has also been received from Enj^land.' In his report of 1st December in the same jear, the same miuister said: As stated in my last report, at the commencement of this rebellion tho Government fonnd itself deficient inarms and munitions of war, throufjh the bad faith of tliospiii- trusted with their c(Uitrol during the preceding administration. The ariiieiy at Har- jter's Ferry having been destroyed to prevent its possession and use by the rebels, tlie Government was compelled to rely upon the single arnuuy at Springfield and n\m private establishments for a supply of arms. * » '* After having made coutiiKts for arms \\ ith the private establishments in this country, it was deemed necessary liy the President, to insure a speedy and ample supply, to send a special agent to Enriipe with funds to tho amount of $2,000,()0() to purchase more. I am gratified to state that he has made arrangements for a largenumborof arms, part of which have already kiu delivered. The remainder will bo shipped by successive steamers until all shall liavo been received.* A commission was appointed by the Government of the United States, in Marcli, 18G2, to audit the contracts made by the War Department for ordnance, arms, and ammuiution, and in their report, which was laid before CongreMS, the following remarks occur on the steps rakeu to purchase arms abroad : First, as to foreign arms : it was of course absolutely necessary to resort to these in equipping within a few months more than r)00,000 men, and it was impossible iu all the workshops of Europe to have had arms manufactured as rapidly as our pnliliem- cessities recjuired. Under such circumstances prices naturally rose, and iiiiVrinr (often second-hand) arms had to some extent to be purchased. But these diftieultiis ■were greatly aggravated by the lack of system which prevailed. The States and the i General Government entered the market together as rival purchasers, and thus the members of the same national family bid directly against each other. Tlie folly (il this is tho more remarkable when it is remembered that these arms bought by the States were, iu fact, for tho use of the General Government, and will no doubt, in the end, be paid for by it. The General Government itself employed numerous aga\U not acting in unison, and often becoming, therefore, competitors of each other. A | few of these made purchases directly for the Government : the greater number spraiig up in tho shape of " middle men," to whom, though not dealers in arms nor skilled in j their valuoj contracts were awarded upon their own terms, only to be sublet to the j actual importers. * • • * in regard to a considerable portion of these imhfl arms, Government inspection was permitted in Europe before shipment, but so utterly iuadequate and so incompetent was the force assigned to this duty that it became a more empty form devoid of all utility or protection. Of this and other negligentts and imprudences, the iiractical result has been that a large proportion of our trooiis were armed with guns of a very inferior quality ; that tens of thousands of the refiii^ arms of Europe are at this moment in our arsenals, and thousands more still to arrive.- Lord Lyons Avrote to Lord Eussell on the Uh of May, 18G1 : " 5h. | 1 Appendix to British Case, vol. vi, p. 151. 2 Ibid., p. 164. COUNTER CASE OF GREAT BRITAIN. 209 me minister Stnvard sai«l to me on the Ist instant that perhaps he onj?ht to have tdlilmo lic'foie tliat the LTuited Spates Go' ernnient had sent aj^ents to Kiiilliuul to i)Ui(;hase arms. Jle added that the agents wonhl go on to Iraiico tor the same purpose."' It will he seen that in tlie report of Captain ITuse, wlio is stated to liiivebeen the confederate agent sent to Europe for a similar purpose, lit- iiu';iti()iis the United States ag«'nts and the agents of individual >()itlu'rn States as liis most formithilde competitors. " Tlieir orders,'' he says, " appear to have been uidimited, botli as regards price jL'] and *(piantit.v, and they paid cash in every instance."^ Further on lie mentions that "the United States agent, in tiiis case the minister, Mv. J)ayton, lias pun^hased, within a few days, 30,000 old liiiit lock muskets, which are to be altered before they are sent to the United States." The purchases of small arms and other military stores in England were partly made by authorized agents acting under the direct orders ol tlie (Jovernment of the United States, partly by agents acting under tilt* orders of the governors of particular States, and partly by mercan- tile tiriiis, aciting, however, in some cases under the authority of the IVderiil or States Government. Coinnol Thomas, of the United States Army, was mi England during till' war, and acknowledged that he had come over to superintend the ]iiirt'lias('s of military stores, lie sought and obtained much informa- tion Oil this subject at the Government establishment at Pimlico. It aiipears, however, that the agent mentioned in the report of the Secre- tary of War was a Colonel G. L. S(;huyler. He was, in July, 1801, iipimiiitod by the President of the United States " a duly authorized aneiit to purchase arms in Europe for the War Department." He re- ceived his instructions from the Secretary of War, with a meu-oran- (Inm from General J. W. l{ij)ley, of the Ordnance Department at Washington, specif,ving the arms to be purchased, viz: 100,000 ritle- luiiskets with the bayonets, 10,000 cavalry carbines, 10,000 revolv- ers, and 20,000 sabers.' The financial arrangements for these pur- cliiises were to be made by the Secretary of the Treasury with Messrs. Baring, financial agents for the United States in London, and a credit of $2,000,000 was, as has been seen, appropriated for the pur- pose. The money was placed at the order of Colonel Schuyler and the United States ministers in France and Belgium.' The arms were to be consigned to the care of Mr. Hiram Barney, collector of the port of New York. Colonel Schuyler proceeded to Birmingham, where, as appears from a report subsequently made by him in April, 1.SG2, to the Secretary of War, he purchased of the Small Arms Association 13,129 [long Enfield rifles and 1,880 short Enfteld rifles with saber bayonets — in nil, 15,000, all of which arrived safely in the United States, consigned as I directed in his instructions. He also made arrangements there with tlie American house of Van Wart, Sou & Co., who had zealously co- operated with him to procure arms for delivery early in January, and k|io, between May, 1801, and February 15, 1862, ordered from the Bir- [niinghain Small Arms Company, and forwarded to Messrs. Baring, and [Messrs. George Wright & Co., at Liverpool, for shipment to the United 1 States, an aggregate amount of 20,540 rifles. From England he pro- |eee(led to the Continent of Europe, where he continued his purchases; I and in a letter from the War Department at Washington to General 'Appendix to Britisli Case, vol. vi, p. 151. * Appeudix to Case of United States, vol. vi, p. 34. ^Appendix to BiitisU Case, vol. vi, p. 153. »» > ' J* * -'f ■:iii :{: \U I' ^! 1 J: ' i 1 !• < ij . i . i ''~ i • ifflHI lh> fl' I til e -JHI 270 TREATY OF WASIII! uTON. Kiplcy, of tlie 18Mi Xovoniber, ISOl, infoimntioii is said to Imvc l)(.(.,i nM'.V» I'liiticiij rilles from Dresden, oOO sabers, SOO revolvers, one ease of hidlct molds, The steamer Saxonia, leaviii}*' Sonthampton on t ic (ith, was to luinu 7, (MM) cavalry carbines and />(M» sabers; the steamer Fnlton, (NuvciiilM'r 11',) LMMMM) iiercnssion Titles; the steamer leaviniyf ilafnbur}; on the Kth of November, ;}(),(M)() more.' The War Department had written rejjcatedly and pressinj;ly to ( 'oloiicj Schuyler on the subject of his mission. On the I'd of Septeinlici' th, Secretary wrote: ''We need arms; secure them at any reasonalde prjc,. and forward without delay."*^ Ajfidn, on the Kith, '' I trust that notliin;- will delay a prompt delivery of the arms which you have pmcliiisciL You will i)lease express my acknowledgments to Messrs. bminj;. Brothers «& Co., for their prompt and patriotic; action in facilitatiii;' your operations."* On the 8th of October, "I notice, with mucii r('i:m,\ that there are no guns sent. # * * # Prompt and early siiipincnts of guns are desirable. We hope to hear bv next steamer that vmi have shipped from 80,000 to 1(M),(M)0." And, on the lilstof October, | "the Department earnestly hopes to receive by the Arago the li;,(i(ii) Entteld rides, and the remainder of the li7,0(M), which you state you have l)urchased, by the earliest steatner following. # * # » Could ymi appreciate the circumstances by which we are surrounded you woiilil readily understand the urgent necessity there is for the iunaediati* delivery of all the arms you are authorized to imrchase."' In the summer or autumn of 1801 ]\Ir. J. ^{. Schuyler and ^Ir. Tonics, of the tirm of Schuyler, Hartley & Craham, of New York, vi.sitcd Bir mingham, and, after comnuniicnting with the princii)al ritle, bayoiut, and sword manufacturers tliere, gave orders for as many of tliose articles as their respective manufactories were capable of sup fo3J plying, *the goods to be paid for on delivery to them at a place to be subsequently named, or on shipment. ^Messrs. Schuyler iiinl Tomes made no concealment of the fact that these arms were destiiKd for the American Government, and they intimated their intention of continuing unlimited orders for a period of two years. They took warehouses in Birmingham for the receipt of the arms when coinpletd. and shipi»ed them through the agency of Messrs. Baring Brothers and Messrs. Brown, Shipley & Co., of Liverpool. It ai>pears from tlie returns made to Congress of arms purchased by the United States War Department up to December, 1801, that 8,0o0 rifles and 232 revolvers of English manufacture had at that time been sui)plied by ^Messrs, Schuyler, Hartley & Graham ; but Mr. Schuyler is also believed to have acted as agent for the purchase of arms for the State of Xe* York. Messrs. Schuyler and Tomes were soon followed to Birniingliani by a Mr. Lockwood, of New Y'^ork, who had entered into a contract t'or| the supply of rifles, bayonets, and swords to the War Department at Washington. He also gave unlimited orders fui such articles, actiiig,| however, to some extent, in concert with Messrs. Schuyler and Tomes and shipping the goods through the agency of the same houses at Liv- erpool. The effect of these orders was to raise the prices in the Birming ham gun-trade to the extent of 20 per cent.; indeed, the price of rities rose from 528. to 75«. each.'' 'Appendix to British Case, vol. vi, p. 162. 2 Ibid., p. 1.54. •■'Ibid., p. 1.55. * Ibid., p. 158. ■»^*i^"i^«imii n Messrs. r.ariiiii,' Hrothers, and i)urchased and shijiped saltpeter at a cost of £?J,(i!»!l l(J.v. 8^/.' The lari>e purchases of salt[)eter which were nuulo toward the (dose of ^'ovember, J8()l, drained the whole Enj^lish market, audit was thought prudent to issue a pnxdannition prohibitinie\vard on the L*4th of January, 1801' — " The only event of any in.por- tiiiiee connected with American affairs that has happened dMU'r the last week is the revocation of the orders prohibiting the exportauna of arms and munitions of war. This will reUnise the large 9. '> Appendix to Case of Uuited States, vol. i, p. 536. ^ww COUNTER CASE OF GREAT BRITAIN. 273 ■ks or r I piircl'iistHl here as a purely commercial transaction, for the use of the snip- ^m „ , 1 ,\,.,nv. hilt that I had earlv ohipo.tpd to this uractino for the msliip Com. ary. on the •ates. TliW a 13th May, ey could not bed to carry i, but sailing the Atlantic] .rrival of tlie )ut 000 cases | lar case lia 3 carry tliwe I that, if they id thence by ■ in sliippind England, but] » believe tliat ms they liail ly by anotberj lat their own ers, and parf ausferredtliel I reply to tbel them to tlifl prohibition of I 1 the reply ofl 19th Decem-f lie States, I I entire couforni-l inieiit of a vi'ss«l| not proliil'itfJ had been siuttol [)ort,tlianto:lit| iulniitted tliiswl couipliauce witli[ m which wai ^•, 1802.5 yA ernment, Iwl recosiiitio" \ \\<\ had nieiil dnced in th(f •ivate pers large suppbej \e part of tlij ectively usr is. » by adiiii] res had beef to British Cd Federal Army, but that 1 had early objected to this practice for the reason that it prevented me from pressing my remonstrances against a very different class of operations carried on by friends and sympathizers nith the rebels in this island, and it had been discoutinuetl. We had, indeed, purchased largely in Austria, but that government bad never .riven any countenance to the insurgents." Jjord liussell's views are men in a note to Mr. Adams of the 17th May, inclosed in this dispatch. ' It may be observed that the agents of the confederate government, if the correspondence presented by the United States is to be believed, liad themselves at this time been drawing supplies from Austria, and tlnit Major Huse had been endeavoring to ship ten batteries of Austrian field-guns at Hamburg, and was about to invest in 20,000 Austrian ritles then in the Vienna arsenal.^ Mr. Adams was, however, mistaken in supposing that the practice of buying arms in England for the United States Government had been discontinued. Messrs. Naylor, Tickers & Co., of New York, Liverpool, and London, bought and shipped to the United States large quantities of small-arms. They wore supplied from Birmingham alone with 150,000 rilies between Jnne, 1802, and July, 1863. They acted very extensively as agents of the United States Government, and submitted to that Government large proposals from the Birmingham Small- Arms Company, The Assist- ant Secretary of War at Washington, in a letter addressed to [w] them on the 20th October, 1802, ♦directly sanctioned an arrange- ment for the supply of 100,000 rifles, and the acceptance of this order was duly notified to the Secretary of War by a letter from Bir- mingham, dated November 4, 1802. The arms were sent to Liverpool lor shipment. In December, 1803, fifty 08-pounder guns were proved at the royal arsenal at Woolwich, at the request of Messrs. T. and C. Hood, and after proof taken away by Messrs. Naylor & Co., and shipped to New York. Mr. Marcellus Hartley, of the firm of Schuyler, IFartley & Graham, already mentioned, was also a large j)nrchaser of small- arms iu London during the latter half of the year 1802.^ The general results of these operations may be traced in the oflicial returns of exports from Great Biitain to the northern ports of the United States, published by the board of trade. These show that, whereas the average yearly exports of small-arms to those ])orts for the vears 1858, 1859, and 1800, were 18,329, they rose, ii! 1801, to 44,904; in 1802, to 343,304; and amounted, in 1803, to 124,928. These are the recorded shipments of small-arms; but there is reason to believe that other shii)ments, to a considerable extent, were made under the denomination of hardware. Of exports of [»arts of arms there is no record prior to 1802, In that vear they were valued at £21,050; in 1803, they rose to £01,589; in 1804, they still amounted to £10,010 ; and the average for subsequent years has sunk to £4,249. Of percussion -caps, the average export in the years 1858, 1859, and 1^1)0, was 55.02(),00(^ ; in 1803 it rose to 171,427,000; and, in 1804, was 1"-,.187,000. Of cannon and other ordnance, the exports in the year i'^'U alone were valued ai £82,920; while the aggregate value of the ixports for the other nine years, from 1858 to 1801, and from 1803 to 1^117, was but £3,330. The exports of saltpeter for the years 1858 to 1801 had averaged 248 tons yearly. The purchases for the United States Government raised ' See Appendix to Case of +'ic United States, vol. i, p. 539 ; vol. vi, p. <)9. •Appendix to British Cane, vol. vi, pp. 188-H);5. 18 A— II '^t :4 274 TREATY OF WASHINGTON. in-r the amount to 3,189 tons for the year 18G2 alone. From 1863 to 1867 the yearly average has again sunk to 128 tons. In addition to the ex- ports from England, there was shipped from India, direct to the north ern ports of America, a total of 39,840 tons, between the years 18G(> and 1866, both inclusive. < The amount of lead shipped, which had averaged 2,810 tons yearly, rose, in 18G2 and 1864, to 13,148 and 11,786 tons respectively. The exports of ready-made clothing, ajiparel, &c., also rose, in 180} and 1864, to double the average amount, in consequence, as raay legitj. mately be presumed, of the supplies required for the United States Army. It is estimated that the extra supplies of warlike stores thus exported to the northern ports of the United States during the civil war rt'j)re- sent a value of not less than £2,000,000, of which £.500,000 was tlir value of muskets and rities alone. On referring to the published statistics of imports into tbc United States, a similar increase will be observed. The value of arms imported from England into the United States is there given for the vears endiii;; June 30, 1800 and 1861, at $281 998, and $257,055 respectively. In the succeeding year the imports of arms amounted to an estimated value of $1,112,098; in the year ending June 30, 1863, to 8717,409; and in that ending June 30, 1864, to $409,887. But, in addition to these eii tries, there is a table given in the returns of duty free imports, under the heading of " Articles of all kinds for the use of the United States." During the two years ending June 30, 1860 and 1861, no such article*; were returned as imported from England ; but in the years ending Juin' ^0, 1862 and 1863, amounts of $3,316,492 and $6,778,S5t; are entered under this heading ; and in the two succeeding years the articles thus imported from Great Jiritain still reached the estimated value of $1,568,407 and $1,853,773 respectively. That a large proportion, if not the whole, of these imports consisted of materials for tLe supply of tie military forces of the United States cannot admit of a doubt.' We see then that, during the civil war, i ^ms and military supidiesot all kinds in very large quantities were jmrchased in England, France. Austria, and other neutral countries by the Government of the United States; thak they must h.ave exceedetl in amount any supplies wljioh could reach the Confederate States ; that these [uirchases were of tbe most pressing necessity, especially during the earlier years of the war; that they were etifected by agents employed by that Government, .some of whom were officers in its military service ; that arrangements vere made tor the regular shipment from England to the United State.** ot the goods so i>urcha8ed from tirje to time ; and that the goods purchased in England were paid for through the financial agents of the American Government in England. In the sense, therefore, in which these [56] expressions are used by the *Government of the United States in its Ctise, that Government had in England during the war a branch of its War Department and a branch of its Treasury — that is. persons employed by the War Department in selecting, ordering, and procuring arms and military supplies, and causing them to be shipped to America, and financial agents of the Treasury, through whom its payments were made, and who were provided by it with funds for that purpose. In the sense in which Great Britain is said to have become the arsenal and treasury of the Confederate States, she became the arsenal and treasury of the United States. Had tbe confederacy and its agents filled, in the foregoing transactions, the parts actually sustained by the ' Stiu returus, Ibid., pp. 200, 203. COUNTER CASE OP GREAT BRITAIN. 275 United States and their agents, we should have a narrative differing in no material respect from the story of confederate purchases and ship- ments told in the American Case. ARMS AND MILITARY SUPPLIES PURCHASED BY THE CONFEDERATE STATES. Arms iirul military HtipplifA piirc'huHeit l)y th« Confederate StuteB. The Government of the United States has not fnrnished the arbitra tors with an account of the names and operations of the agents employed by it for the above-mentioned jjurposes daring the war ; and it has, therefore, been necessary to supply that omission, although the means of doing so possessed by Her Majesty's government are very imperfect. Of the operations of the persons employed by the other belligerent, the Government of the United States has, on the other hand, given a very long and circum- stantial history, purporting to be drawn from the papers which camo into its possession at the end of the wfj. It is not, and indeed it could not be, pretended that the correspondence extracted from these papers was in any way known to th^ British government. Nor has the Gov- eiumeut of the United States furnished the arbitrators with any means ofjudging whether the letters are authentic, or the facts stated in them true, or the i)ersons whose names purport to be attached to them (per- sons entirely unknown to the British government) worthy of credit. Her Majesty's government thinks it right to say that it attaches very little credit to them. Tliere is, however, no reason to doubt that th^ confederate govern- ment, during the whole course of the war, eftected jmrchases of arms and munitions of war to a considerable amount through its agents in Knglaud, France, Austria, and elsewhere. And it is now well known that, as its financial agents for this and other purposes, it employed the mercantile house of Fraser, Trenholm & Co., which was established at Liverpool, in connection with a firm at Charleston. The circumstance is stated as follows in the Case of the United States : " Before or about tlie time the insurrection broke out, and, as the United States believe, in anticipation of it, this house (the Charleston house of John Fraser «& Co.) established a branch in Liverpool, under the name of Fraser, Tren- bjlm & Co. Prioleau was dispatched thither to take charge of the Liver- pool business, and became, for purposes that may easily be imagined, a uaturalized British subject."' Her Majesty's government finds, on in- quiry, that Prioleau, in fact, settled himself as a merchant in Liverpool iu 1854, and remained in England, except during a temporary absence of a lew months, from that time till June, 18G3, when he applied for iiatnralization, stating, iu his application, that he had been a resident liouseholder for eight years, had married an English wife, and was de- sirous of acquiring landed property in England, and residing there per- manently.^ What further motives for this step a fertile imagination luight discover Her Majesty's government cannot say. The advantages conferred at that time by naturalization in England were the legal capacity to hold immovable property, and to register vessels as a British owner. None of the vessels, however, to which this inquiry relates, were registered in the name of Prioleau, nor in that of his firm. In truth, all of them, except the Shenandoah, with which the firm appears I to have haothecating stocks of cotton, stored for exporta [57] tion, and to be *delivered after the conclusion of the war. The agent employed in England for this purpose was a merchant rcsi dent at Liverpool. Other agents were employed in Paris. Xo action or suit at law founded on transactions of this kind could have been sustained in England, either by or against the confederate governinoiit: since it had not been recognized by Great Britain. But it was not the duiy, nor was it within the legal power of the liritish government to prohibit or prevent them, as it could not have prevented its subjects from subscribing to the vast war-loans which were raised from time to time by the Government of the United States, and were largely held in Europe. Those who advanced their money to the Confederate States ilid so at the risk of losing it, if the confederacy should be overthrown, iind they have lost it accordingly.' Pressed by the «lilliculty of dis,tiuguisliing between their own oj)ei;i tions in Euroi>e and those of the Confeia-rate States in such a manner as to make it appear that the British government was bound to gi''' free scope to the former and repress the latter, the United States apixar to imagine that they have found such a distinction in two circumstances. One of these is, that the needs of the confederacy were, as theyalle^'e. more urgent than those of the Union ; the fornun' could only obtain their military Siipjdies from abroad; the latter could manufacture souif of theirs at home.^ The other is, that the United Stures, having tbe command of the sea, could transport the goods purchased by them freely and openly, or (as it is expressed) " in the ordinary course of commerce;"' while the confederates were obliged to "originate acorn raerce for the purpose" — that is, to get their goods transported by way of Nassau and Bermuda, which are commonly places of no great trade- and further to make use of those concealments by which the trattic in contraband of war, when not protected by a powerful navy, usually tries to elude the vigilance of the enemy's cruisers. 'The iiriuc'iplc is clearly stated by Heti'ter, section 148, in tlio passage cited VieldW, (Annex A.) It liiis been fully recognized by tlio United States. The following extriut l'n;n:i note of Mr. Webster's was cited and adopted by Mr. Seward in answering a c(iniiil;ii:i' of the Mexican minister in 1862: " As to advances, loans, or donations of money to the government of Tex.ts, oi :b citizens, the Mexican government hardly needs to be informed that tliere is iidlliin!; nnlawfnl in this ,so long as Texas is at peace with the I'nitetl States, and that tlnw are things which no government undertake* to restrain.'" — Appendix to ca.'^f »•' I'l iti'l iStatcs. vol. i, p. 'yH'J. a'ase of the I iiited States, pp. 310-312. '■■'\^ wwrn'mr^ COUNTER CASE OF GREAT BRITAIN. 277 ■h-m- Are we then to understand tbat, according to the views put forward in the Case of the United States, the "strict and impartial neutrality towards both belligerents,"' which it is the duty of a neutral government to maintain, obliges it to find out which of the two stands in the greater need of supplies, and consists in lending aid, by measures of repression, to the belligerent whose force is the greater and his wants the less pressing of the two, and thus assisting him to crush more speedily the resistance of his weaker enemy'? Her Majesty's government is unable to assent to this novel opinion, advantageous as it would doubtless prove to states which, like Great Britain, possess a powerful navy. To hold aa even hand between the two ; to leav^e the trade open to both equally or close it to both alike ; to leave the stronger free to profit by his strength, .and the weaker to elude, as best he may, the superiority of liis euemy on the high seas, has commonly been regarded as the only (ourse consistent with impartial neutrality, and this was the course steadily pursued by Great Britain. The transportation of militarj^ supplies was equally a contraband com- merce, whether carried on openly or covertly, from Liverpool or London or from Nassau. It is asserted by the United States that the contra- hand trade between England and Nassau was " covered by the British flag," and that this, coupled with the protection aflbrded by Her Majesty's joverument to the confederate agents in England, "deprived the United States of the benefit of their superiority at sea.'" Her Majesty's gov- ernment does not understand the United States as alleging either that any protection was afibrded to the agents of the Confederate States in Eiifjland which was not extended also to those of the United States, or that contraband trade under the British flag was protected against search and capture at sea. Both of these assertions would be unfounded : but the language employed is calculated to produce this erroneous im- pression on the minds of the arbitrators. The agents of both parties lU Great Britain enjoyed alike that protection, and no more, which per- sons resident or commorant here derive from the laws under which they live. Ships carrying between Liverpool or London and Nassau military supplies destined for the Confederate States were not, in fact, protected by the British flag, but were left to be dealt with on the principles of international law, as administered in the prize-courts of the United States, equally with those bound directly for confederate ports. Her Majesty's government, with a powerful navy at its command, abstained troin all interference, confining itself to a remonstrance, conveyed in very moderate terms, when there appeared reason to apprehend that |5Sj * the United States cruisers, in their eagerness to make prizes, m'ght harass unduly the regular and legitimate commerce of (treat Britain. ■,. "i- -i "■:\ BLOCKAI>E-it|TNNING AND THE NASSAU TRADE. The sea-coast of the Southern States being blockaded, though the block- ade was for a long time imperfect, importers of goods into Bio.k,,.i. runni..« tliose States were exposed, if the goods were contraband, to a »"it''eNu..aui«a. double risk of capture, which increased or diminished according to the length of the voyage. The island of New Providence, from its compara- tive nearness to the blockaded coast, offered some special facilities for the traffic, and large quantities of goods were sent to it as the war went on, with a view either to their being sold in the island to customers buying ' Case of the United States, p. 312. 278 TREATY OF WASHINGTON. n.r: li i r i'f m. i'fe for the southern market, or to their being forwarded direct to one or other of the blockaded ports. Havana and Cardenas, in the Spanish island of Cuba, were made use of for a like purjwse, and a confederate agent is stated to have been resident there. In this there was nothing which the British government was bound or legally empowered to prohibit, nor was any such obligation incumbent on the government of Spain! Persons trading either with the Southern States or with those which adhered to the Union were free to use Nassau, as they were free to use any other port in the British dominions convenient for their purpose. Traffic of the former kind was diflflcult and i)recarious, while that of the latter kind was safe and easy, and could be carried on from Liverpool or Halifax with more convenience and security than from Bermuda or Nassau. But this difterence imposed no special obligations ou the British government in regard to either the one or the other. One tangible ground of complaint the United States believe them selves to have discovered in the circumstance that merchant ships ar riving at Nassau were able to break bulk there, and transship their cargoes without a hona-Jide importation into the colony. It is repre sented that this became a constant practice with vessels transportiui; goods for the confederates; and the Government of the United States "asks the tribunal to find" that the permission to do it "was a viola tion of the duties of a neutral." That the tribunal is invested with iin authority to decide this question, either in favor of the United States or against them, it is needless to say. It is asserted by the United States that the permission was given (or. in other words, that a previously existing prohibition of transsliipmeiit wiihin the limits of the colony was removed) by an act of the colonial government. In proof of this it relies upon an intercepted letter, pur- porting to be written by a confederate agent. That it was an indul gence granted, exclusively or especially, to vessels trading with the Con- federate States, is not asserted; though, under the circumstances of the case, it might be expected to work principally in their favor. No information of such an act ou the part of the authorities of the colony ever reached Her Majesty's government. It was not complained of at the time either by the consul at Nassau or by the minister of the United States in London, although the fact that transshipments were taking place was at a later period mentioned as a grievance. From the general character of Mr. Whiting's correspondence, and from his activ ity in discovering injuries and affronts even where none existed, there can be no doubt that, had the permission been given, and had it pos sessed the importance which the United States now attributes to it, he would instantly have made it a matter of expostulation and complaiut, and it would have been promptly brought to the notice of Her Majesty's government by Mr. Adams. But even the Government of the United States itself, which was in constant correspondence with Mr. Whitinjf, appears to have known nothing about the matter, and now produces, iu support of a complaint which it regards as serious enough to demand a judgment from the tribunal, no evidence beyond a loosely-worded sen tence occurring in a letter purporting to be written by a confederate agent ; while of this letter, and the time at which it came into the pos session of the United States, no better account is given than that it is one of a large number "captured at the taking of Eichmond and at other times. " Her Majesty's government has now ascertain ad on inquiry that the statement is erroneous. The fiscal regulations of the colony prohibited the transshipment of goods within its limits unless the goods were landed i'PWIlM COUNTER CASE OF GREAT BRITAIN. 279 for exaiuinatiou by the officers of customs. Goods so lauded might be immediately resbipped from the same wharf for exportation in the same vessel, or ii others, at the choice of the shipper. The prohibition (which existed onl^' for fiscal purposes) might, in any case, be dispensed with by permission granted by the receiver-general. This permission had been customarily granted as a matter of course in the case of goods stated to be in transit, and it was accorded frequently during the war. The first application was made ou the l{)th December, 1861, in ;j9J the case of the *Eliza liousell, a vessel laden, not witli contra- band of war but with an assorted cargo ; and after a reference to the governor and council, it was gi'anted, the receiver being satisfied that the goods could be examined on board as well as if they had been placed ou the wharf.' Ko permission appears to have been granted in the case of the Gladiator, nor does it appear whether her cargo was or was not landed before exportation. The jnohibition was not removed or aioditled, and no change was made in the regulations. Had it been removed, however, the fact would have ha,) "it was resolved to send the purchases which iiiiglit be liiade iu England to Nassau in lUitish bottoms, and there transship them iuto steamers of light draught and great speed, to be constructed for the purpose. * • * The first offer from Riclunoml tliat is known to have been giveu for such a shipment is dated the 22d of July, 18(31.'" Tlie passages referred to .'is authorities do not show any snch system. The letter from Walker to Huse & Anderson of .July 5i'i, 18lil, suggests that a number of small vessels should he secured under British colors and with British clearance, laden with arms and convoyed by the arnied vessel MacRae, which had been placed by the secre- tary of the navy at the disposal of the war deitartment and was to be sent to England. for the purpose. The vessels might make the port of Nassau or some other port eiiualiy favorably situated, whence they might clear with probable safety for the coast of Honduras or of Yucatan, and enter upon the coast either of Florida or Louisiana. Nothing is said of traussbipment at Nassau. The Gladiator, which was the first ves- sel that arrived at Nassau with contraband of war on board for the Confederate States, (December 9, 1861,) had originally orders not to laud her cargo. It was not uutil after sbe arrived at Nassau that it was decided to distribute it into smaller vessels. (See Appendix to Case of the United States, vol. vi. p. .')(), where the idea of transshipment is spoken as a last resource, and Mr. Benjamin's order to Captain Maffit, p. 57, aldoMr. Heyliger's letter, p. 58, which acknowledges the receipt of ordeiw to transship.) The letter from Huse to Gorgas, March 15, I8&i, ib., p. 69, besides being lon^ subse- 'I'lent iu date, does not speak of auy regularly established plan for transshipment, although he remarks on the difficulty of uniting in one vessel the qualities necessary fur crossing the ocean and for runuing the blockade. In consequence of this, Miyor Huge is "quite at a 1o.h8 w^hat destination to give to the Bahama." The next shipment be means to send to Havana. Huse (at Liverpool) was not directed to send the cargoes to Nassau, but to some port in Cuba, "to care of our agent, Mr. Helm, and we can get them away with almost en- tire certainty by breaking bulk there." (Ibid., p. 68.) The cargo of the Economist was not transshipped. (Ibid., p. 71.) That of the Soathwick was only transshipped on account of the amount of demur- rage to be paid under her charter, while she was waiting for an oi>portuuity to run the blockade. (Ibid., p. 73.) As to the existence of "private ventures," it seems that most of the arms and sup- plies, mentioned in the correspondence in vol. vi, were contracted for by the confede- rate government, but it by no means appears, nor is there reason to believe, that all n^' '■■ - ■■ • ) 280 TREATY OF WASHINGTON. i^^ Sli '■' ' however, omitted to iiifortn the arbitrators of the means which weip adopted by itself, as a belligerent power, to extinguish the tratlic with the South, of which it complains. These means consisted in a rigorous extension of the belligerent right to capture neutral vessels on the high seas for the conveyance of contraband and for intended breaches oi blockade, an extension previously unknown to international law. Eefort' this war, it had been commonly assumed that, where a neutral vessel was bound from one neutral port to another, a prize-court would no* innnnoiit will not iidvort in detail to sonu' iniiior iDiiiplaiiits and inaccuracies which occur in this part of ,,„,„,.,,,,.„„ tii(> Case of th(( United ^States. . ..ii.....i n. Two coniphiints. however, remain in connection witii the matters ro- iVrml to in the rore^oin'i' i»ay;es, whiclj are treated as serious by the I'liiti'tl States, though in the view of Her Majesty's <;overnnu nt thej li;iv(Miothin<; to do witli the questions refernMl to the tribunal. One of these is fouinled on the re.nuhition enforced by the cohuiial mitliorities at Nassau, that a bellijjeront ;;overtinuMit shouhl not be Mitlered to store coal at that port for the use of its armed ships of war ; the other, on the orders subsequently issued by iler ]\rajesty's jjovern- iiit'iit, w hereby the ships of war and i)rivateers of both belligerents were prohibited from entering the ports or waters of the Bahama Islands, unless by special leave of the governor, or under stress of weather. The circumstances under which the first of these two complaints arose ;ire succinctly stated in Karl liusseirs note to Mr. Adams of the L'.'llth V Nscl all tlioso wliostr naiiu's wi'it- not on it. I'rccisrly fij;lity-tliifi) I'ltMU'Iiinmi lost thi'ir]>assii};i' in this nifinnt'r. Tlies^- won- all boiin lawt inoniont. Anionjj; tin- piisMnji<;rs who wik- pnr- liiiwi'i'sof tickt'ts, and who roniainod on tho Lafayt^ttc.wt'rc the h-aders of the volnn- Viis. and over yr)() ('»uV/rc.x an' (hfstini'd for their native land. No att not '.^as made ly the dt'imty nnirshaLs to interfere with arms and aininnnition on tie steamer, eon - sbtiiifjof lv!(i,00() rounds and several thousand Keniiuptou riiles. Mr. Mi-Kenzie was cxiitiiu'ly dissatisfied with the aetion of the North (Jernum eonsul, and intimated his iiitiMition of brinf^iiif? the matter before the i)roper anthorititis. The last secMi of the Latliyctte was olf the ittery, at which time she was fast steaniing out to sea. It was iiiiitidently reported tliat she was joined in tins lower bay l>y the rrencli corvette Litonche Tooville. Cai)taiu Hassett, with four guns on board and a crew of ei^fhty nujii. "Tho Lafayette was to have sailed on Saturday last — her rc^^ular day — but was then iltaini'd by an order from the French minister of war at Paris, who desired that she >!iimiil carry out certain munitions of war and 8Upi>lies, intended, it is alle<;ed, for the Fri'iieh army. Her mails were kept back until yesterday, and then left with the ves- >fl. The supplies, A.C., consisted of l{omiujj;ton i>reech-loaders, to the number of (),0()() liM's— some jiersons say more— several million rounds of ammunition, a larjje number I iivohcrs and other small-arms, and a considerable (juautity of jirovisions. .She MniinpiKed takiufjiu this portion of her cargo on Friday, and was en<;ap;ed day and i)i;'lit to the hour of her departure, and even after she sailed a lij^hter arrixcd with tasi'sof arms which came too late to l>e shipped. "It is stated by some persons on the wharf, with one of wlioin our r< jxirter converstid, iiiat the cases have the marks of the ordnance oUici'r at Governor's Island. It is not Kiipi'oliable that the.se arms were juirchased of the United States (jlovernment, as Mr. Milvinzie, the ajjent of the line, inforiu(?d our reporter, on Monday, that this (Jovern- liii'iit were fully aware of the purchase and proposed shiiunent of these arms, and I'tiTi'il no objection." Tilt" New York and Havre line of hieamers, of which the Lafayette was one. held at the time a contract with the French govern mtui I for the c.iniiigeof the mails. In "ctoljer, IST I), a telegram was received at New York from M. Cr«^inieux, a mend)er of til FieiH'h provisional governmcut, ordering that the steamers of this line should lie 'iiW exclusively for fr<'ight to be forwarded on account of the government. Under lis order the iiackets continued to carry arms and munitions of war in large I. Peace, french consul-general at New Y'ork, who was charged with the niunageinent of the purchase aTid shipment of bese arms, tliat four vessels, the City of llin'iiim Ayres. Concordia, Riga, and An-adia, a re chartered and freighted with arms, •vMi'ssrs, UfMuington iV Sous, for the Frencb government, and two others, the Erie mil Ontario, by an ag(^nt of the French eons..i-general for the same purpose, thus be- iiiraiiis; " tnnispoi'ts" in the sense in which the word is used in the Case of the United 4» I' I " 1 286 TREATY OF WASHINGTON. March, 1862.^ It will be observed that two vessels arrived at Xassan laden with coal which had been shipped at Philadelphia by order of the United States Navy Department ; that the United States consul desired to store this coal for the use of ships of war under the flag of his gov- ernment resorting to the colony ; that this was objected toby the [04 j local authorities, and that the objection led to *remonstraiices on the part of the consul and of the commander of the United VKri„u«,o„,pi„int. States ship Flambeau, which arrived while the correspon ' oi' the I'liited StiUfH HRHiiiHt (ireat B r i I am. ti- euce was proceeding. It was urged by the latter that both the United States ships James Adger and the confederate ship Nashville had been suffered to coal at Southampton, and that this ne-trirtion. on ^38 a prcccdent in favor of granting the facilities now asked coMiing at Na.HHu. jj^ Nassau. It was pointed out in reply that the cases were not parallel. Those vessels were several thousand miles distant froci their respective homes, and to them consequently coal was an article oi real necessity, whereas the Flambeau was within a very short distance of the ports of her own nation — Key West, for instance — where all her necessities could readily have been supplied. In obtaining coal at Nassau, therefore, there could be no other object than that of eiiablicf; her to continue what was, in fact, to some extent, a blockade of the port. The commander of the Flambeau replied,- ]»rotestiiig against such a construction being placed on his presence, and declaring that he was strictly eu joined to respect the rights of neutr.ils. It appears, however, from a letter addressed by the governor to the British commodore at Havana, dated December 12, 18(51, that the Flambeau constantly kept her steam up ready for instant movement. and there was a report that she intended to cut out the Gladiator, or t^ States. No objection was, however, raised to their sailinj; by the United States (iov- erunient. The New York Times of the 30th of March, 1H7!, gives the following statt- ment of the supplies forwarded by these and other vessels : " The steamship St. Laurent sailed yesterday with her last cousijrnmeut of arniH ami munitions of war for France. She carried among her cargo l,67(i cases of eai;'tii(lf;ts, 574 cases of harness, 1,444 cases of ritles, 205 cases of bayonets, and 07 cases of piojei- tiles. The whole cargo was valued at $708,l>.')5..^0. This makes nineteen carfjoen )( arms sent to Havre since the war began, the previous shipments being as follows: Date. Steamers. September 3 Pereire September 20 Lafayette Oetol>er 4 Ville de Pari.s October '20 St. Laurent October 2i( Pereire November 2 '. Avon November 7 Ontario November 15 Lafayette November 20 , Erie November 2S , Ville de Paris December i;i Pereire January 2 1 ('oncordia January 4 1 Lafayette January 14 1 City of Buenos Ayres. January 21 1 Ville de Paris ". February (> } Washington February 13 ! Kiga March 1 I Pereire Guns. Cartridges. Total. 2, l.'i.T 1,'i. t'40 4.'), 023 Iti, 023 104, 870 r,>>, 340 72, .'540 rtO, 660 120, 800 11,760 14, 100 a,"), iHo 37,000 8,240 26, 100 609, 531 402, .WO , 3, !t.">5, OOll !t, 424, 000 I io.2iii>,88o ; 2, 164, OCIU ' 11,.')00, 1100 I 17, 78.'5, 502 ! 9, 538, 736 I ■6, 818, 12(1 , 12, 39!», 320 ; 8, 104. 000 I l.j8, 751 I 4,671,000 1, 317, 000 I 2, 88.7, 000 : 2, 275, 820 ' 3, 160, 000 Value. fiO. 155 4n,t.a '.nx w .va, yj 707, (K>J l,:()4,U'i 9:10,3;^ 1,7HM l,ll.i3,'iK tiWi, * ti;H,0«l 44K4(« 747,451 4ai,24» I 7:tl,3(« 117,082,379 I 13,610,™ It appears, from the otlicial report of the Secretary at War, that the sales of ord- nance stores by the Government of the Uuitdd States in the year IS?©-^] auiouiitd. in the aggregate, to $10,000,000. ' Appen1, that tht' t nioveineiit. (Hat or, ort« 1 id States (iov- 1 )llo w \ng statt- utof aritiH aiid of c iH'tridjies, !ases of projt'^- tetui carijoeH it ,s follows: 1 , "lUO Value. m m , OOll 4n,t;u , 000 1 oiri.K .tffO :iiii >:> , 000 7-4. ".: ,1100 1 707, UW , .V.'J l,7tJ4,l..':i , 7;«; 9:iO,3;.4 , iu(i l,744,M ,:m i,(i53,ai.' .000 «»;.»■ ,7M (ilH.OM ,000 754. 'J' J ,000 44f,4W ,000 747,451 ,82ti 4'J!,24D 7:il,3Wi ,000 ■M. ~i , 379 13,1=10, 77a e sa les of onl- -71 iimouiitetl. jeize that vessel immediately after leaving the port.' The consul of the United States, in a dispatch to his Government of the following day,. stated that " the captain of the Flambeau is watching intently the movements of these rebel steamers."'' The consul notices that "an English man-of-war has arrived, and severai mora are telegriiphed as in sight," and he does not doubt that every protection will be afforded to tbe Gladiator, and every means afforded to facilitate her escape. The attorney-general of tbe colony advised the governor that, though it might be in accordance with the regulations issued by Her Majesty's (fovernment to suffer coal to be supplied to an armed vessel of either belligerent, putting into port under ordinary circumstances, and desir- 008 of obtaining a supply of coal in the ordinary mode by purchase in the market, such was not the case of the Flambeau, or of the coal in iiuestion. He therefore advised that the restrictions placed on the use (it that coal should be continued, and that reference sliould be made to ihehome government for instructions. The.dispatches reporting these facts were received at the foreign office from the admiralty a«d colonial office on the 1.5th and 16th of January, W2^ and the question was at once referred to the law officers of the Crown. Their opinion was that the governor had acted properly in re- iiising to allow the i)ropo8ed coal-depot to be formed at Nassau. The formation or permission of such a depot for a i)urpose so directly con- nected with belligerent operations would be inconsistent with the neu- trality of Great Britain.^ One of the vessels laden with coal appears to have been sent back lit once by the United States consul. The other, the Caleb Stetson, re- mained in the harbor with the coal on board, and does not seem to have viirtered any injury from the serious leak previously reported by the onsnl, as rendering necessary the transshipment of her cargo to the Flambeau.* (j]! * Kepresentations on this subject were made by Mr. xvdams to Earl Russell on the 24th of February, 1802. Lord Russell replied, in the 25th of March, explaining the governor's proceedings, and Mr. [Aiiaras, though apparently dissatisfied, did not pursue the subject.^ The attempts of the United States to form coal-depots for their imi.sers at British ports were not confined to Nassau. They had simul- [taneously sent vessels laden wit^h coal for the same purpose to Bermuda, which was likely to prove a convenient station,) consigned in a similar liiiauner to their consul there. The gos^ernor, on learning that the con- [ilactof the authorities at Nassau in preventing such a depot had been apiiroved, informed the United States consul that it had been decided jiiot to allow the formation in any British colony, either by the Govern- jment of the United States or by that of the so-called Confederate States, jofadepot for the use of their respective vessels of war." The orders of the 31st of January, 1802, issued shortly after the jwtnrrences at Nassau, laid down general rules to be observed order- of the m-t pall the ports of the United Kingdom, and of Her Maj- ia""u'n?i; >■».«'»'.."/' pty's colonial i)osses8ions, as to the admission of armed ships of either jtieliigerent, the time during which they might be allowed to remain, pud the conditions under which they might be suffered to receive coal ' Appendix to Britiah Case, vol. v, p. 27. * Appendix to Case of United States, p. 47. •'Appendix to HritiHli Case, vol. v, p. 31. * Appendix to (Jase of tbe IJnited States, vol. vi, pp. 46, 53, ♦Appendix to Case of United States, vol. i, p. 346. " Appendix to British Case, vol. v, p. ti. 3? Si i^\< ■ m. { 288 TREATY OF WASHINGTON. and other supplies. These orders at the s.ame time closed the ports and waters of the Bahama Islands to the ships of war and privateers of both belligerents. They will be referred to, as regards their general operation, in a later part of this Counter Case; and ample materials will be supplied for judging whether thej' were or were not fairly executed, and whether it was by confederate ships or by ships of the United States that the hospitalities of British ports were the more largely used. In the definition of neutral duties produced in the earlier portion of the Case of the United States,^ a definition which purports to lay down "principles" and "doctrines of international law," and to be "in bar mony with the views of the best publicists," it is afiftrmed that " the ports or waters of the neutral are not to be made the base of naval opera tions by a belligerent." "Ammunition and military stores for cruisers cannot be obtained there ; coal cannot be stored there for successive supplies to the same vessel, nor can it be furnished or obtained in such supplies." It might have been reasonably supposed, therefore, that the course pursued by the authorities at Nassau, in the case of the Flam- beau and her coal-ships, would have merited the approval of the Gov- ernment of the United States, instead of being denounced as a violation of neutrality. The restriction in question is not indeed commanded, as the Government of the United States supposes it to be, by any rule of international law, but it may be imposed by any neutral power wliieli thinks fit to do, and was, under the circumstances of the case, clearly proper and convenient. The same observation applies to the orders of the 31st January, 18G2. It is undeniably within the competence of a neutral government to close. if it think fit, all its ports, or any selected ports within its dominions, to belligerent ships of war. This has frequently been done. Thus, in 1820, during the war between Spain and the Spanish-American Kepub lies, an act of Congress was i>assed, on the recommendation of the President, by which it was enacted that no foreign armed ship should enter any other harbor than Portland, Boston, New London, "^Tew York, Philadelphia, Norfolk, Smithville, Charleston, or Mobile, un.ess in cm of distress, stress of weather, or pursuit by the enemy. This act was to continwe in force for two years. In determining to make such a selec tion, and in designating particular ports for the purpose, the neutral government has to consult its own judgment oidy. But where any par ticular port or place is, from geogr.aphicp.I :,ituation or local circuni stances, liable to be made use of by both belligerents or either as a .station or base for naval operations, it becomes a simple measure of ordinary prudence and precaution. To prevent the Bahama Islands from being used for this purpose was the avowed intention both of the restriction on coaling erforced at Nassau and of the subsequent order. These islands were so near to the American coast that the liberty to resort to them could not be valuable to either belligerent for any other purpose, unless ii were to the belligerent whose own harbors were under blockade, and to whom, therefore, the exclusion must necessarily be more unfavoral)le than to the other. What, then, is the grievance of the United States? It is, that the United States cruisers were precluded from using the Bahamas for belligerent operations. Nassau was frequently visited by blockade-runners, and was within a moderate distance of Charleston and Savannah; it was, therefore, a convenient statiou TaKca 148, 1G7, 168. 169. COUNTER CASE OF GREAT BRITAIN. 289 and port of call for cruisers eini)loye(l to watch and capture block- a«!erunuer.s. Thus it is explained that "further stay of the [GCJ United States *vessels of war was useless" when the expe- dient was adopted of sending in cargoes in light and speedy vessels. Further stay was useless, because tho cruiser waiting in port could not overtake and captur*' these light and speedy vessels. If ships carrying contraband and other'goods to blockaded ports in the Confed- erate States were suffered to repair to the colony, United States cruisers ougbt, it is said, to have been suffered to repair thither likewise for the purpose of watching for and making prize of those ships and their car- goes. That the port would in the latter case have been used as a sta- tion for hostilities, and a point of departure for naval operations, and that it was not so used in the former case, is a distinction which seems to escape the notice of the Government of the United States. Tbe rigorous definition of the duties of a neutral furnished in the third part of the Case of the United States seems to be forgotten in the fourth part. The stringent rules by which the abuse of neutral ports hv belligerent vessels was to be prevented have now disappeared, and the measures adopted to guard against that abuse are reckoned among the cases " wherein Great Britain failed to perform her duties as a, neutral." 19 A— II ti : ,< .M! 4'»S i!". : ' .;^ m [G7] PAIi iT V. P A II r V StUIlttT iUHI ville. .Nii.-h- THE SUMTER AND NASHVILLE. Ilaving examined the miscellaneous charges preferred against Great Britain, but not falling within the limits of the reference to arbitration, such as those which regard the traffic in ariii.> and military supplies, Her Majesty's government iiowaii proaches that part of the Case in which the Government of the United States at length proceeds to specify the vessels to which its claims relate, the failures of duty which it alleges in respect of them, ami the nature of the claims on account of those alleged failures of duty. The wide conceptions of neutral obligation which had been previoiisiy ])resented to the tribunal here assume a concrete form, and arc matk the basis of actual demands upon a neutral power ; and we are thus enabled to understand what those conceptions really mean, to wLat lengths the (rovernment of the United States is prepared (if we inav Judge from the Case) to carry them, and what is the code of interna tional duty which it proposes to enforce against neutrals, and asks the arbitrators to sanction. The lirst vessels in the list are the Sumter and Xashville. Tlieic i> no material dispute as to the facts relating to these two shi[»s. IJotliot them were fitted out and armed for war in confederate ports, were tlieiv commissioned as public ships by the president of the Confederate State>, j and thence dispatched to cruise under that conunission. Up to tliat time neither of them, so far as appears, had ever been in a British jiort, I Jn respect, therefore, of the original outfit and equipment of tliosesliiii.s| the United States have found themselves unable to suggest any I'aiili on the part of Great Britain, or to bring any charge against her. >'oi is it suggested that either of them obtained men, arms, or other inilitaiy[ supplies, or augmented or renewed in any manner her military eijiiiii ment within British ports or waters. THE SU3ITJ:U. !*-■ The history of the Sumter has been accurately related in the l}riti>ii Case. It will have been observed that she was a steani.sliip. ""'""""" purchased in a confederate port about or soon after the tiiiuj of the commencement of the war, by the navy department of the glied to her. When she left Gibraltar she left it iiimned, and at the mercy of any United States ship which might fall ill with her. On these facts, the United States ask the arbitrators to find and certify tliiit Great Britain " failed to fulfill the duties set forth in the three rules in Article VI of the treaty of Washington, or recognized by the prin- littles of international law not inconsistent with such rules;" and they iislcthut, in considering the amount to be awarded to the United States, Apijondix to BritiHli Case, vol. vi, pj). l,()i>, 81, 10:5, 112, IKi; also Scmine8's"Adv«n- liiris Alloiit," pp. 139, 147, 154, 160, Idl, 187, 197. 20G, 210, 216, 2:52, 2(50, 297, 304. •Vppeudix to Britieili Case, vol. ii, p. 5 ; vol. vi, pp. 2, 69, 84 ; Scninies's " Adventures Atloat," p. 145. • ' Tliese di.spatcbc8 will be found printed in full, Appendix, vol. vi, pp. 12, 29, 35. 75, 'See list given in Appendix to Case of the United Slates, vol. iv, p. 473. 292 TREATY OF WASHINGTON. should the tribunal exercise the power to award a gross sum, "tbe losses of individuals in the destruction of their vessels and cavyocsbv the Sumter, and also the expenses to which the United States wen; piit in tlie pursuit of that vessel, may be taken into account."' So far as Her Majesty's government is able to understand *h , gronmls of this demand, (setting aside the accusation of "habit'' ..,, iiisinci'ic neutrality" against Great liritain,) they appear to be as follows: "1. That tlie Sumter was furnished with an excessive supply of coal at Trinidad, which supply enabled her to intlict the subsequent injuiics she did on the commerce of the United States."^ We have here an application of the novel principle asserted in tlic third part of the Case. The arbitrators had here been told thut "if. in these days, when steam is a power, an excessive supply of coal is imi into the bunkers" of a belligerent cruiser in a neutral port, the ncutinl government will, according to the f^eneral principles of international law, "have failed iu the i)erfornuince of its duty." They had been told thcit, in order to prevent this, the neutral government is bound to apply a " wakefulness and watchfulness proportioned to the exigencies of tlie case and the magnitude of the interests involved." The local anthoii- ties must, therefore, estimate with precision the quantity of fuel whkli will probably be necessary, taking into account the sailing qualities of the vessel, to bring her to her nearest port, and to watch with tlie iit most jealousy lest she should procure more. For any failure iu tbis respect, compensation in money is to be paid to the other belligerent by the neutral nation. The arbitrators are asked to alUrm by their awaril this supposed rule of international law, and, in a case where a cniisei. distant more than 1,000 miles from home, has purchased no more than eighty tons of coal in a neutral port, to charge the neutral nation with the value of all captures made by the cruiser, and the cost of littiiit; out and keeping at sea all vessels that may have been directed to look after her. It must be conceded that this view of international law opens a snfti ciently alarming prospect to neutral ])owers. Happily) it is as com pletely erroneous in i>riuciple as it would be intolerably unjust ni piac tice. International law sets no limit to the it is as com- ly unjust in piae- ioal which niny be There is no such ver such a vessel steaming pc-.ei, munitions of war. erving to augmoiit . purpose, slie may lations has drawn | ever, if there bad )f have the I'uited evidence that tlie e than enougb M ivar ill tilt' iiiinif(liiit''i lii(!li, if doiM' to "ili'i I r to coiiiuK'ice m «;ii. arcof anattlrcsl•llly earl•y her home ? There is none whatever. The Sumter procured coal at 11 port in a ]iritish colony, as she procure alid." m i m it i] K> I i ■f i 1 ■ IcJ" 1'fJ'sP^ * 294 TREATY or WASIlINfJTON. It may be presmned that what the Governinoiit of the United States wishes to express is, tliat a puicliase {Jiaffrante hello) of a l)t'lliture.' This was never denied by Earl ]{ussell, lun is it questioned by ller Majesty's government. lUit the transaction. though invalid as against the enemy, is not illegal ; it violates no law, and calls for no interference on the part of the neutral goveriniient. Within the neutral jurisdiction, indeed, it is, .f not prohibited by tlic local law, a perfectly valid sale, conveying to the purchaser a titio to the ship, which could be displaced onlj- by a regular sentence of con- demnation in the enemy's country. If, after the sale of the Sumter, tlic British government had protected or undertaken to protect her at .soa. as a British ship, against capture by the United States, the latter Mould have had just cause of complaint. But Earl Itussell, instead of iiiuloi- taking to do this, expressly disclaimed, in Iiis note to Mr. Adams of the 15th January, 1802, any intention of doing so. " Her INIajesty's naval and military ollicers at that port (Gibraltar) have received instriu'tions not to give any protection to that vessel beyond the waters of Gibral- tar." He gave ^Ir. Adams all that Mr. Adams asked — certainly all that he had any right to ask.-* The Sumter quitted Gibraltar unarmed and unprotected from capture. She was exposed to capture all the way to Liverpool. She was expose«l to it when, as a freight-carrying vessel under the British flag, all her warlike tittings having been careftilly removed, she left Liverpool for a port of the Confederate Stares. Shi- appears to have escaped it only through the fault of the United States cruisers whicli had been directed to take possession of her; and, because these cruisers failed to execute their onlers. Great Britain is now called upon to ])ay for the expenditure incurred in respect of them, as well as for prizes tlie Sumter had previously made when commissioned as a M\\ of war. It may here be observed that, when the United States minister in London was arguing that the sale of the Sumter ought to be i)voliiliited in Gibraltar, the United States minister at ^Madrid had admitted that it might be allowed to take jdace in Cadiz. In a conversation witli -M. Calderon Collantes, on the 10th of January, 18(iL', which jNIr. Perry attei — . . — ™ . -J — — . ' This, and no more, was decided by J.ord Stowell, in the case of the Minerva. IJoliiii- son's Admiralty KoixntH, vi, IWfi. It is said in the Case of the United .Statis (p :!" that, "after refleetinfr npon this simple proposition tVn* more than live weeks, Kail IJnssell denied it." Earl Itnssell did not «leiiy it ; he pointed nnt the niisappreliensidii of it into which Mr. Adams had fallen; and the decision that the Snmter was nut to lu' protected, when ont »)f Hiitish waters, had been announced and conveyeil to the ntlicti^ of the government at Gibraltar more than three months before. (See liritisii Case, y- 19.) - Mr. Adams had asked " the assistance of ller JIajesty's governnuMit to prevent fiii.\ risk of danKi>rc to the I'nited States from a fraudulent i. nsaetiou in one of her iini'ts; or, in default of it, of tleidining to recogni/e the validity of the transfer, .should tliat vessel subsefjuently be found by the armed ships of tin,' United States sailing; i" ''"' high seas.'' (British (.'use, p. lU,) II I f i||.!(wi'L'ifi'ji|i|i; I ' COUNTER CASE OF (JREAT BRITAIN. 295 ward reported to hi.s own (rovertiineiit, the latter saul, speaking' of this \ossel : Iftlii'V did not clittoHo to ;{o out to sifii aj^aiii, us they had oiitorcd, they luij^ht stity iiiiili-r the jirotectioii of the Spaiiish llaj; ; and indeed their sliip, if she sJiuuUl be sohl ,iiit iif tlitir poHsessioM into h«n(^st iiands, or leave all her aiinanient and nmnitions of war, l.'iyin;; 'if'i'h'all i»r(!tensions to luiiii^ a war vessel or a privateer of the so-called OmtVdfrate States or of anybody else, returning really and honestly to her former niiiditinn of a merchant steamer, nii^ht perhaps be liable to eai)ture by the Navy of ;li, IJiitcd Slates, but she mi;;ht then l»o repaired in Cadiz without contravenin iirigiual departnre from this country, and the circumstances und(!r which she received her equipment, and was armed, manned, and titt<3d out for war, were presented to the arbitrators as accurately aiul fully as Her Miijesty's government was enabled to present theiu by the means of in- torinatioii at its command ; while so much of the documentary evidence, whether favorable to (ireat Britain or not, as aiipeared material to a just adjudication on the questions at issue, was included in the Case. The facts which were in the possession of the British government at tlu; time when the events respectively took place, whether brought to its knowledge by the minister of the United Statt.5 or ascertained by iude- poiideut inqniry, were, in this recital, kept distinct from facts which did not become known till afterward. The general course of conduct pur- sued by the government, in respect of equipments or apprehended equip- ments of ships of war within its jurisdiction, was at the same time ]daced before the tribuiifd, and attention was invited to those cases in which the means of prevention employed proved ettectual, as well as to those in which they failed. The method of statement adopted in the Case of the United States is, in some respects, different. Circumstances known at the time, and many others not known till afterward, are there arranged without distinction in chiGuological order, so as to form a consecutive story, while, at the same time, no clear line is drawn between facts which are substantiated and those which the Government of the United States merely thinks or suspects to be true. Assertions resting only on the belief of an American consular officer in a foreign port, on a iei)ort transmitted by him that tliey were currently believed there, or on information said to have been received by him from anonymous persons, are freely introduced into the narrative as if they were ascertained facts. ller Majesty's government does not complain of this mode of state- ment, which has doubtless been adopted for sufficient reasons. But it manifestly imposes on the arbitrators the duty of distinguishing for ibeniselves between allegations which are [uoved and allegations which are not proved, and between facts which are and facts which are not justly to be taken into account as supporting or contributing to support aeharge of negligence against Great Britain. They have to be satisfied, not only that acts were done which it was the duty of this government to use diligence to prevent, but thr*; such diligence was not in fact ex- erted; and of this thej' have to be satisffed, not by assertion onlj-, but I'v proof. It has been observed in the Case of Great Britain that, in countries .'^1 ;3.i I P.rl i|5j ..: IV. ' 8'* ;, ' ■i'i ,. if? 298 TRKATY or WASHINGTON. wliero (as iu (Jrcnt IJritJiin) tlio oxccntivo is siibjoct to Ww laws, rorcij^n states liiivii u lijjfht to expoi-t tiuit tlio laws slioiild bo such as, in t?|,. oxorciso of onliiiiuy foresiylit iiiij^lit reasonably bo ileomod a(lot|uatt'|(n tlio loprossioii of acts \vlii»;h tli(^ ji'ovoininoiit is undor an obligation ((, I'opi'oss, and, fiirthor, tliat tlio laws should bo enforcod and tlu; l(';;;i| powcii's of yovornniont oxorcis(Ml, so far as nuiy bo nooossary for this |mr l)oso. J>iit it was adilod tliat, wlioro such laws exist, foreijjn states uic not entitled to re(|uire tliat tliu e.xe(;utive should overstep them in iiai ticular eases, in orrovent harm to foreijifu states or their eitizons. nor that, lor this i)nrpose, it shoidd aet against the persons or i)ro|)('it.v of individuals, unless upon evideiuio which would justity it iu so .'lotiiij,' if the interests to be i)rotected were its own or those of its own citizens, The ])rineiple which those projjositions convey is of supremo impoitancf to all nations in which the paramount dominion of law is recojjnized, tiic protection which it secures to civil and political liberty valued, antl the executive not intrusted with large and arbitrary powers. On no otiier terms, indeed, coidd such states undertake to subject themselves to iniy international obligations whatever. Nt) constitutional state comIIi reasonably bo assumed to have engageroof ; and that the government had in no such case any power of seizure or detention. except with a view to a subsequent condemnation in due course of law. and on the ground of an infringement of the law sutticient to warrant condemnation. By proof, it was added, in a J>ritish court of law, is un derstood the production of evidence sutlicient to create in the mind nt the judge or jury (as the case may be) a reasonable and deliberate belict of tlie truth of a fact to be ])roved, such as a reasonable person wonld be satisHed to act upon in any iinporJ a!>t concerns of his own. And In evidence is understood the testimony, on )atli, of a witness or witnesses. produced iu o])en court, and subjec!; to cross-examination, as to facts within his or their per.sonal knowU dgc Testimony which is mere lieai say, as to the existence of common reports, however prevalent and how ever generally credited, or as to any matter not within the knowled^'e of the witness, is not admitted in an English court.' Those rules, whicli in England have been deemed expedient for securing the due adniinis tration of justice, m.ay not be regarded as necessary in some other conn- tries. But there was clearly nothing in them which could be supposed to be incon-sistent with the dictates of natural justice; and, this bein;' so, it was the right of Great Britain to adhere to and apply them in all cases ari.sing within her jurisdiction, as it would be the right of Italy, ' British Caso, j). .'>!. cch;nti:h cask of c.ukxt luniAiN. 2!I9 ^ t' ■; nt Switzt'i'liiiid, of Unizil, or of tlio Kiiitnl Statos to apply respectively ill (•(trn^spondin;,' cases their own rules of ])roce(liire and eviileiice. While, therefore, tho ohliyation to use due diligence in order t«» pre- vent certain acts froni bein;? committed witliin the Jurisdiction of the soverci}*!! is an obli^^ation wholly independent of municipal law, it is at the same time incontrovertibly true that, in deterininiii};- the (|uestion whether due dilijjence has been used in a ^iven cas»*, the municipal law (it the particular country, tho modes i)rovided for enforcinj'' it, tin' powers vested in the executive, the established rules of administrative ami judicial procedure may be, and commonly are, matters which it is proper and nuiterial to take into account. Tlie failures of duty which the United States impute to (Ireat lUitaiu, iiiroapcct of the Florida, Alabama, (leorjjia, and Shenandoah, consist partly in an allefjed want of due diligence in preventing' the original ('(|iiipnient of those vessels and their original dei)arture from (Ireat iliitain, and partly in the liosi)italitiea afterward artorded to them in llritisli i»orts, where, it is insisted, they ought to havi^ been seized and ilctaiiH'd. THE FLOUIDA. The history of the Florida divides itsell' into three parts, the lirst iiidiiif,' with her departure from (Ireat liritain; the secoinl n.n.ni,, witii her release at Nassau ; the third including her subse- '' ipieiit eersons to refer to. Slie wa> not "permitted to remain at Cochrane's Ancdiorage" without elfeetual precautions being taken to i>revent a violation of the law.^ It is in)t '^rrect that "a secoml request to in<|uire into her character was iiiadt on the 4th of .June and refused." The consul, on the 4th June, inquired whether ; kq)s had been taken to as(;ertain her character, antl was answered in the afiirmative. The governor " had directed steps to Ix taken to ascertain whether there was anything in the equipinoiit m character of the Oreto which coidd legally disentitle her to the bospi talities of the port."^ She was not arrested on the 7th June, nor was she released on the arrival of Semmes mi the island ; nor does it appear that the Bahama was arrested, or that the latter vessel was ever niadt 'This oiror in i)rot)iil>l.v tliie ti) an ovor.si<;ht aiisiiijj from a iiiincoiicoptioii as to tli< meaning of certain blaui\8 in a eonuuon luintoil form of cloarancts (See Caseof (JrtMt lii'itain, pi>. fiti, r»7.) ■'L'ase or" the I'nited States, p. ;541. ^ Appoiuli.: to BritiMli Case, vol. i, p. 14. ^ UritlHu Case, pp. (il, iVi; Appendix to ditto, vol. I, pp. Ifi, H. •'■• Appendix to llritish Case, p. *iO. m !|l' 'W«!W|i-Hff' COl'NTER CASK OF GREAT BRITAIN. 303 the subject of any eomplaiut. Lastly, it is said that the consul, iinding his representations to the yovernor useless, " applied to Captain Jlick- ley, of the Greyhound, and laid before him the evidence which had already been laid before the civil authorities. He answered by seudiuji- ji tile of marines on board the Oreto, and taking her into custody."' This statement is wholly and completely unfounded, and is shown to be so even by the documents referred to. Captain Hickley seized the ves- M'l on the IGth, upon the complaint of the sailors, who had been de- tiauded t y a deviation from the voyage for which they had been hired ; and on tlio 17th he renewed the seizure, with the sanction and authority of the governor, who immediately gave direction that proceedings should he instituted against her in the vice-admiralty court of the colony.- On neither occasion does it ap[)ear that Captain Hickley had any commu- nication with Mr. Whiting. The consul did, however, subsequently address to that officer a letter, which would alone have been sufficient to justify any government in withdrawing his exequatur, an impropriety lor which he received a merited reproof. ' It cannot be denied, on the part of the United States, that the Florida was seized while at i^assau, on charge of a violation of the foreign- (idistment act ; that proceedings wen?, by the governor's directions, instituted in the proper courts, with a view to her euiiucmiiation ', or that, after a regular trial, she was ultimately released by a judicial sen- tt'iiee. i-ut, in order to destroy or diminish the etiect of these proceed- in^;') .^tei. ,''-• have been made, in the Case of the United States, to attack M'f f . acter and integrity of the colonial authorities, and im- pute tot lie priu(!ipal law-officer of the colony deliberate dishonestj' in the discharge of his oHicial duties. On the pretext that in otiier matters III' luul acted i)rofessionally as advocate for the mercantile house who were consignees of the vessel, he is accused of having, as counsel for the I'rowii. so conducted the case intrusted to him as to secure its defeat, lioiii motives of i)rivate interest or partiality ;' of having neglected to mil witnesses who could prove the facts, and managed his cross-exam- ination of witnesses for the defense so as to suppress imi)ortant evidence; iiiiii, lastly, of having intentionally hurried on the trial before evidence iimld be obtained frlioul(l it appear, as \{ did appear, in Captain llickley's testimony, that at tile time of her Icuing sh« was ft ted out as a man-of-war, witli in- tent to cruise ag.tJ'. >t Vn 5Jnited Stares, then it would be entirely with- in the scope of *' e ; ;i,» ms of the court in Nassau to condemn her for a violation of the fo;ei; < iiJ.stnuMit act of 1811». Had the trial not been ! liiuriod on, such pro! i- 'y v ould have been the instructions from J.on- I doii."^ Her Mnjesty's government thinks it right to say that there \>\ not the I ''lightest foundation for these imputations. There is no reason what- fver to suppose that the triii! did not come on in regular "ourse, tr that tile ease was not properly conducted on the pj-.rt of the Cru>\n. That the counsel for the Crown shouhl have refrained from calling witnesses [«hose interests were strongly on the side of the defense needs no ex- I'lanation to r ;y i-ne accpuunted with the rules of English judicial pro- ' ronf of the United StatcH, p. 'M2. "■ A?i; •' i,x to Britiali Case, vol. i, pp. 'i'.i/Ii, "io:rl., p. 'A6. ^Oase of the United States, p. 344. ''Ibid., p. 347. .■ I ,- if -' V *. In I W' 304 TRKATY OF WA8HIN(iT0\. coduro, since. Jiccordinji: to those rules, the party who calls a witness Ls ill general precluded, should the evidence whicii he gives be unfavor- able, from impeaching the witness's credibility ; nor can he compel bim to answer any questions which would expose the witness to a penalty. or to prosecution for any offense against the law. The evidence of Cap- tain Ilickley neither did, nor possibly could, prove anything as to tlie extent to which the vessel ha(l been litted out when she left Liverpool. It is perfectly true (and was, indeed, explicitly stated in the f 77 ] liritish Case) *that the exclusion of e cidence relating to act.s done while the ship was at Liverjiool was, in the opinion of Her Jliij. esty's government, an erroneous ruling on the part of the judge. Biit the (juestion was at least open to reasonal)le doubt, and it can bardly be necessary to inform the arbitrators that it is not in the power of Her Majesty's government to "instruct" a Judge, M'hether in the United Kingdom or in a colony or dependency of the Crown, how to decide a particular case or question. iS'o judge in Uer Majesty's dominions would submit to be so instructed ; no community, however small, would toler ate it ; no minister, however powerful, could ever think of attemptinff it. In the following extract from a report transmitted by the adniinis trator and attorneygener;'! of the colony these charges are completely itress evidence unfavorable to tiu' C)n'to, and that certain named witnessed who <'onld have shown that the Oreto wib hnilt for the insurgents, and was to be converted into a man-of-war, were not called ;b they ought to have been ; and there is a general charge previiding the foregoiiijr, and otherwise specially stated, of niiscondnct on the part of tlie attorney-general. 'I'aking these seriatim, tlu\v are as follows : First, that the trial Avas <':irried on before evidence could be obtained from Liv«i- pool, 'i'he answer to this is. that the vessel was jtroceeded .'(gainst only for iU'tsdi' r(|nipnient alleged to have t.iken place; within the limits of the IJahama Islands. It was considered, whether rightly or wrongly, that the )'oint was settled by the dicis- i >n in the case of the Fabius, ('id C. Kob., page 'iJf),) which was an apiieiil freni the identical court, tlie vice-admiralty court of the lialiainas, and in which it hml been decided that vicci-admiralty courts had no Jurisdiction to take cogniziuue h| oll'enses coniniittcd out of tlie. limits of their local Jurisdiction, and that jirosenitidii- under the foreign-enlistment act were not witliin tlie sixth section of 2 Will. 4, c. 'd. which gave an csxtended Jurisdiction to that <'ourt in certain sjtecilied cases, a luisitiun which may he considered as athrmed hy the legislative action which has been takni on the point by the JSritish legislature in tl: ■ vice-admiralty court acts, 20 Vict., tiip. '24. section K?. This being th(> conclusion arrived at, it was not considered necessary, in fact it ^vas never suggested, that evidence coidd be obtained Irom England; but it was coi^id- ered that the evidence of the mate and crew of tlio Oreto, ccmibiued with that ofC;',!i- tain Ilickley and the other naval oflicers, was snlhcieut to show the animus with wbiili the vessel was dispatched from Liverpool and her adajitation for warlike puriioses: iiiid this is aroof of the character, in- tent, and ownershi)) of the vessel." And again: "The overwhelming testiinoiiy ei Cajitain Ilickley and his crew was snmmarily dispo.sed of." And again : " Wliiletlms ruling out, either as fal.se or irrelevant, evidence against the vessel which evcnt> | proved to he true and relevant, he gave a willing ear of credence to the niisstiiteuu-iits of the persons connected with the Oreto ;" allegations that completely relieve tin prosecuting oflicer of the charges hrought again.st him at page ^44, and throw the onus of failure on the Jtidge, hns producing in the short sjiace of two pages contradiitmy accusations against two .)fllicer8 of the government, tiic one of which, if well fouiidiMl. woulil art'ord comi)leto refutation to the other. Secondly, that the attorney-general conducted the cross-examination so as to siii'- press evidence nnfavorublo to the Oreto when it could be done. This is a charge which can only be met with a positive and iiulignnut doiiiul. Whether tlie croHs-oxamination was conducted skillfully or not is, of course, another • luestion, which must bo Judged of from the examinations forwarded. j Thirdly, the neglect to summon witne sos who ciuild have given material eviilencf, TP^p^^sfrm COUNTER CASE OF GREAT BRITAIN. 305 jM led fnmi Liv.i- n 80 as to Slip- ami especially the omission to exaniino Maftit, Heylijjcr, anil AiUlerley. Now, if the .illcgiitions iu the United States Case arc well founded, each of these jiersons was ir/i'oeps crimlnin in the equipment of the Oroto, ami was liable to be proceeded against criminally for a misdemeanor, and, on conviction, to be punished by tine and irapris- oiinipnt, and, therefore, they could not have been compelled to give evidence Icivding to the condemnation of the vessel for acts of equipment within the colony, which would necessarily have tended to criminate themselves, and, consequently, it never (iitered into the minds of the attorney-general or of Captain Hickley, who was iu (laik consultation with thatofticcr, to attempt to examine those parties, vor any other mrsons iu the supposed service of the Confederate States. The existence of such per- ms as P^ans and Chapman, who are named 9t page 345 of the Case, was entirely unknown to the attorney-general, and also, it is believed, to Commander Hickley, who never named them to that officer. One important witness, and one only, was lost to ilie prosecution, namely Jones, the boatswain of the Oreto, who had originallj' given the information to Commander Hickley which mainly led to tl:^ arrest of the vessel. He disappeared before he conld be examined, and was supposed to have been induced In persons in the interests of the vessel to go away. Iiuguid, the master of the Oreto, was, as will be seen on reference to his examina- tion. (lUPstioncd on the point, but he particularly denied all knowledge of the move- imnts of the man. With the exception of Jones, every one was examined who could have been com- i« lied to give evidence, and Jones was only not examined because he secretly removed himself from the jurisdiction of the court. Another very grer^c inisstatement with respect to the trial of the Oreto is ni.ide at li;ii:c :<45. It is there stated that the cross-examination of Captain Hickley was con- iliioted by a gentlemen who was represented to be the solicitor-general of the colony, !iiit who in that case appeared against the Crown. From the foot-note (2) this state- innit would api>ear to have been made on the authority of Ccmsul Kirkpatrick, and, ;l •'11. it proves that little reliance is to be placed on that person's statements. Mr. B. L. Bnrnside, a bar 'ister of Lincoln's Inn, was the counsel referred to, and at the [>] time (1H(!". •It is stated in the Case of the United States, as if it had some importance, that tlm • iiiida lay outside with a hawser attached to one of Her Majesty's ships of war. The ■i"lile cxplamition of this trivial fact is as follows : The Poterel, a (Queen's ship, was ;!iiii lyino ill tlie harbor, and two United States ships of war were also there. The "imjiander of the I'eterel, at the governor's request, crossed the bar to oft'er these ves- ^!s tilt' ciistonniry hosjtitalities of the port, which they declined, proceeding soon ■itkrward to sea. The I'eterel remained anchored outside the bar, in couseciuence of 'le lateness of the hour or the state of the tide. A boat soon afterward came to her "iin the Florida, (then known as the Orete, and under British colors,) with a recjuest, i'''«liich the following account is given by the ofticer who wiis then iu comumnd of '111' I'eterel : "A man, who stated he was the master in command of the Oteto, said he was very i ' I'Tt-lianded, and wanted to anchor for about two hours to adjust his machinery, but 20 A— II *' ,r *• J J 30G ritEATY OF WASHINGTON, •1 It is attirmed iu the Case of the United States that the riorida, aftn ut to sea from isassau,^s though with the design of running tlic blockade ; that she was overtaken by the Florida about thrive limu> after the latter had leit the harbor, and that both vessels proceeded u a place called (Jreen Cay, where the cargo of the I'rince Alfred wib transferred to the Florida, an operation which lasted several days. The latter (which up to that time had been known as the Oreto) then lioisted the confederate tiag, and assumed the name under which she has siiuv been known. The Prince Alfred did not for some time return to >.'ii> sau, her captain being apprehensive that she might be seized for a vin lation of the law in assisting to arm and tit out the Florida in iiritish waters. Her Majesty's government has not the means of either verityiiifr 01 disproving the truth of this statement. Assuming it to be irne, then can be no doubt that a violation of the sovereignty an roceedod tu AllVed \vit> I days. Til.' .lieii lioisU'd ic has siiuv urn to >'a> sd for a \\u- a in liritish verifyiiifr oi ; irne, tlieiv nitral riglitv lorida. lUit genee ou tlie 1, in Biitisi) by the name •eat Britain. ire scattered iininhabited, ve may trust lis transac- ore soutli ot Bank, and tisheriuen 'or viohitio'.i- lilted places, certain that. . reasonably ssibility tbiit its shores oi ended to run lying in the e within th.- ! • ami IJt'fl?'''' ' but told luv that purpose, ol'onr hiiwjirv le Htarted. xti'iulod to ai ; ijtiver ^ave it ■< ill my letter": h-Bt. „i,.lTli:mt8l'll'' •acticable, with knowledge of the authorities of the colony to direct special attention to be nature of her cargo, to disclose her errand, or furnish a reason for detaining her. No conii)lainton the subject was made before she sailed ly the consul of the United States, though it is now alleged that the iiurpose for which she went was "notorious" in Nassau. Subsequently, ,(11 the 8tli September, 18G2, when the Prince Alfred was again at the port, the consul informed the governor that he had good authority for stating that this vessel had placed the Florida's armament on board her It Green Cay, and that the Trince Alfred's captain was again shipping men to be sent to the Florida. The governor reidied that if suflicienr .'vidence could be placed in the hands of the attorney-goneral to sub- ititiitiate this allegation, he would direct a inosecution to be instituted ifrainst the captain of the Prince Alfred or others who might hav(» been guilty of violating the foreign-enlistment act. Upon this conimunicii- rioii the consul .seems to have taken no stei>s whatever: aiK*., although rbas since appeared that he had previously procured a notarial dccla- '.ation from some of the men employed on the IMincc Alfred, the evi- dence thus obtained was never communicated or di.sclo.sed to the colonial uithorities or to Uer Majesty's government, until Februiiry. 1S(m. Cnp- ainMatht had at that time arrived at Nassau in command of the nier- ibant'essel Owl, which had run the blockade, and the then United States consul made an application to the governor for i»roceedings ijirainst him on the ground that he had enlisted men in the cok)nv lor lie Florida in 1SG2. This application was not received until after Cap- tain Matfit had left Nassau, but the governor directed the attorney- L'cneral to communicate with the consul, and the declaration of 4th September, 18G2, above referred to, (which contained no evidence of tulistinent,) was then i)roduced for tlie flr.st time.' The arbitrators are already aware that the Florida went from the Paliamas to Cuba, where she endeavored to ship a crew, and from thence Mare making any prize or inflicting any loss on the Uii'ted States) was arried by her commander into the confederate port of Mobile, escaping •aptnre through the remissness or incapacity of the officer commanding the blockading squadron ; that at Mobile she remained more than four months; that she was there fitted out and put in a condition for cruis- iiig; and that from thence she commenced her cruise. The crew which manned her during that cruise were enlisted at Mobile, aiul the greater lumber of them appear to have been transferred to her from a receiving- I'hip in that port. The history of this cruise has been briefly told in the British Case. It has been seen that she was admitted, during the course 'tit, into ports of the British colonies, of Brazil, and France; that at lire.st she was suffered to remain during nearly six months repairing and ■efittinr • and that she was ultimately seized and carried away from a i Brazilian port bv a gross violation of the neutrality and sovereign rights 'Brazil.^ On the fact that she was permitted to enter ports within Her Majesty's iitonial i)ossessions, the United States have endeavored to support fur- [lier complaints and further claims against Great Britain, for which I "lieie is no foundation whatever. It was not the duty of the British NijverDmoiit to seize or capture the Florida when cruising under a com- riiis.Mdu from the government of the Confederate States; and the liU'j^es of partiality made in respect of this vessel are as groundless as pilose advanced in the cases of the Sumter and Nashville. It will, how- ' Appendix to Uritish Case, vol. i, pp. 82-90. -Ca.se of Great Britain, pp. 67-78. .* H HI ■ ■••-■■ri: .-•■i ^^H ^^^B T : ? ■ It ■ •!. ,:i' f^ »» }i''S t, » ' ■^ ■1$ 30H TKEATV OF WASHINGTON. ever, be for the couvenienee of tbe arbitrators that they should be fm. iiished with a suniinary account of the hospitsilities accorded in Lritisli ports diiritiff the course of the war to the armed vessels of both belli" erents. This will be done in a subsequent section. With respect to the case of the Florida, Her Majesty's jjovernmeiit submit with confidence to the arbitrators, not only that negligence can not Justly be imputed to Great Britain, but that (even if this were other wise) (h-eat Britain could not be held liable for losses sustained by tin' United States in consequence of the operations of that vessel after she had entered the port of Mobile, had there completed her equipinent> and enlisted f«)r the first time a sufticient .crew, and had ailerwanl sailed from that port to cruise against the shipping of the UnikMi States. [SUl *TIIE ALABAMA. Mr i The facts relative to the building, departure, and subse«pient armiii;.' of the Alabama have been set forth in the British Case with ' ^ ' '" " a tnllness of detail which renders any additional statements unneeessiiry ; and Her Majesty's government will here refer to them sn far only as may be re(piired for the purpose of correcting erroneous assertions or mistaken inferences in the Case of the United States. In respect to this ship. Her Majesty's Government does not disputi- that, at the time when she sailed from England in July, 18(52, she was as regards the general character of her construction, specially adapted for warlike use, nor that the adaptation had been effected within Ihitisli jurisdiction. The question for the arbitrators is, whether the IJiitisli government had, according to the fair and just sense of those words, reasonable grounds to believe that she w«as intended to carry on war against the United States, and, having it, failed to use such diligeiRc as any international obligation re«iuired to prevent her departure from Great Britain, or to prevent her e«iuipment within its jurisdiction. In respect of this ship also, as in respect of the Florida, it is insistoil by the United States that the material facts proving her true character and the employment for which she was intended were notorious, and therefore either were or ought to have been known to Her ]Majest,v'> government, and that no proof ought to have been required from Mr. Adams. It is insisted, further, that not only proof Avas re(]uired, but " strict technical proof,"' such as would support a criminal i)roseention under the foreign-enlistment act. The arbitrators are also told that, in this case and throughout the war, the British-government and its otlicers "would originate nothing themselves for the maintenance and perform ance of their international duties," and *' would listen to no represeuta tions from the otlicials of the United States which did not furnish tech- nical evidence'' sutlicient for the purpose mentioned above. These assertions are made use of to explain the fact that, altlionsh " before the vessel was launched she became an object of suspicion witii the consul of the United States at that port, aud she was the subject ot j constant correspondence on his part with his government and with Mr. Adams," no representation was made respecting her either to the Kritifsh | government or to its officers at Liverpool until the 23d June, IHOi' Neither the fact which has to be explained, nor the expianatioii oft'ored| for it, a'^pears to be supported by the evidence. Among the circumstances alleged as proofs of an intention that the vessel should be employed in the confederate service are the contract between Bullock aud the shipbuilder, supposed to have been signed iii| "^^■'"^w" '•"■f 'MBV ' ' COrXTEU CASK OF (JltKAT F5HITA1X 309 October, lS()th1- ciice between tiie United States consul at Liverpool and his (iovern- •iiciit and its minister in London, the arbitrators are referred to the Appendix to the Case of the United States, vol. iii, passim." ^ They will iliseover that, before the date of ^Ir. Adams's first representation to lOarl lliisscll, (-3d June, 1S02,) she is only thrice mentioned by 3Ir. Dudley in dispatches to ]\[r. Seward — namely, on tin; 4th of Ai)ril, KJth ^lay, and istli -Iinie, 18()l.*. On the 27th June he says that he has mentioned her ■ill twoor three notes to the Department."- Tiiey will not (Her ^Lijesty's ;'overiinient believes) lind any letters addressed to jMr. Adams prior to ;!iat on which he founded his representation to Earl liussell, though :liere probably was sucli a letter, since she is there said to have been ;iieiitioiied in "a previous dispatch."^ The constant correspondence, therefore, which is mentioned in the case did not commence until after ;!ie vessel had made her tlrst trial-trip, and was nearly ready to {"O to . •^ Appeiuhx to ditto, vol. iii. pp. l-:5 ; vol. vi, p. :?77. 3 Ibid., vol. iii, p. 5 ; vol. vi, p. I57«). ■* Ibid., vol. iii, p. 18 ; vol. vi, p. :W4. '■ Ibid., vol. iii, p. 14.') ; vol, vi, p. 4;{5. '& 310 TKHATV DF \VASIII\(;TON'. WiV V ij|(^ ■■^4M'^f<;-^ ^- .liun-boat.s and a lloatiii^' battery to the Navy ])e|)!irtnieiit oftlic L'nitd', States by a peison who represented liimself, and was believed by thcin.ti, b<' authorized by the head of that J^epartment; and beiny' (as they wciv (•oiiiniercial men, having- only eonnnereial obJe(!ts in view, tiiey wciv perfectly ready to have sui)i»lied these articles to the Tnited States. ;; it had been ])roposed to them to do so on terms which they eonsidorcd sulliciently protitable.^ The assertion that a particular fact is " notorious'' is one the tnit'.i i.f which there is no possiliility of testing'. It commonly means no inoiv than that the fact is f^enerally or by many persons believed to be true. which does not prove the truth of it (since a g^eneral belief may be, anil often is, mistaken) and docs not always make it even probable tlnir pioof can be obtained. If a general belief prevailed in Liverpool, wbilc the vessel afterward known as the Alabama was in the builder's yard. that she was intended for the Confederate States, (and there is no proof whatever that any such s'e'i<^i"il belief did, in fact, exist,) this would no; have been a reasonable jjround for calling on the ji,overnment to seizcoi interfere with a shi[> which, for aujjht that. was known to the contrary, was the i)roperty of private individuals, {•nilty of no violation of tlic law. Tile j)hrase " technical evidence'' is calcidated to mislead. If it iiu'aii> such evidence as might be expected to satisfy an impartial tribunal that ii violation of the law liad been committed, it is true that the yovciii ment held itself entitled, before seizing the Alabama or any other vessel, to have such evidence in its possession, or to have reasonable .grounds for believing that it would be forthcoming before the trial ot the case should begin. Open investigation before a court is the moan- appointed by law for sifting all accusations and distinguishing asoti tainable facts from mere rumor; it is an ordeal that a British govern ment which, in the exercise of the powers intrusted to it, seizes or in- terferes with the person or property of any one within its jurisdiction, must always be i)repared to encounter, and it is clear that the sufiicicuoy of evidence in an English forum can only be tried by principles recoi; nized in England, as in an Italian, Swiss, IJrazilian, or American forum, it must of necessity be determined by principles recognized in t\m(' countries respectively. Dut the assertions that the British governmout. throughout the war, " would originate nothing themselves for the maintenance and performance of their international duties, and that thej' Mould listen to no representations from the otlicials of the Uiiitcil States which did not furnish technical evidence for a criminal prosecu- tion,"' are not only unfounded ; they are opposed to facts stated in thf ('ase and evidence of Great Britain and even in the Case .and evidence of the United States. The arbitrators have already s^en, from the statements laid before theni, that every reasonable suspicion, whether communicated through the minister of the United States or derived from other sources, was immediately made the subject of inquiry; that this was in some instances done where no representation had been re ceived from ]Mr. Adams; and that on every representation of his, though unaccompanied by evidence, it was done as a matter of counse. It is true, nevertheless, that in cases of this nature neutral govern ments ordinarily expect to receive information from the ministers or consuls of belligerent powers resident within their territories. These officials have the keenest incitements to vigilance in their national interest and official duty, and are more likel.y to be the first recipients of intelligence than the government or its officers. ' Appendix to British Case, vol. v, pp. 204-211), COrXTKR CASK OF GKKAT BRITAIN'. 311 This lias been the Kei't'i''«J piacticio of iioiitral jfovonimt'iits, ainl [SJI tho arl)itratt)rs iiave *alr('a(l,v soon that it has boon tollowod by tho InitotlStatos. Tho (JovornmoMt of the United States has expected iiitoniiation to be thus furnished to it, and Inis expected also the in- ttnuiiition to be supi)ortod by ])roofs; and where the proof offered was not satisfactory, foroijjfu ministers and consuls have been told that they ui'ioat liberty to institute ])rocoedin}?'S themselves.' Let us now briefly recall the facts, of which tlie arbitrators are already in possession, and which show what the conduct of tlie JJritish (rovern- iiiciit and its oflicers in relation to the Alabama really was. Oh tlie 24tU June, 18G2, Karl Itnssell received the first representation iiuule to him respectinjf the vessel afterward callel" Sl'AlN, "A'tic York, Scptvmbrr Ki, I.-'IT. Sik: Sook! days ago tln-re arrived in the port of Xew York an armed brig, i)rocpeding 'Mil Norfolk, winch I have been very crtsdibly informed is a vess(d pretending to have I commission from Yene/nela, but whoso object in coming into this port was to pro- iireaii aridit'' nal snpjdy of men wherewith to commit hostilities against tho subjects iiid possessions of tiio King of Spain. A few days ago I )>resented to tiie collector of ilH'portof New York an alHdavit of a man named .Jolm Reilley, stating that he had lierii re(|uested to enlist on board of a vessel, which was represented to him to bo tho I'livateer scliooner Livi^ly, bound to Amelia Island to join General McGregor, to invadi! :lii- territories of his Catliolic Majesty. I am now informed tiiat the l)rig above mentioned is the vessel alluded to, Reilley iiiving cith«H' been mistaken in the name or designedly deceived by the agents of tho liivateer. I now inclose tlie iiHidavit of ,Iohn Finegan, by which you will jjerceivo that tlie odicers of«the above brig (whose name is the American Libre, co umauded by ' iiptaiu liarnard) are enlisting, and have enlisted, men in this port to proceed against ilio Spanish possessions. I have caused application to be madf to the collector, who il'nibts the extent of his authority in interfering with tiiis vessel. Nov, , as there must W provisions in tho laws and treaiies of tho ITnitcd States vesting an authority in. Millie of its oHicers to jirevent the eciuipment of vessels and tho enlistment of nu'u in ilie United States, to proceed against a foreign nation at peace with the United States, Imake this application to you, most urgently reiim^sting you to take whatever measures May bo necessary immediately, in order to prevent tlie dei»arture of tho above vess'-!, u! least until she siiall give bonds that she will not commit hostilities against Sp lisb subjects. The vessel, it is said, will sail to-morrow morning. Tmleod, if an intpiiry were instituted, I am induced to believe the above brig will '"•found to be a pirare. "1 have, &c., (Signed) "THOMAS STOl'GHTON.' AffidarU of John Fiiiegan. "Ski'TEMuku If), If^lT. "8tatk oi- Nkw Yuuk, 8«: ■John Finegau, at present iu the city of New York, being duly sworn, saitli that ho I«\i8 reipiested by a man, who is represented to be the commissary of the vessel next WDtioued, to go out in the Patriot, brig, now lying at the ([uarantine ground; that tho jfetinatiou of the said vessel is to tight against the Spaniards; that the deponent was told that on his arrival iu Spanish possessions he was to join the land service of the '^ }■ .1'' ■■■■ '•■■: - M-v^'' W r Ml i - iil i ii 'I t I 312 TREATY OF WASIfIN(;TOX. time good reason "lo think that it wouhl bo necessary to obtain strictly technical proof of a violation of the ninnicipal law of Kngland befoiv he could hope to obtain the detention'' of the ship, and that '•hotlion{;lit lie hsid such proof." ^Nlr. Adams did not, however, in his letter runiish in jictordunco witli tin; facts, the buihliiiir uiul L'<[iiipinuiit of the Mteaiiior in <|iicsti :i jiatriots; tliat (k'i»on<'iit knows of (ivo persons who have been cnfiaj^iMl in liloni'nt was tohl tliut as > as lie neta on board lie will n-ccivo his advance ; that olliccrs are at present eniplnynl in the city of New York in lookinj^ont for men, aMf .September, 1817, before me. Mr. Stovyhtoti to Mr. Fink. iiinrk, "SAMUKL ]?. HOMAINK. " CONSII.ATK 0|- Sl'AIN. " yeic )'urk, Septemhtr 17, 1'l?. ".Siis: 1 inclose the deposition of .John Keilley, relating to the privati- inents are unlawful, and that not only tho vessel on board of which they are to cinbiuk is liable to eeizure an»l forfeiture, but that the ca])tain and the officers thereof, who aiv (Migaged in this business, are lialdo to a heavy fine and iiuprisonnient. As these an- tiagrant violations of the laws of the Uuittul States, and calculated to proiluce scricui^ injury to the possessions of His Majesty, and to the property of his subjects, I liattri myself that you will take, without delay, such steps as may be necessary to imt a stnp to these proceedings. "I have, A. c, (.Signed) "THOMAS STOIGHTON. DvpoHitioii of John lUUhij, " .SKPTK-MItKIt 9, I^IT. ' SlATK OF NKW YuIiK, »S, ClTV OV NeW YOKK, H8 : "John Keilley, at present in the city of New York, mariner, being duly sworn, saitli. that some days ago d'.'ponent was re(j nested to embark on board of a vessel which was said to be lying at the Narrows, in the Bay of New York, for the purpose of going m join General McGregor, and to fight against the Spaniards ; that after he arrived al Amelia Island he might either join the land service or the naval service ; that depo- nent would be paid as soon as he got on board ; that several persons were eiig.aged in looking out for recruits to proceed upon the same service, and many men were spoken t(» for the purpose. Depoueiit was then informed that the vessel was the jirivateii schooner Lively, but has since learned that it was a mistake, and that the vessel in ([uestion is the i)atriot brig Americano Libre, Captain Barnard, which is lying at thi «iuarantine ground, and is armed with several large guns and many nu^n ; that several persons who are officers, captains, lieutenants, and so forth, are at present employed in recruiting men to join tliat service, and proceed in the said brig to Amelia : that mauy hands have already been bespoken, and are now waiting for money which has Ijeeii promised to them ; that the offers made to them are to give them $8 a mouth and elotb- ing, together with |!10 or ^12 in advance. Deponent supposes that the otficcrs above mentioned were in treaty with about twenty persons, who w.re to go on board as soon as their advance was paid to them, and which the said orticers told them would be ^^mmf^^ COUNTER CASK OF (iltKAT BRITAIN. 313 y sworn, >aitli. (isi'l which \v;is ose. of ^joins '" he iirrived at ce ; that depn- erc eiisag»'''l '" _ii wuiT spokfii s the iiiivatetr t the vessel in is hill}; at tbi that several lit eiiiployi'il '" lia; thatniauy vhich has been oiith andilotb- otticcrs above _. board as soou them would be !iiaiiifi'«t viohitioii of the foreijrii-ciiliHtiiiont aet, and Htrps ought to he lukni to put tliiitntt ill foree and to prevent the veNsel from going to w-a. Tlio I'i'port of th(! I'nited States eon«nl at Liverpool, iiulosed l)y Mr. Ailains, liesidcs ,ii(jgo»tiiig other gronndH of n^asonabhi siispirioii, contains a direct asMMtioii that the mrcmaii of Mchhi'm. I^aird, the hiiihh'rH. lias stated tliat tiiis vessei is intended as a jiri- vateerfor the service of the governiiient of the Southern States; and, if (he cliaractei if tlio vessel and of her ecinipnient he such as tho same report descrilits lUeiii to lie. it -(('iim evident tiiat she niiist be intended for some warlike purpose. I'lulcr these circiinistanees, we tidnk that iiropcr steps ought to be taken, under tht •lirectiou of Her Majesty's government, by the. authorities roceedings under tin; fonMgn-eiilistiuent aet, such proceedings sliould 1,1 taken as early as i»ossil)!e. In the mean time Mr. Adams ought, we tiiink, to be iifniiiu'il that Her Majesty's government are ])idceeding to investigate the case ; but imt the course which they may eventually take must necessarily depend upon the latiirt! and suthcieney of any evidence of a breach of the law which they may be en- .ilik'd to obtain ; and that it will be desirable tliiit any evidence in the jiossession of ilic United States consul at Liverjiool should be at once eoininunii ated to the ot1l(er> lller Majesty's customs at that port.' On the 4tli July the results of the inquiry in.stitutod iit Livi'ri>ool by ilie customs department were communicated to jNlr. Adams, with a suj;- liiriujjthe course of the day ; among the olHcors there is one who is trailed a general. That the above men were told, in deponent's presence, by the ollicers who were eiili.-t- iiU tlicin, that they were principally wanted to join the land stnvice against the roy.il «tH, And further the deponent saith lutt. (Signed) ".JOHN HKH.LKV. "Sworn this Ulth day of September, before me. " FRANCIS R. TILLON, ^'yotary riiblic" Mr. Fixl- to Mr. Shiu/hlon. "Nkw Y(i:,k, Srpfimher 17, 1-17. •Silt: I have duly received your notes of yesterday evening and of this day, and !;ave referred to the statutes providing for the punishment of the otfenses stated. It snot a case, from tho evidence mentioned, that would justify the collector in detaili- ng the vessel ; the aggression is to he punished in the ordinary mode of prosecuting :hoso who are guilty of mi.sdemcanors. Oath is to be made of the facts by the eoiu- lilainaiit, who enters into a recognizance to apptsar and prosecute the «)fienders before my process can issue. This oatli being made, and recogni/ance taken, the judge of the ircuit court will issue a warrant to apjireheud tho accused, and bring them before liini, to be further dealt with according to law. When apprehended, it is the province ><( tho attorney of tho United States to conduct the prosecution to judgment. I have no authority to administer an oath, or to issue a warrant, nor have 1 the power to issue any process to arrest and detain the vessel in (|uestion, unless by the direction of an executive otticer of the United States. IJy the refei'euce you have furnished, the parties iiuiplained of are to be prosecuted either under the 4th section of the act of Congress passed on tho :Jd of March, 1817, or under the 5Jd section of the act passed 5tli .Juue. 1*'J4. By adverting to these statutes, it will be seen that the Acssel is not liable to seizure for the act of any person enlisting himself to go on board, or tor hiring or retain- ing another person to en list; the punishment is jiersonal to theotVenders; ami those who ilisclose the fact, on oath, within thirty diivs after enlisting, are protected from prose- ntiou. The otfenders are to be arrested and prosecuted in the inauner I have statetl. 1 beg jou to be assured, sir, that it is not from a disposition either to shrink from the I'erformauce of my duty, or to decline interfering to defeat any illegal enterprise against lie subjects or possessions of a power with whom the United States are at peace, that Iliave stated to you the embarrassments I must eiiconiiter in attempting v compliance vith your request upon any informatiou with which I am furnished. If it is in yiiiir power to procure the names of the parties, and the evidence upon which a jirosc- iiitiou for a misdemeanor can bo founded, I will readily co-operate with the propei- ^luthorities in having every oft'ender arrested and brought to justice. It is impracticable I'lr nie, or any other officer of the United States, to take any legal measures against ;i|,'Kressor8, upon the indetinite statement of certain persons being concerned in an ille- niil transaction. Since the receipt of your notes, I have had an interview with tho eol- 'MiiT, and we are unable to discover any other legal course of proceeding in this case 'lian that adopted in the ordin.ary cases of misdemeanors. "I have, &c., (Signed) *• .JONATHAN FISK." ^ The Spanish consul rejoined by a warm remonstrance. The expedition appears to aavo been permitted to sail unmolested. ' British Case, p. 83 ; Appendix, vol. 1, p. 181. ill i' .. ^4, !'> { j; T^ w 314 TREATY OF WA.SIIIXGTOX. .:Lj;e.sti()U tliat be slioukl instruct " the United States consul ;jt Liverpoo! to submit to tlio collector of customs at that port such evidence as h' may possess tending to show that his suspicions as to the destination of the vessel in question are well founded." ' If ]\Ir. Adams, or the consul from whom he derived his inforniation, was at this time possessed of evidence as to the intended employineiit and real character of the ship, the time had now arrived when it ought to have been inoduced without delay. Five days afterward, on the !lth July, the consul wrote a lettei', received on the 10th, which purported to convey " all the information and cii cumstanees which had come to his knowledfte " to the collector of ciis toms." The contents of this letter, when examined, will be Ibuiul tu consist partly of one or two alleged tacts, (not i)roved,) tending to con neci Jiullock with the vessel ; partly of statements or admissions said ro have been made by various persons to third parties, and to have been by them reported to the consul. The persons to whom these statements or admissions were ascribed were two otticers of the Sumter, who had passed through Liverpool two mouths before ; a foreman then or previ ously employed in the ship-builders' ytard, and not designated by name: and " a youth named IJobinson," who was understood to be at '* a school in London.'' ^Ir. Dudley bad not himself seen any of these junsons ; he had only beard from others (whose names he said he could not disclose that they had made the statements or admissions attributed to them, His inforniation, therefore, consisted in reality of reports, received from anonymous persons, of statements alleged to have been made by others who could not be found, or who, if found, could not have been compelled lo give evidence, since the evidence would have tended to criminate themscl ves. ( )f Bullock nothing was at this time known to Iler ^[ajesty :< government, and the consul, although he asserteose, fur uisbed no evidence of this, nor offered to furnish any. INIr. Dudley was therefore informed by the collector that tlie ollicer- of the revenue would not be justified in acting on the statenu'uts con tained in his letter, uidess they could be substantiated by evidence. On the 21st July, eleven days after the collector's reply, and a moiitli after the time A»hen (as is alleged) ]\Ir. Adams thought be bail in his possession " strictly technical proof" of a Aiolation of the law, .somr evidence was i>roduced for the first time, and laid before the collector by the consul, i'his evidence consisted of six «le])ositions, of which only one, purpiuting to be sworn by a man named Tassmore, was ma terial to the question, and legally admissible.' It has already been ob- served that, to rely on evidence of this kind, iiroceeding from a sinulf witness, without corroboration, and without inquiry into bis character and general credibility, would, according to Judicial exj)erienco in Enji land, (and, it may be added, in the United States likewise, and proba bly in other countries,) have been very unsafe in a case of this nature.' The consul was, however, informed that it was competent for him, il he should think fit, to institute at his own risk a prosecution againsr the persons supposetl to be concerned in the alleged violation ofthf law.-' ' Hiitisli CiiHc, |tii|!;e H4 ; A|tpen(lix, vol. i, i>. IH4. - AppiMulix to Case ot'tln' IJiiitud States, vol. iii, p, 17 ■ Ibid., vol. iii, ]». 21 ; vol. vi, p. [VJl. < Kiitish Cas.', p. yi. Appendix to CuHti of tlio United States, vol. iii, p. Sil vol. vi, p. '^K^. vo). vi, p. ;{'.)(!. Kcfciriii' .-lll[F1-|Mtl.'V H» V^ilHU KH I'lIU tJlllbtJIl OLULVn, * IJI. Ill, |l. «1 , ".III, > I, p, .li"P. nii»i*"- h.a.s iilrrady boon iiiadu above (p. 82) to the auswer.s jf'^'"" ''* '* likoseiiHi) by Mr. Fi.v Her Majesty's jiovernnient.' This is a misapprehension, if it is uioant that they were accepted by the jjoverninent as conclusive. Wliiit the government accepted as sunicient was not the incomplete and xaiity evidence of tlie 21st, l)nt the same evidence, strenj^thened aud niiupleted by the additional dei)ositions of the L*3d and 25th. On the 2.')d July two further dei)ositions were fiUiiished by the iioiud of customs.- An additional deposition was re<'eived on the 25th July.' On Tuesday, the 21>tli .Inly, the law otticcrs reported their iipiiiion that the evidence was sutlicient, and tliat the vessel ought to he seized.^ This opinion was unfortunately given too late, the vessel liiiving put to sea on the same morninfi, under the circumstances stated 111 the British Case.' We see, then, that although, according to the statements .nade in the I use of the United States, this vessel had been an object of susi)icion an!it'(l re<|uire«l to be -lengthened by additional evidence, ])art of which was delivered on tlic sixth and the remainder on the fourth «lay iit'lbie her «leparture. It is clear beyond controversy that this long and liii/ardous dc!a> on the ])art of the olbcials of the United States in this (ouiitry must have been due to «)ne of two causes — cither to a want of probably the correct oiu', lUit, in either case, what becomes of the (liiii'^ic of gross and culpable negligence against tlie JJritish govern- ii'iit.' If .Mr. Dudley, whose !)usiness it was to lind out the truth of a Mispeeted enterprise so dangerous to his country, (!ould get no evidence <'t it until too late, why is it imputed as gross negligence to the <•• 'cers "t the government that they, without his means of information, w«'ie not Al>p«Mj(lix to UritiNli Case. vol. i. ]>. VM. liil 'll.i.l. lilf'. 1>. iiOU. ■* mil! stK'.SH ijt laid, in the ( 'iiso (»f the fiiited .Stiitcs, (pp. :{(is, :t74,) on ii .stateinciit in I"iit Uy the < oMimissioner of cu.stonis to the tifamiry, that th<^ mvonuc otliiMTs at [-ivir|>(i((l Hhouhl " watch" tli»3 whip. This is eonstincil into a luoniisc to Mr. AdainH ' nisclt' that she shouhl 1)« watclicil to pruvont hor dopaitiirc; and lie is saiil to havo '''<1 iipon it, iiiid to have \kva\ indignant wlion theanthoritics "tailed to rcdoonithoir 'li:'itiir\ promise." Mr. Aard. (tho con- UnIiows that this was meant,) nothing bnt an actnal sei/tire eon Id legally prevent T tioiii sail mg. ^^ dm' I'i;"' :ritaiii. if those charges are to be supported in any way, they must find their only support in what was done, or omitted to be done, afterward. That tin- question whether the evidence was credible and sutlicient to sustain a seizure, was one on which the British government liad a right, heforc acting, to consult its ofticial legal advisers, cannot be denied. It was clearly and eminently such a question. Nor does it admit of denial that the evidence was actually referred, as soon as it was received from tiiiii- to time, by the government to its advisers, for their opinion : nor tliar, if any reasonable doubt existed, the government and its advisers weiv Justified in taki.ig reasonable time for consideration. The charge of gross negligence, then, resolves itself, when tested by examination, into this and no more : that the evidence not hiniiig l)eeii delivered till within a few days of the sailing of the ship, and then in successive installments sent almost from day to day, a little more time than may now perhaps be thought to have been absolutely necessary was consumed in obtaining the advice and forming the conclusion on which the government ultimately acted. A circumstance has been already mentioned, of which ^\\\ Adams was informed at the time, as having occasioned some little delay.' [80] Nor ought it to be forgotten tliat the sole *facts which were alleged, and as to which evidence was ottered, and for prevent- ing which ller Majesty's government was solicited to interfere, were the fitting out for sea in the neutral port of a vessel specially adapted by her construction for Avar, and built as a commercial trans.action to the order of an agent of a belligerent, and her apjuehended departure, unaruieil, for an unknown destination, which might be a port of the Confederate States. Of arrangements for arming her nothing was known to the orticials of the United States, and nothing was brought to the kiiowl edge of Her Msijesty's governujent; and they are now informed bv her builders, Messrs. Laird, (who would, if necessarj', give evidence to that ettect before the arbitrators,) that they also were entirely ignorant ot those arrangements, and that they believe • the vessel to be intended tu run the blo(dvade. In the opinion of the government and its advisers. the adaptation of this ves.sel for war, with a view to her eniploymont in the service of the Confe«lerate States, would, if proved, have been a breach of the foreign-enlistment act ; but this was not established by authority ; it was a point on which high legal opinions were known t" dirter; and it was the more necessary that the evidence should be ehar. AVMien the matter is reduced to this point, we see that it is one npitii which an adverse judgment cimnot reasonably be founded by a couit of international arbitration. Whether the evin- haps, fnid it not easy to form a clear and decisive opinion. The IJritish government conceives, liowever, that it is not upon grounds smh as these that a grave charge of neglect of international duty ought, when iiiised, to be decided. The standard of international obligation whiehj ' The illnosH of'tlie t^ucon's fidvocato ; Hi'iti«h Cuhc, p. IIS. T'SWip^iP COUNTER CASE Or GREAT BRITAIN. 317 a tlecision adverse to Great Britain ou such grounds would assume, has never heretofore been applied to or acknowledged by any government; and it needs no argument to show that the establisliraeut of it would be a matter of serious couseciueuce, not to maritime States alone, but to the I'eueral peace and tranliip or her cargo before she left British waters; nor does it appear that the errand on which she was employed was known to or suspected b\ the officials of the United States. But, even had a suspicion existed that her cargo was exported with the intention that it should be usod. either in the Confederate State.^ or elsewhere, in arming a vessel which had been jinlawfuUy litted in England for warlike employmeiir. SS] this would not *have made it the duty of the oflicers of customs to detain her or have empowered them to do so. Such a trans- iutiou is not a breach of Ihiglish law, nor is it one which the Jlritish ;(ivernmeDt was under any obligation to prevent. AVhether the cargo was sent from the same port as the ship or from a different port, and b\ the same or diflerent persons, is manifestly immaterial for tliis purpose. Tin distinction is jdainly not such as to create in the one case a dnt\ wl ""'i would not arise in the other. The Alabama was commissioned by the government of the C'onftd iiate States and officere!>itrators, that the cases of the Florida and Alabama differ from one another in various more or less important par- ticulars. But Her Majesty's government again submit that neither in respect of the Alabama nor in respect of the Florida is Great Britain chargeable with any failure of international duty for which reparation is due from her to the United States. ilMi . 'a iS\f'1.K ' [89] *PART VII 'J0 THE GEORGIA AND SHENANDOAH. ■■I : i ')•;; ' •( The (ii'iriiii rasaiiijj to the cases of the Georgia and Shenandoah, the tribunal has next to deal with two vessels, as to both of which it is , not only clear that the British government had not, before aM>iyi,e.m,r they respectively departed from its jurisdiction, any reason- able ground to believe that they were intended to cruise or carry on war auainat the United States, but it is also clear that they were not within its jiirisdict'on armed, fitted out, or equipped or s[)ec5ally adapted, cither whollj" or in part, to warlike use. THE (iEORGIA. The Georgia, as the arbitrators are aware, was a vessel bui!r at Dum- barton, in Scotland, and sent to sea from the port of Green- ock in April, 18G3. She had undergone, when completed, the customary surveys by the proper officer of the port of Glasgow, and { is described by him as appearing to be intended for commercial pur- j poses. Her frame- work and i)latings were of the ordinary sizes for ves- I sols of her class. The tide-surveyor at Greenock, in like manner, " saw j nothing on board which could lead him to suspect that she was intended lor war purposes." The collector at Greenock adds, from his own ob- [ SCI vation, that she "was not heavily sparred: indeed, she could not spread more canvas than an ordinary merchant-ship."^ In short, she was bnilt, litted up, and rigged as a ship of commerce, and not as a ship of war. Indeed, when the endeavor was afterward made to emi)loy lur as a cruiser, she was found upon trial to be not adapted for this pur- |i"se, and she was for that reason dismantled and sold before the end of lihe war, after having been at sea altogether about nine mouths. She |«as registered under the name of the Japan, in the name of a Liverpool t'lchant, and was entered outward, and cleared in the customary way, lliaa port of destination in the East Indies. She was advertised at the ISiilors Home in Liverpool as about to sail for Singa[)ore; and her crew jwcro hired for a voyage to Singapore or some intermediate port, and for iperiod of two years. The men, when they were hired, believed this to Jl)t'tlie true destination of the ship, and her voyage to be a commercial joiie; and they appear to have continued under this belief until after jtho vessel had arrived ott' the coast of France. The number of her lnew appears, from depositions furnished on the part of the United ji^tates, to have been about tifty. In the Case of the United States a de- liHiiption of the ship is given, without referring to the evidence on which jit is founded. She is described, in one of the depositions obtained and ll'roduced by Mr. Adams, as "an iron vessel, very slightly built.'" There 21 A— II ' Appendix to BiitiHii Case, vol. i, p. 4U4. - Appeiulix to CaHe of tbe United Stuti'8, vol. vi. p. ^A'i. "it4l'J m- ''■' u ■ W .|.,( ft- - 322 TRKATV OF \VASHIX<;TON. I' ■ v^:'i '■'■• mI. .tt' m^ ^nii 1 R 1) -iivS M te«^->a'^ is 110 reason whatever to believe tliat when slie sailed tioiu (lieeiux-k slu. had a niafjazine, or that her cabins or interior tittings were of any uii usnal 8tren;^th. She had on board joiners who were fitting np licr ciih. ins when she left her anchorage. Slie was, therefore, when slie left this conntry, a ship to whidi the first three rnles mentioned in the sixtli article of the treaty wonld not apply ; nor was she a ship with whicli Her Majesty's government were under any obligation to interfere, accoidin;' to any known rule or principle of international law.' Tlie assertion is repeated in this case that the service for wliidi tlif vessel was constructed was " notorious.''- In proof of this tin' inl)itrii tors are fuvnished with two anonymous letters jiublished in an lOnniisli newspajM'r in February, IHCtli, one of which contained no reference what ever to this or any vessel building or supposed to be building for tho (Jonfcilerate States, while the other declared that upwards of titty wciv being built for the government of those States, and nuMitioned a "liiir screw-steamer," lying in the Clyde and calle«l the Virginia, iis ic f90| i>orted to be jmrtly owne destined for a blockade-runner, and was i)artly owned by the coiiledei ate government and partly by luivate individuals at Nassau, is tiius ad duced as ]n'oof that it was notori(»us that the same vessel was inteiKUii for a confederate cruiser. " Her destination,'' it is adde time, therefore, was re«piired tVu* that investigation. It could have Iuimi very little trouble to acertain the facts as to the Alar," (the nierchani vessel which carried out for her arms, ollicers, and men.) "The aiuswerj to a t«'legram could have been obtained in a few minutes. jMeirotwar might have been dispatched on the 8th Irom Portsmouth and IMynioiitlij to seize these violators of liritish sovereignty." " This was not iloni.' The sole evidence produced in proof that the sailitig and destination o the Japan were notorious on the 8th of April is an extract from a Livtr I pool paper [jublished on the Dth, which mentioned a report that theves ' llritiwli Case, p. 122. -CVsn of tilt' IJiiited States, pp. 3D2, 408 ; Appendix to ditto,. vo\ vl, p. 50.?. ^Tf f'P"- \ COUNTKH CASK OV CRKAT BRITAIX. 323 ied tliat tlu' war in i>"v " it is .saitl. Iinnu'iit. ^" Id have luH'ii lie uieiThiiiu- . The aiisww luUMyimmtlil Is not tloiH'. jestiuatioii ol ! Ironi a Livir | Ithat tbe vcs n, p. ^>0'- M-l was iiitondod for the contodorate service, any any i)roof It all) that she was intended for the conreut it seems, besides, to be forgotten that IMiaiit and its territorial waters are not within the the coast of France, and within the do- iiiiioiis of that power; and, even if it had been the duty of the Hiitisli (iovernment to institute a pursuit on the high seas of vessels H shown to have committed any offense either against Jiritish law ii^ainst the law of nations, a seizure of them in French waters would have been as plain a violation of the sovereignty of 1 France, as that of the Chesapeake in December, l.Sii.i, *\vitinu the waters of Nova Scotia, by a United States cruiser, was a [mlation of the sovereignty of Great l>ritain. That an error had been Vmiiiitted in the latter case wasacknowleged by the United Statics; the piitish government would certainly decline in a like case to commit a jiiiiilar error. liut the arbitrators are already aware that the British autlio ities did [le very thing which they were accused of not having «lone. Farl Itus- pl (lid not order inquiries only ; he did order action, A s'lip of war > ill fact sent to Alderney, not indeed from Portsmouth ir Plymouth, tit fioiu Guernsey, to prevent any attenipt which miufht be made to ' Case of the Unite. I iStiitL's, |>, . 9 •. 2 Appontlix to ditto, vol. vi, p. .'0 >. it I f4| ■4M ; 'Aw^ ')■ u, '" 1) 4 . ", . ,- . ^ tl S ' ' '1 ' 1 4 k '. f f^ h f; I 1 r« !' t Aid \l '■hm 1/ - ) iMiMiiiiiiiii ! i MM 324 TREATY OK WAHIIINOTON. imH violate tluj toicign-rnliHtiiK'nt act within JJritish waters, only, liowovcr. to find that Mr. Adaafs information as to tlie immediate destination nl the suspecteil vessel liad been wron^. Havinjj: delayed till too late givinfj any information to the Ilritisli government about this ship, and having then given information which was erron<'ons, the United States would fain have the arbitrators assimio that it was the duty of this government to emplo^Mts naval forces in searching for and ))nrsning her on the high seas, and even in forei^'ii waters. There is no ])retense f(,» ihe suggestion of such a duty. Xo such duty has been acknowledged by the United States themselves, noi by any other power. Yet it is imjjossible to deny that the British ^m. eminent did act in this matter with promptitude and alacrity, scanty though the information was, and quite unsupported by proof, and too late, though, it i)robably was for any ettectual measures. Unable to establish against (Ireat Britain any failure of duty in tiiis resj)ect, the United States attempt to found a claim on the facts that no punishment which appears adequate to the (lovernment of the United States was intiicted on the persons concerned in fitting out the (leor;'iii. and that she continued for some months to be registered as a Uritish owned ship. It is true that these arguments are evidently adviinrtd with little confidence, but that they should be suggested at all is to lici Majesty's government a matter of some surprise. ller Majesty's government is compelled to ask whether it is seriously contended by the (lovernment of the United States that the (Jcorgia. " though nominally cruising under the insurgent flag and under the direction of an insurgent ofKcer," was all the time really controlled and owned by a Uritish subject. Is it not, on the contrary, certain that even while Bold's name remained on the register as that of her nominal owner, the real ownership and control was in the confederate govern ment? Does the (iovernment of the United States seriously contest this? ilas it any serious doubt of it? Her Majesty's government is unable to believe that it has. liut even could it be shown that IJoId was the actual, instead of being the nominal, owner; that the confedei ate flag was (as seems to be suggested) merely used to cover the acts of Hold and his agent, the confederate ofhcer; and that the ship was tlieiv fore in truth and fact piratical, this would impose no responsibility on the British government. It cannot be maintained on the part of the United States that a government is to be held responsible for acts. whether of war or of piracy, done out of its jurisdiction and beyond it> control, on the ground that the vessel by whose instrumentality they were committed was either nominally or really the property of oneot| its subjects. Certainly there is no power in the world by which this proposition has been more explicitly or resolutely denied. But this is not all. If the argument be (as it is) untenable on general j l)rinciples, what are we to think of it when we find that the very .slii|i. which is asserted to have been British all along, was actually captureil after she left Liverpool, and when plying as a merchant-ship, on tin I ground that she was a confederate sliip of war, and could not, even byf a regular sale in a neutral port, pass into the jjosscssion of a Britis owner and into the British mercantile marine? She is not British wheiij the (|uestion is, whether she is to belong to a neutral who has boujilit| and paid for her, or to l)e seized and appropriated by the United States,! She becomes British again (but not, so far as appears, for the benefit otj her former British owner) when it is supposed to be possible to fouuuj on her allege«l British character a claim against Great Britain. Of the complaint that she was sufl'ered to remain in poit for thepurj ^ COl'NTER CASK :{jested that a 1,'ovcrnnient winch forbears to institute i»rosecutions ajjainst all the i»er- sons who may have been concerned in littinj; out or manning; a i)arti«'U- lar vessel for the naval service of a belligerent, or may themselves It'l have served on board of her, becomes, on that account, *resj)on- sible lor the losses which she may have been instrumental in inllictin}? on the other bellijjerent ; and it fails to see how those losses can he attributed to the subsequent forbearance to prosecute. The con- siMinencesto which such a principle, if pursued, would lead, cannot be uiiknowu, certainly, to the Government of the United States. It is true, indeed, that w lien a succession of criminal enterprises, openly nn- ilertaken against the peace and security of a friendly country, are suf- fered to remain unpunished, the encouragement which such impunity lioUls out to subsequent enterprises of a like kind is a proper subject of jrnive remonstrance, aneen seen that, in every instance, directions were given, without the least delay, for investigation and inquiry on the spot by the proper ofli- l^rs of government; that, in some cases, these inquiries were ordered ' Pages .13 to 50. 32C TREATY OK WA.SIIIN(JTO\. and made U'foic the receipt of any representation from Mr. A«laiii.s; and that in ever}' ease, without ex<;eption, either tlie inrorniatioii fm ni.shed proved to he erroneous, and the; .sup|)08ed indicia oC an unliiwt'iil intention alisent or deceptive, or this intention was defeate.yed in the China trade. It is a matter (tf first imj>ortance in that trade to m'«iuc tli( earliest arrivals of tea; and the object of the firm in (piestioii was to li, ve a vessel which, by the use of steam jiower, wouhl be able to briii; h'Sne the new teas faster than the quick sailing-vessels em|doyt'd at | that time for the jnirpose.^ The Sea Kinjjf, as she was then (iillcd. started on her first voyajje to the China Seas toward the end of ISO,!; and, in order to make profit on her passage out, her owners (MMitnictid with the {government to take troojis to Js'ew Zealand. From thence slic proceeded to ('hina, and returned with a carjjo of tea in the ordiiiaiv <;ourse of trade. Before starting: she had been provided with two smoothbore twelve-pounder guns, such as are usually carried by sliips trading in the China seas, to i)e used as signal-guns, and for other i)iii[ poses common to merchant- vessels.' In September, 18G4, after her n turn to England, she was sold by her owners, Messrs. Eobertson, to A Mr. Wright, a merchant of Liverpool, through the agency of rcgnliirl ship-brokers in that town ; and, on the 8th October following, sheafraiii left London on a voyage which, to all ajipearances, was precisely siiiiilai[ to her former one, excejiting that, on this occasion, instead of taking; out troops to New Zealand, lier port of first destination was l>oiii| bay. j93j *It appears, from documents now produced by the United Statoi for the first time, that Mr. Dudley, the United States consul at I Liverpool, IukI noticed this vessel when on a visit to Glasgow, whoivj she was built in October, 1803, and that he had at that time written tij his Cjiovernment, describing her as " a very likely steamer for tliocoiil federates," to whom he heard th.at she was going to be sold. 31r. Dmll ley's information, as not infn^quently happened, proved to be incormt: and all suspicions were set at rest by the discovery that the Sea Ki was taking out troops to New Zealand.* Nor does his statenu'iit tliati she was " well adapted for war purposes" seem to have been more iiij curate. Her appearance, even after her conversion into a confederate cruiser, is stated to have been that of an ordinary niorchant-vessel, amll her own officers doubted whether it would have been safe to fire a broad side with the guns which were then placed onboard of her.-' It is tlierej ' Kritish Case, pages 14:? and IfiO. ''Appendix to KritiMb Case, vol. i, p. 724. 'Jbid., p. 725. ■• Appendix to Case of United States, vol. vi, p. S.^i. '• S«!e report of Captain Payne, Appendix to British Case, vol. i,p. Ti'tT, and of tlie I'liili'l Htates consul at Melbourne, Appendix to Case of the United States, vol. vi, p. 'ill'i. V'.pll.'p Iff C'OINTKK CASK ol' (ilJKAT URITAIN. 327 lore clear that this vessel also, when sin; leCt this (Hmiitry, was not a ship to whitrh the lirst of the three rules in the sixth artielu of tho treaty would have applied, nor a ship with which Her Majesty's jjov- eminent were under any oblijL^ation to interfere, aceordinj; to any rule (ir)irinciple of internati«)nal law. It is not ))retended that the attention of the British H:<»vern?nent was ill any way called to the Hea Kin;;, even at the time when the suspicions (it'tlie United States consular authorities were thus roused in re^^ard to Iht. I'roiu that time up to her se<*ond departure fnttn England, in Oc- t(»ber, l.St found it easy to state. It is dillicult to suppose that it can he seriously argued that such a system of espionage is among the duties ttliicli can properly be expected of a neutral government, or that such a .rovcrmnent can fairly be charged with negligence in having failed to liscover grounds for action, when the parties most directly interested, "ith equal access to information, had not even seen cause for suspicion. Hut Her Majesty's government thinks it right to direct the attention of tlie tribunal to this illustration of the view of international duty on whieli the claims of the United States are founded, and of the "due dil- ijfenco," the "wakefulness and watchfulness'' which, according to that view, are to be exacted from all neutral nations, under the penalty of iieing exjjosed to such deiiiands as are now made against Great liritain. The best proof of the apparently innocent nature of the voyage is the 'irc'uinstaiices that the persons most likely to notice anything out of the '•rdinary course, namely, the crew of the vessel h(>rself, were nuite un- suspicious of the real intentions of the owner; and that when it became known to them, on their arrival otl 3Iadeira, that the vessel was to bo turned into a confederate cruiser, forty-two out of forty-seven of them iciiised (nery inducement in the shape of money and promises held out '•^ them to serve in her, and insisted on being sent back to England, following day dep King port Ai»jit',ii«lix to Ciwe of United States, vol. iii, p. 319; vol. vi, ]». 560. •Sec t'vidi'iico given at the trial of Captain Corbett, Appeiidix to Case of the Tnited >tatt's, vol. iv, p, (i;V2, Case of the United States, p. 417. ■'0r, 328 TREATY UF WAsHIN(iTON. lit'",' ■ -"-'■ c^n m, Loudon, another steamer, the Laurel, left Liverpool ostensibly for Mat ainoras via Nassau. The United States consul at Liveri)ool reported to bis Government that she had taken on board cases marked as ma chinery, but, in reality, as he believed, containing guns and };iin [94] carriages; *that she had shijjped niany more seamen than wi'iv necessary lor a vessel of lier description ; that he heard that sonic confederate officers were also to go out i^her ; and that he had his sus picions that she would ])rove to be a prWKteer ; but he added, " 1 have no evideu( ii against lier.'" lie could ^PRi" no evidence; but this dops not prevent the introduction into thoHase of the United States of tlic assertion that the British government could, by the exercise of due dil igence, have detained her — without evidence, it must be presumed, and without any charge of an offense known to the law. Neither Mr, Dud ley nor the United States legation in London gave any notice on tlio subject to the liritish authorities, and the attention of tlie govcnimont was first called to *hi proceedings of the two vessels by a rej)()rt i< ceived on the 12th of November from the British consul at Tencritlc. The meeting of the Laurel and the Sea King off the Madeira Ishinds, and the transfer of the latter vessel to the confederate flag under tlic name of the Shenandoru), after receiving ber armament and crew from the Laurel, have already been stated in (letail by Her ^Majesty's govern meat in the Case presented by it to the tribunal, and need not i>e her.' i repeated. For the same reason, no further account need be given oil the investigations which were made by the British consul at TeneritJef on the arrival of Captain Corbett and the late crew of the Sea Kiiifjatj that island, on board the Laurel, and whicli led to his sending the cap I tain to England under arrest for breacb of the foreign-enlistment act: nor of the steps which were thereupon at once taken by the goveriinicn' j to bring the offender to justice. Her Majesty's government maintains that all that was iu its power and could fairly be .?xpected of it was done to vindicate the neutrality of (ireat Britain on this occasion. The Shenandoah proceeded ."rom ]\radeira, and, after a cruise of about | three months, anchored in llobson's Bay, tbe i)ort of Melbourm^, on tlic evening of the 2r»th of -laimary, lrtO.">, She was the tirst vessel of wail belonging to either of tlui contending parties which bad appeared in Australian waters since the commencement of the civil war.- Tlieeir j cumstances of her visit and the conduct of ber commander, LieutenantI Waddell, during ber stay, placed the cohmial authorities in a positioiij of no little di(ii(!ulty and perplexity, in whicb they seem > have aeted Avith great discretion and vigor, though their conduct has not escaped! much invidious comment in the Case of the United tftatos. It niaylH| convenient to the arbitratois tliat the facts should be here restated in! the form of a, connected narrative. Lieutenant Waddell, immediately <>n his arrival, sent a letter to tin] governor stating that the machinery of the Shcnanairs, and that lu* was in want of «M)al, and reiiuesting permission to repairs and supplies to enable him to g(»t to sr as cjuickly as pos,sibIe.-| This note was received about half past 8 o'clock in t!»o evening of tlii I'oth of Janimry ; and the messenger was informed that it should re- ceive earls atteiition, and be replied to in the course of the tVdlo'vini day. The governor accordingly sunnnon«'d the executive council on tli'l 2Gth, and communicated to them the iipplication he had received ; aiiuJ upon their advice, a letter was addressed to Liciienaut VVadose, the governor appointed a board of three otlicers, one of whom was th governnu'Ut engineer, to proceed on board the Shenandoah, and report whether she was then in a tit state to go to sea, or what repairs were necessary. This board had the ves- sel examined by a diver, and reported on the 1st of February that she was not in a Ht state to proceed to sea as a steamship; that repairs were necessary, and that the extent of ihe damage could not bo ascer- taiued without the vessel being slipped.' Permission was thereujjon sraiited for placing the vessel upon tlie sli|>, which had originally been built by the government, but was at that time in the hands of a private tirni. In reply to a renewed injpiiry, Lieutenant Waddell stated the nature of the supplies required by him, which consisted of fresh provisions ilaily for the crew, and stores of wine, spirits, lime-juice, and clothing.'' 01 these he received i)ermission to ship such quantities as might reason- ably be necessary. An application which he made to be allowed to 1 md soiiic surplus stores was refused, on the advice of the attorney-general, as being inconsistent with the proper observance of neutrality ;" and he was afterward informed that, i'or the same reason, the use of appli- ances which were the jiroperty of the government could not be granted, nor any assistance rendered by it, directly or indirectly, toward effect- ing the repairs of the Sheiumdoah.' The governor had also giveji 'lirections that the olhcials of the port should furnish him with daily ivports of the i)rogress made in repairing and provisioning the vessel, and that every precaution should be taken against her armament being increased or reiulered more ett'ective.' The reports received not showing sutticient progress in the repairs, a letter was addressed to Lieuteiuint Waroceeding io sea. LieutenaJit Waddell ' Apix'iidix to ItritiHli Case, vol. i, p. r>l I ; vol. v, Ibid., vol. i, p. .'■)2!) ; vol. v, p. 7'J. liiid., vol. i, p. 040; vol. v, p. p. t!'). «9. ]>•' ;{. ' Ibid , vol. i, p. .'ilri ; vol * Ibiil., vol. i, pp. 517 luid (i4f ; vtd. v, pp. (>',>, 70. '■ Ibid., vol. i, pp. .ViO, .WJ ; vol. v, pp. 7.''., 7li. ■ Ibid., vol. i, p. C)4'i ; vol. v, p. 77. ' Ibid., vol. i, p. .')!iJ» ; vol. v, p. 74. • 1^ 1 'A I.: ill m' -i i. 6 J,; 330 TREATY OF WA8HIN(;T0N. explaiiiwl the delay which had taken phice as arisiii]^; from the nccm gales, which had prevented him from lightening the vessel.' It will \n- seen by the reports from the officials of the port that the Slieuandoali had broken adrift from her mooring.^ The state of the tides fiirtlici interfered with the process of getting her on the slip, which was at last effected on the 10th Febrnary. The board of offlcei s appointed by the governor then again examined the vessel, and reported that the repairs necessary to render her seaworthy (;ould be effected in about live clear working-days.' On the 14th February Lieutenant Waddell was ajjain requested to state when the Shenandoah would be ready to put to sea. ami he re[)lied that she would be ready for launching on the afteriiooii of the next day; that he had then to take in all his stores and coals. and to swing the ship.; and that iio hopeil to proceed to sea in lici liy Sunday, the 19th instant.^ In the meanwhile the consul of tl.e United States had, since the nnj val of the Shenandoah at Melbourne, c; vol v. p. H8. ' Ibid., vol. pp. r)lW, (517; vol. v, p. fr8. " Ibid., vol. 1, p. (iO(J; vol. v, p. 107. "■ Ibid., vol. i, p. .");«!. • Ibid., vol. i, p. r.24 ; vol. v, p. 109. the i«'Cf'iii It will 1m' nieiiiunloali lies fiirther was at last itod by the ti\e repairs It live clear I was a{;aiii » imt t(t se.i, e afteniooii i hikI coals. ',\ ill 1mm Iiv u- ■; iiee the ani I protests to endiiii; tliiit that it was ;e coiiumini persons who (I desti'oytd Uovermneiit. if any act oi hat she pur- g to a belliii- seiit to the . # " •r. taken bel'oro vhieh tended at that tiiiK' hiced in the identity one t on the l.'ith »oard for tlic tlietbllowiiii; the i)urpose. ^r and a ueii jed any out'. irinj; that lit' or the mail. itive eouiicil on thesliii. Addressed to inatioiMiii'l and taki'iiil meissned Itvl aid or assist. Ifci.MBWlllW B 1 r f'ili i l • -'H " .ilkl'^ mmw^ (OINTKU CASK or (iKKAT I5KITAIN. :vM ance to the Slienandoali, and a body of 100 ]>olice and niilitaiy were or- dered down by telej;rai)h to seize the ship. This they proceeded to do the same afternoon. About 10 o'clock in the eveninj; four men were seen to leave the vessel in a boat pulled by two watermen. Tiiey were fol- lowed and arrested, and one of them proved to be the man against whom the warrant had l)een issued.' Lieutenant Wadtlell wrote to protest ajjainst tlu' course which had been taken. He denied that the execution of tlu^ warrant had been re- fused, as there was no such i>erson as therein specified on board. Jle a(l(lo«l that all stranjjfers had been sent out of the ship; and that, after 11 thorouj!;h search by two commissioned otticers, it had been reported to liim that no one could be found on board except those who ha«i entered the port as a part of the Shenandoah's coinpUMuent of men. •• 1, there- tore," he wrote, "as commander of this ship, rejireseu tin}; my jifovern nient in Uritisli waters, have to inform his excellency that there are no persons on board this ship ex<;ept those whose names are on our shippinj; articles; and that no one has been enlisted in the service of the ('onfed- jtrate States since my arrival at this i»ort, nor have I, in -.\uy May, vio iliited the neutrality of the port."- This letter was lai<'ther witli one from the- lessee of the slip. The letter statelacing her on the slij>, and, after taking on board sup- Jltlies and coal, she left ^lelbourne at half past 7 o'clock on the morning jof the 18th of February, being one day sooner than was expected. It is right to say that Lieutenant Waddell wrote to tleny that the lour men arrested haasiu of rrejifular oval shape, sonu^ OO or 70 miles in circuit, with a nairow en prance to the sea. Swh a conformation of coast offered great facilities Aitjioiulix to Uritisli Cas", vol. i, pp. .V2.V-.V27 ; vol. v, pp. 1'!!>-11'2. Ibid., v,,I i. p. (144 ; vol. \, i>. 110. 'Ibid., vol i, p. ♦J4'); vol. v, ;>. 11*2. ^ Ibid., vo . i, p. (!4»> ; vol. v, jt. 113. 'A; 4. ■^ >^'^ll^.-3 '^--ScRUB . * SAND 'yvt^tif,^ui\ eoiKT ORMOHO 332 TKEATV OF WASHINGTON. '>i lor Heiidiii^' oft' incii from (lifteront parts of the bay, who could bo shipptd on board the Shenandoah cither before or immediately after aim hm] passed this narrow entrance. There was no British vessel of war at or near Melbourne to which the duty of watching or controlling: the move nients of the vessel <'ould be assigned. The legal advisers of the coloniiil government, when consulted on the ijuestion, had declared that they were not jirepared to advise that the execution of a warrant on boarll of her could properly be enforced at all hazards;' and this opinion \vii> afterward conlirmed by that of the law-oflicers of the Crown in Engljind. All, therefore, that could be done was to enjoin such supervision as could bo exercised by the water-police of the jmrt while the Shciian doah was at anchor, and to give orders to the pilot not to allow any boat to con>e alongside, or any person to come on board, from the time of lie: weighing anclior till he left her.' With regard to the first of theses two measures it is not ditlicult to perceive that to keep eft'ectual watch f'.^TJ *over a vessel which is shipping coals and stores in a harbor from two to three miles wide sit the place where she is anchorcposite side of the bay, about two and one-half miles distant, and where the i)atent slip and the station of the water-police are situated. The Shenandoah Mas at anchor in the bay between Williamstown and Sandridge. From th( statement of one of the boatmen employed, the men in question must liave dispersed into some wooded land a short distance off at the tiiin when the boat of the water-police canu^ round to that part of the har bor, and thus avoided observation. After the boat had rowed oil' to the op|)osite side the men seem to have returned in snuiU i)arties, and gone off" from ,the pier in watermen's boats, which jjut them on board the Shenandoah. How many of them were part of the original ciew returning to the vessel from the shore, and whether any were now hands, tliere is nothing to .show. The police constable on duty saw tin boats after they had .started and when they were returning, but had of course no means of investigating this question.^ It seems indeed. from the wording of his report, as though the darkness or the distancr prevented his seeing whether the boats did or did not actually t{'> to tbi' ' A]>]»onili\ to Itritish disv. vol i, p. 52(5. -' IliicK, vol. i, p. .Wh. ' Ibid., vol. V, p. 84. * Ibid., vol. i, pp. r),'»l-.")5;{ ; vol. v, pp. 1I7-1-.W. COI'NTER CASE OF GREAT HRITAIN. vessel ; all tliut is stated i.s that they went in that direction. A man of- the name of Itobbin.s went up to the American consulate, where lie arrived about 11 o'clock at nijfht, and stated what was takinpf place. The American consul sent him back to fjive information to the water- police at Williamstown, a distance in all about five miles by land and water, where he must have arrived too late for any interference or iminiry.' At about 5 o'clock the same afternoon, another man, of the name of Forbes had come to the American consul with a statement that he had seen tive men at Sandridfje, one of whom liad told him that they were •roiiifj out in a vessel called the Maria Koss, to join the Shenandoah when she jjot into the ojien sea beyond the Jurisdicti<»n of the port. The coiiHiil took the man to the ottice of the Crown law olticers, which had been closed some time before, but where he nu*t the Crown s«>licitor, who had accidentally returned. Jt does not fall within the jjowers or duties of that olhcer to take depositions or issue warrants, ami he re- ferred the consul to a majjistrate as the ])roi»er ])orson to go to. The coiisid then proceeded to the Houses of Parliament, and placed the matter before the attorney-geiu^ral, who ott'ereurne. This latter, after examining Forbes, did not feel justified ill {.'ranting a warrant on such testimony alone, and he advised that application shotdd be made to the water police at Williamstown, who might be able to furnish corroborative evidence. This advice the con- sul (lid not think lit to act upon. He returned home, took the man's deposition himself, and determined to forward it to the attorney-gen- eral, to be laid before the government, but he did not do this until the Ibllowing morning, after both the Shenandoah and the Maria Koss had sailed. It is not true that (as alleged in the case of the United States) "he could get no one to attend to his representations." On the con- trary, they received, according to his own evidence, " i)atient" atten- tion from the attorney-general, as well as from the magistrate to whom he had recourse, and they advised him what to do;-' he did not follow that advice, and he is certaiidy more Justly chargeable with a want of due diligence than those who, though unable to issue the war- OSj rant he asked for, did their best to j)ut him in tiie *right way to obtain it. The Maria Ross was, however, twice searched before leaving the bay, and the mate, who was afterward examined, denie^l most positively that she had taken any passengers, or that aiiy men were concealed on board of her.' Siu'h, as far as is known to Her jMajesty's govciiiment, is all the intbrniation which the authorities of Melltourne were able t<» obtain as to the alleged shipment of men from the colotiy on board the Shenan- doah. It was furnished, for the nu>st i)art, to the i)olice by the boat- men who had been employed in putting the men on board, on the under- standing that they should not themselves suffer on account of what had been done. Of the four men who had been arrested on the night of the lUh, one claimed to be an Aujcricran citizen anH7. OIH. •' Ibid., vol. i, p. r>.'>4 ; vol. v, p. 120. :\M TKKATV i)V \VA.>IIIN wrote also to the (governors of New /eahind and tiie other Anstralian eohniies. and to the (u>niniand(>r of the Itritisli naval forces on tlie station, to warn them of what liad oceiiiTed. Having thns reeonnted tlie faets of the visit of the Shenan(h)ah to Melbourne, Her IJritannie .Majesty's government proplication for ))ermission t«) repair was not otlicially answered till after the twenty-four hours allowed l»y the instru«-tions of January, IS(Jii, tor his stay had t'xpired ; a statement which is supported by no evi. m. on the L'.'ith of tlannary,-' siud that the (consul re ceived, at .'$..{() p .m. on the next day, a communication from the govern ment respecting the ]>ris()ners whom Jiieutenant Waddell desired to land; this (;ommunication having been decided on, ami no doubt sent. at the same time as the answer to Lieutenant Wadtlell's ajjplicalion.' IJut almost imnu'diately afterward it is mentioned, apparently as still more reprehensible, that the otticer who took I utenant Waddell's letter on shore returned with an atlirmative answer the sanu* night.' If it was wrong to delay the ot1i(Mal answer, it isditlicult t<» understand what excei)tion could be taken to sending a verbal reply at once ; but it will liave been seen by the narrative given above, that this second state ment is alsi) incorrect, and that the bearer was oidy informed that the letter woidd receive early attention. In th«' ('ji.se of the United States, ol)jecti«>u is taken to tlie permission wliiih was given to Lieutenant Waddell to take on board li.liC* tons ot coal while at Melbouriu^; and a minute exan)ination is attempted of tla^ nature of the repairs supposetl to have been nuide, with an elaborate estimate! of the time in whi»;h they might have been completed, if pushed on with rapidity, ami if nothing had occurred to delay them. '' It is ditlicult,"' tlie Case says, " under the circumstances, to resist the conclu sion that the repairs were dawdled along for the [uirpose of securing the recruits, and that the authorities, to say the least, shut their eyt's while this was going on.'' At this distance of time and phue, when all the particular eircumstam'es cannot be exa<'ily known, it seems to Her nrifaniiit; Majesty's government that it couUI scarcely serve any usefnl purpose ti> follow all the details of a technical argument which is i\)und4'd largi'ly on conjecture. What, indeed, could be less reasonable than that the arbitrators should now be asked, hi a case of this kiml, to set aside the estimates made on the spot and at the time by governnnMit 'A|>li<'ni). "A|ii>(inlix til till- t'!im> of tin- UiiitiMl Stiitt's. vol. vi. p. r)8H, 'S«'i AppiiMJix to ItritiHJi (."iist% vol. i, p. .'»1|. It. is stiittMi in one of tlu^ innvspjipt'is Hiiil liiiiiic Wy tlif Aiiu'iicun <'oiisiil, tliut tin- rtiply «!»« known on l)oai(l the Slicniiii (loitli Im twt'i'ii :{ aiwl 4 oVlocU, (Apptnilix to Caw iint of tlie <;riiise of tiie 8lien;iii- di all Ity oneoflier ollieer.s, wliieli in other respects also^ives a very iiiaeciirate aeeoinil of the i-oiiininnicatioim between Lienteiiant Waddell and the colonial authorities. COrXTKIt (.'ASK (»P (5UKAT BKITAIN. 335 Til. iilHifi's uihI o.\pot'i('n('«>(l pi-otcsHioiial incii, on tiu' .sti'<'ii<;tli ot ii iiuMi-ly (•(tiijwtural evstiinute su^yiestod l>,v tlui ITiiit^'d Stairs, wliirh tak«'s no lUToiinl of lo(;al circuinHtaiKM's, and, on no licltiT ^'ronml tinin tliis, to iinpiiti' iM'i;li;;(>n('(' an to tin* anthoritii>M of an important IJritisli colony If Tin' Slicnandoali anivt'd at Mi'lbouiiu' into Mel- iKiiniio in a partially disabled state, and reipu'sted and obtained per- iiiissiun to make u°ood her defects aind to replenish her coal. The I'liited States havi' souy:ht to draw a contrast between her tieatment iIkmv, and tliat of a vessel of the ('nit«d States Navy at J>arbados. Tlic ditference, howevei', really lay not .so much in the treatment as in the circumstances of the two vessels and the tenip«'r of their respect- ive commanders. The Shenandoah was not allowed to remain in port on the nu'ie word of Jiieuteiiant Waddell, but Mas twice sub- jected to the examiinition of a board of otlicers appointed by the <;'ov- triior for the p>irpos<', who (icrtitied that she was in nei'd of repairs. To this examination Lieutenant Waddell assented without any demur. Captain Ho^^'s, on the other hand, who was distant from the ports of Ills own cairs were "dawdled" — and this when, a tew |iay:es befor*', attention has been drawn- to a passay«' in one of Lieulenaiit WaddelTs letters, to show that he ha lislu'd in titc colonial newspapers, from which the ipn>tation, in tiie Case ot the Llnitcil States, is made.' It is, however, tiiu^ that, with a view to complete the repairs as soon as jjossible, men were employed to calk the vessel as soon as permission to repair was received. The nature of the weather, whi(;h was very rouj;li, probably rcndei<'d it impossible to semi down a diver to examine tlu' xt'ssel l()r the lirst few •lavs, and the state of the tides seems to have oc(;asioned some fiirtlM'i •lela.v in yettiny; her onto the slip, but in other respects the repairs were i>ushed on with all possibU; rajtidity an|tartiiic, certainly show no laxity or iiidispoNition on the part of the colonial ;;ovcrntncnt to preM'iit any alnise of tint pcruiission (granted by it. l)n the (|ncstioii of thu cnlistin(Mit of nuMi, and the proceedings takoti af^ainst the offenders, it is remarked, in thu Case of the United States, that the anthorities ''carefidly let alone Captain Waildell and liis otli c(>rs, who luul Ween violating; Iler Majesty's proclamation and the laws of the empire, and they aimed the thunders e suppttsed, and is, indeed, an extreiiu' measure which only very «»xtraordinary cinMiinstances couhl jiistity. The lo(;al authorities received up to the last the most positive assiu' ances from liieutenant Waddell that he had not atlded to his crew, and had not violated, and would not violate, the neutrality of th(> port. They took every precaution in their power to insure the performance of this promise; and if their efforts were not alto;;ether successful, this must be attributed to the difficulties they had to d«^al with, the inade quacy of the means at their disposal, and to the reliance which they )>laced on the word of one whom they knew to be an American ollicci'. and mi<;lit, therefore, reasonably believe to be a gentleman and worthy of credit. A ca.se (with which the arbitrators are already ac<|uainted)' of tlic let'cption of .**ome men on lu»anl a v«'ssel of war of the United States at C(»rk shows that such occiirrenc«'s may, at the time, escape the no ti(;e not only of the authorities, but also of the <;ommander of the ves sel. On the occasion referred to, sixteen men were shi|)ped on boa-'d the Uniteil States war-steamer Ivearsarye. The fact was not known until the vessel had sailed for France; and on her return to Cork, 1 10(H a month afterward, the nuMi were sent on shore by • the traptain. with a declaration that they had been shipped without his knowledjfe and contrary to his instructions. Six of the men were i)ros e<'uted, but were discharjjed without punishment, as havinject, and the latter expressed their willinjiiiess to institute an investigation when the Kearsar^e returned home. The (tonrse adopted on this occasion certaiidy did not differ, on the si«l<^ of severity, from that pursue«l towanl the Shenan«loah. Nor is it ilonbtfnl to Jier jNIajesty's pjvernment that if on that occasion Captain Winslow had been arrested in the streets i>f (^>rk, this would have been rey:anled as somewhat more than due diligence l)y the Gov ernment (if file United States. There is a further statement in this i^art of the Case of the United States which Her Ltritannic Majesty's government approaches with re gret. At page 4'M) mention is made of a discussion whi(;h took place in the legislative assembly at Melbourne as to the reception of the Shenan- doah and her supposed identity with the Sea King. The chief secre tary stated that "in dealing with the vessel they (the government) had ' See I^ritisb Caue, p. 154. COINTER CASE OP GREAT HRITAIN. 337 not only to coiisidor tin; teniia of the ])ro(>lniiiatioii »( iioiitmlity, but alfM) tliu coiitltleiitiai iiistriictioiiM of the lioiiu> pfovciriiiiiuiit/' On thin it jH rt* iiuirkod : ^^ Here the United States learneil for tli<; tirHt time that, ill addition to the piibliHlied instructions whieh were made known to the world, there were private and contidential, ami jmrhaps cmflietintj^ instructions on tliis subject." Her Hritanni<; Majesty's government thinks that it will best c«)nsult its feelinj^s of self respect by leaving nniioticed the insinuation conveyetl in tliis passable. It is no doubt true — and to persons posscssini; ordinary acjjuaintanco with the details of administrative government, it cannot appear surprising;— that, in addition to the published instructions to governors of c(d(»nies. other instnictions were sent from time to time, some of them explanatory of those published instruction^, others su|)pleme',itary to them, as cases iU'ose to show the ne^'essity of such explanations and additions. Such ol these as weie sent to the jjovernor of Victoria, and hav(^ any bear- in},' on the umtter, are now laid before the tribunal in the Ap|teiidix.' Ainon^ these instructions will bo found ouo dated the 12th of Decem- lier, 18CtJ, which inclo.sed copies of certain correspondence respecting the visit of the Alabama to the Cape of (rood Hope. All the material papers in this correspondence have already been laid befon^ the tribu- nal.^ Amon^ them will be found a rei>ort from the Kn^^lish law-otlicers of the Crown, in whiers alluded to by the chief secretary is moreover obvious from the context of the speech, iu which he mentions that the j>overn- mont had " before them the case of a vessel in exactly the same posi- tion as the Shenandoah.'' It may not be within the knowledge of the tribunal that the reports of the English law-ottieers of the Crown to Her -Majesty's secretary of state for foreign affairs have, according to invariable custom, been hitherto considered as documents of a strictly confidential nature, to be made known to uone but the executive otli- cers of the government. This rule has now for the first time been de parted from, through the anxiety of Her Britannic Majesty's govern- ment that the arbitrators should have before them all materials which could be made available for emibling them to form a correct judgment on the (piestions submitted to them. Into the subseipient history of the Shen.andoah it is needless to enter. It has been accurately told in the British Case, and tlu'ie is dearly nothing in it which could impose any responsibility whatever on this country. The United States must be well aware that, on account of the original outfit of the Shenandoah, they have no just claini against (Ireat Britain. A sense of this, indeed, plainly betrays itself in the Case. An effort is therefore made to found a claim upon the circumstance that this vessel was admitted, in a remote colony of the British Empire, to the ordinary hospitalities of a neutral port, and upon what occurred during her visit there. The charges which it is endeavored to establish 22 a— n ' Appendix to British Case, vol. v, pp. 125-131. 2 Ibid., vol. i, pp. 3UU, :IU6, 312, :t22. « Ibid., vol. i, p. 593. '< 1 338 TREATY OF WASHINGTON. nLriiiiisf: tlie avitlioritios of the colony, nm} thronjjh tliem njjaiiist jlOl] (Irt'iit Britain,, are, in sub.Siance, tvo. One is, tiiat slic •was Htirt't'TdMl to ifpjiir !i »r steam niachinery, wliich is a(ln)itt<'(l to liave been in need of repair, althon'jli (it is obj^'cted) she was not shown to bo nnseaworthy as a sailinjj ship. It wonhl be ditlitMiIt to im. ajiine a nuHth less reasonable coniphiint. The Cv^Ionial antliorities wcro riyiit in yivin*; tiiis i)erniission, whicli was {^iven at IJrest to the Florida, in sjtite of tb«' renionstran(;es of the United States minister, an.tnctioned l)y cnstoni. They wonld, indeed, have been ;»niity ol" a i-ei)roliensil»'M rciiisal of oidinai-y lios)>)tality if tlu'y had nof <;iv('n it. Tlie otluT eliar^^e is, that the vessol obtained in the ])oit some a(blition to Iter crew, a n«i that this was done with tla- con ni Vance of the anthoritics of the colony. As tin: cliiet proof of connivance, it has been insisted tliat the ship renniined in the ])ort, nn- der^oinj;' repairs, a few day: longer than the Uiiited States snppose to ha\ e been absolutely Jiecessary. Age.iii, tct j)rovo even this, wliieli. if established, would bi- not merely inconclusive, but almost immateriitl. there is a struji^le ajjainst plain facts; M!>d there is an endeavor to substitute conjectural estimates for those nmde on the spot, and at the time; circumstances are passed over which should hav<' been taken into '(('('ount; there are imputations of inattention where tiiere was noiu', and su;;;4»'stioi!s of Inul j'aith, to which the best answer is silence. Such is the cht-raeter of th<» aij^'ument of the United States on this point. It ha.s been answered step by .^tep. But Jler iMaj(-.'^ty's };oven; ment cal authorilies to prevent altoj»ether, l»y any reasonable precautio'.s of llieir own, which would not be deemeil oflensive by a belligerent, it is necessary, therefor*", either wholly to exclude belli<>,- tiio steps of her officers, refuse credit to their solemn assurances, or issue wairatds apiinst them on sus|ticion. No neutral power would uiidci- take to do .his, and no belli/'erent would en«lure it i)atiently. (ircat Jbitain has iievi'r hitherto hesitated to trust American oHicers, as she trusts those of other «H)un(nes; and she did not deem her.self bouud to withdraw that customary con!idenc(! f'oni ollieers whom civil di.s-sensjou had armed ajiainst theii' own country, and who were enyuyed in an uuhiippy contest, which she siucertly deplored. 1102] *PART viir. THE CLARENCE. TACONY. AIICIIKR, TISrALOOSA. TALLAHASSEE, CHICKAMALGA, AiND RETHIBl TION. In respect of rlieso vessels (with i)erl»a))s one exeejition, whieli will be notiijed presently) no fuilnre of duty on the part of (Ireat run VIII.- rill J{ritain is expressly or distinctly alleged by the United AM;;!r.ulrru";,: (States. As to the first four, it is oidy insisted that, as they '""" were armed and employed as tenders by vessels in respect of which tliore is allej-ed to have lieen a lailnre of duty, '".eat Britain ought to be charged with the losses occasioned by them to the United IStates. TIIK TALLAHASSEE AND ClIICKAMAtaA. FJer ^Majesty's fiovernnient Inis litth; informat;on respect inf>' the ear- lier history of these tw«> vessels, lieyond what may be };ath- n... r.ii«h»» ered from o»i.' It is represen(e«l in theCaseof the Uiiit«'d States that the Tallahassee, before her reconversion, cruised for a short tinu» tinder the name of tiio Olustee. TluMc is no eviden«'e, however, of the identity of the Talla- hassee with the Olustee, be>oiid a statement by one Jioreham, whose ship was captured by the Olustee, that his ship's carpenter, wlio h;i(l previously been captured by the Tallahuswe, thought they were the same.* The visit of the Chickamauga to liernuida will be noticed in a subse- quent se(^tion. Here it is enough to say that the Ignited States are in err(»r as to the accommodation obtain<'iii1ix, vol. v, ji. 151. The Atliiiitii liroiinlit ciiriin from WiliiiiiiKloii to lk'rinu: her as no h)nger a ship of war was referred to tlie hiw-oHlcers of the Crown, who reported Ah follows: • With reHpttct to the first c|neHtioii (toiitaiiu'd in tlit> (liH|)nteli IVoiii tlu« li<-iitoiiniit-KOV- ornor of Heniuulii, we iiio ol' oiiiiiioii tliat ]u« excrcist'd ii somid diNrrctioii in trciitiiij! tiir Clianudcon (ut'ter liu had Hatisfx-tl hiins<>it' of tlie truth of tli** rciiriMcntations imult' by h»;r master) as a nirrchaiit-vi-ssel lielonninj; to the country of one of tins l»;'l- lip'rents. It is conipi-tcnt to tiio ^ioveniincnt of either liellivferent to sell or transfer a hliip of war to a privat»i merchant, or to elianye the eharat^ter of a vessel from that of a ship of war to that of a merchant-vessel, if the j;overnment chose to trade on iUi own accmint. To the second (piestion, we answer that the merchant-vessels helonool, and was resolved in the same way. It is uudonbtetlly true that vessels, not orifj^inally desijyned for war, which have been temporarily employed for that jmrpose, like the two vessels in question, may be very easily reconverted into ships of com- merce; but neutral powers cannot be I'alled upon to e.xchule su<'h a vessel frori their ports on account of lu'r former employment, nor to treat her otlierwis«» than as a ship of (lommerce, if they have no reason to doubt tlie fact that she is no loiiy;«'r commissioned and armed for war. The vessels armed and commissioned iti l.S(M and IStiL* by tln^ (Jovern- meiit <»*■ the United States were at liberty, when that employment was ovei .<• seturn to their orijjimtl trade; and for a neutral j^overnment to refuse i<» treat tluMu either as ships of war when in commission, or as ships of commerce afterward, would have been wronj-; f(U- exactly the siime reasons whi<'h woiild hiive nuuhi such a refusal wronj; in the case of the Sumter, ((ribraltar,) or of the Tallahassee, (Chameleon.) The arbitrators will look in vain, in the case of the I'nited States, for any failure of duty charged against (Ireat Ibitain in respect of [104] either of tlu'.se vessels. It is not alleginl •that, in res[»ect of either of them, this government failed to exercise due diligence to prevent a violation of any obligation specific*! in the thre«' rides, or ot any other neutral duty. The United States seem to have foiuul them- selves unable to make any definite charge; yet they Ui'vertheless ask the arbitrators to hold (Ireat Ibitain "responsible for the acts*' of both these ships, and to award to the United States, on account of them, compensation «al ^ ( ' t oliiia, and tben nrined and employed by that government as a criiisor. It is not alleged that she ever received any outfit or eqnipnient in or from Uritish territory. What is alleged is merely this, that on one occasion she took a prize, (the Hanover,) captured by her near Siiu Domingo, to Long Cay, an island of the Haliama gr«»up, "and tlicic sold the cargo witliout prey ions Judicial process;" and that, on anotlicr occasion, the Emily Fisher, a juize captured " off Castle Island," (oin* of the Bahamas,) " was taken to Long Cay, and, notwithstanding the pro. lest of the master, and in the presen«;e of a British magistrate, was despoiled t)t' her cargo, a portion of which was lande*!, and the balanco willfully destroyed. Upon the strength of thesis allegations alone, tlie United States ask the arbitrators to hold Clreat JUitain " responsil)k» for the acts" of the Ketributiim.' Claims for the value of prizes ciij)- tured by her are inserted in the general list of claims; and she is not distinguished from the other vessels, in the vain "pursuit" of wliich the Navy of the United States is represented as having been engaged. This isaskecl, "not only for the general reasons heretofore" (in tiieCaso of the United States) " mentioned as to this class of vessels, but beeaiisc, in the ciase of each of the captured vessels above nanu'd, the acts coni- ])lainenge(l — that is to say, vessi'ls builfc in the United States, wholly arnu'd, fitted out, ami commissioned within confederate territory, and never even furnished with coal in any British pcu't; but it is right to call the atten- tion of the tiibunal to tliis admission, that the claims of the United States are founded on reasons which they supi>ose to extend to vessels of this latter class. Tlu! British govtMiiment might fairly decline to enter into any disotis- .sion, before the tribunal, of claims sucli as those made on account of tliis ■jhip, since they are obviously of ailifferent class from those " generically km>wn as the Alabama claims," and ('annot properly be reckoned anion},' them. Her Majesty's government prefers, however, to state the facts. inaccurately referred to by the United States, so far as it is ac(iuaintt'd v/ith them. The case of the Hanover appears to have been as follows : In Decem- ber, 18(i2, a schooner arrived at the port of Fortum^ Lsland, or Long Cay, and was rep()rt<'d by her master (or the person who appearetl to be and acted as such) to have run ashore — no uncommon accitlmt in those seas — on a neighlxuing i.^det, and to be in distress. Lon;; Cay is a small iiM.U'.il or stiip of land, belonging to the Archiiwdago of the Bali.iinas, and about two hundied and forty miles from tin- seal «d government. From the snip's papers, whitdi were re^ulai, it appeared tliat she was the schooner lIano\er, boun cleared her, ha\ing loaded a cargo ot sxtt at Long Ca\. '"'' i ■u-'^ trale of the distrn-t, who r<'sides in tli.* is'-uid of Iii.ignji, ! . iHiiti' to be at Long Cay at the time, went to the place, and «fm'stUMied tlif ■ It ♦■llfith illll'ifCI llilVc trail it ;iliiiiil( iiit'iit .shall I Ir any ; 'Caao of the I'mteti .Slatet*, pp. ;W0, 'ML w COUNTER CASE OF GREAT BRITAIN. a43 man, but had no reason to doubt his idtMitlty or the truth of his story ; nor was there, indeed, any eireuinstanee to su}?fj;est a (h)id)t. Some words ciisnally let fall by a drunken seaman after tiie supposed master had h*ft tlie island, (which he did by another vessel, leaving the Hanover under tbe command of the nniti',) lirst jjave rise to a suspi(;ion that he had been passing under a name which was not his own ; but there was no reason to suspect that the vessel had been a prize. No intimation of the [105] circumstances ever *reached the colonial government till the 11th March, 1803. A person residing at Nassau, us agent of Anjcri- can underwriters, then addressed a letter to the governor, stating that the Hanover had been captured by the Retribution; aiul that the i>er- mn who had represented Inmself to be Case was, in reality, oin; Ijocke, otherwise rarker, the captain of the lietribution.' It is obvious tliat these facts, assuming them to be true, imjiose no liability on Her Majesty's government. If the orders of 1st .Inue, lS(;i, which forbade prizes to be brought into Dritish ports, hant was acquitted for want of evidence. Proof of the facts which it wj>s neces- sary to establish could only be given by some one who had b'vni on board of the Hanover, or of the Retribution, at the time when the cap- ture took place; and although the agent of the Amerii^an underwriters, actiiigat the instance of the attorney-geiu'ral, siMit to the United States to endeavor to secure the attiMnlance of tin; master or some of the crew of the Hanover, no such testimony could be obtained.^ It may be adde«l that, while Loitke was in jnison awaiting his trial, an appli(!ation was made by the (rovernment of the United States for his extradition, on a clmrge of his having been concerned in an alleged act of piracy, having no connection with the case of the Hano\ er. lOarl liusseli wrote in reply : It aiipcaiH to Her MiiJi'styV jjuvcrmiiciit that tin' United Statos fidvcrniiu'iit, aii' iiot r'lititlt'd to olttjiiii the cxtradit ion oC I/ockc until In* shall havt- Iiclmi tried tor tin otleiisf'ti all<';rcd tt) ljii\'f ljt!('ii coiiiiiiitted by liiin ii;{iiiii.st British law, and, if conviclrd, siiall liavi' iindtT^on*' any scntcncf which may ln! ))asst;d upon iiiiu lint lier Majrsty'H ;:iivtrnin«'nt are •Jiiwilliny; that, in ronsciiucncc ot any ilrlay on tiiis aiconiit in tin' .x- tiatlitiou of Vernon liocke, the means of suppoi'tinj; the ;rraver chaijic against him slmiild he weakened ; and I liave, therefore, to state to yon that ifer Majesty's vjovciii- iiii'Ml will waive their ri;;ht to prosecute Locke for the olVeiises of conspiracy and lor- ;,'iMy, if tins evich'uce upon the charges arisin;.' (int of the seizure of liie Chesapeako iliall prove to bo HuOicicnt to justify cxfraditicu by the {^ovcruuH'Ut of tiie jlalianias.' It does not appear that the Government of tins United States made any attempt to pioduce the (nideiice which is re(piired by law to sup- port a ilemaiid for «'xtradition. Of tlu'caseof the ICinily Fisher, Her Majesty's government now hears for the lii'st time, althougli it is said lo have happened nearly nine years i'go. No complaint appears to have been madt^ to the colonial go\eiii- nieiit about this vessel ; and tio intimation that anything illegal had oiiiured in reliition to her seems to have l)een given 10 tlie atlorney- yoiieral or any olllcial coniHMited with the iidministratioa ol criminal ,* ' Appondix to Itritish Case, vol. v, i»p. li?, I6f>. Mbhl., p. 1H7. Mbid., p. Itiiu 344 TREATY OF WASHINGTON. ;: I I. ."*4 5 law in tlie colony, altliongli the ajtent f<»r Amoriran nn«lprwrit(^r.s, wlioso duty it would have been to brinjjf tbrwani the case, was, during tlie \»'ai 1S(»;{, in constant eoninuiuication with the attorney-jj;eneial in leleivnce to that of the Hanover. The then <;olle(!tor at the i>ort ofLoii}; Cay is now dead; and the time is past when authentic inrorniation of the facts could be obtained.' Evidence produced under suectinjrthe capture of the Emily Eisher and tln' subsequent transactions are true " within his ])ersonal knowledge," and that In* testified to them in l.S(M!, in a case tried before a court in New .lersey.- On reference to the ])ublished proceedings of that case, it will appear that he j^ave no such eviden<*e, although it would have been extiemely material. He then swore only that he had seen the Ketribution at Long Cay, lying outside of the Emily Eisher, and had been introduced "by an acting nmgistrate at Long Cay" to iier otlicers, with whom he had had '* a general talk about the dillieulty with the North and South.''' That he should have had i>ersonal knowl- edge of circumstances w!ii(rh are stated to have occurred at a gn'at distaiu'e before the two vessels arrived at Long Cay, where lie [100] was, is obviously im])ossible; and *the AnuMi<*an liovernment is Avell aware that such testimony would be at once rejected in an Ameiican vovAt a« it would be in a <;ourt of (Ireat ISritain. The evi- dem;e, therefore, rediu-es itself to that of Staples, the master. Staples alleges in ett'ect that he was caoturetl off an islet called Castle Island, nearly two days before he arrived at Long Cay ; that his captor was in league with some wre<;kers, (persons whose trade it is to make prolit by saving vessels abaiuloned or in distress,) and ran the ship aground, when the wreckers took possession of her; that she was afterward taken to Long Cay, in (lompany with the Ketribution; and that "he (the master) Wits not able, win n there, to obtain possession of the bri;; until alter he had bargained with the wreckers to pay them oO per cent. on the cargo ami ;i.'irt per cent. on the vessel ; when, after nmkingaflidavir of his being the niiister, In* was placed in possession by the collector, and went t»n boanl. ' He a«l(ls that " he was told by the <;aptain ol tlie Ikctributioii that llu> wreckers w«Me to pay him something handsome, and the deponent believes they ilid so;" and thai he " was obliged to accept the w rciki-rs' terms at the port of entry, because the brig liiy under the guns of the i>rivateer, and the authorities ileclared tlieii in aliilify to protcit him." lie was "told by the authorities that, tlioiij;li the law would not ;illow the ])iivateei to touch the biig, if he wished to do so they had 'm> means of preNcnting hini."^ \Vliat is here allcgtd, and may l»c true, is a consjdracy between the captain of the Ketribution and the wreckers to leprc.sent the Emily Fisher not as a prize to iIk' ]{«'tiil)utioii, but as having lun aground and been got ot! by ')'•' latter, and thus to enable the wreckers to extort a large sahage, lor which they we,^e to i>ay a sum of money to Locke. Locke w«Hild thns be enabled t(» make i>roHt by a prize which he would otherwise ha\i' ' Apptiidix to Hiitiuli i':v*i\ i>|i. 17, 2'.i. * A|i|i<'iHli\ ti> riiHf of til* L'niti'd Sfiit«».s, vtil. vi, ji. 7'M'). •' Aji|M'nili\ In llrHi.Hli « ;(>i'. vol. v, \t. I'.Mi. ^ AiiiHMulix to C'ui«- o! llui United StuU'« vol. vi, p. 7',\r^. COUNTER CASE OF GREAT BRITAIN. 345 boon oblifrod to roloase or dostroy ; niul tlie fact of his li.nvinjj roconrso to this circuitous sumI fraiululciit transaction proves that lie did not ven- ture to attempt an actual sale of the ship or vui'ao even in this remote and unfrequented spot. x<«»thin{f is said about "the presence of u mnia;is- tnite." Nor is anythin;; said (which mijjht have been expected) about a ''protest" by the master; probably lie was afrai [107] *PART IX. RECEPTION OF COiN FEDERATE CRUISERS L\ BRITISH PORTS. It has been tlioiiglit best to treat collectlvelj' the various eomplaints Part i\.-n,r.,. Scattered throiighout the Case of the United States, as to IrluJl^ "!"''t!l^ the "excessive hospitality" wliicli is allefjed to have been " "" extended in British ports to the vessels of war of the Con- federate States, in comparison with the " dis(!onrtesy" with which ves- sels of the United States are said to have been treated under similar circumstances. Tliese complaints maybe divided under three heads: (1) the amount of supplies •rranted to confederate cruisers before any limitation was placed on sucli supi>lies by the regulations issued by the British jjovernment on the ."Ust of January, ISOli; (2) tlu^ alleged dis- regard of those regulations in the case of confederate vessels; and (.'}) their alleged rigid enforcement against vessels of war of the United States. As regards the first question, there were but two vessels of war of the Confederate States which visited Ibitish ports before the issue of the regulations of .January 31, ISO:*— the Sumter and the Nashville. Tiio facts as to these two vessels have already been statetl, and it is only necessary to add a few words to show how their proceedings, coupled with those of the United States ships, and the representations of the United States Government, led to the adoption of the regulations. The reception of the Sumter in the ports of Brazil, ami of the neigh- Th. s,,mt.r nni boHug posscssioiis of (Ircat liritain and the Xetherlands, K,-i,v,iip. i„ jiijj summer and autumn of 18(il, had given rise to warm remonstrances on the part of the United States, and they had urged oii each of the three jmwers the expetliency of placing restrictions on tiie hospitality to be accorded to what they termed the " piratical" vessels of the insurgents. The governments of Brazil and of the Netherlands, no less than that i»f Great Britain, had nniintained that the Sumter must be regar>ws had about the same timoi boon reciolvod of the attempt to form a coal depot for the United States Navy at Nassau, and of the presenco at that port of a vessel of war of the ITnitojl States, \vhipinle, was virtually keepinp; the Nashville blockaded in a neutral port.' Under these circumstanctos, the British y:«>vernmcnt determined that the Nashville and Tuscarora should be desired to leave IJritish waters at a date to be tixed, with an interval of twenty four hours Ix'tween tiu'ir resjjocitive departures; and a few days afterwards, on tln» .Ust January, H;eneral rules were issued to provide for siu'h cases in future. Captain Craven, of the Tuscarora, after souu» alter«'ation with the authorities, (piitted the p(nt of S(uithampton, but rt'turned ay:aiu [108] to Jiritish waters in its vicinity Just as the Naslnille *wiis leav- ing;. He was warned that he was not to sail a^'ain until twenty- fonr hours after her ileparturo, and complied, though complaining: that "a just and ri};id impartiality did not appear to liavt^ been extended towards him."^ In a dispatch dated the 7th February, l.S(J'J, aniven in the collection now api>endetl to their Case, Mr. Adams reuuirked : Tlio inipresHioii Ihtc is tliat lie (Ca|»taiii Cravon) allowed liiinsclf to be coiii|)l»'t<'Iy outwitted. ]It< will doulitleM.s lay the blame ou tbt^ action of tlie jienple and fioverii- iiiiat of this country; my own opiniou \n, that if lie bad been m little moic eool and (|iiiit, he wonld have faie«l iM^tter.' Mr. Adams's anticipations were correct, as will appear from Captain Craven's report to his Government, now itrinted in the Ajjpendix to the Case of the United States,^ where he complains bitterly that the new re{;ulations deprive him of "the ability of cruising on this (the IJntish) coast," and speaks of the measures taken to preserve the iumi- trality of liritish waters as "collusion on the part of the authorities, to ellect the escape of the privateer." It may be as well to mention at once that the Nashville arrived at Bermuda, on the return voyaj^e from Southampton, belbr*' the receipt in that cohmy of the re<;'ulations of daniuiry -ttl, l.S(i2. Thert* was at the time only a nuuithly uuiil to Bermuda; the rej>ulations coidd not be forwarded until the latter half of the month of l<\'l)iiiary, and were received there on the oth March, some time after the Nashville had left. The statement, theretbre, in the Case of the United Statt's,' that the perniissicm n'lwu to the Nashville to take on board a supply of coal was an infraction of these rejjulations, is erroneous. They were, according to their terms, only to take ettect six days after their notilication in each colony, and the jjoveruor was not even aware of their existence at the time of the Nashville's visit. From St)uthami)tou the Tuscarora proceeded to Gibraltar, for the pur- pose of wat(thinyf the Sumter; and there Captain Craven involvetl him- self in a dispute with the autliorities. The Sumter had arrived in that port on the ISth of January, 1802, before any limitation had been ' Aitpendix to Hritiish Ca«e, vol. i, p. 114. - Appen. ■' Executive Documouts, l8(3l-'G!i, No. 104, p. ".W. * Vol. vi, p. 59. 6 rage 31G. 'li'a'' I f ■?'■ i.\ M i 348 TREATY OF WASHINGTON. placed on the Htny of vesselH of war of the two helli/jerents in P.iitish ports. The rejjiihitions of the .'Ust of .Isiiinary, lestiietiii^ tlie sta.v it( 8iU!h v«»SMels to twenty- four houiH, exeept in speeiul eases, were reetivnl anuhlish(Ml by the governor on tlie 11th of Febtiniry, eoiiiiii;; into fonre on the IHth. Tlie Tnsearoisi arrived on the 12th, after tiie piiltli- eation of the rules, but before they \uA come into force, ('opies of the rules were sent in identical letters to the connnanders of both the Sum ter and Tiiscarora on the 12th F(>brnary ; but it was the (tpiniou ot tiu; governor' — and that opinion was contirnied by the home government— that ntMther vi'ssel came umler the operation of those rules, so fur as their stay in the port was concerned. Captain Craven, however, witli- out eommnnii^atiuK with the governor on this point, withdrew to tiH> neighboring Spanish anchorage of Algeciras, from whentte the boats of the Tuscarora passed bstekward an«l forwaril to CJibraltar, rowing; round the Snmt4>r on the way; and he wrote to the governor im|uirinn why the Sumter was allowed to remain " in undisturbed possession ol her ant'horage,'' and protesting, "on behalf of the United States, against what appeared to be a departure from the rules which requiro that neutrals should be impartial and honest.'' It «M>uld not but be e\- ]ieeted that such an imputation should draw an imlignant reply from tin' governor. The latter was, however, instructed to allow the boats ot the Tuscarora to (!ome into the port, provided they caused no annt»yan(;(! to the Sumter.^ That the Sumter, when she eventually left (libraltar as a nu'rtf ('owes, on the 4th of Febnuiry.^ On his return to the Vaxh- lish coast, in June, 18(52, Captain Craven disregarded the rules of wliicli he haJ •EXKCITION of the ItULKS of JANUAllY 31, 1802, AT NASHAV. The rules of the ,{lst January, 1H({2, contained general limitations as regards the stav of b«'llig«'rent vessels of war, and the sup- Klnlllinn t.l III.- !• , 1 \ 1 , 1 1 ■ 1. • • 1 . riu r»i I .i..ii.ii.rv i)hes to be granted to such vessels in British i«)rts. llicv 31. IHHSI, .11 Na.„n,. • i • 1 - 1 -..1 I X i.1 II 1 ' also contained special provisions with regard to the r>alianiii Islands. No vessels of war of either belligerent were to be allowed to enter tin port of Nassau, , 2i<, 25, 29. J Il.iil., J). 41. =' H)i'('\v Providence. She was there allowed permission to anclnn- by the iiiifliorities for the pnrpose of her visit, and from tlnuice she proceeded to Nassau, in onler to obtain sp«'cie for the payment of salvage money to the inhabitants of Abaco who had been instnnnental in saving tho \vre<'k. The governor did not consider that the emergency was sntll- cient to Justify his grantnig special permission to tlu> Honduras to anchor. The captain came on shore to urge a reconsideration of this (Iccisicm, but the governor did not se<' grounds for altering it; and he suggested that the captain might take back the spe(!ie at once, or, if tliat were impossible, the consul might undertake to forward it to Abaco. The captain returned to his vessel, but, in defiance of the (|iiarantine regulations, as well as of the spirit of the governor's decision, he and some other othcers of the Honduras landed the next nnuning, called at the United States coiisulate, pur(;hased some stores, and re- turned to the vessel. The governor took notice of this by addressing a very temperate remonstrance to the consul; he acted rightly in doing so; ami Karl Kussell expiessed tuis opinion when the matter was brought to his notice by Mr. Adams.' Nussiiu [he Niiitl] iH a i»(miti<»ii from wliicli, on tliooiie lianil.cont'fdi^nitc piivatccirt iiii;;lit litivt) <{rfatly amioyt'd tlit* voinnuTce of the Unitt'd States, ami whieh. on tlie otluT lianil, inijjht have been a convenient haNe of operationN for the I'nited StateH Niivy. It wa.s thon^rht rinht, therefore, hy Her Majenty'H government to forhiil tho ii'wirt of men-«»f-\var d Stiitts vetwelH of war. Her Mi^ttttt^'H fjovernmeiit, if the case had been n?ferred to tlii'in, mi^ht, in all probability, Tnivu dispensed with the observance of thest; rnles in tlic picnliar case of the llcnidiiras; but Her Majesty's government cannot be sur|)rised tliiit an inferior otlicer shonld not have conceived himself at liberty, upon his own rc- siioimibility, to dispense with rnles laid down by Ht-r Majesty for his guidance. I have tiMiltservo, moreover, that the landii^ of the captain of the Hondnras and hitt ollicers WHS persisted in not only in contraversion of the express dissent en ordertMl to canse to be observed, lilt ill contravention, also, of the i|narantine laws of the ^ohniy. This is a |)rorec«liiij; wiiiili Mr. Seward, I conceive, will siirely not consider to have been Jnstilialiie. It is, however, alleged generally, in the Case of the United States, that the special permission to anchor in the port of Nassau was " lav- ishly given to every insurgent cruiser, but was grantetl churlishly, if at all, to the vessels of the United States." Elsewhere it is .said that ''an order more unfriendly to the United States" than that of the .'Ust of January, 1802, " could not have been nuide. Under the construction practically i)at upon it, the vessels of war of the United States were excluded from the harbor (of Nassau) for any purpose."' It will, ]i(>rhaps, be a matter of soc <■ li*^tle surprise to the tribumil to learn that, Mhereas on two occasions oriiv 'id vessels visittheport of Nasjsau as confederate cruisers, there ar ' no I '."iS than thirty-four visits of United States ships ' Apfo tulix !io Case of the United States, vol. i, p. 714. • Pa .'»• 31i). 3 Page 2'i8. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 «^-' IM IIIII2.2 1^ 2.0 1.8 1.4 II 1.6 Photographic Sciences Corporation 23 WEST M/ IN STREET WEBSTER N.Y. H580 (716) »37',' «'.0:» V iV ^^ :\ \ % <^ >> f/j 350 TREATY OF WASHINGTON. ' of war to the Bahama Islands recorded during the time that the [110] regulation *wa8 in force.' On ♦bur occasions, at least, vessels of the United States exceeded the .wentyfour hours' limit, and took in coal by permission ; one of them also received permission to repair ; several were engaged in pursuit of vessels suspected of being blockade- runners, and did not in every instance relinquish the chase witliiu British limits. Two prizes appear, indeed, to have been captured by them, one within a mile of shore, the other almost in port.' The use made of the waters of the Bahamas by Federal cruisers, for the purpose of watching and intercepting vessels supposed to be freighted with cargoes for confederate ports, was so persistent as to in- duce the governor on one occasion, when granting permission to coal to the commander of the Dacotah, to accompany it with the condition tbat the vessel should not, within the next ten days, be cruising within five miles of any of the Bahama Islands.^ On this subject there is some comment in the Case of the United States. The application was for permission to ship, not twenty tons of coal, as there represented, but sixty; and no limitation of the amount was imposed by the governor, though the captain of the Dacotah chose only to take the smaller quan- tity, which was suflftcient to carry him to the coaling-depot of tbe United States Navy at Key West. The condition exacted on this oc- casion by the governor was not countenanced by Her Majesty's govern- ment, nor was it required on subsequent occasions, although Earl Rus- sell had, in June, 1804, to complain of the frequent visits of the United States gun-boat Tioga to the out-islands of the Bahamas for the purpose of obtaining supplies, and of the manner in which the commander of tbat vessel set tbe regulations at defiauce by anchoring in the roadstead of Bimini without permission.^ It has been said that only two vessels of war of the Confederate States are known to have visited the harbor of Nassau as such, tbe Florida and the Ketribution ; two other vessels, the Nashville and tbe Tallahassee, whic'^ had acted as cruisers, entered the harbor, but tbey did so after they had ceased to bear that character, as merchant ships and under other names. Of the visit of the Retribution there is little to be said. She entered the harbor of Nassau as being in distress, in February, 1803, where she was condemned as unsea worthy, dismantled and sold, and registered as a British merchant-ship under tbe name of the Etta.* The Florida was the only other confedersite ship of war which received the permission of the governor to anchor in the port of Nassau, which is said in the Case of the United States to have been so "lavishly given " to such vessels. THE FLORIDA AT NASSAU. The reception of the Florida at Nassau was in no way more favorable than that generally accorded to Federal men-of-war visitiiig the colony. Indeed, it was rather less so. She came info the harbor of Nassau on the morning of the 20th January, 1803, with- ' See return of visits of United States vessels to British colonies, Appendix to British Case, vol. v, p. '224. '^Appendix to British Case, vol. i, p. 79. Appendix to Case of the Unit- d States, vol. vi, p. U8. "Appendix to British Case, vol. i, p. 360. ^ Appendix to British Case, vol. v, pp. 21, 196. The regulation prohibiting th'' entry of belligerent vessels into British ports for the purpose of being dismantled and sold was only issued in September, 1864, more than a year afterward. (See Appendix to Britisli Case, vol. i, p. 467.) The Florida Nassau. COUNTER CASE OF GREAT BRITAIN. 351 out previously askingpermlssion, her commander being, as he explained, ignorant of the regulation which rendered such a course necessary. The for'^ adjutant, as he had done in the case of the United States ves- sel Stars and Stripes some months before, came on board to ask for an explanation ; and he took the commander of the Florida on shore in his boat, as he had on the former occasion taken the commander of the Stars and Stripes, in order that application might be at once made for the necessary permission. Captain Mafflt addressed a letter to the gov- ernor, statingthatlns vessel was in distressforwant of coal, and requesting permission to anchor for the purpose of obtaining it. The governor granted the permission, stating that he did so as thereby according to a confederate steamer the same privileges which he had formerly granted to Federal steamers. But he desired that the irregularity in delaying to make the request should be pointed out, and that the i)ilot should be called on to explain how he admitted the Florida without permission.' In the case of the Stars and Stripes, the governor had, without any written application, given leave to take in coal for a much larger amount than her commander required, and the United States consul wrote to thank him for "the permission so graciously accorded." ^ [ill] *The Florida remained in the harbor about twenty-six hours, (not thirty-six, as stated in the Case of the United States,-') leav- ing not later than noon of the 27th of Jaiiuary. Of the exact amount of coal taken on board no record has been found ; but it could not have been such an amount as is assumed by the United States. The quantity of coal which the Floriply at a British port was that of the Florida, at Barbados. THE FLORIDA AT BARBADOS. The Florida arrived at Barbados on the 24th February, 1863. Her TheFioh.ia«tnnr. commauder rei)resented to the governor that liis vessel had bn.i,,.. recently gone through severe weather; that his stock of coal had, in consequence, been entirely exhausted ; and that, unleas he could ship some more, and have some lumber to rei)air the damages his vessel had suffered, he could not go to sea, and would be obliged to land his men and strip the ship. The governor granted the permission, limiting the amount to ninety tons, which was certainly not an excessive quantity, considering the distance from the ports of the Southern States.' In so doing, he was under the impression that he was only granting similar facilities to those previously accorded to the United States ves- sel San Jacinto, whose commander had also asked for special permission to ship fuel and articles for repairs. The governor took the [112] *further precaution of writing to the governors of neighboring British colonies, stating the date at which the Florida had coaled. All this he explained to Admiral Wilkes, w ho visited the island shortly afterward, and who, after receiving these explanations, made use of them to write him a long letter of complaint. The matter was reported by the governor to Her Britannic Majesty's government, and was also represented by Mr. Seward to Lord Lyons. While acquitting the gov- ernor of any intentional disregard of his instructions, the government were of opinion that, in regard both to the San Jacinto and the Florida, too much latitude had been used in giving the "special permission" con- templated in the regulations, and a dispatch was addressed to Barbados, and to other British colonies in the West Indies, defining the circum- stances under which such " special permission" might properly be granted. It was pointed out at the same time that an unauthorized concession to one belligerent was not likely to be accepted, by those to whom it was made, as a justification of a similar concession in the opposite direction.^ 'Appendix to British Case, vol. i, p. 92. «Ibid., vol. i, p. 102. w^ COUNTER CASE OF (JREAT UKITAIN. asa It IS now asserted by the Government of the United States that the oase of the San Jacinto, referred to by the governor of Barbados, w.as not parallel to that of the Florida, inasmuch as the San Jacinto, though she had touched at Bermuda shortly before her arrival at Barbados, hail not taken in any coal at the former colony.' Her Majesty's gov- ernment does not dispute this fact, although not aware of it before. Bat such a circumstance, recently acertained, as it appears, from the records of the United States Navy, does not in any way affect the fact that the governor was, at the time, uTider the impression that the two lases were similar. It cannot be admitted, as urged by the United States, that the burden is upon Great Britain to establish that a high officer of Her Majesty acted "innocently" on this occasion, or that his explanation was a truthful one. These are matters which clearly ought to be taken for granted, unless there is positive evidence to the contrary, ;in(l the more so Avhen, as on the present occasion, every attendant cir- cumstance combines to show that the oflicer acted in good faith. Still less can it be allowed that " the act, whether done innocently or de- signedly, was a violation of the duties of a neutral," or that it furnished the United States with any real "cause of complaint against Great Britain." At most, it amounted to no more than a somewhat too broad interpretation placed by the authorities of a distant colony on a rule which had been made, not in compliance with any requirement of inter- national law, but as a matter of convenience; and measures were at ouce taken to prevent the recuiTence of a similar mistake. The instructions sent to the governor on this occasion enjoined on him a strict adherence to the regulations, " without any arbitrary con- eession to either belligerent," as the best means of avoiding misunder- standing and complaints of partiality for the future. The anxiety of the governor to comply with this direction led to a misunderstanding,, of which mention has been made in the Case of the United States. The United States vessel of war Connecticut touched at Barbados in April, 1865, and her commander, Captain Boggs, wrote to the governor: "I find it necessary to remain a few days ior the purpose of overhaul- ing the piston and feedpump of the engine, and I trust that no objec- tions can be made." It will be seen that the application was rather loosely worded as regards the necessity of the repair. The governor, in consequence, replied that Captain Boggs knew, of course, the in- structions under which they both acted, and that, before giving his sanction, he must request a detinite assurance of the inability of the Connecticut to proceed to sea at the expiration of twenty-four hours, and as to the period within which it would bo possible to execute the necessary repairs. This was, in fact, no more than a request for a for- mal application from the commander of the Connecticut such as would bring that vessel within the letter of the regulations. Captain Boggs, however, somewhat unreasonably interpreted it otherwise. He replied that it virtually refused the jjermission requested, and that "he could not give such an assurance as was required, inasmuch as an American ship of war could always go to sea in some manner." He left the port, accordingly, without repairing. The governor reported the matter home at the time, saying that he thought Captain Boggs had placed an un- f^enerous construction on his letter, but that he did not see how he could have acted otherwise ; and, in a dispatch lately received, he repeats the same explanation. "The commodore," he says, "knew perfectly well what my instructions were; and if my words had any meaning at all, ' Case of the United States, p. 356. Appendix to same, vol. vi, p. 345, 23 A— 11 354 TREATY OF WA.sHIN(;TO\. If". ; 1 1 I' i' ri.e Fir. it inu.>t liavu luieii clear to bim tbat I wanted nothing more from liim than a.justilication for acceding to his re! *The arbitrators will have observed that, in cases where con lederatc vessels of waj' appliec' for permission to repair, it was lrc(|uently the practice of the Jiritish authorities not to depend upon the mere statement of the comnicander of the vessel as to the necessity for repairs and the time they would take, but to insist on an examina tion and a report by British othcers; and this requirement was, as far as is known, acceded to in all such cases without demur. No instauco is alleged of such a precaution having been taken in the case of United States vessels; and, compared with it, the answer given to Captain iJoggs cannot be regarded as nmtter for complaint. Jler ]>ritaniiic Ma .jesty's government have only to add that, ii addition to the visits ot the San Jacinto and Connecticut alluded to above, nineteen other visits of United States ships of war to Barbados are recorded during the civil war. Two of these vessels are mentioned as having received p( rrais- siou to take in th of July. The vessel which brought the coal is asserted by the United States to have been the Harriet Pinckney, and it is insiuu ated that the transaction amounted to an infraction of the rule against the establishment of coal-depots in British ports for the use of either belligerent. Her Majesty's government is at a loss to understand on what ground such an allegation is made. The Harriet Pickney was, to all appearance, an ordinary trading- vessel, in which capacity she visited Saint George's five times between January, 1863, and February, 1864. There was nothing in the attendant circumstances to raise a suspicion that the coal was sent expressly for the Florida ; indeed, the previous conduct of Captain Maffit contradicts such a supposition ; nor does tbo occurrence seem to have given rise to any complaint on the part of tlic United States consul. 'Appendix to Britisb Case, vol. v, p. 1. -Ibid., vol. i, pp. 108,109. 'Ibid., vol. V, pp. ~ '" ^^, 13. "" 'WUHBJii ( (MM 1:K ( A>K of (iRKAT IJKIIAIN. .'ion On tliis oei'ii.sioii, rliroU};h a iuiscoiit't'|»tion, tlio salute of the Florida was returned. It was the only instance in which the tla;^: of the Con federate States received such a courtesy from British authorities. It was disai)proved by Iler Majesty's j'overninent ; and a circular instruc- tion was sent to all the British colonies to prevent its repetition.' From Be'-muda the Florida proceeded to the F'rench harbor of Brest, where she r Miained tive nu)nths rehtting. On theLMJth April, 1804, she visited the l ench i)ort of Saint Pierre, Martini(pic, where she remained till the 7th ]\lay and took in a full supply of coals, provisions, and water,- Ou the 14th j\Iay she asain ai>peared olf Bermuda, but remained only long enou tained i)ermission to coal and repair.' In the case of another vessel, the Mohican, which put in on her way from Philadelphia to the west coast of Africa, the governor not only granted an exceptionally large supply of coal, beyond the quantity authorized by the regulations, but promised the assistance of the government dock-yard oliicial towards the com pletion of her repairs, and his conduct in so doing was approved by Her Majesty's government.^ The quantity of coal taken by the Mohican seems slightly to have ex- ceeded the amount named by her commander. He askeil for permis sion to ship 100 tons, but is stated to have received 104. The difference is not material except to show that the most conscientious officer may chance to take a little more than the amount at which he has roughly estimated his requirements. Her Majesty's government thinks that enough has been said to con vince the tribunal that, as regards the colony of Bermuda, no accusation of undue partiality toward the Confederate States can be fairly made. riie Atiiliia.v ou the 'UHli of March, and on the next day (/. t.. the tilstj weliad tlionsual eqninijcthil •••ah\ ^ » « The <{ah' havhif; moderated the next day, (/. e., the •i2f\.) lijfhteis eain(! ah)nav on the 21st, but on the 22d of March, 1804. Again, on referring to another book published by Captain Semmes, "Tl»e Cruise of the Alabama and Sumter," the following passage is found relative to the visit of the Alabama at Singapore, (p. 2.'{4:) TitcHilaji, 1 icci'mher '2'i. — At !•.;{(• a. ni. the i)ilot came on hoard, and we ran u\< to the New Harbor ak)ngHide of the coalintf-depot and commenced coaliny. And on referring to the passage of the "Adventures Atloat," on the same subject, it will be found stated that the '• coaling lasted ten hours."-' It is proved, therefore, from the very authority quoted by the United States, that the Alabama had taken in her last supply of coal not ou the 23d but on the 22d of .December, 1803, and that the specified period of three months had e.vactly elapsed before she began taking in a fresh supply. J>ut if the dates had really been as alleged, the circum- stance would have i>roved nothing against the colonial authorities, still less against Great Britain. The captain of the Alabama applied for permission to coal ou the ground that he had last coaled at Singapore ou or about the 21st of December. The governor and admiral could have had no means of checking the date to a single day, and the per- mission was granted ou the faith of Captain Semmes's statement. That statement was in every way consistent with probability, and with the facts as far as they were or could be known at Cape Town. It vrould surely be nothing less than ridiculous that an asserted " violation of ' British Case, p. 115. •2 Case of the United States, pp. 316, 386. 'Page 715. '\i\ :w;o TULATV OF WASHINGTON tlie ilutics (»f (In'iit ISritc'iiii as a ntnitral" should be Jbuiui to dcpoiut on a (loiil)tt'iil mistake of a single day, on the ditfeicnci^ betuoiMi lunar or calendar months, or on the fact tliat a i)articular February fell in leiii. year. There are re(!ords, on the other hand, of eleven visits of United Stiito men-of-war to the Cape of (lood Hope, three of which received coal; hut Her Majesty's ffovernincnt will only call the attention of the tribunal to one of tliese, the Vanderbilt. This vessel obtained at the IJritish colony of St. Helena on the 18th of August, 1803, 400 tons of coal. She arrivoil at Simon's IJay, Cape of Good Hoi)e, on the .'5d of Septen)ber, rather more than a fortnight afterward, and remained until the Hth, takiii<^ on board 1,000 tons of coal. She visited the Jlritish colony of Mauritius ii fortnight later, on the 24th of the same month, and there remained till the 10th of October, shipping a fresh suj^ply of 018 tons. On tin- 2'2i\ of that month, only twelve days after her departure from Mauritius, she reappeared at Cape Town, and her connnander api)lied for perniis siou to remain live or six working days, for the purpose of makiim necessary repairs, and also to get a supply of fuel. The governor, as the captain reports, "took a day to decide," and then replied, grantinj; the permission for the Vanderbilt to remain in harbor, but stating that he did not think his instructions would admit of ids giving perniis sion to her to coal, especially as it was notorious that the three supplier so recently received had been expended in cruising.' She thus committeii in six weeks two apparently deliberate breaches of the regulations, and attempted a third. The case of the Vanderbilt does not certainly show any hostile rigor on the part of the authorities at the Urltish colonies which that vessel visited. m IIECAVITULATION. Her Majesty's government lia.s now, it is believed, examined all the instances brought forward in the Case of the United States to support the charge of "excessive hospitalities'' on the part of British authorities to confederate cruisers and of " discourtesies to vessels of war of the United States." The examination has shown how groundless is that charge, and with how little reason it can be said that the rules laid down as to the treatment of belligerent vessels " were often utterly disregarded" in the case of confederate ships ot [118] war, and *" rigidly enforced against the United States." A few- words only require to complete the comparison. During the course of the civil war ten confederate cruisers visited British ports. The total number of such visits was twenty-five, eleven of which were made for the purpose of effecting repairs. Coal was taken in at sixteen of these visits, and on sixteen occasions the limit of stay fixed by the regulations was exceeded. In one of these cases, however, the excess was no more than two hours, and in another, the delay was enforced in order to allow twenty-four hours to elapse between the departure of a United States merchant-vessel and that of the confederate cruiser. On the other hand, the returns which have been procured of visits of United States vessels of war to ports of Great Britain and the colonies, though necessarily imperfect, show an aggregate total of 228 such visits. On thirteen of these, repairs were effected ; on forty-five occasions supplies of coal were obtained; and the twenty-four hours' limit of stay was forty-four times exceeded. The total amount of coal obtained by con- 'Appendix to Caae of the United States, vol. vi, pp. 145, 140. ^^'^PT COCNTKK CASK OF fiKKA'l lUUTAIX. .'i6l ie«k*iaU' < ruiscrs in IJritish ports ilmiiif; tlic whole i;om.s«' of the, civil war, tIionH;h it cannot be ascioituincd with accuracy, n)a.v he cstinritcd in have amounted to about 2,800 tons. The afffjrojjate amount similarly supplied to vessels of the United States cannot be estimated, from the want of data as to the supplies in many cases, but those cases only in which the quantities are re(!orded show a total of over .->,000 tons ; and tiiis notwithstanding the United States Xavy had free access to their own coalins-depots, often close at hand. In one case noticed above, a vessel of war of the United States, the A'anderbilt, alone receiv<'d 2,000 tons of coal at dillcrent llritish i)orts within the; space of less than two months, beinft' more than two-thirds t)f the whole amount obtained from first to last by confederate vessels. It has been seen that of tin? three instances in which tlic United States assert that confederate vessels were allow«'d to coal in contra- vention of the rules of .lanuaiy .'51, 1802, one alone, the coalin*;' of the Florida at JJarbados, can in any way l»»» consideied a departure from those rules, an0 tons more were sent out to her from Dover by the United ' ates consul, ill a vessel which left without clearance for the purpose, on the 2.'id of the same month, li \- us not thought necessary to take any nut i(!e oi" ihis occurrence at the tinu', but a regulation was afterward made to prevent such a practice being resorted to in the future for the i)nri)ose of evading the regulations. The United States vessel Wyoming made use of the port of JJong-Kong in a similar manner, anchoring just out- side of British waters, and obtaining coal and sup|>lies in boats. This she did in February, 1803, and again in February, 1804. On the second occasion she is believed to have anchored within the British limits. She obtained Wo tons of coal, having been supplied in the previous Decem- ber with 120 tons at the British colony at Labuan ; and this, although there was a depot lor the United States at Macao. The Narraganset again is recorded to have coaled twicte within three mouths at Esqui- maux Point, in British Columbia — once on the 23d of November, 1803, the second time in January, 18G4.' Her Majesty's government wishes to be understood as (pioting these instances not in recrimination but in self-defense. There may not im- probably ha^ e been, in some of these cases, reasons to excuse a depart- ure from the strict letter of the regulations. All that is sought to prove is that those regulations were not enforced against the vessels of the United States in any invidious manner ; that the officers of the United States Navy were treated with courtesy and leniency, even when, on some occasions, their conduct did not show any very scrupulous respect tor the conditions on which thehospitality of British ports was extended to them ; and that the facts by which the United States seek to prove a lax observance, to their disadvantage, of the duties of neutrality, might with more justice be invoked in suj)port of a directly opposite conclusion. 'See Retmii of visits of United Stutcs vessels to British ports. Appendix to Brit- isli Case, vol. v, pp. 228, 233, 934. 362 TRKATY OF WA.SHINGTON. Her Majesty's government will ask the tribunal to suppose the cas« reversed — that the vessels of the Confederate States had been allowed the indulgences which were shown to those of the United States, and that United States vessels had been subjected to precautions such as were often enforced against cou federate cruisers. A moment's reflection will show that, if complaints ;i id claims are to be made on such grounds, the United States would have had much more reason to make them ou such a supposition than they have under the circumstances as tliey really stand. [119] *Her Majesty's government regrets to have been compelled to lay before the tribunal in this sectiou a number of details which have so slight a bearing on the questions referred to it, and many of which are so trivial in themselves. But it was due to the arbitrators, as well as to the United States, that this long series of accusations should not be left unanswered. COUl^SE PURSUED BY OTHER COUNTRIES. Course pursued hy t !her I'lnintriH!.. Hulland. Before quitting this subject it may be well to notice briefly the course which was purSn. ' under similar circumstances by other governments, whobO conduct the United States have placed in contrast with that of Great Britain, and against whom they declare that they have no serious cause of complaint.^ 1. To instance, in the first place, the conduct of the Netherlands. The Sumter twice visited the ports of Dutch possessions in the East Indies within the space of six weeks ; that of Saint Anne's, Curacoa, on the 13th July, 1861 ; that of Paramaribo on the 10th August. On the first occasion she remained eight days in port ; on the second, eleven days. In both instances she took in more than 100 tons of coal. At the British port of Trinidad the Sumter remained only six days and ttfok in only 80 tons of coal. The United States Government addressed, as Mr. Seward said, " very serious remon- strances" to the Netherlands government on the subject.^ The essence of those remonstrances was, that the Sumter was not merely a privateer, but a pirate. The Netherlands government, on the other hand, main- tained tiiat she was a ship of war. It decided, however, to issue orders that no armed vessel of either belligerent should be allowed to remain more than forty-eight hours in Dutch ports, or to take in more coal than would be suflicient for twenty-four hours' consumption. Although the ITnited States Government was expressly warned that this restriction must apply to vessels of their Navy, as well as to those of their opponents, the regulation Avas accepted as satisfactory, until applied to a United States ship, the Irofjuois, which touched at Cura(;oa in November, 1801. On learning the restrictions placed upon his visit, the commander of the Irocpiois declined to enter the port upon such terms, and in this decision he was sustained by his Government, who called for a repeal of the obnoxious regulation. The Netherlands goverimient, it appears, had already revoked the regulation, at the instance of the governor of Cura- coa, and they explained that no restrictions would in future be placed on the stay or supplies of American men-of-war in Dutch ports.' The United States Government, however, were not satistted. In February. 18G2, Mr. Seward again directed the United States minister at The Hague to call attention to the " subject of the intrusion of piratical ' Case of the United States, p. 462. - Ibid., p. 463. 'Appendix to British Case, vol. vi, pp. 91, 94. COUNTER CASE OF (JREAT HKITAIX. 363 American vessels se«kiiigr shelter in the ports of the Netherhiiuls unci their colonies." If [ho said] yon cannot obtain a decrop cxchiding tlioni alto<;other, it is tliOHj;iit that the government will have no hesitation in restoring the restrictive policy which waa adopted by it under the represe itation of its foreign affairs by Barou Van Znylen.' The Netherlands minister for foreign affairs replied, in a long and able note, in which he once more justified the attitude of his country, and declined to return to the former policy of restriction. In this regard [lie wrote] I permit myself to observe to yon, that I cotild not understand how your government could desire the re-establishmeut of measures which actually were, and would again, be applicable to both parties, and which were at th<- time the cause why the Union ship Iroquois would not enter the port of Curavoa under the rule of the said restrictive measures. * * If the instructiouK given before the month of December, 1861, were now returned to, the government of the Netherlands might not only be taxed, with good rocison, with triding, b»it would hurt its own interests, as well as those of the Union, considering that the consequence of the said instructions would be, as has been remarked in the communication of Barou de Zuylen. dated October 29, 1861, that the vessels of war of the United States, also, could no longer be able to sojourn in the Netherland West Indian ports more than twice twenty - four hours, nor supply themselves with coal for a run of more than tweutj'-four hours.- It is difficult to understand on what ground Great Britain is to be held liable for the acts of the Sumter, while the course pursued by Holland is considered to give the United States no serious cause of complaint. On looking for the reasons assigned, they are found to be as fol- lows: [120] *The government of the Netherlands forbade privateers to enter its ports, and warned the inhabitants of the Netherlautls ami the King'ssnltjects abroad not t<> accept letters of marque. The United States have no knowledge that these orders were disobeyed.^ Her Majesty's government are not aware that, among the numerouv^ charges brought against Great Britain in the Case of the United States, it is anywhere alleged that a privateer of either party entered a British port, or that any British subject accepted a letter of marque during the war. It is indeed true that in official correspondence and in other documents and speeches during the war, it was the common practice of the Government and the citizens of the United States to< apply to the confederate cruisers the denomination of "privateers'' as well as that of "pirates;" bnt it is certain that none of these cruisers were priv.ateers in the legal and only proper sense of that term. 2. Let us now turn to the course adopted by Brazil. The Sumter, after leaving Paramaribo, touched at the port of San Juan ^ , (le Maranham, where she remained ten days, and took in 100 tons of coal. The United States consul at that port a 'wm ~ w lustructious were, however, issued by the government of Brazil, in June, 1863, defining the construction to be phiced on the regulations of August, 1861, and the i>recaution8 to be taken for their observance. With regard to the limitation of supplies to such as were necessary for tbe continuation of the voyage, it was stated that this provision pre- supposed that the vessel was bound for some port. Such ])resuppositiou would not hold good if the same vessel should seek to enter a, port re- peatedly, or if, after having procured supplies in one port, she should enter another immediately afterward under the same pretext, except in the case of overruling necessity. Any vessel committing a violation of neutrality was to be at once compelled to leave the waters of lirazil ; and the Alabama, having been guilty of acts of this nature, was not again to bo received in any port of the empire. The Florida, against which no such breach of neutrality had been charged, returned to Brazil in August, 1864, and at Bahia was again received as a vessel of war. It will be seen, then, that the principles on which the regulations of tbe Brazilian government were framed were the same in substance as those applied by Great Britain. It was considered tliat confederate vessels must be received on the same footing as those of the United States ; that they must be allowed the supplies necessary for the voyage on which they were engaged ; that the si'izure or detention of such a vessel would be a breach of neutrality; and that, to justify even her dismissal from a Brazilian port, evidence of a violation of Brazilian neutrality committed by her as a belliger'?nt vessel must first be obtained. On these conditions the Sumter, Florida, Georgia, and Alabama, Vvcre admitted to Brazilian ports. The last-named vessel having cap- tured and burnt prizes within the waters of Brazil, instructions were issued to exclude her for the future. A similar prohibition was issued against the Shenandoah, not from any doubt as to her status as a ship of war, but on the ground that her commander had violated the seal of the Brazilian consulate. In neither case, however, did any occasion occur for enforcing the prohibition, as the Alabama did not return to the coast of Brazil after she left Bahia, nor did the Shenandoah ever visit a Brazilian port. 3. "The Eussian government," it is said by the United States,. '' ordered that even the flag of men-of-war belonging to the seceded States must not be saluted." ^ Her Majesty's government itself issued similar orders addressed to all governors of British colonies.^ These orders were as follows : [Circular.] Downing Stukkt, Jannanj 11, 1804. 8n{; Her Majesty's government have had occasion to consider whether salutes can properly be exchanged between the forts in Her Majesty's colonies and vessels of war (tf tiio Confederate States, I liave to instruct you that, in case the commander of any such vessel should otferyou u salute, it will be your duty to decline it ; and that if the salute should be tired without having been previously offered, it should not be returned. In each case the commander of the vessel should be informed that the reason for de- clining to receive or return such salutes is, that the Confederate States have not been acknowledged by this country otherwise than as belligerents. I have &.G (Signed) ' NEWCASTLE. ' Case of the Uuited States, p. 404. 'Appendix to British Case, vol. v, p. 129. I'''-!... i'il Li.-.!.;. !E4rlanger in J'aris. According to French law, the permission of the government is required before ves- sels constructed in French iK)rts can be armed for war, and this permis- sion M. Arnmn, the builder of the vessels, had procured, on the pretext tliat they were intended for employment in the China seas. AVhen the United States minister laid evidence before the French government of the real i)urposo for which these vessels were designed, the authorization to arm them was withdrawn, and an assurance was given that they .should not be allowed to pass into the hands of the confederate govern- ment. M. Annan was, however, allowed to proceed with the construc- tion of them, and they were eventually dispi»se«l of to diflerent neutral •governments. One of them was sold conditionally to the Danish gov- ernment, but rejected by the officer api)ointed by that government to inspect her at Bonleaux, as not coining within the terms of the contract. Permission was obtained to send her to ('openhagen, from whence, the Danish Government having confirmed the decision of their officer, she returned to the French coast, shipped a crew, arms, and a supply of coal at the small island of ilouat, ofi" St. Xazaire, and proceeded on her voy- age as the confederate steamer Olinde or Stonewall. The United [123] States minister at Paris thought, probably with Justice, *that there were grounds for believing that the intention of using her for the confederate service had been formed before she left France, and that the sending her to Copenhagan was a mere pretext ; and the French government ordered an investigation into the circumstances; but it ex- pressly disclaimed any responsibility 'for what had occurred, and de cliiied to interfere to procure the detention of the Stonewall in the Spanish port of Ferrol, to which she had i)ro(!eeded. 5. The Stonewall arrived at Corunim on the .id of February, 1SG.">, from whence she removed to the neighboring jtort of Ferrol. In January, 1802, when the Sumter arrived in the port of Cadiz, the Spanish government had decided that she must be allowed to make such repairs as were absolutely necessary, and had for that pur- pose alloweil her to be placed in a government dock for two days, not- withstanding the protest of the United States minister. The govern meut came to '^ similar conclusion in the case of the Stonewall, and she remained at lerioi refitting for sea till the 24th of ]\Iarch. The Koveriimcnt of Her M.ijosty [wrote M, Bcuaviilos] coiikl not disregard the voice of humanity in perfect hannony with the hiws of nentrality, and does not think tliey are violated by allowing a vessel only the r«'pairs (strictly necessary to navigate with- out endangering the lives of the crew.-' The United States war steamers Niagara and Sacramento had in the meanwhile arrived at Corunua, from whence they kept watch on her movements. From Ferrol they followed her to Lisbon, the commander of the Niagara considering the Stouew all too formidable to cope with at sea in calm weather.' riri'l l*'trtim' 1 Appendix to British Case, vol. ii, p. 671. '' Papers relating to Foreign Affairs, 1865-'66, part ii, p. 524. 'Ibid., p. 551. m i 3G8 TREATY OF WANHINCITON. At Lisbon tlie Portuguese government allowed her to remain twent^\ four hours and take in a supply of coal. On this latter p'^int, the for eign minister of Portugal observed, in reply to the representations of the United States minister — Regardinj; tlio supply of coal, asninst which you insist, allow mo to obsei'Vf rlmr the vessel beiii}; a stuainer, His Majesty's govoiiuiieiit could not avoid with good foim. dation that she should be provided with that articlo, for the same reason that it c(iiil(; not deny to auy sailing-vessel in a dismantled state to provide itself with sails.' The Stonewall next proceeded to the Spanish island of TeneriflFe. and from thence to Havana, where she arrived on the 11th of May, and where, at the close of the'civil war, she was surrendered to the Spanisli authorities by her commander on the payment of $1G,000. By the Spanish government she was handed over to that of the United States. The latter repaid the sum expended in obtaining possession of her. In the conduct of other powers, when compared with that of Great Britain, there is certainly nothing to justify the United States in pre ferring claims against the latter for undue i)artiality to confederate cruisers, while at the same time disavowing any ground of complaint against the former. It may suit the United States to give this assiir ance for the purposes of the present arbitration, but no such assurance can be given for the future. If the charge against Great Britain is to bo held valid in the present instance, it is impossible to say what line of conduct, however scrupulous, however courteous, will protect a ueu tral power from demands for compensation from one or the other, or even from both, of two belligerent parties. ' Papers relating to Foreign Affairs, ISfi.'j-'Gfi, part iii, p. 11^. ': if PART X CONCLUSION. KECAPITULATIOX OF THK ARGUMENT FOR GREAT BRITAIN. Uer Mfi.jost.v's government lias deemed it convenient, both in the Case which it has previously presented, antl in this p,^, x -comi,.- Counter Case, to place before tlie arbitrators, as clearly as '"■"■ possible, the nature and general limits of the questions ,h"",;,^'!",l."!r"fur wiiich they are about to decide. "•""■ """"" The comparatively novel character of these questions, the importance of them, the number and variety of the facts which may be supposed to bear on them, appeared to make this course not only convenient, but necessary; and the necessity* has been enhanced by^ a circumstance peculiar to this controversy. The war which commenced in April, 18(51, and ended in May, 1805, was a civil war ; and it was hard, even for a government which had again and again i)roclaimed itself neutral iu similar contests occurring elsewhere, to reconcile itself to the assump- tion, ill its own case, of the same attitude by other nations. Every occasion on which that neutrality had to be practically asserted was painful, and perhaps naturally painful, to the United States. But neu- trality, iu a war wholly or partly maritime, is not, and cannot be, as regards maritime powers, a merely negative condition. States, the most remote from the principal theater of hostilities, may yet, through their .sliipi)ing, or their colonial possessions, be brought into contact with those hostilities in various parts of the world, and questions will thus arise which cannot be avoided or put aside by mere inaction. In the case of Great Britain, the points of contact, and therefore the occasions of complaint, were greatly multiplied by the diffusion of her maritime interests, the magnitude of her commercial marine, the number of her colonies, the activity of her manufacturing industries, and the almost unbounded liberty which her laws allow to trade. The feelings of annoyance which the impartial neutrality of Great Britain excited, in many ways, and under many circumstances, in the Government and people of the United States, were, it was hoped by Her Britannic Maj- esty's government, almost, if not quite, forgotten ; these were matters, at all iBvents, which neither this government, nor i)robably any other, would have thought it right to refer to any arbitrators, however care- fully selected. But the claims which are submitted to the tribunal are of a different character. The United States believes them just ; Great Britain believes them erroneous. Both nations agree in regarding them as proper to be referred to an independent and impartial decision. Hence, the importance of separating these claims from the various mat- ters of complaint or causes of dissatisfaction with which they were long associated iu the diplomatic correspondence of the American Govern- ment and iu the minds of the American people; and of keeping plainly 24 A— II iik^ 370 TREATY OF WASHINGTON. and steadily in view the questions with which the tribunal has aotualiy to (leal, and the facts and arguments which are properly and directly relevant to those »iuestions. Adhering tinnly to this distinction, Iler Majestj-'s government has, at the same time, not declined to meet and argue, within the limits inc scribed by its own self-respect, and by its view of the proper scope ot the reference to arbitration, the wider issues which the United States have thought i)roper to raise. Endeavors were made on the part of the United States to show that. in ^'arious matters which are not referred to the arbitrators, the liritisii government had permitted violations of its neutrality in favor of the Confederate States, while it had been rigorous in refusing to the United States the enjoyment of corresponding advantages. The arbitrators were asked to draw from hence a conclusion, which it was desired they should apply to the questions actually submitted to them for adjudica- tion. These complaiuts related substantially to the traflQc in arms and munitions of war, and other articles of commerce, carried on with southern ports, from ports within the British dominions, and particu larly from and through that of Nassau. The United States insisted also on the fact that the confederate government had agents in England for the purchase of what it required, and employed, as financial agents, a mercantile house in this country, to whom they remitted spe cie and ootton, and through whom their payments were made. [ 125] *But, on the part of Great Britain, it has been clearly proved that all these complaints are groundless. It has been shown that the United States, equally with the Confederate States, resorted to Eng land for necessary supt)lies of arms and munitions of war, and that they also had their agents here for making purchases, as well as for their tiuancial transactions and for the disbursement of monej'. It has been shown that the traflic carried on with the two commurfties (which, for the time, they were) tlift'ered solely in incidental circumstances, which were the natural result of the overwhelming superiority at sea possessed by the United States, and which imposed no peculiar duties on the government of Great Britain ; that in all these matters no favor or accommodation was accorded to one which was denied to the other; and that the real substance of the comi)laints of the United States is, that Great Britain declined to as.sist by active interference the more powerful belligerent, and to thwart the endeavors of the weaker to obtain the necessary supplies, and that she from first to last persevered in holding an even hand between the two. It short, it is not that she departed from impartial neutrality in favor of the confederacy, but that she refused to depart from it in the interest of the United States. It, therefore, from this part of the conduct of Her Majesty's government. a presumption is to be applied to any other part, the legitimate pre sumption is, not that the government would be discovered to deviate from the line of an impartial neutrality, but that it would scrupulously an 1 steadily adhere to that line. Is, then, this presumption found to fail, when we approach the rs, the British u favor of the ;• to the United ?he avbitratois iis desired they u for adjudica- c in arms and arried on with s, and partieu es in8i.sted also its in England I, as financial Y remitted spe Its were made. rly proved that shown that the sorted to Eug war, and that as well as for luouej'. It has nrfties (which, circumstances. )eriority at sea peculiar duties itters no favor d to the other; lited States is, ence the more the weaker to ast persevered s not that she eracy, but that ed States. It', s government. egitimate pre red to deviate d scrupulously oach the (pies 1 relate cxclii of the United s not. In thf British govern lopted to pre ir, and the df arlike use and intended for the naval service of either belligerent; ex|>Iaining at the same time the peculiar difficulties which, in a country like (ireat Britain, must always attend the enforcement of such a prohibition, the powers with which the government was armed by law, and the restraints which the law imposed on it — restraints Judged expedient in England for the due security of property and civil liberty and for the proper adminis- tration of justice. All the cases of alleged or suspected equipment or warlike adaptation which occurred during the war have been stated in order to the arbitrators; and they have thus beeu enabled to take a coiniected view of the manner in which these cases were dealt with by the government, and the general course which it followed in regard to the.n. In connection with this part of the subject the question naturally arises, what mcnisure of care or diligence can reasonably be expected in matters of this kind from a neutral government — or, to speak more ex- actly, ought to be held due from such a government as a matter of in- ternational obligation. The United States have attempted to furnish a definition of this, which to the British government appears not only to fail as a definition, but to exact more than neutral powers could safely or rightly concede, and much more than has ever been practiced by the United States themselves. In illustration of this, and for no purpose of recrimination or reproach, it has been found necessary to refer to the past and recent history of the United States, not only as being the power which now produces this verj'^ strict definition of due diligence, but as the country which has been the principal seat and source of en- terprises, such as those for which it now seeks to make Great Britain responsible. It has been necessary to exhibit the striking contrast be- tween the course of the American Government in dealing with enter- prises against friendly states within its territory renewed again and again, and always with impunity, during a long series of years, and the iron rigor of the rules it now seeks to enforce against Great Britain, the perfection of administrative organization it seeks to exact from her. The views of Her Majesty's government as to what constitutes a rea- sonable measure of diligence or care have, in its Case and Counter Case, been stated in general t^rms. But this government has refrained from tl^p attempt, in which the United States, as it conceives, have failed ; and it has left the arbitrators to judge of the facts presented to them bj' the light of reason and justice, aided by that knowledge of the general powers and duties of administrative government which they possess as persons long conversant with public attairs. Proceeding to the several cruisers to which the claims of the United States relate. Her Majesty's government has been compelled to observe, in the first place, that an award against Great Britain as to any one or more of them could not be supported by broad general allegations, but must be founded on some specific failure or failures of duty alleged and proved in respect of that ship or those ships ; in the second place, that, iu deciding whether a failure of duty was or was not committed, the arbitrators have to consider, not what has since beeu discovered, ll'-Oj or what the members of the tribunal now know respecting *these ships, but the information which the British government actually possessed, or, by the exercise of reasonable care, ought to have pos- sessed, at the time. They have to place themselves in the situation in which this government then was, in order to judge fairly whether it iailed in the performance of its duties. As to each vessel, the original outfit of which is made matter of complaint, they have to be satisfied, ttrst, that she was, iu fact, armed, fitted out, or equipped for war within 872 TREATY OF \VA8HIN(JTON. the British territory, or specially adapted within it to warlike use; seeoiidly, that the (^Jiieen's governmeut had reasonable grounds to be- lieve that she was intended to crnise or carry on war against the United States ; thirdly, that, having such reasonable ground of belief, the gov ernnient did not use due diligeuce to prevent her ecjuipinent, or else to I»revent her departure. It is not enough to prove one of these things, or two; it is necessary to prove all three of them. It has been further pointed out that, when we speak of a government having reasonable grounds of belief, (the matter in question being the prevention of an apprehended act by the enforcement of a law,) we mean that it has more than a suspicion founded on general rumor or mere probabilities ; tliat it has reasons, which can be exposed in due time to the test of Judiciiil inquiry, for s^uch a belief as is sutticient to justify it in setting the ma- chinery of the law in motion. In the case of the Alabama it has never been denied by Great Britain that she was a vessel specially adapted by her construction for warlike use, nor that she was thus constructed in a British port. Nor is it denied that, at the time of her departure from England, the goveiii- nient had obtained reasonable ground to believe that she was intcnd'tl for the naval service of the Confederate States. But it has been shown that this necessary information was not put into the possession of tie government or its officers by the minister or consul of the United States until a very short time before the departure of the ship, either throu<,^li a want of due diligence on their part, or (which is more probable) Ik- cause they had not, ui> to that time, been able to procure it themselves. It has been shown, also, that no time Avas lost by the government :n consulting its legal advisers as to the sufficiency and credibility of this evidence, which was a question of reasonable doubt; and that the order for detention which, in the event, came too late, was deferred only till their opinion should be obtained. It has been shown further that the information possessed by the government related solelj' to the vessel herself, which was known to be unarmed, though atlapted by her con- struction for war. Of the intended dispatch of armf for her nothin„' was known to the government; nothing was known — certtiinly nothing,' was communicated — by the officials of the United States. Her 3Iaj- esty's government submits to the arbitrators that, on the facts statf*! and proved, no failure of duty has been established against Great Britain in respect of which compensation ought to be awarded to the Unite! States. In the case of the Florida it has been shown that the British gover*!- meat had not, at or before the time of her departure from England, any reasonable ground to believe that she was intended to cruise or canyo!) war against the United States, and that no information on M'hicli :i reasonable belief could be founded had, up to that time, been produced by Mr. Dudley or Mr. Adams. It has been further shown that she Wii-* seized at the Bahamas by the authority of the colonial government ; and. after a fair, open, and regular trial in a court of competent jurisdiction, was released by judicial decree. And it has been likewise shown thar the cruise in w hich all her prizes were made was commenced from the confederate port of Mobile, in which port she was manned and fitted on: for that cruise. Her Majesty's government submits therefore that, :a respect of this ship, no failure of duty has been establisheci agains* Great Britain on account of which compensation ought to be awarded to the United States. In the cases of the Georgia and Shenandoah, it has been shown tha* neither vessel was armed, fitted out, or e(iuipped for war, or specially ssiou of tho ish {jovoi:!- COUNTER CASE OF GKEAT BRITAIN. 373 a(lai)te(l, either wholly or in i»art, for warlike use within British terri- tory ; and, further, that Her Maje.st.v'.s pfovernnient had not, at the time when they respectively left Kngiand, any reasonable jjronnd to believe that tliey, or either of them, were or was intended to cruise or carry on war afiainst the United States. Efforts have, it is true, been niath December, ISOL', wrote thus to Mr. Adams: 1 have the honor to hiforui yoii that Her Jlajesty's jj;<>veiniueiit, after consnltatidii witl) the law-otiicers of the Crown, arc of opinion that certain amendments niijjlit be introduced into the foreign-enlistment act, which, if sanctioned by Parliament, would have the ert'ect of giving greater power to the executive to prevent the construction, iu British ports, of ships destined for the use of belligerents. But Her Majesty's gov- ernment consider that, before submitting any proposals of that sort to Parliament, it would be desirable that they shouhl previously commnuicate with the Governmeut of the United States, and ascertain whether that Government is willing to make similar alterations in its own foreign-enlistment act, and that the amendments, like the orig- inal statute, should, as it were, proceed jmii pnasu in both countries. I shall accord- ingly be ready to confer at any time with yon, and to listen to any suggestions which yon may havfe to make, by which the British foreign-enlistment act and the corre- BlH>nding statute of the United States may be made more elficient for their purpose.' This communication was courteously received by the Government of the United States, which professed themselves to be willing to consider any propositions which the British government might desire to make; but they offered no suggestion on their own part. On the contrary, Mr. Adams distinctly stated to Earl Russell, on the 14th February, 1863, • See the general list of claims filed iu the Department of State of the United States, Appendix to Ca«e of the United States, vol. iv, p. 446, et aeq. 2 Appendix to Case of United States, vol. iii, p. 51. aibid., p. 92. COUNTER CASE OF CJREAT BRITAIN. 375 e United States, that they did not see how their own law on this subject eoiilil l)e im- proved;" (or, as jMr. Adams reported the same conversation to his own (lovernment, that "the hiw of the United States was considered as ot' very sufficient vigor.'")' Earl Kussell then rejoined, that the adminis- tration of which he was a member had, on more niatun^ consideration, come to a similar conclusion ; and " that no further proceedings ueetl be taken at present on the subject." On a later date (27th March, 18G3,) Lord Russell told Lord Lyons that tbe subject had again been mentioned : With respect to tho law it8«'lf, Mr. Aclanis said, citlier It was Nuftkifiit for \m pur- pose of neutrality, and then lot the British goverinnent enforce it, or it wan iiiHntlicient, »ti(l then let the British government apply to Parliament to amend it. I said tiiat the iiibinet were of opinion that the law was suflicient ; but that legal evidence could not always be procnred.- On another occasion Lord Russell gave ^Fr. Adams an answer sub- stantially the same as Mr. .J. Q. Adams, as Secretary of State, had re- turned to a similar suggestion made by the minister of Portugal : "The Alabama has avoided seizure through the iiifidequacy of the evidence, not through a defect in the law." The correspondence between tbe two governments prior to the ter- iiiiuatiou of the war does not justify the statement made at page 113 of tbe Case of the United States, that " the United States repeatedly, and in vain, invited Her JMajesty's government to amend tbe British foreign- enlistment act." The only foundation for that statement appears .o bo that Mr. Adams, in a letter to Earl Russell of the 20th May, 1805, spoke i)i' " the inefliciencj' of the law "on which the British government relied ; and of " their absolute refusal, when solicited, to procure additional ])owers to attain the object."^ Nor was it until the 18th September, 1SG5, (when the war was over,) that Mr. Adams suggested to Earl Rus- sell that there were certain of the " main provisions " of the law of the United States on bis subject, viz, " those very same sections which were originally enacted in isiT, as a temporary law, on the complaint of the Portuguese minister, and made permanent in that of 1S18," which were not found in the law of Great Britain ; adding, " It is in these very .sections that our experience has shown us to reside the best pre- ventive force in the whole law."* To this suggestion a very conclusive reply was made by Earl Ru8.sell on the 3d November, 1805, (the accu- racy of which has since been admitted even by American writers most strenuous in their advocacy of the claims against Crreat Britain,) viz, that the .sections of the American acts of 1817 and 1818 referred to by Mr. Adams, which are commonly known as the "bonding clauses," "proved utterly inefficacious to prevent the fitting out of privateers at Baltimore," and were also so strictly limited to " armed " vessels, or vessels carrying a cargo "consisting principally of arms and munitions of war," as to be wholly inapplicable (even if they had been in force in Great Britain) to the Alabama, Florida, Georgia, Shenandoah, and ves- sels of that class.' Under these circumstances no alteration was attempted to be made in tbe law of Great Britain on this subject during the war, when it might have been attended with serious difficulties, and might [129J have been objected to as inconsistent with neutrality. Her ♦Ma- jesty's government believed that the existing law would be ' Appendix to Cass of Uniteo States, vol. 1, p. 6C8. "Ibid., p. 670. ^Ibid., vol. iii,p. 533. ort a day or two longer than strict necessity required ; that precautions which ought to be needless in dealing vith naval oilHcers (who are men of honor) may sometimes bave been omitted or not suspiciously enforced, that any civility, of tbe most trivial and ordinary kind, wns extended to the commander of a confederate vessel — these are t'>e grievances on which tbe United States ask a tribunal of arbitration lo j)ass .judgment, and on which they rely as assisting their claim for compensation against Great Britain. It is evident that, if all these complaints could be proved, they would not support a demand for compensation ; nor are they really within f he scope of the reference to arbitration. The restrictions which were imposed by tbe Q'leen's regulations on belligerent vessels, entering ports within her dominions, were not re- quired by international law. They were made, and they might bave been revoked, in tbe exercise of those discretionary powers which are vested in all sovereign governments. All that Great Britain owed the United States on this score was, that they should be enforced, tairly and impartially, on both belligerents alike. In the section of this Counter Case which has been devoted to that subject all these com- plaints have been reviewed and answered, in a manner which Her Ma jesty's government would fain hope will i>rove convincing, not only to 'The arbitrators are referred to Sinclair's letter, (24th September, IHfiU,) quoted iu the Case of Great Britaiu, p. 45: "When I made a contract with yon in November last for the building of a stenm- sliip, I was under the impression, having taken legal advice, that there was nothing ill the hiw of England that would prevent a British snbjec* from hnihling such a vessel for any foreign subject as a commercial transaction. Although the recent dc- ciHion in the court of exchequer in the case of the Alexandra would seem to sustain the opinion, yet the evident determination of your government to yield to the pressure of the United States minister, and prevent the sailing of any vessel that may be sus- pected of l)eing the property of a citizen of the Confederate States, is made so manifest that I have concluded it will be better for me to endeavor to close the contract re^iM-red to, and go where I can have more liberal action." 'f! 378 TREATY OF WASHINGTON. the arbitrators, but to the United States. It would, indeed, be no matter of surprise, and would aft'ord no great occasion for censure, if it should be found that, among the widely scattered colonial possessions of the British Empire, some errors of judgment had been committed, and that diflficulties new to the local authorities, and often very em- barrassing, had not always been satisfactorily met. But it must surely be plain to 5very one who reads this recital that the governors of the various British colonies executed the regulations to the best of their judgment and ability, and with thorough impartiality as between the two belligerents. It is diflScult, indeed, to avoid the conclusion that these complaints spring from imperfect information. When, for ex- ample, it is asserted that the cruisers of the United States were virtu- ally excluded from the chief port of the Bahama Islands, in favor of confederate cruisers, and we discover that these islands were thirty- four times visited by the former, while Nassau was but twice visited by the latter ; or, when the quantity of coal obtained by confederate ships is made a matter of complaint, and we find that a single United States vessel, within six weeks, contrived to procure from three British ports more than two-thirds of the amount ascertained to have been l)urchased within Her Majesty's dominions by all the confederate ships together during the whole course of the war, Ciin we doubt that the Government of the United States is laboring under fierious misappre- hensions? The British colonies were, it is true, often resorted to by belligerent vessels of war ; bnt their most frequent visitors were cruisers of the United States; and, if infractions of Her Majesty's regulations were sometimes committed, these cruisers were the most frequent oft'enders. C03IPENSATI0N CLAIMED BY THE UNITED STATES. CIPLES. -GENERAL PRIN- '¥^ \ The British government then, on this summary review c^ the facts and aT-guments adduced by the United States, submits to the arbitrators that no failure of duty has been established against Great Britain iu respect of any of the vessels enumerated in the case. But, since the arbitrators are to judge, and, as it is necessary for every party to an arbitration to contemplate the possibility that on some points the award may not be in his favor, something ought bore to be said on the claims for compensation urged by the United States, and on the proper mode of dealing with such claims. Her Majesty's government readily admits the general principle that, where an injury has been done by one nation to another, a claim for some appropriate redress arises, and that it is on all ac- counts desirable that this right should be satisfied by amicable rep- aration, instead of being enforced by war. All civil society re- X)08es on this principle, or on a principle analogous to this ; the society of nations, as well as that which unites the individual [131] *memberf? of each particular commonwealth. But the general principle cirries us but a little way. Before it can be applied in practice various considerations interpose themselves, which are as nec- compen-ation cssary to guard against injustice in one direction, as the umte"su.u.' "*" principle itself is to prevent or remedy it in another. It General principle, jg jj^j. necossary to enumetato all these considerations. Here it is enough to say that the reparation claimed should never ex- ceed the amount of the loss which can be clearly shown to have been actually caused by the alleged injury ; and that it should bear some COUNTER CASE OF GREAT BRITAIN. 379 aAL PRIN- reasonable proportion, uot only to the loss consequent on the tict or omission, but to the gravity of the act or omission itself. A slight de- fault may have in some way contributed to a very great injury ; but it is by no means true that, in such a case, 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 It is needless to show this by examples. Many illustratious of it will suggest themselves to the minds of the arbitrators. There may be cases, doubtless, in which considerations of this kind do not demand to be taken into account. But it is manifest that they apply very forcibly to defaults such as are charged, and claims such as are made, by the United States against Great Britain. The substance of the charge in this class of cases is, that a belligerent has been enabled to make use of some spot within the neutral territory for iiurposes of war, through a relaxation of the care which the neutral government ought to have exerted to prevent it. It is not true that the default of the neutral is the cause of the losses sustained. It is certainly not the causa cmtsans ; it need uot even be the cama sine qua non. The most that can be alleged is that, if greater diligence had been used, those losses might perhaps have been prevented, and, at all events, would not have happened by the same means and in the same way. The losses complained of are losses inflicted by the ordinary and legitimate operations of war, which are allej'ed to have been facilitated by the neglect of the neutral. But the active and direct agent in the infliction of loss is tlie belligerent, and he inflicts it in ways which, as between him .and his enemy, are lawful ; tl e only share in it which can be ascribed to the neutral is indirect and passive, and consists in an udIu- tentioual omission. Further, if we attemi)t to pursue this share of liability, springing from neglect alone, through the operations, naval or military, to which the neglect is alleged to have contributed — through successive battles, through a cruise or a campaign — we see that it es- capes from any i)recise estimate, and soon loses itself among the mul- titude of causes, positive or negative, direct or indirect, distinct or ob- scure, which combine to give success to one belligerent or the other, and to which the proverbial uncertainty of war is due. This is clearly seen when the principle is applied to the case of a ship which has been armed or adapted for war, or has had her warlike force augmented, in neutral territory. We speak, for the sake of brevity, of the "acts" of a shi]), of prizes made or losses inflicted by her, as if the i>ower and responsi- bility of doing hurt adhered to the vessel herself. But the acts of a ship are the acts of the persons \* ho have possession and control of her; the ship herself — which is only a vehicle of wood or iron, serving, if armed, the purpose of a floating fortress — is but the instrument, or rather one of the instruments, with which tl'ose acts are done. The same thing is seen more clearly still when we come to apply the principle to cases where the equipment or adaptation is manifest but partial. A danger here arises of being misled by a false itnalogy. Any equipment, however partial, in a neutral port, such as the shipping of a gun, the cutting of a port-hole, the addition of a magazine or shell-room to the internal fittings of a ship, might justify the neutral power in restoriog all prizes made by her during the cruise to which the partial equipment was applied, and afterward brought within the neutral terri- tory. The ground on which the restitution is decreed here is, that there has been a violation of the neutrality of the territory ; and t mattery riot whether that violation were great or small. But if, in such a case, it be possible to show that the partial equipment had been made through m 380 TREATY OF WASHINGTON. ' 1 m neglect ou the part of the authorities of the port, and if reparation for the neglect be demanded, how are we to assess the liability of the neutral ! To assign the whole damage which the ship may do during her cruise to the neglect of the neutral, would be extravagantly unjust; to allot with precision any specitic proportion of it to the same cause, would almost certainly be impracticable. Further, when the neutral country from which a ship of war, or an equipment, or an augmentation of force has been obtained, is only one of several countries to which the belligerent has access for similar pur- poses, it is impossible to assume that the consequence of the preven- tion of a particular adventure of this kind would have been to deprive that belligerent of the means of accomplishing his purpose; its only ettect might have been to change the immediate direction of his endeav- ors. Thus, in the case of the rams at Birkenhead, the responsibility arising out of the contract between the builders and Bullock was sought to be got rid of, by a transfer of the benefit of that contract to a [132] *Frenchman named Bravay, who pretended that his object was to dis[)ose of them to other powers, and not to the Confederate States; and when the confederate agents found it impracticable to obtain those vessels from a British port, they succeeded in procuring and carrying to sea another similar ram, the Stonewall, from a port in France. When any vessels, whether procured from (Ireat Britain or otherwise obtained, had become confederate ships of war, the duty of repelling their hostile proceediugs by all proper and efticient means (like the rest of the oi)erations necessary for the conduct of the war) devolved exclu- sively upon the United States, and not upon the British government Over the measure taken by the United States for that purpose Great Britain could exercise no intlucuce or control ; nor can she be held respon- sible, in any degree, for their delay, their neglect, or their insufficieucy. Any want of skill or success, even in the operations by land, would have the eft'ect of prolonging the period during which cruisers of this nature could be continued. All losses, which might have been prevented by the use of more skillful or more energetic means, ought justly to be ascribed to a want of due diligence on the part of the Government of the United States, and not to any error, at an earlier stage, of the British government. Causa proxima, non remota spectatur. In short, there are difficulties of no inconsiderable force in holding that defaults of this class draw with them any detiuite liability to make pecuniary reparation. It is difficult — very often it is practically impos- sible — to ascertain, with any approach to accuracy, what measure of loss ought with justice to be ascribed to the default complained of, or even, perhaps, whether it was a substantial cause of any loss at all. For this reason, probably, as well as from the reluctance usually felt to bring accusations of negligence agaiust a friendly government, claims such as the United States now urge against Great Britain have rarely been made; and have never, so far as Her Majesty's goverumeut is aware, been conceded or recognized. Where prizes made by vessels armed for war, or which have augmented their warlike force, within neutral territory, have afterward been brought within the jurisdiction of the neutral, it is the acknowledged right, and it may be the duty, of the neutral power to cause them to be restored on application. Beyond this point no recognized neutral authority or established precedent has hitherto extenued the liability of the neutral. If the conduct of the United States under similar (or, rather, under much stronger) circumstances, were made the measure of their right to COUNTER CASE OF GREAT BRITAIN. 381 iiKleniDification in the present inquiry ; if the rule of compensation were sought in the precedent (to which they have themselves, in their own Case, appealed) of the treaty of 1704, between the United States and Great Britain, and in the decisions of the commissions under the seventh article of that treaty, no pecuniary compensation whatever could be found due from Great Britain for any captures made at sea, and not brought into British ports; although the vessels which made those cap- tures may have been illegally fitted out in, and dispatched from, British ports, through some want of due diligence on the part of British author- ities. If the relative positions of the government of the Confederate States and its officers, to whose acts the losses in question are directly attribu- table, and of the British government (whose neutrality they violated) toward the United States, who now make these claims, are justly esti- mated, the more difficult it will be to see how (upon the supposition of a w ant of due diligence on the part of Great Britain in guarding her own neutrality) any pecuniary compensation whatever can be claimed from (ireat Britain. The whole responsibility of the acts which caused these losses belonged, primarily, to the Confederate States ; they were all done by them, beyond the Jurisdiction and control of Great BritJiin ; wrong was done by them to Great Britain, in the very infraction of her laws, which constitutes the foundation of the present claims. But from tbem no pecuniary reparation whatever for these losses has been, or is now, exacted by the conquerors ; what has been condoned to the prin- cipals is sought to be exacted from those who were, at the most, passively accessory to those losses, through a wrong done to them and against their will. The very States which did the wrong are part of the United States, who now seek to throw the pecuniary liability for that wrong solely and exclusively upon Great Britain, herself (as far, at least, as they are concerned) the injured party. They have been re-admitted to their former full participation in the rights and pri\ilege8 of the Federal Constitution ; they send their members to the Senate and the House of Kepresentatives ; they take part in the election of the President ; they would share in any benefit which the public revenue of the United States might derive from whatever might be awarded by the arbitrators to be paid by Great Britain. On what principle of international equity can a federal commonwealth, so composed, seek to throw upon a neutral, assumed at the most to have been guilty of some degree of negligence, liabilities which belonged in the first degree to its own citizens, with whom it has now re-entered into relations of political unity, and from which it has wholly absolved those citizens i *The British government, however, while deeming it right to present these considerations to the notice of the arbitrators, will not (tmit to deal with the ulterior questions which must arise, in tlie event of the arbitrators being of opinion that claims of this nature- are not absolutely inadmissible, should the United States succeed in establishing any failure of duty sufficient to support them in the judg- ment of the tribunal. Nor does it attirm that, in that case, no award of compensation ought to be made, unless the amount of loss properly as- signable to the default can be estimated with exact i)reci8ion. But it firmly maintains that the duty intrusted to the tribuiml would not be satistied by finding, as to any particular ship, that (ireat Britain had failed to discharge some international duty, and then proceeding at once to charge her with all the losses directly occasioned to the United State's by the operations of that ship. This, indeed, would be so mani- fest an injustice that it is needless to argue against it. Should the loo EE-i! Ml m 382 TREATY OF WASHINGTON. S, !; I i I i ^ i w ■T' arbitrators be satisfied that, as to any ship, and in any ])articular, there has been a clearly ascertained defanlt on the part of Great Britain, it would then become their duty to examine wherein the default consisted, and whether it was a Just ground for pecuniary reparation; and, if so, to determine the general limits of the liability incurred, havii- eganl both to the nature and gravity of the default itself, and tb'' ^ loportion of loss justly and reasonably assignable to it. The liability thus de- termined, or the aggregate of such liabilities, as the case may be, con- stitutes, it is evident, the only just measure of the compensation, if any, to be awarded to the United States. The basis of the award must be the fact, established to the satisfaction of the arbitrators, that certain losses have been sustained on the one side, which are justly attributable to certain specific failures of duty on the other, in respect of a cer,;ain ship or ships; and the basis of the award must also be the basis for comput- ing the sum to be awarded. The power of awarding a gross sum does not, it need hardly be observed, authorize the arbitrators to depart, in substance, from this basis, although it may relieve them from the neces- sity of a minute inquiry into the jiarticulars of alleged losses, and from intricate and perhaps inconclusive calculations. The arbitrators will have observed the manner in which these claims are dealt with in the Case of the United States. Specific foilures of duty on the part of Great Britain are alleged in respect of each of the vessels enumerated. Great Britain is then charged indiscriminately with all the losses occasioned by the acts of all the vessels, and, in addi- tion, with expenses said to have been incurred by the Government of the United States in vainly endeavoring to capture them. Thus, the Florida and Alabama were obtained as unarmed vessels from England ; one was aimed in Portuguese waters, the other was manned and made capable of cruising in a confederate port. Great Britain is called upon to pay for all the losses which can be attributed to the Florida and Alabama — ^nay, more, for all losses occasioned by other vessels which were captured and armed at sea by the commanders of those cruisers. The Tallahassee was built as a trading-vessel in England, and was afterward converted into a ship of war in the Confederate States. This country is to pay for all the captures of the Tallahassee. The Sumter received ordinary hospitalities in a British port; and Great Brit|in is to be charged with captures made by the Sumter. Interest on the amount of these losses and expenses is also asked for, to be com- puted at seven per cent, per annum from the 1st July, 18G8 — a date long antecedent to the dates at which a large proportion of the alleged losses and expenses are stated to have been incurretl. In calculating the losses themselves, which is a separate branch of the question, the American Government appears to have presented, without discrimination, all claims which any persons, alleging them- selves to have been interested in captured ships or cargoes, have thought proper to make. Claims are also presented for i)ublic property of the United States, captured or destroyed by some of the confederate cruisers, and, further, for expenditure stated to have been incurred in the "pur- suit" of these cruisers. The claims presented under those three heads have been referred for examination to departments of Her Majesty's government conversant with the classes of matters to which the claims relate; and the results of this examination are embodied in two reports, to which Her Majesty's government requests the attention of the arbitrators.^ The object o" ' These reports will be fouud iu vol. vii of the Appendix to the Case of Great Britaiu- 1^ COUNTER CASE OF GREAT BRITAIN. 383 the exiuuinatiou has beeu to discover how far, on the data furui.shcd by the United States themselves, the estimate of losses alleged to have been sustained, and of expenditure alleged to L.tie beeu incurred, could be regarded as reasonable estiumtes, ^rmm/oc/e, of losses actually sus- tained, and of an expenditure which could, on any hypothesis, be held chargeable upon Great Britain. AVhether, on the iacts proved before the arbitrators, Great Britain ought to be charged with any, and fI34] what part of the losses' sustained, is of course a *distinct ques- tion ; and it is again a distinct art, of the al- leged expenditure. CLAIMS I-OR PRIVATE LOSSES. se of Great Britaiu- A reference to the first of these reports (that from the committee appointed by the board of trade) will convince the arbitrators that no reliance can be placed on the estimate presented of alleged ci„,„, f„ p„„,g private losses, and that were the tribunal to hold Great '"""^ Britain liable in respect of any one or more of the enumerated cruisers, aud to decide on awarding a gross sum for compensation, these esti- mates could not safely be accepted as furnishing even a prima facie basis for the computation of such a gross sum. These claims include — 1. Claims for the value of ships, freighte«l with cargo, destroy* u by confederate cruisers ; for the consejpient loss of freight, aud for the value of the cargo. 2. Claims for vessels in ballast. 3. Claims by owners of whaling and fishing vessels destroyed ; for the value of the vessels themselves ; for the oil aud fish which were on board of them, and also for the gross earnings which it is supposed they might have realized if their voyages had not been interrupted by capture ; in other words, for prospective and speculative earnings. 4. Claims by American insurance companies in respect of insurances oil ships, cargoes, freights, and profits, which are alleged to have been lost or destroyed by the capture of the vessels. 5. Claims for masters' wages, for personal effects taken or destroyed, and personal damages. On the claims presented under the first head the following observa- tions, among others, are made in the report : It will at otice be admitted, hy those who are at all familiar with the practice of the courts in maritime cases, that it is impossible to jilace much reliaiiee on the opinion or evidence of ship-owners or merchants as to the value of proj)erty which they are seeking to recover. Ship-owners are in the habitof founding their estimate, not on what wouhl be the market-price of the vessel at the time of her loss, but on theorigiifal cost-price, and often take into account the amounts which they have expended at dirt'erent times with out making any proper deduction for the weur aud tear and damage which has been sustained. Mercbants are inclined to estimate the value of their goods by the proftts which they had hoped to realize, without nuikiug any allowance for the risk of the market-price falling or other contingencies on whicii those profits so often depend. A striking illustration of the trutli of these remarks may be found in the case of the IWitish vessel which was sunk in the river Seine in the course of the military opera- tions conducted by tlie German armies in tlie recent war with France. The owners ine.sented a claim f>'- £'iO,'J70; but when this claim, which was intrusted for investi- ,!j:itiou by the GerUiiiu government to Her Majesty's goverunu^nt, was sifted and exam- ined by the board of trade, it was fotind, in accordance with the very able report of the Iciuned registrar of the court of admiralty, that the owners were not (Mititled to any larger amount than £«),'*'.>•.). There is, to say the least, iw reason to supjKise that the statements made by the ilitiniaiits in the presentcase as to the valuesof the vessels, their freights, earnings, and liirgoes, are more tru.stworthy than such statements are generally found to be when > > > Ml ife'^y u :h:'^ im 384 TKKATY OF WASHINGTON, I IM properly tfHted and examined. We find, for instance, as we have already wtated, h\v]v. owners pnttiuj; forward claims for fnll freights and earnings, without making any de- ductions whatsoever, so that they are, in etlect, demanding profits at a rate exceeding 'Jdu per cent., and sometimes exceeding 2,000 per cent., per annum. vVo tind in that class of claims which we noticed in the first place, and wiiich are the most important us regards amount, the owners of whaling-vessels demanding the whole vahie of their ships and outfits, although they have received more than .$700,000 from insurance com- panies, who at the same time, and in addition, put forward a claim for the saiiio amount. Wo find the charterer claiming for tbe loss of the charter-party, or his protit thereon, while the ship-owner demands ihe freight in full ; and finally, we find mei- chanta claiming profits on their goods at the rate of 30 and 40, and even 50, j>er cent. per annum, without making any allowance for freight and for charges jiayahle at tlio port of destination. Under these circumstances we think it right to express, most emphatically, our dissent from the assertion made in l>age 471 in the sixth part of tlie, American Case, " that the statement shows all the facts necessary to enable the tribuiiai to reach a conclusiou as to the amount of injury committed bj' the cruisers." On tlic contrary, that this assertion was not in any degree warranted w ill appear from the two following radical defects in the statement : ki the first jdace, as regards the shi|m, neither their age nor their class is given, and in some cases not even their tonnage; as regards the cargoes, in no instance do the claims specify tlie (|uantity either in meas- urement or weight, and in the cases of ships loaded with general cargo the tjuality or description of the goods is not even mentioned or indicated. In the second place, tlie statement is framed, to say the least, in so imperfect a manner that, in the majority of cases, it is impossible to ascertain even what is the value given by the claimants them- selves to their own property.' [135J * Under tbe second head very large sums are claimed as *. Saint Louis, 7 Moore, P. C., 236, and is well recognized by the courts of America. Ou the other hand, it is equally clear that the underwriters cannot be entitled to anything more than the assured themselves; for the claim of the former is founded on nothing else than their title to he subrogated to the rights which the latter possessed, and which, therefore, cannot possibly be more extensive than the claim whicii the latter would be entitled to main- tain. From these considerations two consequences follow : In the first place, where the claimant is the insurance company and not the owner, compensation cannot be duo for any sum exceeding the anmunt of the actual loss sustained by the owner, however much that sum may fall short of the amount paid by the company by reason of the property having been over-insured. In the second place, wherever the owner puts for- ward a claim for his loss at the same time that the insurance company .also claims the money paid by them in respect of tiie s.ame loss, such a double claim must at once be absolutely rejected, since to allow it would be in etfoct to sanction the payment of the loss twice over.^ This double daim is, however, made in a great number of cases. , Thus, as to the whaling and ftshing vessels, it is remarked : [13()] *The sums claimed by insurance companies in respect of the vessels we are now dealing with, as well as in respect of their secured and prospective earn- ings, amount to the sum of ift9()2,8:?'2. On examining the list of claims it will bo seiii tliat there are live cases, namely, those of the Alert, Jtage 3 of the printed list ; the Covington, page 184 ; the Catherine, page 181 ; the General William, page ID'i ; and the Gipsey, page 19*2, in which the owners give credit for moneys they have received from their underwriters ; but we believe it will also be found that these are the only cases in which that course has been adopted. In all the other cases the owners claim from Groat Britain the total value of the shij)s and outfits, as Avell as their secured and prospectiveearnings, without deducting any sums received by them from the insurance lonipanies ; while at the same time the insurance companies also put forward their claims to those very same sums. It may be somewhat interesting to note the mode in which this double claim arises. The enumer.ation of the ditterent items constituting a claim in respect of any one captured vessel is preceded by the statement of the total sum claimed ; then in most instances the different items are set out, consisting simply of the alleged values of the property or earnings lost, and these are followed by the claims made oti behalf of in- surance companies for the anmnnts paid by them to the owners in respect of the same property and earnings. With the exception of the live memorable cases just men- tioned, the total claim is alwjiys formed l)y adding the lirst class of items to the second class, without making any deduction. In many cases this is done without anv com- ment or notice whatsoever ; in others, .and especially in those relating to the S'henau- iloah, the owners frankly state that " they claim the full value of their property, irre- spective of the partial insurance received;" or boldly " protest against any diminution of their claim by reason of insurance." It follows, therefore, for reasons which have been already explained, that the sum of $774,183 obtained by deducting from the total .amount of insurances the sum of $128,649, being the amount of the insurances iu the five exceptional cases, represents losses which are, in eft'ect, claimed twice over • ■^/::'^ 25 A— II ' Appendix to British Case, vol. vii, p. 7. 2 Ibid., p. 5. 1 386 TRKATY OF WASHINunt of his loss when followt^l immediately by the elaiiu of the insurance company for the very same amount ; for it is out of the gross fici^ht that the wages would liav(( been paid, and witliout such payment the gross frtiy;lit could not have been earned. - It luibst be acbled tliat the dairns lor porsonul ett'ects appear in many instances to be plainly exorbitant, an«l that claims are also made fur personal losses of a remote and indirect kind, such as would never be allowed in the courts of any country. Thus heavy dama{][es are dainiiMl by one man for the loss of a valuable situation, and by another for tiu' loss of an appointment as consid, which he ,;! eges himself to have .siis tained by detention on board the captured vessel. The general result of thisexaujination as to the private losses is to re duce the estimated amount of the claims on account of t!ie Alabama from $0,537,011 to $3,288,851 ; of the Florida, from $3,01)3,302 to $2,035,508; of the Shenandoah, fiom $0,300,894 to $1,377,310; and the total amount claimed from $17,703,910 to $8,039,085; and this is believed to be a liberal, as it is certainly a careful, estimate.'* Whether any part ot this latter sura — and, if any, how much — might with justice be charged against Great Britain, is, as the arbitrators have been reminded, an en tirely distinct question, depending on the decision of the arbitrators as to the existence and the extent of any liability on the part of Great Britain in respect of the several vessels to whose acts respectively the different constituent parts of this aggregate loss are to be ascribed. Her Majesty's government supposes that the Governmentof the United States has deemed it i)roper to accept and present to the arbitrators the amounts at which the several private claimants have stated their own losses as suiHcient for the immediate purpose of the present pro- ceeding. But the arbitrators must be well aware that claims of this nature, put forward by private i)ersons, cannot safely be accepted, even as furnishing materials for ^>iwm facie estimate, without strict scrutiny, and it is clear that this remark applies very forcibly to the claims now under consideration. [137] *CLAIMS FOR NATIONAL LOSSES BY THE DESTRUCTION PUBLIC PROPERTY OP THE UNITED STATES. OF The claims for public property of the United States destroyed by confederate cruisers relate to the war-steamer Hatteras, I (.*"»%"' tiTe""!!" sunk in action by the Alabama; to the barks Greenland I'rolJeVi'y "of ""'ihe auA Whistliug Wind, said to have been laden with coal. and destroyed respectively by the Florida and a confederate vessel called the Coquette; and to the steam revenue-cutter Caleb ' Appendix to British Case, vol. vii, p. 16. ' Ibid., p. 13. 'Ibid., p. 36. 'J ■ .«.> to 8triki; ot) lUtjWfd ill tin- lur cast's. In ■ssiiry to take t, iUid thorcliy tliat wlu'ii 111! :ol)alil,Y taken ) claim of the iibly is in tlic ijiist than till' y by tilt) i-laini i }»rosH fn'ijilit I gross tVt'ij^lit 'Sir in many so lujule lor hi never bl- are claiiMt'd >ther for tlii' to have sus Sises is to re labamatVoiii > $2,035,508; Dotal ainonnt !ved to be a any part ot e be chargeil niled, an en rbitrators as art of Great peetively tin- Ascribed. oftlieUuitt'tl 3 arbitrators stated tbeir l)resent pro- aims of this icepted, eyou rict scrutiny, chiiius now RUCTION 01' lestroyed by er Hatteras, [8 Greenhuul 11 with coal. a, confederate cutter Caleb COUNTER CASE OF UREA I' BRITAIN. .'{87 Cii.sliin^, cut out and destroyed by the Archer, whitih is alleged to have been acting as a tender to the Florida. The Hatteras was detached from Commodore Bell's scpiadron, then blockading (ialveston, to chase the Alabama, which had appeared in the oftiug. The destruction of this ship appears to have been clearly due to tlie failure of the squadron to sup[>ort her ; and Her Majesty's government conceives that the claim on account of her is, on this ground, inadmissible, 8ui)posing that it could be supported on other grounds. Tlie case of the Caleb ('ushing betrays such remissness on the part of tiiose intrusted with the charge and defeuvse of the great fortilietl harbor of Portland (where this revenue-cutter lay) in allowing her to be cut out under the very guns of the fort by tiie boats of an armed vessel Avhi(!h had been a small Hshing-schooner, that, even should the tribunal hold that Great IJritain has incurred any liability to the United States lor captures n)ade by tenders of the Florida, this claim ought not to be entertained. As to the Whistling Wind, it must be observed that the Coqtiette, by which she is said to have been captured, is not mentioned in the Case of the United States as a tender to the Florida, and there is no evidence, so far as Her Majesty's government is aware, that she was such. CLAIMS FOR EXPENDITURE ALLEOED TO HAVE llEEN INCURRED THE PURSUIT OE CONFEDERATE CRUISERS. IN been in(iirri'(! in rtif piir?' this account. It is obviously impossible, without any mate- rials whatever for verification or comi)arison, to ascertain whether the several items for coal, outfit, expenses of navigation, and the like, do or do not correctly represent the actual expenditure under these various heads. Her Majesty's government deems it necessary to point out that these accounts contain many obvious errors,' many dis- crepancies, which there are no means of reconciling, and a great num- ber of charges which, in the absence of explanation, cannot but be deemed excessive.^ It must be further observed, however, that these claims for expend- iture include not only vessels stated to have been employed in seeking for the several cruisers specified in the United States Case, including the Sumter and the Tallahassee, (which were fitted out in confederate ports,) but also others dispatched after the Rappahannock, (which is not among the specified vessels, and on account of which the case makes no claim,) and the Chesapeake, (which is not even mentioned in the Case,) and others again, which were employed in the general duties 'For example, the whole amount of the Sheppard Kiiapp'8 outfit is charged, although in the official accouut of her loss in the report of the Secretary of the United States Navy to Congress of the 7th December, 186;l, p. 5.56, it is stated that '• her battery (11 guns) and appointments, ordnance^ yeoman's and master's stores, instruments and charts, provisions and clothing, spars, sails, running and standing rigging, anchors and chains, everything portable and of value to the Government, has been saved. The only loss is the bull and the use of the ship."— (Appendix to British Case, vol. vii, p. 90.) 'For example, the charges under the head of medicine and surgery amount to 828,604.94. The medical director-general of Her Majesty's navy states that £2,500 would probably cover the charge for medicines and medical stores for 7,600 men for ;?03 days in Her Majesty's navy. And this appears to have been the total of the com- plements of the United States cruisers. — (Ibid., p. 93.) '>''■; i i 1*^ ' •■'' 1':' 15: ! «;■ .*J88 TREATY OF WASHINGTON. incidental to a state of war, such as convoy, the protection of fisheries, intercepting blockade-runners and ships laden with contraband of w»r, and crnisinjj; in search of enemy's privateers generally. Sailing orders, in which this general description is employed, cannot be treated as hav- ing reference to any of the specified vessels ; and in several instances the dates conclusively prove that there could have been no such refer- ence. Again, the claim for expenditure in respect of a Unite.l)9; were the expenditure limited to the Florida, Alabama, (leorgia, and Shenandoah, it could not exceed )!Jl,509,.'J00.74; were it limited to the Alabama, it could not exceed $1,427,085.0,3 ; and these figures would require considerable abatement. The amount claimed by the United States on this score is $7,080,478.70.- It is needless to remind the arbitrators that claims of this nature are subject to the same observation as has been made with respect to the claims for piivate losses. It would be plainly unreasonable to contend that, if any failure of duty could be established against Great Britain in respect of a given vessel, all that may have been expended by the United States in trying to capture her must be assumed to be charge- able against this country. But the British government takes exception to this class of claims altogether. It cannot be admitted that they are l)roperly to be taken into account by the arbitrators, or that Great Britain can fairly be charged at once with the losses which a belliger- ent cruiser has inflicted during her whole career, and with what the United States may think tit to fillege that they spent in vainly endeav- oring to capture that cruiser. Such demands are unheard of, and were never before suggested, even in those cases in which the attempt has been made to obtain compensation for actual losses. By what test, it may reasonably be asked, would it be i)ossib';e to try the propriety of such an alleged expenditure f How are the urbitrators to judge whether the ships said to have been employed werr; ;i,.operly selected for the purpose, sent to the proper places, and furnibiied with proper instruc- tions, and whether those instructions were executed with activity and judgment ? On these things, however, among others, the propriety of the expenditure depends. In truth, there is but one test possible ; it is that of success within a reasonable time. Tried by this test, the claim must fail, even if it were open to no other objections. Her Majesty's government is naturally reluctant to criticise the man- agement of the United States Nary, and desires to say as little as pos- sible on this point. But a few briet remarks on it are made necessary by the claims of the United States, and it is diflflcult to resist the con- ' Appendix to British Caae, vol. vii, p. ■ Ibid., vol. vii. pp. 63,111. r4. '"•■?f w\ isherios, [ of will', fj orders, 1 ashiiv- nstanct's icli refer- Ml States is some- re or de- lander ot been em- [)f theDe 3 been in 1 paid her employed [)elieve, a sented by e to hold ait" of all le amount ed to the ot exceetl ot exceed batement. 80,478.70.- [lature are act to the ;o contend at Britain ed by the je charge- exception t they are hat Great II belli ger- what the endeav- and were tempt has lat test, it opriety of ;e whether Bd for the er instruc- tivity and •opriety of ossible; it the claim the man- ,tle as pos- necessary ,t the con- COINTER CASE OF (iJlEAT HKITAIN. :J89 viction that, if well-appointed vessels of competent speed and strength liad been dispatched in the directions which knowledge and experience would indicate, ami if favorubUi opportunities had iu)t been lost or thrown .away, the list of captures by confederate crui.sers would have been comparatively snnill. Let us take, as the earliest example, the escape of the Sumter from the ^lississippi. This is described by tin; Secretary of the Navy in his report to Congress, dated the 1st December, 1801, p. 8: Such of tlioso (the coufertomte) cniisorH an eludtMl tlio hlockiulo aii«l cn|>tiii'(> wcro Hooii wrecked, l)«;u(;be(l, or sunk, with tho t'xceptioii of oim, tlio sttMinicr SmiittM'. wliicli, by some fatality, was porinittud to pass tlm lirooklyn, then blofIva«liii>;oiic of llic passos ol"tiio MisHis,si|>|ti, aiul, after a brief and feejjio eliaso by the latter, was allowed to pro- teed on ber piratical voya^fo. An investigation of this wholo occnrrenco was onlorod by the Department. With regard to the Alabama, it has been seen that the Tuscarora, being in the United Kingdom at the time the former surreptitiously left Liverpool, failed to follow anroceeded to the Gulf of Mexico, ai'd in the middle of the day of the 4th September, 1802, boldly i)asse(l through the blockading squadron off Mobile, and ran safely into the harbor.' For this act of remissness on the part of the commanding' officer of the United States blockading squadron he was dismissed from the United States Navy. She remained specially blockaded until January, IHtJ.'i, when she again succeeded in running through the blockading squadron. She passed close to several of the sliips, but was not stopped ; and one of the fastest, which was s[)e(nally charged with the duty of watching and following her, is stated never even to have slipped anchor in chase. Under such circumstances, when on two separate occasions she might have been captured, (either on the 4th Se])tember, 1802, or loth tTami- ary, 1803,) but escaped unscathed by the ships of war specially block- ading her from ingress as well as egress, Her JVIajesty's government is unable to understand on what principle any claim can be sustained for losses occasioned by this ship, which up to this date (the loth January, 1803) had not caj)tured a single vessel of the United States, still less for the expenses incurred in failing to capture her. In the course of her subsequent proceedings the Florida arrived at Brest on the 23d of August, 1803; remained there refitting and repair- ing until February, 18(54, during which i>eriod she was taken into a government dock, and made considerable changes in her crew. On the 17th of September the United States ship of war Ivearsarge arrived in Brest lioads, and remained at anchor with her tires banked until the 30th October. She again returned on the 27th November, on the 11th and 27th December, and the 3d January, 1804, no doubt with the express object of watching the Florida, which was at anchor in the roadstead, nearly; if not quite ready for sea; and the confederate cruiser eventu ally sailed from Brest in charge of a pilot on the evening of the 9th Februarj'. The Kearsaige, however, had disappeared from the coast, and had not been seen since the evening of the 3d of January ; but she again returned on the 18tli February, when, as it was to be expected, the Florida had disappeared from the anchorage. Her Majesty's government have been unable to discover that any ships of war of the United States were ever specially sent in pursuit of tb** Georgia or Shenandoah ; although in the remarks of the Secretary of the United States Navy in his report to Congress, above (pioted, the Georgia is named with the Alabama and Florida. Those three vessels were, it appears, known to the United States Naval Department to be somewhere on the equator or on the coast of Brazil •, and there, had a Hying squadron been at once sent in pursuit, one or mo^-e of them, if not all, would probably have been captured. It is to be remarked that, during the whole time the Alabama was at sea, she was only met ou two occasions by ships of the United States Navy, until she voluntarily engaged and was sunk by the Kearsarge, oft" (Cherbourg, on the [140] 19th June, 1804. On the lirst *occasion she escaped from Port Koyal, Martinique, when virtually blockaded by the San Jacinto in Noveuiber, 1802 ; on the second, she engaged and sunk the Ilattera.H, ofll' ( lal vestcn, on the 11th January, 1803. Nor does it appear that eithoi 'Appendix to the Case of the United States, vol. vi, p. 33*2. ( Ol XTKR CASE OF (JKEAT HKITAIX. *};>i ■^.v,: the Georgia or Shenaiuloiili, daring their respective cruises, ever fell in with a ship of war of the United States. Her r.Iajesty's government cannot but observe tliat, among tlie United States ships for wliich chiinis are mad«.', as liaving been e!ni)loyed in the pursuit of confederate cruisers, tliere are several which would luive been worse thnn useless for suiili a purpose. If the Onward, of 874 tons, ov liio, of 89."> tons, converted merchant-vessels without steain-])ower, which are represented as having been sent in search of the Alabama, iiad fallen in with tiiat shij), thi'.y must inevitably hav(! been destroyed. The same observation applies to other sailing-vessels of the same chiss, such as tlie Gemsbok, National (Juard, and Slu'ppard Knapp, anursu- iiig and following ui> tlie few small confederate cruisers to which the claims against Great liritain relate. The losses now comi)lained of would have been reduced to a minimum had etfective measures been used to protect the commerce of the United States by the establishment of one or more flying srpiadrotis, with orders to follow them anywhere and everywhere, and not confined, as x\.dmiral Wilkes's flying squadrou was, to a very restricted station. It is clear, indeed, from tl><> r(»port of the Secretary of the Navy, quoted above, that he was himself (!onscious that the utmost efforts of the United States were not put forth to pursue and capture these confed- erate vessels. This duty was deliberately held to be subordinate to that of niaintaining the blockade: In iuldition to the low vessels sfiitioned abroad to guard our national intoresta, others have from tinu; to time bi^en dispatched in pursnit. of the rovers, all of which \v( themselves. The claims for money alleged to have been expended in endeavoring to capture or destroy any confederate cruiser are not admissible together with the claims for losses intlicted bj' such cruiser. The claims for interest are not admissible. Should the tribunal award a sum in gross, this sum ought to be meas- ured by the extent of liability which the tribunal may find t*^ have been incurred by Great Britain on account of any failure or failures of duty proved against her. The estimates of losses, public and private, presented by the United States ave so loose and unsatisfactory, and so plaiidy excessive in amount, that they cannot be accepted even as furnishing fx prima facie basis of calculation. The estimates of exi>enditure (were the claiuiM cu COUNTER CASE OF GREAT BRITAIN. 393 principle, irs are, it ivate per- hem may } persons, ince of all le absen(;e where do time when accipieniU, is evident a mass of one nation 3gotiation, ult of Her to arbitra- ites, which go refused represent- hemselves at Britain. ASURE OF iibject : tors are at 1 from the iiisers enu- ed by the tent of the I at propoi- ne specitic respect of is for com- ind on the to account le default loss, and or in part he United deavoring e together 3 be meas- have been es of duty he Unit^^d cessive in rimaftu-ie clai!ns ou that head to be considered admissible) would likewise be found too unsatisfactory to serve a like purpose. Her Majesty's government is sensible that, should the arbitrators find it necessary to approach this question, they will i)robably find it one of no inconsiderable diflBculty. The foregoing considerations are inte'^ded to circumscribe it, at least, within Just and reasonable limits, and, sub- jec' to these considerations, the British government leaves it to the impartial judgment of the tribunal. i^i In concluding this Counter Case Her Britannic Majesty's government thinks it right to advert, in a few words, to considerations which invest this controversy with an importance not, i)erhaj)S, so great as is ascribed to it in the Case of the United States, but sufficient to make it a matter of profound general interest. The discussion turns on the duties and responsibilities of neutrals; and the held of discussion embraces ques- tions of principle, questions of fact, and questions of peculiar moment respecting the application of principles to facts. The United States have asked the sanction of the arbitrators to co'i:Cvi»tions of neutral duty, and still more of neutral liabilities, which, to the British govern- uiouc, appear to be fraught with grave consequences, and to demand \ri ittention. These views, theoretically stated in an earlier part ' ! . merican Case, are embo;" ar. ;iv, ^vllile any lapse in the performance of them, on the part even of :; i ilinate officer, is to be visited with heavy national Itenalties. T'e !>»» sactions of private commerce must be made the object of min.^ t \ ('lisition and incessant supervision ; })ri^ ate persons, siisj ected of being agents of either belligerent, must be tracked, when within the neutral country, by spies and inforn)«'rs ; trade with the bel- ligerent nations must be fettered by restraints aMd prohibitions; the bospitalities ordinarily extended to be-ligerent shipn in ports of the neutral must be guarded with precautions, for the strict enforcement of which no honesty or zeal on the part of the local authorities can afford an ade< (aV^ guarantee. Laws and regulations einicted by the neutral nation . •" a view to its own protection, far from being a means of security, l-« < ^ j fj aiklitional source of danger, when thej' are liable to be consti;.. 1 as acts by which the neutral establishes as against him- self, by admission or otherwise, a new class of international obligations. Is this picture overdrawn ? It can hardly be thought so, when we pass in review the various articles of the long indictment preferred by the .. i, i t:i w . 304 TREATY OF \VASHIN(iTO\. Unitftd States affaiii.st Great Britain, anil the statements and argnnieiits which have been used in sui)p()rt of them. It is evident that, if these principles were to be generally adoi)to(l. the only prudent course for neutral powers would be to enact no re;;u- lations, repeal all laws which could be interpreted as admissions a^rainst themselves, exclude all bellij^erent vessels of war from their ports, pro hibit all traflic with belligerent nations. 13ut even this would not \ui enough, since it is dillicult, perhaps impossible, for maritime states, by any legislative or administrative precautions, to isolate themselves ami their subjects completely from all contact with a maritime war. States, especially the less i)owerful, would be tempted to abandon a position so jirecarious, and menaced by such heavy penalties; to choose, in pretVr- ence, the certain evils of war itself; and to seek protection in an alliance with one belligerent or the other. The British government is convinced that the arbitrators will not give any sanction to views of neutral obligation, to which not even the authority of this tiibunal could secuie the general assent of neutral powers. Xay, the British government is persuaded that these extreme views, though, for the sake of argument, they have been insisted on in the Caseo f the United Stat: s, are not thoroughly realized, and would never, in practice, be accept. . ' ^linding bj- the United States them .selves. The conce|)tions of neutral dui,;, vhich have been stated to the arbi- trators on the part of Great Britain are those on which she has con .stantly acted, and is i>repared to act in future, and which she believes to be upheld by reason, by authority, and by the general consent of nations. It is the right of a state which remains at peace while others are at war, that its relations with foreign countries and the duties it owes to them as a member of the society of nations, should, as far as is possible, continue to subsist unaltered by discords from which it stands aloof, and wherein it has no share. Impartiality in act; the exercise ot reasonable care to prevent itself from being made, even against its will, a virtual participant in the war, while claiming the advantages and im- munities of peace; this is all that the neutral is bound to give, or the belligerent entitled to require. Great Britain has laid before the arbi- trators, with a fullness and minuteness of detail rendered necessary by the long train of accu.satious she has h ul to meet, the acts of her gov eminent and of its othcera, and every ascertained fact and circumstance which can be material to a decision ; and she leaves with couttdeuce to their judgment, and to that of the world, the question whether her obli gations as a neutral were not fairly discharged toward the United States during the civil war. Finally, Her Britannic Majesty's government desires to express its earnest hope, in which it is assured that the Government of the United States will cordially share, that the frank and open statement of tacts as they actually occurred, may ettectually remove every misunderstand- ing between nations allied by innumerable ties to one another. . T' nify ? t^H U-M *\ X X K X (A.) NOTE OX THE QUESTION UEFEURED TO AT PAlil The subjoined citations bearing on the «|uestion referred to in paj-e 12 iire taken, as will be seen, with few excieptions, from works jablished before the question in controversy arose: Ci'liii-li\ an coiitrairo Ml'sso Ics devoirs df la nciitralitt'^ ipii, .sans cnffaj^ttMiieiit.s iiiit(5ri('nrs, peniict a I'mic diss i»nis,sanct's Itellij^i^rantes ]*' paHsajjfe on la. levoc dt? recruos, 111 Ics ddfoiidant a Tautre, on Ijieii qui tcdcTo sur son tenitoiio les proiiaiatifs iiiilitaires (k' rniio des iiiii»^.s:inc<'s Itflliffdrantes vi\ lui ju'iniettant trocciiper tflle forteresse, on soutlVant des l■ass(^nllilt'nl»M^ts niilitairi^s, d(!S arniL'inonfs cix ('ourso, &<;. ; ct (i'cst on vain (lu'il .sc parorait dn ])rotext»', d'otro piot a en faiie antant ou favi^nr de la jtaitie adverse. — I (Uflc/cH.s, rrerix dn droit den genu moderne de V Europe, Verge's edition, Iriod, book viii, iliiii». vii.) El annar bju[ueH i)ara »d servieio de la giievra, anmentar sn.s fnerzas, aderezarlos, prejiarar expediei()nes host i les, .son aetos ilej^itinios en territorio niMitral, y las cai>turas >ubsin;iiientes a ellos .se iniran eonio vieiosas en el foro de la jiotencia nentral otendida, i|iu' tieue derecho ])ara restitnir la presa a los ])riinitivos propietarios, si a sns pnertos t'lure coudncida. * » # Xaacili i{uerr«', a lion .t Utincnt coiiVL'ini trals nijiy sell a bellijjm'eiit. t of briiijiiiiji lie carriatje ot la (loeti'iim i|iif j^iirdt't! par tons *t la iioiitniliti'. f dimantlant ni mi landine dc aniln- ite il lions nttri- ;er des iiiaiclian- fur i)ropro tcni- inipaitialitr, ci 18 ne protcndons 0118 voiioim (I'c.N- toii8 le8 antt'iir> msport dew r.iiii- (Oii propro ti^ri- doctrine. tel: t uniqnonittnt cii le puissance an iri\6 coinnic coii- jli(>rt's on 11 iic ai'ticiilier de s'v on. fait <;()mmirir nc jxiis troiinr ise pas do in't'n II de nu) nnirc. no aucun jnsti' nedi says: I ([iiestion, e,t de lisoment aptMvn de contreltaiidc, nis aux nentrt's, (!e de maicliaii- s<^8 ii les veiidro le Tusage qn'oii us qu'elles soiit I ; ellea s'y ven- leuK circonstan- qu'elles soient . qu'elles soient B« hoatUes : ellos it trouvdes born en pleiue mei', quel que soit le u proviBions de onerre, inais parce «|ue ve sont des choHes a]ipart(>naiite8 i\ I'eiineuii, ou au iiioiiiH parce (Jn'elles sout de8tinw, from Wheaton's History of the progress of the hiws of nations. Azuni (SyHtvme unii'craii dc principe>i du droit maritime dc VEuropr, 1791), l.SOO, Digeon's transhition) on all these points agrees with [UOJ Lampredi. In vol. ii, cliap. 1, art. .'3, p. ,'51, he distinguishes *be tween "coinmenie actif," consisting of exports to foreign nations, and "commerce passif," consisting of internal tratle with foreigners. In chapter ii, articles 1 and 0, page 50, he says: I'ne grander partle du coinincrcc, de (]iu'l(|U('s nations enroi)t't'nnes, tclles (|ne los Snedois, les Norvoour- rait-il y avoir de i)river c«!s nations de li'ur coniineree et de leiir nianiere de subsister, il I'occasion d'une guerre a laquelle ils ne j>renneiit aucune jtart ? 11 n'y a, dans le code lie la justice et de I'eciuite, rien en laveiir d'une telle protection. II est done necessairo tl'etablir cornine niaxiine fondanieiilale de tout droit, (pie, les iteniiles neutres devant et pouvant licitiinient continuer le commerce qu'ils font en tenia de jiaix, on ne doit /aire aucune diiitinclioii de dciirocs, de marcliandises et de muniifaclnres, qnoiiine propren a la guerre, et que, par cette raison, la vente »;t le transport aux jiarties l)eliiropreH principcH de Onlinni, ne tloit, an inii\ 1 1, (hi la iieutralit?<|ii'il a adoptdc, Atn; altdr*') en rion 1 Par quelle raison, etijin, ne ponmi- l-il pan rendre, daiin im port neutre, iiii raixaean propre a la naviijation, avevlen attiruil^ ci8dnient aloiH r|nf l.i vdritd He cache dans lea t<^n«!brc8 dc hch Hubtilcn laiHonnenients et de ses in^(5nicux paia- lojjiHincH. II est done nt'^cessaiic , ne penvent porter le8 chosen qni Hont Hpecialeinent propres i\ la >jnerre, et qni y soiir directcnient enij)loy«5e8, nniin (jn'iln penvent sans inconvdnient, selon le droit universcl des genH, IcH vendre coinnie nuirchaudiMO snr lenr propre territoire ji iinicon(|ne sc \)\v- sente ponr Icrt achetcr, jinisqn'ils le font Hans partiality, et aans montrer de favim plntOt ponr nne partie belligdranto (pic ponr I'autre. No European writer, before 1858, had advanced any doctrice at vari ance with the passages above cited from Lampredi and Azuni, except so far as Galiani had done so; and the doctrine of Galiani, as is shown in these extrficts, (and in other passages of the same writers,) was not only novel, but inconsistent with itself. In England there is no trace of a ditferent doctrine having been held or advocated by any jurist ; although the interest of England in this class of questions had been generally that of a belligerent. In 1721, on the occasion of a complaint being made by the minister of Sweden that certain ships of war had been built in England and sold to the Czar, the judges were ordered to attend the House of Lords and deliver their opinions on the question, whether the King of England had power to prohibit the building of ships of war, or of great force, for foreigi.ers. and they answered that the King had no power to prohibit the same.— Fortescue's lieports, j). 388.) Mr. Iteddie, of Edinburgh, whose useful " Researches, historical and critical, in maritime international law," were published in 1844, cites with approbation the views of Lanipredi and Azuni on the point in controversy between these writers and Gaiiiui, and bestows especial praise upon the former of these jurists. In the case of the United States, a passage ia, it is true, cited from the well-known work of M. Hautefeuille, entitled " Les droits et les deiioirs des nations neutres en temps de guerre maritime,-^ published in 1858, in which the author alHrms that the building or arming in a neutral port of a vessel of war for a belligerent is a violation of the neutral territory and of the sovereignty of the neutral, and that cap tures made by such a vessel are unlawful. M. Hautefeuille is a [14V] writer of great ingenuity and ♦research, but the foundation ot his work is the assumption that the settled and ascertained usage, or, as it has sometimes been called, the positive law, of nations, is to be rejected as erroneous when it appears to conflict with such con elusions as he is able to draw from a priori reasoning. His statements of principle are, therefore, to be received with caution, but his state ments of fact are generally careful and valuable. It is apparent, how ever, that in the above-mentioned passage M. Hautefeuille cannot have intended to condemn the mere construction, to the order of a belliger ent, of a vessel of war which is not armed or equipped for war w ben she leaves the neutral port, since in a subsequent part of the same work he contends that she is not even contraband of war, when sent to sea, unless armed : A regard des vaisseanx construits, la question n'a jamais 6t6 tranchde par I'-* traitds; pen d'autenrs h'cu »ont occupds, et ceux qui I'ont fait se sent borues, couunt; Aznui, i\ «5uoncer une opinion sans entrer dans la discussion. Hiibnera snivi cef'' nnirche ; 11 declare contrebande les vaisseanx de guerre construits dans les ports neutres, ponr le coinpte de I'nu des belligdrants, et faisaut route pour ses etats. " .» 15! COUNTER CASE OF GREAT IJRITAIX. 401 ,T(i 110 puis cninpronilo fin'iin bAtiintMit, (intMlos ((tie Noiout sn graiidt'iir, sa finiiio, sa (Icstiiiatioii, Moit III! t»l»ji't tit; fontrt^haiiilt! tli' ^^uiTi't*. (iii iiiivirt^ n't'st pas propi'c a la LMii'iTf, pii'pai't^ ptmr siTvir fxcliisivfiiUMit aiix tn>ri'atitn a t'ti'i- fiii- iilini^ a fi's t>i»t'rati()iis, iiiiini'iUati'iiii'iit tit sans aiicmi fliiiii;;i'iiii'iit, sans aiifniii; ailtli- tidii. lii)rsi|ii'il I'st tli'-pourvii ties ttanoiis, tk^s iiiiiiiitioiis, tlos aniii's, t>t tli>»4 luniiiiit's ([ui ildivfiit It's fiiiployt-r, trii n'cst pas mm iiiacliiiio tUi uiumti): c'tist iin vt''liiciili« plus on iiioiiis ^ranil, plus tin nioiiis siilidi-, inais et; n't'st^ i|u'iiii vt'hit;ult>. rmir liii iliMiiifr li's qiiiilifi^s spt'fialt'H t!t t>xcliisivt!H i(iii dt'^tt'rmintMir If carat'ttTt* tin t:t»iitrt'l»aiiilt; tic f^iit'rri', ilfst imet'ssairt^ do traiisptntt'r a Imrtl tics t-antins, tlt;s ariufs, th^s inimititins, tMi iin nu)t toll I'attirail tin cttmhat. Cost altirs st!iili!niiMit tiun Id hi\tiiiiiMit tli!vii'iit, mm nno niatliinc tlti <;m'nn, niais nut* niaeliiiit' i>t)rtaiit ties instrinntMits tit* j^unrrt', ft siistipt iltk's ill' iiitlrf, jiar fotti) ciit't)nstani'i' st-iiltMnt'nt, an l>c'lli}ftMaiit. Mais la niacliinc i-ilt'-nu'ini'. iiiais !(> vt^hifnltj ilonn/ nations, that forbids our citizens from sendinf/ armed vessels, as weli as munitions of war, to foreign ports for sale. It is a commercial adventur.^ whi(?h no luition is bound to prohibit, and which only exposes the persons engaged in it to the penalty of conttscation.'' Wheat«)n, in his excellent History if the progress of the law of nations, (French edition, Leipsic, ISoo, vol. i, p. 37(5,) referring to the controversy between Lampredi and (Jaliani; writes as follows : Lampredi passe maintenant. h I'cxamen dUine question oiseuse sttsciteepar Galiani, savoir : 1 ' Silc tirt)it ties j{ensc()nveiitionncl,t|ni iiitertlit lo coniiiicice avcc renncini tic inaitliaii- ilises dc oontrebande, prohibe la veiito do ces niarcliandiscs dans It; teriitoiit! iicntio." Giliani lopond a cetto tjucstioii par I'altiriiiativo, et il j>relend qu'un raifseaii par exemplc, mHlniit it armt! pour la guerre dans iin 2>ort neutre ne pent y etre leyalemciit rendu a une den piirtim belligeraHts. Lampredi se donneheanvoup de peines s«2;e>;//Hfs pour appnyer, jiar la laison et I'antorittS des publicisttvs pr<5ct'donts, st)n opinion que lo transport senl tics inareliaiulisos tie contrebaiido t\ reniieini est probibt^, niais que la vente tie ces niar- (iiaiitlist^s tians le torritoire de l¥tat neutre est parlaiteiuent lt5gale. 11 atluict tju'll lH'Ut y avoir des extiinples de natitms iientrtjs qui, do'sirant jiar iirutlence i5viter tics ct)l- lisioim avec les puiBsanccs belligt?rantes, auraieiit probibe le coniinerce des i)bjt!ts do coiitivliaiide dans les liinitcs de leur prt>pre territoire ; inais il attirine ))n>lii1)itioii <1<' lii ]iint rl'iin ^t;itm'iitrt>. Nii|i1ph (irohilta Honlciiirnt, lii cdiisfnn'. timi lies ViiissfflllX (Ir ;;ll('l re tlcsl iiit'.s a ctrc Vcmllis, ft ri-\|i()rt)ll ioli dfs illltrcs nlijcu ill' I'oiilrclianilc, tamlis i{iii' la 'roHraiic |MMiiiit a ni'm HiiJrtN ilo roiitiiini'r iciir I'oiiiiiii'ii.' acciMiliiint' lie ri'S (ilijcts. ilaiis Ich liiiiili's ili' sun ti'iiitoirc, i-t iiar rcxpoitatiMii. s:\\\\ If ilriiit Kolt. Adm., 'X)\, note and apii.) The case of the Meteor, lic.nd before .1 d<;e Nelson, in the I'luted States district court, may be regarded as furnisliiiij; authority for the same doctrine. 'Ihe neutrality acts of the United States and fireat IJritain may possibly have tin; <'iVect of clondiufX the ])opnlar ai>]Hehcnsion of this subject. Hut the thread of an un- i|Ufstionfd ami uniinestionablc i)iinci]»l(! is ([uite caiial)le of bein;; traced tliron;;!! nil the If^al avj^nmcut and diplomatic controversy. With re;;ard to ships, as with r<'i;nril to all other dcscriiitious of ••ontraband nu'ndiandise, no restriction is placed by int.'i- nat ional law upon tiade. 'J'lie naked ril- ness transaction an improper and uujuslitiable adjunct. The history of the lu'utrnliiy lo'islation shows this. 'J"he tirst neutrality act ever known was passed by the Cniriil States. Tlu^ inuncdiate i»rovocation was the e(|uipnu!ut by I'rance of privatee is, wliicli de|iaited, manned and armed, from our jtorts to cruise aj^ainst (Jreat Hritain. (,'on;ir(>s. therffoie, iiassed tht; neutrality act of 171)4. In lrtl7 and l-'ld this was iniinovi d nl the suiij^fstiou of the l'ortni'o\ is- miis, I'l'iidci'fd llio ciitiir. |)i'ii('i-diii'H, ill rar't,llii- iiin'|itioii of a liostili- iiiidi'rtakiii;^ iVoiu till' loiiliiifs ol' a neutral <;oiiivtry. It is in-cdluss to (dal>oratc fnrtlii'i :i iiialtiT \vlii(ii is ill !i iiK'UHiirc (ii^i'i'ssivc. It may in- dcidait'd as iiidiiliilalilif that tlir |niii- iiiialloyrd li;ir;;aiii and salis of a ship, livnti a ship of war, to a lii'lliy;<'rriit is 'i-^^al by tin- iiilcs of iiitiiiiational law; that such a ship is, howcvfi', conlfahand oj' war, and if laptiiird iiftrr salt' on hcf way towaid didivcry, or bctoii' sah< on licr way toward a iiiarlr war, nor that tlien^ was reason to lu'- lii'V? tliat site was intended lor tlm (Jon federate States. Tliese fattts aloiio woidd not make it the duty of the JJritisli fioverninent to prevent lier depaitnre. That duty woiihl not arisroved. knowledj^'e of these facts was not in the possession nor within the ,^ii of the government. It must be here observed that the decisions of municipal tribunals, oil the construction of the municipjd law of the United States or of I'hi;:- liiiid, are not to be cited as authorities for the construction of the law of nations. The ^^eneral conclusion to be drawn from the fores'oiufj authorities is, as the British government believes, fairly stated above, pp. 11, 1-. m *AXXEX (B.) THE BRITISH AND AMERICAN FOREIGN-ENLISTMENT ACTS. - '-r^ II 1 It is assumed throughout the United States Case that the American act of Congress of 1818 is more etlicieut than the British act of Parliament of 1810, and a contrast is attempted to Annvi,,) be drawn, to the disiidvantage of the British law, between the provis- ions of the former, as epitomized in the President's proclamation of neu- trality of October 8, 1870, and the provisions of the latter, as explained iau summary given at page 111 of the Case. A very cursory examination will be sufficient to show that this assump- tion is erroneous. lU' ■ - rm '■•■ "i 404 TREATY OF WASHINGTON. Mr. Doinis, an American counsel of acknowledged reimtation, avIio jaiMiot be su.specti'd of any i)artiality in favor of Clreat Britain, points out no less tban ten particulars iu which tlie United States is inferior to the British law, as follows:^ Sonic of IlicHo poiiu . of superiority relate to warlike pJ^oparationH on land (on vvliidi Buhject Kiifilisb le^^islation liad provided, to some extent, at a much earlier date tlnui our own) and some to ]>re))arntii>ns liy sea, and some ajjain to ]»reparations comhinini' Ijotli laiul and nuiri':e operations. Under one or tiie otiier of tlics(f heads, I can nmiiL' at least ten inipoitant jioints of superiority in the British statute ov(;r our own. 1. Ill tlirJirxtpUiir, the British act is decidedly more comprdiensive than the Ameri- can, in tlenouiicinf;- unneutral enlistments, both in the land and naval service of a for- eign liitvernment, l>y makin) e'lly j)unishes one who "enlists or enters himself, or hires or retains another jiersou to enlist," Ac., thus nuikin;^ a positive and complete enrollment or hiring ou neutral .soil a }>rerei|iiisite to the oll'ense. The importance of this distinction will be ai)preciated when it is reme!id)ered tlmt not a I'enian recruit nor a I'enian recruiter has been prosecuted for violating; American ];kws /(// rariiiliiin on .lincrican noil duriuf; the late Fenian demonstration in the rnitcd (States, thoiij-h the tiKjagiin; to enlist, or the atlciiplnifi lo engage others to enlist, have probably bi'cn as op(Mi as the day in all the northern cities. 2. //( Ihc .ftcotid ])l(ur, tht! British act is more comi)lete than our own, in pndiibitiiijj any hirinti(in is, that if the rnitcd States liap])ens to b(> a neutral power, and Kiiglaud and France, for instance, are licl- lincreuts towanl each other, F.ngland can lawfully recruit from anunig British subjects l'i;r lu'r shijis of war, transiently stopjiing in American port.s ; and France, in like man- lier, from Fr<'nch snliji'i'ts under like circumstances. ;;. Ou the other hand, in the third iilaee. the su|)<'riority of the British act over tlw AmericjMi is decided, in for) iibling British subjects from enlisting ori?ngaging iu war- like operations angwhere irhalnoerer ; while the ]n-ohibitiou of the I'niteil States law is limited to "any ])ersou icilliin the terrilorg orjnrisdiction of the United States," (except iu reference to titling out ships abroad to ju'cy upon American connnerce, as already noticed in tlit; criticism on the revision of the act of 17l>7, and which exceiition, as liv section I of the act of 181H. is altogether abrogated in (ieneral ISauks's nrovided they dii not take moiu'y and '^ enter themxelren,") withimt committing any oll'ense against I'uitcd States laws, (see I'nited States rv. Ka/inski ;) but that l)oth these ilescri[itioiis of bel- ligerent unilertakiiigs arc denounced by the British statute. 4. Jn the J'oHvlh i>l(iri\ the British act is greatly superior to oiu" own its a jircveiitivo of iufiiictioiis of u-'Utiality, in authorizing (as by section .">) tlie detention ofanv ves- sel about leaving tlie British dominions with persons on board "wiiohavc enlisttil or engaged to enlist," Ac. in ;iiiy lun-igii belli^zi'rent service ; thus authorizing the stoji- ]>iiig of any warlike i mbarkation I'm- foreign pai'ts. which our laws, as they now stand, do not, unless the numlier of )»ersons thus collectively embarking brings it tuidii' another hi-ad. of "setting on foot a military expedition." Set^tion (» of the British ait follows up this jireventivc inovision, by making it penal for any ship-master to ti.kcou board his ship any such recruits, "enlisted or engage to enlist" in a foreign i>cl- [ISO] ligerent service, under a penalty of jC.")(I per 'head for each pa,s.senger. It fiiitlicr subjects the >\\\\) itsv If to seizure and detentiiui, until the tine incurred as above is paid, or satisfactory security given for its jiayineiit. Tlnsse provisions are entirely new in the British act, and find no exemplar in our own statutes. r>. In the fifth plnee, (to come to the head of fitting out ships, and maritime neutrality purely,) the British foreign-enlistment act, as a neutral measure, has a clear sn|»ri- ority over our own in forldihling the litting «Mit, Ac, nf auy ^'tratmimrt or xlort^liiji" for belligerei't use — a prohibition never contained in tli6 American statute, and wliirli would have materially narrowed the right of engaging in the carrying trade of Koro- pean wars, (whether by chartering or selling vessels to the belligerents,) which our (lovernmeiit so strenuoiiHly ((mtended tor at the period of the C'rimeau war, under tlic administration of I'resideiit Pierce. 'American NiMitrality : its IlonorabloPast ; its Expedient I'uture. lioston, Ibtil): pp. Oo-el. By Giiorge Bcniis. 'ff ' COUNTER CASE OF GREAT BRITAIN. 405 itatioii, Avlio riUiiii, points tis is interior land (on wliicli irlicv date than .ions couibiiiiiii; ids, I can name imr (»\vn. ;han the Anicii- Huvice of a tor- fje or eonlrarl to Liitlior of wliiuli ract (section "ii lotlicr iM'i'son to r ou neutral soil mieniberod tliat latinj; AnxMiiau )n in the I'nitfd to enlist, have 1, in prohibitini; for forci;;n wai- ;in}{ the suli.ji'its IS the Aini'iicau lat if the riiitcd nstance, are tu'l- ; British siilijccts ice, in like iiiau- ish .act over tlm ■njiajiinji in wm- ed States law is ates," (except in rci!, as alrcaily xception, as liv \v scheme. I It s of the I'liitcil service — in fact, led they do not :\<;ainst riiitiil .cri[itions of )k1- as a ]ireveiitivo tioH ol'anv vts- have enlistid oi' n-izin,;;- the stu))- t hey now si ami, hrinjfs it uutUi' »f the British act laster to t;.lu in a forei;>ii i'd- ijrer. Itfnitlici' ncurred as alnive exoniplar in oav itinio iiontrality IS a clear Miipiii; imrt or xlorcliij'" tnte, and wliiili H trade of Kimd- cuts,) which iiiir II war, under the y George Bonis. ii' G. Til Ihc sixth place, the British statute contains those inueh-belahored words, " ecpiip. fnriiish, tit out, or arm ;" winle our own only denounces "the tittinj;' out and arminji" Ui ship of war for belli>;erent u.ses— a distinction between "r»/" and ''((//rf" which saved U8 fr(nii having Laird's iron-clads let loose against us in .Septemlier, iHi;}. 7. Scrruthlj/, the Ibitish foreijin-enlistnu'iit act is more comiireliensive than our own, in using after tlio clause "equip," &c., "or attempt to eciuiji," «Vc., the phraseology "with intent, or in order, that such ship be employed," ifcc. Our statute stojis short " with iiiffH/," while the British, by adding " i// order //*«/,'' helps to simplify a tronblesomo i|ncstion of whose the intent must be — wlu^ther the e([uii>per's or the belligerent stitt(!'s for whoso use the vessel is equipping. 8. Eiffhlhlii, the British statute has a wider scope than the American, and so .seems more etfectively neutral, in using after the words " colony, province," Ac. the terms, "or of any pernoii ejercixinfi, or mmtmiiig to extreixe, autj power.i of fiorenimeiil," \v. The ijnvcrnment of Jetlcirson Davis anrt ; while, by our own statute, (section .">.) the modified prohibition against adding t«» the armament of such it ship of war is only li'Vclcd against a ship of a bellii/ereiit power. That is, vhe American statute does not pri'tciul to interfere at all w ith increasing the number of guns, Ac., of a foreign ship (if war at a time when tli»^ government to which the ship lielongs in at jwiice, but oidy inohibits such tuigmentation when the ship is the reprvxer.tatice of a bcHiyeniil poirer. The British act, on the other hand, dire* ts its prohiiiition equally against such war- likt! c(|nipuu'nt in time of pejice as well as in time of war.' 111. Jii the tenth and ' ixt place, the British statute is more severe in its penalties tbioughont than thv .vmerican. It is true that the American act (iontain.s two clauses not inchuled in the Ikitish act of ISIO. chiuses TO and il, (tomnianly known us the "bonding clauses."^ With repaid to those, T^lv. IJeniis reniarics: To my own appreciat!>ni both ot^ these " boiuling" daii.ses, as they are called, had most of their neutral virtc • takiMi out of them when Congress made them appliciible — (1.) To " v<'ssels belonginj, wholly or in part to eili-ens of the I'nited iV^«^■.>(," thereby leaving foreif/nerx at liberty to clear nnnentrally armed sliips, (see luoject of the ac', .\nn. Con., lHUi-'17, p. 477, sec. I ;) (•<>.) When they limited the bond so as only to pre- vent "(-((c/* «(<;■( j/-.s" from cruising or eommiiling hostilities, insteail of making the liotul !;uin(l against belligen-nt (Mnploymciit of the vesstd by ''ani/ jxruon to whooi tUeij (such owners) majisellor pretend to sill siwh rensel.'' (Ann. Cong., IHI()-'17, \t. t?"^. sec. '-i:) and Ci) by requiring that any vessel, to l»e subject to (htention, must liave on l)()ard"a mriji) prineipoltji cousistiHij of arms and ninnitionK of n'ar," thus letting go at laige a ves- sel armed to the " teeth," and " manifestly Itnilt for warlike purposes," provided she uldiits the precaution of taking no xmh eanjo with her, and is owned byforeiyncrs. (Iroat stress is laid in the Case of the United States on the ci^jihtU section of the act of Congress. "The tribunal of arbitration will also oltscrve," it states, "thtit the most important section of the American act is omitted in the IJritish act, namely, the poiccr conferred Ini the eiijhth miio)i on the Ilreenfirc to take pohseaa ion of and detain a nhip n 'hontjii- 'liei(tl process and to une the militarif and naval forces of the (lorirnment, if iieeessary.'^ This implies tinit the Executive is empowered to detain any ship; but on turniufi to the act it.self it will be .seen thsit this is by 110 luciuis tiie <'ase. The eiohtli section provides that " in every r.isr in which a vessel shall be litted out and tirnied^ or attempted to be fitted out and armed, or in whicli the lorce of any vessel of war, ernivser, i)r other armed vessel, shall be increased or anf>inented, or in which any military expedition or enterprise shall be bejfun or set on foot, contrary to the provisions juul prohibitions of this tict, and in every case of the 'It may be doubted whether tlio Interpretation placed by Mr. Beinison the British statute of isil), under this ninth "head," is correct. lu all other re.spect.i his observa- tions are accurate and well foiuided. 'lor the acts, sec Appendix, vol. iii, pp. 'ilMl. 3l 406 TREATY OF WASTIINGTOX. ■: capturo of a ship or vessel within the jurisdiction or protection of tlie United States as before defined, and in every ease in wliicli any process issuin<>: out of any court of tlie United States shall bo disobeyed or resisted l>y any person or persons having the custody of any vessel ot ■war, cruiser, or other armed vessel of any foreij^n prince or state, or of any colony, district, or i»eople, or of any subjects or citizens of any lor- eign prince or state, or of any colony, district, or peo|)le, in every ease it shall be lawful for the President of the United States, or such otiier l>erson as he shall have eaipo\vere3, Lord Kus.sc'll infornuMl Lord Lyons: I had a converK.ation a few days a<;o with Jf r. AdaiiiH on the subject of the Ahibama It did not a|>|iear that his GovermnenI desired to carry. on tlie controversy on this >nli.iect from Wasliinjitoii ; they rather left the condnct of the ai;;ument to Mr. Adams. On a second point, however, namely, wlietiier tlie law with respect to ei|iiipment ot' vessels for hostihijnirposes mi<;lit be innii'ovc I.Mr. Adams said that Jiistiovernnient were iv:i(ly to listen to any propositions ]U'i' Majesty's government had to make, but they liid not see how their own law on this subject could be improved. I said that tile cabinet had conu! to a similar conclusion ; so that no further pwi- C('edinjj;s need be taktMi at prestsni on this siiiiject.' On the 27th of March Lord Ifiissi'll toM Lord Lyons that the siihjecs bad been ayaiu nientionetL "■ \Vilh respect to the hiws itself, Mr. Adaint said, either it was sntlicient for the ptirpose ol" neutrality, and then let tlie liritish government enforce it ; or it was insiitlicient, and t lien let tile IJritish {government apply to Parliament to amend it. 1 said that the cabinet were of opinion that the law was sntlicient ; but that h'j;al evidence conld not always be i)ro(;nred."''' The revision of the IJritish act of l.sLS, upon the n'ciommemhition of the neutrality laws commission, lias already been noticed in I'art IL All attempt was made in 1800 to revise the American act, bat in a very (litlerent spirit. On the 11th of July, ISOO, a week after the Fenian raid on Cjinada, a resolution was passed in the Ifouse of llepreseiitatives i' tniciino- the C'oiimiittee on Forei^iU Atfairs to iminire into the expedien ■'' rcportih;; a hill for the repeal of the act of ISI 8; and, in i'ompliamx' \v ili this in struction, the (Munmittee pn\sented a n'port on the L'.'ith of .Inly. ;iccoii |>aiiied by a bill which was accepted and pas.setl on the following da^ i>y a iiiianimons vote. Tlu' report and bill are "iven in the Appendix, vol. v, ]). .'M'J. The following extracts from th<^ report will show the views of nmri- tiiiie neutrality entertained by the conimitte<', and indorsed by the House: Tiio American Ntatuto is not deinandod liy lutornntional or natural law. Aecordiiiy to these systems neutralitv is inipai'ti!i1it,v, A state, in virtue of its sovereijiuly. [l.Vi] has an inherent and "indefeasible ri;;iit to remain nentralas bet ween other states at war. This neutrality implies, on one part, impartiality ; on the otlier, inviola* liility. The state cannot intlict, and is not bouinl to snlVer injury. It ;s a temporary • ••lulition, incident tothe situation, ami not necessarily periminent. An a' (iMn]it to impose n|ioii a |)eople permnnent neutrality, eH]iecially if tliat word is interpi.'teil to mean, as ill liar le;;islation it tloes, an estrangenient, altHcisHlon, and isolation of the statt- from I'Mier iii.tions, is opposed to tlic true principles of piiblii; morality and law. 'I'o make siicii (I system itcriiianent is iiii]iracticable, It can lie Justilied only liy a rejjard to the '•iiiitorary comiitiuii of states by whieii it is on:ict"il. Tlie hij^hivst iuteriMts ol eivili- zition demand tliat the liberties and ri;;hts of neutrals should be extended, and the ' See v(d. i, p. fitiS. The correspondence will bu fuund uiuo m the Appeudi.x to the Itiitish Case, vol. iv, No. 1, p. 4H. •.\lipeudix to Ih'itlNh Case, vol. iv, No. 8, p, ij, '-':l '] St.- r i 408 TRKATY OF WASHINGTON. privilofjos and powors of sL.ites at vriir diminislied. Upon the recognition of tills ]niii- oii>li' (li'iM-mls tlm j)r(»('<>lf!t'. To rest rift tlic rijilils of iifuti'al»> and cnlarjje the power of !ielli<;erciits is to icjcct the ttaeliiii'j;s (d" Clirisfianily aisd tlic improvements of (;ivilizatioii, and to return to flif docfriiu's of uncivilized nations and the )>ractiees of barbaric i)eo](lcs. In revicwinjf the statute of Irtlr' we cannot escape the conclusion that it is fonndtd upon an opposite and unsound jjhilosophy; that it disrejjards the inalienable ri;;lits(it' I lu- people of all nations; that it was inipoH4!d upon the country hj' conslileratiniis atfci'tiny; exclusively tiie political inten^sts of other nations; that it criminally ii'strains the rljj;hts of nations at peace for the benefit of those at war ; that it was intended to perpetuate the supriMiiacy of favortsd nations on the sea. It properly be- loiii^s to anothiu' a;^i% and is not of us or for us. It was in deference to the comlitlous then inii>osed that American lej^islators thoiij;lit it exitedit'Ut to divest this country of rijihts enjoyed by t)thers. Indispensable to tlie development of the strenj^th of republican Institutions and the American .States, and to inllict upon tlieir iieople tlie irreparable injury of de])ri vln<^ them of i)rivilet;es neces- sary to their private luosiierlty and the preservation of the I'berties of their race. It is ineredliile that it should have been thou^rJit necessary permanently to suppress as crimes on the part of our citizens tvansaetious whicdi are not jinnlslmd as crimes elsc- wheri', ftu- the bem-lit of nations inimical, if not liostlle, to ns, auda<;ainst states strii^- ^linjj for infle[»enreservation of tiic republic was the lirst duty of our fathers, as it is now ours. It is destlnei'.. if sustained, to lie the f;rand dist.irber of tht; rlj^ht divine of kiii};s, the njodtd of strug<;liug natiuiis, the last hope of the in(lt!i>endenee of states and id' rational 'Iberty. To the exa!n)de and prosjtect of our fathers we still adhere. IJutlf the time hascer.n for which they waited and worked, or whenever it shall come, in which the ii;;hts ol" tlie eountiy can l>e asserted, its inteiests juotected without departure from tie estab- lished policy of our fjovernment, which wc; indorse without iu-sitatlon, and to whicii we adhere without reservation.it is our opinion that the oppiirtunlty shouhl not l)e lost. And W(! therefore reeonniuMid, as Incident to this duty and this day, a fhorouf;h revision of the statutes afl'ectiiiij our national relations with other governments, ami the enactment. of such laws as will limit its prohlliitious and restrict! ..is to those im- posed by the laws of nations, the stipulation of treaties, the recljtrocal legislation of othi'r governments, tlm freedom of commerce, the Indepeudence of states, the interests of eivillzjition. and that will curl) the power of ualionsut war, and streiigtheii and extenil the rights of those at pea(;e. .*>iiips are articles of ccunmerei!; they ar<> in no liberal or just 8ens«^ contraband of war, nor are the materials of which they are made. The recent Improvemeiits In naval architei'ture art; such as to diminish tlm distinctions lietween nierchant-vessi'ls and >lilps of war. anil to facilitate thi^ adai)tation of one to the purposes of the other. A strong-luiilt, swift-sailing merchant vessel or steamer could be made with a single giiii an elleitlve war vessel. To prohibit our citizens from building such ves.sels or selliii;j; material fur their constrnetlou at a time when all nations, exeejit luir own, aie at war, because llicy may be enijdoy'd 1',,; lioslih^ i»urposes by foreign subjects, or to deiiiaiid i)i>nds In double the amount ot vessel, cargo, and armament, and to require otliccrs ol' the customs to .seize and detain them whenever cargo, crew, or " otlu-r circumstances'' shall render proltalde a suspicion that they are to be so used, and where American citi- zens are part owners only, is substantially to deprive them of their rights to engage in the construction of vessels or to fnrni.sh materials therefor. Considering the limitless eapaeily of the country in this respect. It Is a i>iivilege that ought not tt» be surieiiiU ltd except upon grounds of absolute necessitj' and Justice — (Appendix to British Case, vol. V. i>p. :i4T, ;$4H.) The ])riiici|)nl alterations proposed in that bill were to make it deiir that "littiiiy: out" a ves.sel for ii bellifiereiit wa.s not prohibited, and tlint there must l)e "filtinji; out and armiiif;;'' to repeal the clause.s ktiowii as "bondifiji dause.s;" to insert a - tlimijilit •iisalde to till! States, and to ivilejres neiTS- tlieir race. It [o sii|>press as IS eiinies elsr- it states still;;- lie when tlicy vatioii of tlif ".. if sustained, <;Hug iiatiuiis, time lias ecr.i, tlie ri;;lits (if >lil tie estali- antl to whicli slioiilil not 1)0 y, a llion)ii;ih I'Minieiits, ami s to tliose iiii- L-al lefiislatiiiii of states, the 11(1 strengthen ontralMtid of lei'its ill iiav.il t-vessids and I lie other. A 1 a siii;;le iJilll .sels or selliii!; 11, aie at war, or to demand re otiieers of reiimstaiiees'' American citi- s to eiiijaj;!' in ; the limitless le siirieiidcrrd IJritish Case, aUe it cli'iir m1, and tlijit .s Uiiown as tl not "pro orstcaiiit'is of war the rios not at akiiifi' it an aiis lor any iinits of llio the United >ro>.eciitc'd,) and which authorize the Pres;«;ont to employ the military or naval for(;es ot'tlie reiMiblic to prevent siicdi expeditions. Tiie bill did not become a law, as the Senate refused to pass it with- out consideration, and refeiTepointed. It has been usual to select for this odice a barrister who has a special knowledge of civil and international law; and he is tu conse(iuence more particularly the legal adviser of the foieign otUce. Like, however, the attorney-general and solicitor-general, he has private practice as an advocate, and has generally numerous iuion. This is done l)y writing a letter addressed to the three law-officers, and requesting their opinion upon tbe papers at their earliest convenience. This letter is taken to the senior law-officer, either to his chambers or to the court iii which be may be, or sometimes to liis private residence; be, when ho bas read and considered the pai»ers, either sends them on to his col- league next in order of precedence, (by whom, in that case, they are transmitted to tbe third,) or makes an appointment for a meeting to deliberate on tbe subject, in the mean time retaining tbe papers in his own hands. Wheii all the law-officers have had tbe opportunity of suf- iiciently considering tbe papers, they consider, in consultation together, the draught report, (prepared usually, as previously stated, by the Queen's advocate, and a letter is drawn up, fair copied, and signed by them, containing their opiaion. This letter is sent to tlie foreign oltice, and the secretary of state is guided by it in the reply which he gives to the treasury and foreign minister. ir IXSTKUCTIOXS TO THE AGENT AND COUNSEL AXD ental lojiul 3 transiuis- PROCEEDINGS AT GENEVA IX DECEMBER, 1871. AND APRIL, 187Q. ■ *^ I II ■i-' prt'i L'lii Tl (leiK resp (lent troll capt of c pur( reco who perf Tl men prep to l clerl claii 1 (le Avorl wed at tt eacli read Si lette the< ■^WIP w INSTRUCTIOXS. No. 1. Mr. Davis to Mr. Fish. Department of State, Washington, November 13, 1871. Sir : Herewith I band you a printed copj" of the Case which I have prei>ared to be presented to the Tribunal at Geneva on behalf of the United States. Tliis Case will be accompanied by seven volumes of Documents, Evi- dence, and Correspondence. Five of tliese volumes consist of the cor- respondence and other matter transmitted to the Senate by the Presi- dent, April 7, 18()0. The sixth volume contains an arranged selection from the previous five volumes, and a quantity of new matter from the captured rebel archives and elseM'here. This volume and its full table of contents and the excellent index in the seventh volume, were pre- pared by Charles C. Beam an, jr., esq. It jjives me much pleasure to record my sense of the great value of Mr. Eeaman's services. Any one who looks at this volume will see how carefully and intelligently he has performed his work. The seventh volume contains some miscellaneous matter and full state- ments of the chaims for losses, national and individual. The former were prepared at the Navy Department. Their completeness leaves nothing to be desired. The latter were prepared under my direction by the clerks in this Department, and show the nature and amount of each claim, and the proof on tile in the Department by which it is sujiported. I desire to bear testimony to the intelligence and fidelity with w hich this work has been done by the clerks charged with it. For days, 1 may say weeks, in the most oppressive part of tlie summer, they staid cheerfully at the Department, working upon this statement until nearly midnight each day. Without such labor on their part it could not have been got ready in time. I have the honor, &c., J. C. B. DAVIS. No. 2. Mr. Fish to Mr. Davis. Department of State, Washington, November 14, 1871. Sir : I have received the copy of the Case with your accompanying letter of yesterday. The President approves of your i^resentation of the Case, and you are instructed to present it and the seven accompa- ■■.m\ 414 TREATY OP WASHINGTON. nyiiip: volumes at Geiievii. in the miiiiiier ro(|iiireected that the Counsel shall be in Kuiope as soon as their convenience will permit. They will arrange among themselves, and with Mr. Davis, as to the most convenient place for their meetings and consultations. In the absence and in anticipation of an agree- ment as to such place of meeting, it is thought desirable that your first meeting be in (leneva, at as early a day after your arrival in Kurope as sliall be convenient; you can then agree with Mr. Davis as to the time and place of your future meetings. The Case (tontains the general views of this Government on the sid)jects likely to be discussed at Geneva, so far as tlu^ facts are now known. Should it become necessary to deviate materially from the positions there taken, you will refer to this Department. IMr. Davis has a coi)y of the ciidun* of the Department ; in case you find it neces- sary to communicate secretly, he will enable you to avail of the cipher. ^Ir. Davis is fully instructed on the views which the President takes of the political (piestions that nuiy be involved in the discussion of the subject as it now stands. Should the political questions involved in the case assume any different aspect, on the presentation of the Case of the IJritish Government, or in the progress of the case before the Tribunal, they will be referred to this Department for submission to the President, and for bis further instructions. The presentation and the management of tlie legal argument, and the treatment of the questions of law and evidence, are committed to the dis- cretion and judgment of yourself and your associate Counsel. The President thiidcs that in this branch of your duty ycm may find !Mr. Davis's familiarity with the history of the Case of advantage, and that a free interchange of opinion and of views, and consultations with liim, may be of benefit. Mr. Davis is instructed to correspond frequently with this Depart- ment. You are invited to communicate with the Department as freely, and fully, and frequently as you may find it convenient. It is scarcely necessary to say that you are expected not to correspond (except for the purpose of obtaining information pertinent to the case) on the sub- ject of the Case other than with this Department. The instructions regarding the Counter Case also apply to the Argu- ment. The President desires to have the subject discussed as one between if-.!--.", .MM 416 TREATY OF WASHINGTON. l ; ■ r 1 .' the two (iovormnoiits; and lie diiccits me to iirj^e upon you stroiifjl.v to seeure, iti>ossil)le, the awani of a sum in p:ross. In tlie (lisenssion of this question and in the treatment of the entiit- Case, you will be careful not to<;omniit theClovennnent as to th<^ dispo- sition of what n)ay be awarded, INerne. The ;iiitl('nian was waiting in the ante room, and wascomlucted to his ]>lace !)\ Lord Tenterden and myself. I then ])res(!nted the Case on behalf of the United States. Sonu' new ividence friin Melbourne and the ('ape .;f Good IIoi)e, which I had re- dived at the last moment, had to be i>nt in manuscrii)t, in fact partly in jiioss copies : but it is in press in Taris, an«l ])rinted copies will soon be >iil).stituted. I send lierewith a copy of the note accompanying the Cases. Jt was iiionti(!S'J with all parties. I also send a coi)y of the note which Lonl Tenterden i)resented with !iis Case and Documents. The confer, lice was held today at the Hotel de Ville pursuant to ad- journmenl A U the Arbitrators were present, and it was determined to adjourn until June, unless one of the parties should convene an earlier meeting under the fourth article of the Treaty. I iiudose copies of the Protocols of yesterday's and to-day's conferences. I have, &.C., A. C. B. DAVIS. Ml Mr. Datif to Mr. Adamx. (Iiitld.HUVo Xo, 1.1 Gi:XK\.v, December I'y, 1h71. The undersigned, Agent of tlie United States, .appointed to attend tho Tribunal of Wiitiation convened at (ioneva under tiio provisions of a Treaty, coneluded at Wa.sli- ingtou, May 8, 1871, between the United States and Her Britannic Majesty, has tlie lioiior, in conipliunce with the provisions of Article III of the Treaty, to deliver hero- '*itli, in duplicato, to the Hon. Charles Francis Adams, tlie Arbitrator named hy the I'rcsident of tho United States, the printed Case of tho U^nited States, accompanied ■y tliu documents, the official correspondence, and other evidence ou which they rely. The undersigned, &c., J. C. HANX'ROFT PAVIS. [List of inclodures.] I. Tlio Case of tho United States, (2 copies.) II. Documents, Correspondence, and Evidence in support of the Case of the United 'states, in seven volumes, (2 copies.) in. Certain other Documents, Correspondence, andp]vidence in manuscript relating to tho Alabama and to the Shenandoah^ which reached the Agent too late to be printed '■^ith tho volumes, ('i copies.) 27 A— 11 ''I :;1 418 TKKATV OF WASHINGTON. IV. The Ct'itiliciito of this .Si'orotary of Stiitc of tlie Uiiitod States to tlie corici Uics^ of certain copies contained in the above-named vrdnnies, ("i copies.) V. The Certificate of the Secretary of tlie Treasury of tlie United States i.> tin- cdi- rectness of certain other copies containwl in the ahove-nained volnines, (V copies.) VI. The fjertilicato of the Secretary of the Navy of the Tnited States to the coricct- nosH of certain other copies contained in the above-named volumes, {2 copies.) VII. The Certilicato of the Secretary of War of the United States to the correctncvN of certain other copies contained in the above-named A'olnmes, ('> copies.) NoiK. — As soon as Iiiclosnre No. I? can be printed, printed copies will lie riiini-li,,!. It has been impossible to ;j;et them ready in time for this Confeniiice. Lord 'I'liil'rdni to yfr. Diir'ix. ! Illllosmr No. ' (;i:m.\.\. Ih'irmbir l.'>, l-TI. The iindi'isii;ii('(l, A;i('iit of lIiT ihitaiiiiic .Miiji-sty. iip))oiiited 'o attend tlit- 'rriluni.L of Aibitration conveiied at (ieiK^va, under tin; provisions of the Treaty coiielnilcii a; Washington on tin; '^tli of May, b"^/!, bet. "en Hei JJritannie Majesty and (he, liniiil States, has the honor, in eomi'Mancf with the )>i-ovisions of Article HI of tluj Treaty, in pointi'd liy tli. I'nited States, tli(^ printed Cast of the (iovernment of Her Hiitmnie Majesty. .■Hemii ])anied by the dociin!i'nt.>-', tlie otbcial corresjiondenee, and otbei' evidenci,- on wliicli r. relies. The uni'.eisigiied, Ac, TKNTKK'HKX. Xt». <;. Mr. Ihirls fn Mr. Fish. mil (lUNUVA. Ai>ril l."i, IcSTl'. (Ucci'ivcd Ajiril ."{O,; SiK: 1 liiivi' tlu* lionor t<» inloinry .: thiir I iiirivod in (IcMicvii on flu i'veiiiiij4' ot Satuidiiy, the l.'dh instant. Lonl Tentciwlcn iuiivod ycstcfdny; (Icneral Ciiisliin;.'' and Mv. IJcaiiian also each i>ut in an aitpearance ye.sterday. Tliis ntornin*;' \v«' exchanged the Ccniiiter Cases, The I'.ritish Coiinter Case was aeeonipanied hy ii note IVoni liOrd Tenterden to the Arbitrators, of whieli a «'0])y is inclesed. I thon{;ht the note re<|iiired some notice on my p.irt, and iumU the leply of A\hieh a copy is inelo.sed. The Counter Cases on the pan ol'Cii'cat JUitain, which were exchaii;.;oi! at the Hotel de \'ille, were the copies lor Mr. Aihuns. Count Sclopi-. ^fr. Stiimplli, and myself. The copies for Sir AlexanihM- CocUhiun and llaron d"ltajuli;i wcr(^ not e.vchan.m'd in my preseni.'e. On our side, t!ie cojMes for Sir Alexander Cockhurn, 31 r. Adams, Count Sclopis, and ^U\ StiimpHi were delivered in the Hotel de Ville. The eojjy lor Lord Ten terden was taken hy his lordship I'rom my room. ;. id the c<»py for Danm dTtaJuba Mas, Ity his exjness desire, relaineiL in '.';iris, lo he delivered after exchanee here. After the adJournmcMt I r(M'ci\tMl from Paris your tele;nram relatiiiu to claims liled in the l>epartment since March -«, and addres.sed ; i' to the Arhitratois and l>ritish Aj^ent, ot which a v,(\iy is inclosed. I'rom these \;irions enclosures you will be able to hmrn exactly v.lia; Inb^ ollicially taken place here l<»(iay. I ha\c, iV^c, .1. C. 15. DAVIS. ■■fl PROCKLi.INGS AT (iEN'KVA. 419 le conc'tii(s< iNTHinn'.x, Ml, Dc.vlo to ('/If .li-bitratiir^. [Inclumiivi' \ip. l.| Till- uiuhr.sijiiiftl, A;;i'iU of tlie, Umti'l States, ii]>|t(>into(l ti' attciul the 'riiliuniil of .1 liirratioii coiivciied at (jiciieva, uiuU'.r the jn'o'^i^ions ofa '.''reaty coiichuU'tl at WaHhinji;- luii May H, 1871, l)ct\vt'('ii tho United States ami Ilor Hritamiic Majesty, has t'x- honor ill lomplianco with tho provisions of Article IV of the Treaty, to deliver h^^iowith, in (iiiplieate, tho C'o;j::ter Case of the United States and additional Docuuicnts, Corre- -poiulenec, and Evidence, in reply to the Case, J)oc unents, ■ orrospondencf?, and Kvi- iliiUM' presenteil to tiie Tiihiiiial of Arhitralion l>y tli(! (Jovernnieiit of Her Itritannie Miljeslv. .1. (". IJANCKOFT DAVIS. (.i;vr.\.v, ./yjci/ l.'>. HT'J. [T.\s{ of imiosiiics. I 1. Counter Case of tin* United States and adflitional l>o(;iinients, Correspondince, asid i!videnee. ■>. Documents, Corn^spoudence, and evidence in re]>ly to the Case. :!. Documents and Evidence entitled '• Ifevised List of Clai.iis fih d with tlic Depart- inrnt of State, >;rowin^ out of tiie acts coinniitted liy the several vess«'ls wliich have .•iveii rise to the claims {jenerically known as the 'Alal>ama Claims.' '" •t. Documents and ''vidt^iuui entithd "tht; Cuhan Coiri'si>ondeiu'e, 1H1U')-'71."' .'). Copies of drawin}>s of the Alahama, captured at Kiehmoml hy the forces of the I'nited S(:it<>s. Mr. Ihin^ to Mr. i'arriil. I ln(l hiii: with the doeiiminis to which it refi-rs. I a II, Arc, .). C. !!. DAVIS. Mr. I'drntl tii Mr. Ihirh, ' liic!'i-. '^.] llui i;i. i«i; Vii.i.r.. «iI.ni;\ a, .Ipril ir*, lH7-i. Sii:: 1 have to ackuowli^df-'c the n-ceipt of your letter of this date, indosinij 1er the Ihitish A;^ent. luill forward tho letters and the, aecompanyin;j documents to Count Sclopis, Mr. •'. Imiitli, Mr. Adams, Sir Alexamhir (^oekWurn. and Lord Tenterden, r('S]icctivi')y. 1 iiiind yon herewith the letter for IJarou d'ltajniiii. and I take noti; that you will ■r tli.it it is delivered to him svith th<' documents to which it refers. 1 am, iV<'.. ALE.\. lAVIJOT. /.')>■(/ Tiutvrdiii ht Mr. l>arix. \ Iiicl(i8urc Xi>. 4.] (iiAT.VA, April l.'i, lS7iJ. flic iindeisijrncd, A;;«'n( of Iler lUitannic ^fajesty, iippoinled to attend the Trihunal ' ' A'hitration, cmiveneil at tiemn a under tho pro\ isions of tin; 'I'realy conchuled at. ''Viisliinfjt, oiliiiiil < oiicsiioiHh'iuo. aiid cviflfiui' in i<'i)I,v to tlir Ciisc. l>oiiiiiiiiil.-., (' n'lsiioiKlfiicf, iiiid Kvidoiu'fi jircscnhMl l»y Mr. l)avi.>i f the I'liitiii Stut'^ tlic Tiil)unal at tliat iiK-t'tiii^. Tln^ iiiidfr.si^iiiril, Ac, TF.NTKlMil.v hitrd Teiilirdrii to Mr. Dmix. [Ini Ni (;i;n!;\ A, .liiiil l.'i, !• Silt : 1 Iia\ I' llif Iioiioi- to li'aiiMiiit to \<>ii a ro))v of a note, wliicli, l>y direction of \[, I'll ilamiif MaJ('.st.y'H (i(>V(M'iiini-nt, I liavc addn's.sciltiii,ntoii. and ■wliicli will In- dclivcnd t tlieni tojictlua' with the ('oiinlerCaM- which I hj'.ve )ncsen!ed. I !ia\ e, i\ <•., • IKMKIi'DiA. h,<(l 1 I tilt lUliI III /Ac At Inl rutin ■■ I lm•lll^<'l^^' Nn. (i. (;i.Ni:\ A, Afiril ].">, 1- 'I'lie !i!Hli'isi«rncd, A cut of Her I'.iitaiiiiic Majesty, is iiistnictcd by Her Ma.ji ^ty - (JoveMiiiieiil to stale to Count ^clopiw, Jiaion el\veen (iir rel.ates to the claims (iir iudirecl losses jint torwaid liy liir l«overnment|i i (»f the Americ.an eomnievcial marine to the J$ritish tlaii."' ("J) " 'l"he enhanced )iayiiieiit> «»f insurance." i :i) "The )irolon;;ali(Ui eor tin intention of the relerem!e to Arliitialion. Her M;i.je.->ly'.s (•overnment lia\i! liecn fm some timi; ]>ast, ami still are, in correspmidenee with the Government of the Cnilnl States upon this subject, and as this correspondence has not been bron;;lit to a liiiu! iNHUe, Her Majesty's (iovernmeiit bein;j de^'irous (if )>ossible) of jn'oceedinj; \\ itii IIk reference- as to tin' claims for ilireet losses, li;ive thoiiH^ht it proper in the '.iieau tiiiic in juesent to the Arbitrators their C(Uint«'r Case, ( whi( h is stvlctl.\ conlined to the claim- for direct losses,) in the liop<> that, before the lime limited by the lifth Article of ilx Treaty, this unfortunate misumlerstiiudiii;; may be removed. Jbit Her Majesty's (iovernment ilesiri- to intimate, ami do hereby e\pre>sls :niresenlf the Treaty. The iiiidersif>iied. iVe, TK.MKIHU'.N. Mr. Darix In Lord Triitirdin. [Iiic'.oMin-e No. '.] (;i:.\K\ \, .Ijnii l.>, I" M\ l.oi{!>: I base Ihe honor to aekiiowhd^e the rectipt of your note of this d;il> transmittinn to ine a coi)y of a note, whit h. by tliret titni of Her IJritaniiie M.ijesly - (Joverninent, you have atltlressed to each of the Arbitratoix a|t|ioiiitetl umler the Iir-' Artitlc of the Treaty of Wa.shiiij;toii, ami which has been delivereil tii them ttti;i ihi ; with the ('tniiiter Case which ytiii have pre.seuted. I have iit>w the honor It) transmit to ytiii a copy tif ji letter tt» the Arbittat'us, wliii has been matle necessary by ytmr lortNhip'>< note tti them, iiiid ha\e the liontir to I" I ery respet ■tliilh .!.( . llANCUtU r HAMS ':.0-} I'ROCr.EDlNMiS AT (JKN'KVA. 421 Mr. Darin to tin- .Irhllrtilory. ' Inrliisilli' No. h.j . if-i7-j. I'lii' iiMiiic(I, A,!;ciit lit tin- I,'iiit«'il Stiifes, lia.H tlif Imiiioi- to iiiloiiii the ArhitnilorH ;irsi}j;nc«l from his (iovei'imicnt not havin;; conteniphited tiie probability of snch a course on the ]iart of Ilcr Majesty's (Jovcrnnn'nt, the lunh'r- .i^iied is cotnpclled in reply to reserve to his (iovernment its fnll riy;ht hereafter to viudicalt! belorc tlii> 'I'ribnnal the nnthinity which it nndi^'stands the 'I'ribnnal aci|niri;d uiidt-r Ihi^ Treaty in this resiiect. ■|he nn(lersi;;ned, Ac. .1. C. r.AXCI.'olT HA VIM. Mr. //(//('v to .Mr. i'arrul. i III) lii>iil'<' Nil. M. j (ii:M:VA, AprU l.'>, IHT'i. Sii: : 1 have to iiicloM' a letter fur each of the Arbifrattns and for Lord Tcntcrthni, . hicli 1 will tnank yon to forward to them. I am. A <-.. .I.e. i:. 1>AVIS. Mr. Varriit In Mr. Ifurlx. [ liujiisiirc N(i. Iti. ] lloTKi. i»i; Vii.i.K, (Jkneva, Aiiril l.'», lrt?'i. Sin : I have the honor lo ackiiowled;;e tlnMcceipt of your n(>t«) of this day inclosinfj . letter for each of the Arbitrators and for Lord Tcnterdon, which yon rei|ncst me to inrward to them. I shall have innch pleasure in ((miplyinp; with yonr wiHhcH, and iivail iiiyHelf of this 'i]iI>ortunity to renew to yKX. FAVKOT. Mr, Itaria In Count Sihipig. [liicliiHiiri' Nil. 11. 1 The iinilerslKned, A;;eiit of the I'nitcd StatcH, has the honor to transmit luTowith to CiiimtSciopiNtliefoIlowinKcopy of a tclc^riiin r«coived from tlio Strcretiiry of Stiito «»f iliellnitod States thiH day, and to nsk to have it conHidured as a fnrthi^r Appendix ti> ibt' ('(muter Ca,so of United StiitcH: ''Sim:u March 22, n«lditional chiiaiH for capturo ami (h'.striiction and dainu^o by in- • rniption of voydKO )mve been filed to the amount of live hundr(>d and live thonmind 'iKht hundied and forty-nine doUurH forty-six euuts, and claims for increiMed iiiNur- 'iiicepreminiUH to the amount of three hnntlnMl and thirty-four thousand nine'hnndrcd Mu\ thirty-three dollars ninitty-eight cents. "FISH." The iinderHi);ned has the honor to renew to C'onnt SclopiH the UHtiurance of his dis- °Mi)(uishiMl considerat ion. J. C. HANCUOF'r DAVIH. Til C01IRE8P0XI)I:NCK itKsi'ixnxu THE (lEKEVA AJIB IT RATION AND TROPOSED SUPriEMENTAL ARTICLE TO THE TREATY. 'V COI] Loii lor ill iilarni offons (»l»erui Thei C(tiins( eniinei The and CO tlic Tn Itesei *lisi»iitcl l»r('tati( Sii! : 1 wntfd 01 lion at 0^ franr CORRESPOXDLNCi: ItESPKCTlNG THE (iKNKVA ARBI- TRATION. i Xo. 1. (:< ncrdl Schcnck to Mr. rinh. [T<'lfj;iiiui.] liONDOX, FehtHtuij '2, 1871!. London jonniils all tlemiuid that Unitcil States shall witluhaw claims for indirect daniajjes. as not within intention of Treaty. Ministry alarmed. Am exertinjr myself with hope to prevent anythinj; rash or offensive bein*; spatch, I communicate (Iraiiville's note giving notice of Britisli int<^r- liretation of Treaty, as follows : Eurt GrmnUU to Giturul Scheiick. Four.niX Okkick, Ftbruary '.\, 1872. '^11! : Her Maje»t.v'rt (tovt'iiiinent have liad unclor their foiisiderntion tlu* Cusp prc- xciitcil oil bohali'ot* the Cioverniuent of thu United Htaten to the Tribunal of Arbitra tioii at (ieneva, of whii-h a cojiy had been presented to Her MajeHtj's Agent. ! ' 420 TREATY OF \VASHIN(JTON. I will not iiiliulo ill this lettt'i" to Hevenil jiortions of tlio I'liitcd Stat«'.s Cum) wjiidi uro ufcoiiipaiiitivfly siiiallor iiii])oitjiiiCL>, but Her Aljijewty't* (iovt'iiiuiont aro ofoiiinjoii that it will he in ju-conlancc with their (IcMiiii that no oli.staclc Nhoiild bo inteiposiil \i, tlui prosecution of the Arbitration, and that it will be more frank and friendly towanl the (lovernnient of the I Tnited States to state at once their views respecting eertniii claims of an onormons and indetinite amount which appear to liave been put forward us matters to Ijc referred to arbitration. Her Majesty's (jovernment liold that it is not within the jtroviine of the Tribunal m Arbitration ut (ieiieva to decide upon the claims for indirect losses and injuries piit forward in the case of the United States, inclndiii}; the loss in the transfer of the Aim rj can commercial marine to the liritish tia);, the enhanced |)uyment of insurance, and tiic proloiiy referring them to an impartial tribunal. Her Maji!sty's Government, on their part, feel coulident that the (Jovernment of tin' United States are also equally anxious with themselves that the amicable .settleiniMit which was stated in the Treaty of Washington to have been the object (»f that instru- ment may bo attained, .'ind that an exauijile so full of good promise tor the future may Jiot be lost to the civili/ed world. SCIIKXCK. i No. 1. (iencval kSchcnck to Enrl (irtinrille. Lecjation of the United Sjates, London, Februartj ,"), ISTi'. My Loud: I linvo tlie honor to acknowledge the receipt, on the eve ning of the .'Jd instant, of yonr note of that date, in which, after statin;,' that Her Majesty's Government have had under their consideration the Case presented on behalf of the United States to the Tribunal of Arbitra tion at Geneva, you proceed to say that you will not allude to several l)ortions of that Case which are of comparatively smaller importance, but that Her Majesty's Government are of opinion that it will be in accordance with their desire that no obstacle should be interposed to the prosecution of the arbitration, and that it will bo more frank and friendly toward the Government of the United States to state at once their views respecting certain claims, which you describe as of an enor- mous and indetinite amount, which appear to have been put forward iis nmtters to be referred to arbitration. You then go on to state that Her Majesty's Government hold that it is not within the province of the Tribunal of Arbitration at Geneva to decide upon the claims for indirect losses and injuries put forward in the Case of the United States, including the loss in the transfer ot the American commerci.il marine to the Jiritish flag, the enhanced payment of insurance, and the prolongation of the war, anle showing how two great nations can settle matters in dispute by referring them to an impartial tribunal — I can further as- sure Your Lordship that my (Jovernment does reciprocate most fully and earnestly the anxiety that the speedy settlement by arbitration, which was i>rovided for by the Treaty of Washington, may be attained, so that, as Your Lordshij) lias eloquently exi)re8sed it, an example so full of good promise for the future may not be lost to the civilized world. I have the honor to be, with the highest consideration, My Lord, Y'our IiOrdshi|>\s most obedient, humble servant, HOr.T. C. SCIIKNUK. i.,1 S.i- ^ No. ."». Oeniral Scheml- 1o Mr. Fisli. [Extract.] No. U.S.] Legation of the United States, J.omhn, Februarif 10, 1871*. (Received February 2.'J.) 1^1 j^. * * « * * « * * One of these ilebates, they say, was, in part at least, in the lieariug of the United States Minister, wlio was {tresent in the House of Lords, Jind ^vas doubtless commuuicated to his Government; and all tlie debates on ^2 M 1 428 TKKATV OF WA!<111N(;T< >N. !l in that occasion must have been caniedto the knowkMl};*! ot' the (lovcm- inent of the United States by the piintcil and published reports, and yet no protest or other coninuinication objectinj;' to such interpretiitimi was made by the United States to thisClovernment. It is hehl, therefdic. that there was on one part an implied aeqnieacence in that nn'aniiii,^ fjiven to the instrument. Now, I had supposeplied by the protocol and the history of the nefjotiatioii, we were hardly obliged to fto further and watch for what mi^jflit be saiil on the subject, pro or cow, in a legislative body enfjaj^ed in discussion on it. lndee. 420 General Svlouck fn Mr. Fish. [T.'li-i;nn.] liONDON, Fchniiirif 'Jl , ISTU. (Sent ll'.;!U p. in.) (iniiivillc iiitbi'iiu>lit of i(j)ly to his not*', aiul taken tuithor time to considtT, but that you Iiavt* su;rsc*sttMl lio shouhl make some proposal, lie then s;.ii«l to iiic that in his note of third he had stated tiie views of llcr ^lajesty's (Joveni- mont as to indirect «;laiiiis; tliat tiiere were otiier portions of American Case they refjret, and some of which ajjpear to introduce matters not ;'crinaiu> to reference : that ho has not been able to <'onsult ('al>inet lit'ie, but is individually i>rei)are«l to ref belief that it could be accepted. SCIIKNCK. '*■ . No. 7. Mr. Fish to (icncral SclivurJ:. [Tfl.'jjniiii.] Wasiiinutox, Fihruarij 21, 1S7 2. licported rejection untrue. Entire unanimity. Answer now being copied. iJranvillc's suggestion inadmissible. FISH. No. 8. Mr, Fi.sh to General Svlwncl:. No. 144.) Dei'Artment or State, Wanhington, February 27, I87li. 8iR: 1 have laid the note from Earl Granville, addressed to you, l>«vriug date the 3tl of February instant, before the President, who directs me to say that he sincerely desires to promote that firm and abiding friendship between the two nations to which the note so happily refers. It was under the inspiration of such sentiments that he accepted the invitation of Her Majesty's Government for the establishment of a Joint High Commission to treat and discuss the mode of settling certain A Si'l 430 TKKATY OF WASHINai(l to the United States, as an amicable settlement of all claims of ev( rv description arisinjj out of such differences, instead of the lenjjthencd <-ontroversy and litigation which he foresaw must attend any plan of arbitration. He was the more solicitous that such an amicable settle ment, without the intervention of third parties, should be adopted, because he feared tliat so thorough and comprelu'uslve a presentation b<>fore the Tribunal of ArbitratioJi of the matters of law and of fact (»ii which tlu' claims of this country rest, as it woidd be his duty to cause to be made, might, for the moment, revive past excitements and arouse unnecessaiy ai)prehensions, if not inperil those ties of internatioiiid kindness and good will he so much desires to strenglhen and make perpetual. The regn't which he felt for the rejwction by I ler Majesty's Comiiiis sioners (»f the proposition for an anncable settlement is revived with great force by the necessity of this correspomlence. Tho proposition for a Joint High Commission, which was made by llei ^Fajesty's (rovernment, would not have received the approbation of the President had he supposed it was not to conquehend a consideration and adjustment of all the ditlerences growing out of the acts of tiie cruisers; nor could he have given his sanction to the Treaty had it been suggested to him or had he believed that any class of the claims which had been presented by this (JovernnuMit were excluded by the terms ot submissi(»n from i)resentation on tln^ part of this (Government to the Tribunal of Arbitration. It was, in his ai)i)reciation, the chief merit ol the mode of adjustment adopted by the Uommission, that it was on both sides a frank, full, and unreserved surrender to impartial arbitrament, under the rules therein i)rescribed, of everything that had created such ditt'crences. Whatever degree of iniportance might here or tliere b«', attached to any of these complaints, the President desired and in- tendesses and injuries consequent upon tlio acts coiiiphtined of, and necessarily to betaken intoe«piitabh' consi Treaty, but covered by one of its alternatives, are not within the Juris- diction of the Arbitrators. Unadvised as to the reasoning which has brought llcr Majesty's (i»»v- ('rnment to the opinion stated by liord (Jranvilh*, tlu' rresitlent is nimble i(» a«h)pt it; but, being convinced of the Justice ol" his views that tin* Treaty (;onteniplated the settlement of all the claims of the rnifcd States. is of the opinion that he touid not abandon them, except after a fail' lU'cision by an im[»artial arbitration. He seeks no nu-aning in the Treaty which is not |»atent on its Iju^e; he advance's no in'ctensions at (ieneva which were not i)Ut forth jieiHling tlu^ negotiations at Washington. This Government knows m)t where to find the meaning or the intent of the Treaty unless within the Treaty itself. The object of the Ticaty, as declared in its i)reamble, was " to juovide tor an amicable settlement of all causes ol ditlereiu^e between the two countries;" but the Treaty is not, of itself, the settlement; it is an iijjreement between the (Joverninents as to the mode of reaching a set- tliMiient, ami its Article XI engages the contracting parties to consider tiie result of the arbitration as a full, perfect, and iinal settlement of all the claims. Kntil that be reache«l, no i>rot!er of withholding an esti- mate of the indirect losses, dependent on the hope of an ami<*ablc settle- ment, can be claimed as a waiver or an estopiiel. The first article re(!ites that differences have arisen between the two (iovernments, and still exist, and provides, "in onler to remove and iidjust all complaints and claims on the i)art of the United States, that nil the claims (jron-imj out of acts committed by the aforesaid vessels, ami ;'euerically known as the 'Alabama claims,'" be referred to a tribunal of arbitration, to be composed as therein provided. There is no limita- tion or restriction to any part or description of the claims. All the ilaims grow iiig out of certain acts, and generically known as the "Ala- 'lama claims,'' were referred. What they ^vere is a <|uestion of fact and Df history. Which of them are well lounded is a <]iiestion lor the Tri- bunal of Arbitration. What are called the indirect losses and claims are not now put forward tor the first time. Tor years they have been prominently and histori- rully i)art of the "Alabama claims."' It would be superfluous to quote, or, perha|)S, even to refer to, i>ar- lieular passages in the publishetli countries diseiissed llieni. while tlie ])nl)!i(' pn'sv on llh(^ one side iinrovey the -loint Ili;;li (Commission after their d.isenssioiis were clos.ed, and within four days ot' the .si;;!iiniidf a treaty which declaies that the dilferenees which li til arisen w! Ii resjicct to the '.Mabama (•iaims" still exist. .\ppeariii,u tims. Ironi whati-ver caii^^e. not to have been eliminated from the eiiumeiated claims ot the I nit cd States, t he I'lesidenl had no! the power, ol his own accord, to withhold them iVomthe (.'ase. to be j)rescnted to the TrilMinal of .\rbitration ; but in frankness and in sincerity of jiiir pose to remove, in tiie spirit of the Treaty, all causes of dilfeicnce he tween the two < lovi riimeiits, he has set them Ibrth before the Ceiieva Tribunal, conlent t(; aece|)t ary award that the Tribunal may think ii! to make ^h press, and seems most unact'ouMtably t.i havi' taken ])oss«'ssion of the minds of some, even, of the statesnu'n (»f (iieai SU'itain. A mixed Treaty, lan;;uiiuc was purposely a, .reed upon and used to t'.xpress the idea which the rep re.sentative.Hof the two (lovtMnmontsentcrlaiiU'd, tliat no claim foiintlci! on coidraet, uid es|)i{Mally, no claim on s.ccouid of the rebel or coiiteil crate cotton < old, was to Ix^ prcH' ..: jd. Sinniar ian;;ua^e, and for l in' Hamc a\o\ved and admitted j)urpos»', was used in tln^ Treaty. Amonj,^ other claims of an uncqiectcd charact«'r presented by tlir a;;oid of the IJritish CiovernnuMd . there was om Idr a p,.rt of tho. coiiloil erate d(d)t, w'hi(!h is understooil to be hcid in (Ireat l.ritaiii to tlif extent of many n»illions. Immediately on its prcseidation the rnitiil Stares remonstrated, ami roipiested the Ilritish vernment was not informed thereof, and it failed to In- ob.servcd : and the claim was j)H'ssed to ar;;nment. The ['nited States (hMiiiurcd before tho commission to its Jurisdiction ovci claimsof that description, ""■ ! ■ '^t CORIIKSPO.'DEXCE RESPKCTIXG GENEVA AKIUTRATIOX. 4.^3 ;ui(l tlio decision of tlic "oiuinissioii disposeil of the case adverse to the diii'iiiiiit. Tlie attitude of the two (M)vernmepts is now reversed, witli thcdijfei'- ,ii(;e in favor of tlie f^nited Stat«'s, that tliere was no (lucstioii raiscil as [0 the nncUM'standin;;' of l)oth ^iovernnn'nts at the date of tlif 'I'reatv, with reference to the evchision of chiinis of the (diaraeter llit-n pre- sented. The United States seek ]n>t to he thejndfje in their own ease. The course which they pnrsucd alfonh'd a happy solution to \\hi\\ iiijiht liav*' been a ipn'stion of eiiii)arras.snuMit. They desire to maintain the jurisdiction of the Tribunal ofAi'bitra- iinii over all the unsettled claims, in order that, beiny Judicially dnidcd. ,111(1 the questions of law involved therein Ix'injL; adjudicated, all (|iii's- ;ioiis connected with or arisiiij;' out of the Alabama claims, oi" '• ;;c(»\v- ill),' (uit of the acts" of the cruisers, may be forever removed Irom the Itossibility of disturbinj;;' the {lerfect harmony of relations between the i\v(i countries. The President reji'rets that there should be any difll't i -nu'e ni' opinion iM'tween the two Ciovernm Mits on any (juestion <;onne''ted with the In'iity. He indulges, however, the eainest hope that the disposition which liiis been e(pially manifested by both (lovernments to reie /ve all < .nises of (litVerence between them will lu'in},' tluMU to an a;;ret'ment upon (he I incidental (pu'sticm which has aiisen, and will aUow lu) obstacle to de- jiiivc the world »)f the example of advanced civilization prescnteil Ity ! '«(» powi'rlul States exhibiunu the supremacy of law and of reason o\ei' |i;i>sions, and «leferrinji' their own judgments to the calm inteipretat ion ii ;i disinterested and diseriminatiny tribuiuil. J am, sir, your obedient servant, HAMILTON riSII. [i». > No. 9. Mr. Fi.sli (i> (uHcral Srhcnch: \<'. 1 ir>.J J)K1"AI{T\IKNT OK StA TK, Wasliiiif/ion, Fi'linuti'!/ Ill, ]'>'J. 1 l;ive to ackn(»wle«l;;e your No. i;{1>, of liate of February <5, inclosiji<; "j>y of I'iart (Jranville's note to you of the .'Jd instant, and of \onr ifply. ViMir answer to ICarl (Iranville is nmrked with your usual intelliiicncc ill! prudence, and nu'cts the warm approval of the I'resident. Veil will iv'ceive her«'with a dispatch of the same date with this, yiv- :: the opinion ol' this ( iovei nment on the tpu'stion suddenly and at)- !|itly rais«'d by Her ]\laj«'sty's (lovernment, and prcsi'iit*-*! b_N li.irl |iir,iiiville nakedly and without any ■'.iy:ument. \itlioiiyh no reply is iii\ited l»y the note «d' tiie liritish (loveriinient. llii' settlement of all causes of ditfereiMM! between lln» two count lies, and llHsiiccfssrul example ottlie mode of settling' international dilfeiencfs f''.ii»lished by the Tn-aty, are s(» earnestly desired by this (io\ einmeiil. I'l'iit we acc<'pt the frientlly assuraiuu's of the IJritish note, disrcyaidiii'i i^ hold and sudden annonncemeiit (d'an o|>inion which we think iinsiis I'liiifd by the history of the ncjuotiatioiis between the t wo ( loxci iiiiieiif s, "I hy the events which jjave rise to the claiujs, and for which we see no |i";;K'al t'onndati(Mi in th«' Treaty itself. L*8 A— II 434 TREAT V OF WASrilNOTOX. 'U Y(tii will, tlioroforo, road tlu' dispatcli roffiriMl to to Lord Graiivilk'. and may U'avo with liiiii a (-opy in caNo he ilt'wirt'.s it. I am, sir, your obe«U«'nt servant, HAMILTON FISH. No. 10. Ocncral Srhcnck to Mr. Fish. [ r«'l«'Kn»iii.l London. Frhnian/ L'H, IH72. (Sent ">. 10 p. m.) (Iranvillc (h'sircs me to send channt'ol' lauyua^c of li is proposal, as lol lows: Alter word ".lime," sahslilute "that the liiited States do not a.sK the Arbitrators to admit or take into tli<>ir eotisiih'ration these indinct elaims, eitiier as ehMuents for tiie determination of any one sum in <;ri).ss whi<'h tiiey may award in case of decision ;i;^iiinst (lr«'at llrilain mi tlir point of liability for any of tlu' vessels, or olhei'wise: iiinl that in v.im- of damairi's Itein^j^ referred to assessors, they will not brin;Lj Ibrwiird tluH' cliiims bfl'Mi-e the assessois." 'lliis variation ol words does not seem to me to chanjii' meaninir. SCIIKM Iv. No. 11. Mr. Fi.slt to (iciiirtil Schnicl,', (.'i'.Ic;;raiii. I J)Ki'Airr'\ri',NT or Statt:, WiisliliiiitDn, Filtriiiirji '2U. i^ii'. Cannot aLiree to (Iranville's proposal as made. Desire to meet the Mritish (Government in any honiu'abh adjustment of the incidt'iit;il qiM'stion which has arisen. Our answri- is vi ry friendly, ami will, nc hop!', open the way foi' a s«'ttlemenl. U'hat«^ver the Uritish roininis sioncrs may have inten«led. or thon^jlit annmj; themsj'Ives, tln'y did not elindnate the claims for indirect losses, they ne\ei' asUcd us jo witlith;i\v them, nor did they alhide to them directly, or in |dain teiins ; and atlrr the delilu'rations of th** .loint ('omnnssion went closed, 'renterdeii ami the Ibitisli Commissioners allowed them to be fornndly ennmeratcil in statemeid of Ith Mav without a word of ilissent. FISH. No. 12. (Irnerol Sclnnck tn Mr, Finli. [Kxtruct.j TiKOATION OF TTIE TTnITED STATES', London^ March HJ, 1.S72. (lieeeived April I.) • •••**• On the day of the reeei)tion of your note of the 27th of Febniinv and within a few hours after itH arrival, I was enabled tu iuivu an inter No. 170.] CORRKSrOXDENCE RESPECTlXCi (IE VENA ARlUTRATinv. 435 viow with Lord Onjuvillo at the I'oivi^xii Offlco, with a viow to maUins liiiii iu'(|iiaiiit«'(l,a;;n'i'al>ly to your iiistructioiis, with its coiitciits. Vonr (uiiiiuiiiiication had bci'ii h)okrd fur l»y thi* (iovurniuciit here with ••real .iiixiety. |-"(»Ih)wiii}; ill siiltstaiice the hnijiiia^e of your Xo. ll."», I hcyfaii by siy- [<)ii that, altlioiifih Ilrr Majesty's (lovcriiineiit liad not invited any reply -II tlieir note, !uit liad heeii eonteiit to make a naked annoniiceiiHMit. nn- .iccdiiipaiiied by reasttns or arf^iiiiuMit, of tlieir opinion tliat certain of tin- claiins put forward by the Ignited Slates in their Case iMes«'iit«'d at (li'iieva did not «'ome witliin the itrovinci' of the TrilMinal of Arbitration Mileeide, yt't such was the eariu'st (U'siic of my (lovcrnincnl lor a scl- ilfiiient of all dilferenees between the twocountrii's. and for tlie success- nil cariAiny; out t»f a treaty which olVered to the world so ^^nod an c\am- ;il(' of a pea<'efnl ami ('IVcftivt' method for lh«> ri'ino\a' . f internalitMial litrieiilties, that the President was most ready to a«'eepi tlu' assiiram'es lit the friendly feeliiifis which had prompted that note: and that you iiiid communicated to me in a :;; e, I cuiiseiited (o do. I ;ia\e him the copy. tlieri'Ibre, leav- iiu hint to ri'tiirn to the ilonse of Lords, iiom which he had been liiir- iicilly called to meet his appointment with me. I'.efore we parted, howexcr, 1 th<»ii;;lit it pi nprr to say to his L(»rdship ii;ii as Jier .Majest v's ( Joveriiinent would undoubtedly take a little time, : iliitps a few days, to consider whether they slhtiild make ;in\ answer, iiid wlial answer, to this commiiincaticm liom the riiiied Slates, if at iiiy time in the int«'rval he (hciiied it advisable, in the inten-st of our AM countries, to liav*' fr«'e, conlideiiiial convcisation with me. or if he Mioaiiht that jjood understandin;; nii.iiht be promoted by any exchanji'e ■I iiiiollicial sii;4;i('sii(Mis toiichiiiy some iiiodi' of issue from our present "iii|ilication, 1 would al\va,\ > be happy to meet liim and cooperate w ith iiiiii ill such frii'iidly endeaviM-. He as.seiited sit oiiee lordially to the I'ltipriety of our keepinj^ ourselves in such relation and free iiiiollieial lilt' rcoiirse with liK-li other; Ituf he did not express hiniMll as ho[te tiillv, HH he thoujjfht 1 did, id an ultimate sati-sfactiiry adjustment. J have the lionor to be, v<'rv respect fiilh, voiir (dtedieiit servant, L'OliT. C. SCJlLNt K. No. IX Ocncml Srhrnrk to Xr. FIhIi. N'>. IHO.] LkOATION of THE r^tTEI) STATES, lomlon, Mnrrh Ui, ISTl'. (Received April i.) Sill : I have Imi-rly timt tx) tnuiMinit, fn uh to catch at (^iieenstown 'liv mail which ha« left Livert>ool t«-day, the nply of I^ord (iranville to hi 4r.G TREATY OF WASHINGTON. .vonr (lispiitch of the L*7th Fobniiiiy. It c.uiw to me at cloven (H-lork last iii<,'lit, siinl the printed "Menioiiunhnn'' whieli nccoinpaiiies ir its im inrlosure, and wiiieh is to l>e taken as a part of tl>e eoninninicalion. readied ine only this alter noon. I send also, lu'rewilli, a <'opy of my answer to his J^(»rdship, aeknowl edjiin;; the reeeipt of his note and the '* Memorandnin." Yim will <»l>serve that Her Majesty's (lovernrnent hav*; eonstrned ymn dispateh to me as eontainin;; appai'ently an invitation to open tiillv a discussion with yon on tlu^ (jnestion of the riy:ht of the I'nited Stutcs to inihnle in their Case presented at (lenevaany claim for indirect losses or daMia;;es. There is iiothm;'' advaniu'd, however, either in the way of any proposal for the removal of the dinicnlty between ns, or intimatiiii; ^\ilat may he the conse(pience in case of continneil «lilfcrence of opinjun, Ir is still bnt the notic»^ which was contained in honl (rranville's note ni tile .'>d ultimo, acconipani«'d now by the reasons which have led llci Majesty's (i.kvcrniiient to the conclusion which was then irommnnicated. liiit I must close in haste, without further coinmetit. 1 have the honor to be, sir, vonr obedient servant, itoirr. c. scuKNcK. It i •»... if [IlirloHiirr 1 ill Xii. i;(.) Earl (ii'atirilh to (iiiierul Schtiuh. FoitKUJN f)|-KlCK. ^f|>y >. ;l.i 1 ttli iiittaiit. Ilir Maji'sty's (Jovcriimriit rcfo^iii/i' willi i>li'asiiif (In- a^smaiiccs of tlir l'ic>iiliii! that ltami' spii ll, tiif\ ;;lail!\ asail tiii'm>i'l vt-s itf iliv iuMi:!- ;ii>ii wiiirli yniir (i(t\ crinnriil ajipfiir to liavr j;ivrii, lliat ihry slioiilil siatr llu- iiax-,.- M'liirli inilmi'il tlii'iii to make tlir ilri'laratioii coiitaim'il in mv noti' to yon of ihr .M nit lino, ami wiiiili 1 ilim imrposi'ly omitti'il. in tin- liii|ic of olilainin^, wltlioiit ,i:is k i>nu'o\ i'i>ial ili^inssion, tin' assent of tin- (iosi'inmrnt of tlir I niinl Statrs. Ml. I'isli says. •• W'iiat air talii'il tlu' imliifct lossi-s ami flaims arc not now |iiii i>\ waiil tor till' tir>l time, i'or ,\i'ais tlicy liavr lirni |>roinlm'nily ami liisioriiailv |i;ii! of till- '.\laliama claims.' It wouli! I»c sii]iciIImoiis to i|notc, or |ii'ilia|is cvfii to iciii t<«. ]iai'ti('ulai' |iassa<;i'>. in tiic imllislird insirnctions of iliis (iovi-t nimiit to tlii'ir Miii- i.-.t>i to tinat Kiitain, in liir iioIim ol that Ministtr to ll< r .Maji>t.\".s I'rim ipal SiTniiii> ot' Mall- for |-"oi('i;;n AH'aiis, or in olhrr inihiic iiapcis, to sliow that tln< rx|M'it;ii tit' thi« (io\cinmrnl lias. I'loni thf iirv.inniiiH; of tiir :i('tM \> hirh ;;a><' risr to tin- 'Ala liaimi I'laitiiN,' liri-n that tlic Iliitish (in\ (Miinicnt would imh-mnifx tlM> I'liitt'il .^lati's Iiii iili'iititl or <-onsi'i|ncnt ial ilama;;rN wt'ic often mciitioncil a.s imluilt-il in tin- ariiniiii' aliiiily.'' This assertion Woes not appear to me aeiiiiately to lepieseiit the fai'tH a> liny Ul>- >ll>'\Vll in the eoriespoml'-nce liitween the t Wo ( lOVeiiimilltM. It is tine llull ill (■•line of the earlier letters of Mr. Ailams va;Line slimiest ions were made as to jto'-sil'li' lialiilities of tl is eonnt i> extendin;^ lievomi the direi t elaiins of Vineiieaii eiti/i ii* lui b;iei die losses ill isiii^ tViiiii t he capture ot their \ i «se|s Ity the Alaliaiiia, I'loiitlM. ^Uiu- undoidi, and (ieor^ia : Init no clidms were e\er ilelined oi tormniated, and eeii.inil.N liolie were esei deselilied liy the phrase '•Alal-. ma chuHii," I'Xcept tlle.H«' diivci elailli^'il Ano riean eiti/eii>. No mention of any claim for national or indirect losses had lM>ei< Ntiiile dm in^ tin Ise^oli.itioii, comme-icin;; w Ith Mr. Si-w aiil's ilispateh to Mr. Adam>, il»t«-d th- ' ;■ ■'• An;;iist, |.-Crt!, tind eii.liii}.^ willi the si;;iiatnre of th< CoiiM-utiun of the l«»lh << V'^ "■ l..n. iMi'', tty l.iiid Stanley and .Mr. Rt \erd.\ .(ohit-*»ii. by the IVth \rticle «•! ml:i(li ifiwer was nixeii to ('ommi'-Hiiniers " to adjndii.ttt iu»t»ii the class of chiimv re*"-i«! ■ 111 I h)i oihejal col respondeiice lietwceii the I w «> ( MmrriiincMtM as t «• 'Alalm.'Ki . i.i The llist Mihsei|miit mention ol' any cla'iii fer nutiomil I(mh<'> whs in i« <-«mih' n,,' . tioii. iinaiithoii/i li l>y his (JoMiniiiciit. maiie hy .Mi. lieveidy hdii»»«». m ^ai a. 1-' to Lord Claiemlon, in which he sii;;i;estitd thai the icrms ot ihe ('i>ii^ eutKUi si^iiei! I'> hiu with Lord Clarendon, on the lllh of .lariMury. which conifN- !«»2 n r»-l'«'rencc te :i Mixed ('ominission of the "Alahama claims," «honld he eiihir;t«-. ^. a» >> i(u!iid.:i! V luuim on tliv i>iirl ul vithcr (jiuvcMiiiii-iit ii|m«u thu otUc-r, uii etMM*«*iwl cinuUliou ot i i* www] I'S it ;is ;iM unic:iti()ii. I, iU'kiiowI- :ru(Ml yum H'li tiilly ,\ t«Ml Sl;i'ti'> rt'Ct looses tlu' \v;iy 111' iiitiiniitiii.: (>r opinion. ih'\s llotf nl' ■V led lin iii(iiii(-atil ■,\ copy ini I'.ii fhf rii'>i(liiit wcfii tin- I«l' till' lilixs.- IMI of tllr ;'"i withmit iiiiN Kiiriilly pan •Vfll ti> K III to ilifir Miii- i|i:il Sr(U'iiii> , (i> llii- 'Al 1 llilcll Mul'^' till- ill IKIUI!- i> tiuf ili;>i '" as to itii-«il'l'' an «Mti/'ii'» <<»'■ IMoiitU. "^Ifii- ami cilaiiilN lin-ii .■laini-"t ».l.- (Inline III' ...1 th. -'Mi-I •ill i»» V>\' "'• n\, ..t »>ivl' i!)'- ■ ■ ■ ........ I-.:'. r.-t«-riMiri' I" ;| ?,i Siuliul • i! Mulilioii »l t'i' CORRESPOXDENCE RESPECTING GENEVA ARIHTUATIDN, 4:57 proi^osal l>i'in liy tin- I'nifcd States, fonndtMl on tlio r.'C(i;,'nilion ol' tin- Conffdcratc States as liclli;^crcnts, it sliunld lie o|»('n to »!:; ''liii^li (iiivcinnicnt to advance (lainis o\\ their i»;ii't, such as a claim fur injniy to Ihitish inici- ,»t-i l>y tht^ asseition ami exeieise of lielii;;! rent ii;;iils hy the I'nitcd States nitiii Jlniish commerce, j.'iid Chuendon at once declined toeiitert;iin this sny;;!;estion. In Mr. I'ish's dispatch of the 'i.'tth of Scpti-mher, l"'ii;i, tiic (iovcrnment of the I'niti d Suites intimated tli.-it they c(mMidered there mi;jht lie ^lonnds for some i laiiiis ot' a larger and more piiiijic natiiie, though they purposely alistaiiied at that timi' tixin iii:ikiii}; them; hut the };i'ounds indicati.>d wert^ not limited to the acts t ions .iiiictinjj; the rel.'itions of the I'nited ."Siates toward llcr Majesty's pos.scssions in Noitli Aiin'rica, no actual >\' ■!ir Tnited St.'ites, that the ".\lahama claims" slwuild Im- ilea It with hy the lli;;li ( om- ;.l;^-^i(Ml, it was in the full conlideiic(> th.at the plir:iM' "Alaltania claims" \\ a.> ii-id l>y •III- I'uifi'd ,Sf;iics <;overnmeii( in the same sense .-is it li;id iieen used thronnliuut tlie jiii-vions corres)Mmdence and in the «-onventi||i of Miii-h, the latter, after a ^{eueial statement of the i-iaims of the I'liited State >, prn- 'I'lled to say that, in the hopes of an amicable settli-nniit. no estimate was inade of I'lilnei-t losses, without prejutlice, howevei-, to the iiy;lit nl' iudcuHiili<-;itiiiu on tln-ir Hriiunt, in the event of iio siK-h settlement bein<;made; auil tln-y afterward proposnl, >v ilii'cction of the President, that " till- .loint Hi^li Commission should airrce upon .i I whicii should be |iaid by (ire,-it jtrilaiii to tlm I'nited States, in saliHfactiuii of all •111' claims and the interest ihen-on.'' Mr. l-'isli says that the I'n-sidi-nt i arncstly hniicd that the deliberations of the (Om- ission Would liavi? resulted in an acceptance by Her M.iji-sty's (iovcrniui-iit nl' this {'>ii|ioNitioM. Iler Majesty's (ioveniineut cannot umlcrstand upon what this hope was fouuili d. riie posit imi which the (iovernmeiit of this country have maintained thrim;:liiiiit all '111- iiejjotiationH has been that they were guilty ot' no ne;;Iijfence in i-cspi-ci dI' the ">i:tpe of the .Mahama and the other vi-ssi-ls, ami have thi-ictore im-nrred no lialulity I'li'Miiv payment, ;iiid they still maintain this position. Till- only ;;ronnd on which Her .M.-tJesty's (iovernmeiit could he asked to pay an \ sum "iiiilil have liceu an admLssion on their )iart that there had been such ne;;lip-iu'e as ■ iiHlered them Justly lialde to pay a sum in couipcnsation. This woiild liii\e hi en .-m '''-•iliite surrender of the position which hasahvass hi m held by this country, and a iiil'essiou, which could never hav»^ been expected f om them, that they had bei-a -Hilly of nef{liji;ence. lier Majesty's Hi;;h Cimimis.sionerH, therefore, could milv ded.-ire at om-e that a |'r<>|io.sal oi' an "amicable settlement " in this particnlitrt'orm could not he eutertained, mil Her MiiJesly'H lli^h CommiHsimiers, tut t\w part ot this country, immediately made ;;ii| Ml iiiiiniter-propo.sal, naimdy, the proposal of urhitratimi, and this proposal, altei bid States 111^11 (^'oniiniHHionerN, and aicepti-d ') tl.iise of (ireat liritiiin, \\aN a coniH-rtsion of nosiij^ht importance on the pai > of this "laitry, nam^dy, tinit the principles which Hhoiild govern the Arbitrators in liu eon- ""iH-iition of till" faut.H should he lirst ajjreeil upon; and thiH eomressioii was \i-ry ina '(FiittUy Kiiliuiicuil \%liun, iii urdor to Mtreiigtliuii tlio friuiuUy rulutiuua butweeti the twu If ^iSi 438 TREATY OF WASHINGTON. i'diMitiics Mini iiiiik« HnMsfjirtoiy provision for tlii' fiitiiri«. tln-y fiirliipriiKn-cd tlmt tli.M ]iriiifi|>l<-M siioiiid Im> tjiost! rontiiiiifij in flic Iviili-s in the A'ltli Artiric ol' lln' 'I'n .'tt\ ; tor tlif.v thus ii('i'c|>r<-il till- rt'troiiciivc i-ll'i-ct of ruli-s to wiiicli, ni'Vi-rfinli'ss. tiny Iflt lioimd to dfclarc tliat tlir.v foiild not assent as a stutcnn-nt of iirinciphis of iniii- iiationul law in force at tlie time wlieii the ''Alal>ania elaiins" arose. The frieiiilly spirit of Her Majesty's (ioverunient was further shown Ity their anilinr- i/in;; Her Majesty's Hi<;h Comniissioners to^xpiess the rejirei felt hy Iter Majestv'stinv . einnient fir thi; es t:pe, under whatever circnnistanees, of the Ahil>aina ami the mln i Vessels from liritish ports, ami for llu- (lei>reilatioiis eonimilted hy those vessels, jiinl li\ their a^^reein;; that this expression of reyret sliouhl lie I'ormally reeorded in the 'l'ii;ii\. \or did Her Majesty's (iovernmenr idijeet to the introdnetion cd tdaiins l'nrsiiit and eaptnre of the Alahama and oth<-r vessels, not withstiiiiihiix the donitt how far those claims, though mentioned dnrini; tin; conferences as diint claiins, came within the proper scope arll> to a desire on their pait to act in a spirit of conciliation, and ]>artly to the l^ri. stated hy Her Majestv's Hi<;;li Connnissioners. that a portion of tlies(> claims was nt ;i constructive and iid'erential character. The iin|iiirtance of these concessions must not he nmlerrated. Nor can it ha\e In 1 1 expected liy the (Jovei'iiment of the Inited States that concessions of t his inipcirl.iin . would have heen maile hy this country if the I'nited States were still to he at lilniiv to in>ist upon all the extreme demands wliicli they haty's (iovernnient consiilered tliemselves Justilied in trcalin;; the wnivci nj indirect claims, in tiie event of an andeahle settlement, pioltercd l»y the lii;ili ('(iiniiii« siouers of the t 'nited .States, as one w liicli a]iplied to any foiin of amicahh' selilciiiriii and iherelore com|M'ised. in like nninner. the j'orm of amicalde scttleivent pi'opii>cil li\ the liiilisii lliyh Commissioneis. accepted on the part of the I'nited Slates, and rcdi;;- ni/.eil in the pieandde of the Treaty. Sm'li a waiver was. in fact, a necessary condition of the success (d' the iie;,'citialioi, It was ill the lull hcljef that this waiver had \h >n made that the Itritish (iuveriiiii.;, ratified the 'I'leaty. Her .Majesiy's (•overnmeiit are anxiuus that the considerations wliicli iiuide ilir;i. hold this lieliel' should he more fully ex|dained to the (■overnmeiit of the rnited Sl;iti - than call he done in the form of a letter, and I have accorilin<>ly emhodied tlicni in ., MeiiKiiaiidiim. which I have ihe hoiioi to inclose, iind which 1 hc>; may he read ^^: ith the views which they entertain, ami sustains thru assertion thai the leiiusof reference to the Arhit raiius are limited todiriit claiiii~. inasmuch as direct (daims only have lhi'ou;>hout the cMrespoiidence lieeii i'eco<;iii/i'il and i<'pealedl\ delim d iiiiiiei' the name i>i the "Alaham.'i claims." 'I'here are some pas>-:i;j;es in Mr. fish's dispatch in wliiih he defends the intriHliHlim. into I he Aiiiei lean ( ase of I he I'laims tor indirect Iosmcs uiid iiijiirics, which 1 caiiiiin allow to jiass w itliout more s|iecial remark. It is .^lali'd thai they are put I'oiward in the Case, not as claims for whic demand is made, hut as losses and iiijiiiies coiisei|iient upon the acts ctunplaiii and nece>sarily to he taken into ei|uiialde consider.-ition in a final .seltlcnicMt ot ;ii ditfeiences hetwei'ii the two conntries. and .-is not relim|uished in the Treaty, hut con eied Ity on<' id" ifs two alternatives. Her Majesty's (losernmcnt do not iiereeivo what " idternative" in the 'i"real\ 1:11 I a s)M'c .1 cI. cove til. se claims. If. indeed, hy this lan-.'iiace NJr. I-'ish is to he nndcrstooii as rcterriii;r to Ih'' two ilii- ilv I. fen'iil modes pro\ ided !•> .V I tildes \ li and .\ of I lie 'J'leal.v . for arriv iiijj at t he aiii' ot' the p.iyment to he niaiie hy (iit-ai Iliiiain in the event id' any lialiility hciiiji 4 lisiii d, tlie airswei' seems ohvioiis, vi/., that these alternatives me a|i]dieahli' 01 the ';i!s. and not to tin measure ot' lialniiiy. A}:aiu. Mr. I''ish states that the Treaty was not an amicaldc >etth nieiil, hut oiilv : u- mode of reaeiiin;: a settlement. :i' ti;;rei met it hel ween the ( iovernmcnts as to th that no proitt I of withlnddim; an estimate oi' ndireet loHNesciiu he claino'il ;is a w:i until the loult of the arhilration is arrived at; luit he ovfilooks the tad 1h.1i I'l' Tri'atv iscalled anamicahle settlcineni . not nn-rely in relation toihe '•Ali«hiiniM «laiiii>. )uit as an entirety ; and e\ en in ndatitMi to thi^ "Alahama idaiiiis'' alone, it must clcnilv Ite taken that the amicaldc HettlenMiu wliicli it profcss«d to provide was an i veil it from the iininieiit when the trenty containiiij; the anieement to j;o to arhitration ii|mi. till! claims was nigiied and ratiliod. If, utcordiuK tu Mr. Fiuh's viuw, an amicahir >< 1 CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 4r»9 Pf-ffi tlir 'l'rcal,\ '^i: tliiiuMit iiftiT a iclVri'iiPi' to arhitration can only 1>ij nrrivcd at l>y ati adjiulication of tilt' claims, it is tilivions lluit im waiviT triieti\ e dam- a;.'cs to trade and navi^.ition which may he proved or supposed to have aiiseii Irom iiiir attitude durin;; the \\ ar."' 1 oliserved that > on Were present in the House of Ijirds (in that occasion, and vou informed nie. on the liith of Decemher, that you were present during the speeches i.f I.urd I'lissell and myselt'. and that \oii communicated the next day the full newspaper ivport of the dehate to your (io\ernnient. Sir S. Noi'thcote, in the Mouse of ('omnions, repeated, in other wojds. the siihstance cil' my remarks on the limitat ion ol' t he terms ol" reference ; and as hi> sp.-i ih is pnuli'd ill the papers on I'oreijjn Relations, recent ly laid liefore ('oiij;ress. it mnsi also havM lici'u reported to your (iovemmeiit. Itiit neither on the occasion of my s|ieeeh. nor of his, mir when the latitic.itioiis ot' the Treaty were exchaiij;!'!! on the ITtli of .June, did vim c.ill ni\ attention to the fad that a dilferent intiipretation was placed on the frc'ity and J'rotocol hy Her .Majesty's Covernment and the (iovernineur of the I'nited ''tales; nor, so far as Her .Majesty's (ioveinmeiit are aw are, was their inti rpieiaiioii, liiiis piihlicly expressed, cliallcn;;cd cither hy the Htatesnicn or the puhlic piivs of the l.llited .StatcH. Her .Majesty's iMiverniiii'nt must therefore confess their iimhility to umli-rstand how the intimation i ontaiiied in my note of the :f liotli (iovernnn-nts rei|uires should he delinilely settled ller .Majesty's (ioverument ;iy;ree with Mr. I'isli that it is lor the interesi of hotli c'oini tries that the rights and duties of ncntrals upon some of tin- points hitherin thon^iit ii|ic'll to serious ruiitroversy should lie delinilely set t li'd, and liad hopi-i! that spli a I'tlleliiellt had heen secured hy the Rules to which llie\ lia\e ;;iven their assent : hut they eaiiuot see that it would he advantageous to eil her couutr> to render the ohli^a- lioiis (if neutrality so onerous as they would hecoiiie if claims of this iiaiure were to he treated as propel siilijects ot° internalioiial arhitration. Whatever construction may he placed iipmi the Isi .\rlicle of the Treaty, it is im- IHKsihle to sever the terms of referi'Mce tlirieili coiilailled from till- IJilles ill til'' N'ltll .\rticle: and the meastire of liahility under the .\i'hitraiion, theielore. will h.- the iiieasiiie of li.'ihility incurred hy any neutral Stale which, after accediiii^ to th-s.- R lies, may, " hy any act or oiiiissiou." fiil to fullill any of the duties set forth in tin iii. The I'liited States and (ireat Itrilaiii have hound theiust'lves l»y thi' Treats to oh- serve these Rules as between themsilves in fiilure. 'I'liey have, moreover hound tliemsidvesi to hiiiij^ these Rules to the knowled;; • of itller maritime I'uWers, and to iuvile them to accede to them. Could it have heeli i'X|M'cted that thox.- I'owers would accept a {iropusal wiiicli iiii;;ht eiii.iil iipnii ,i iieiur.il tiii'li an iiulimited liability, and, in some instances, mi^ht involve tie* ruin ol i whole I'liiiiif ry .' Her .Miijjesty's (Jovernnieiit cannot for thiuiiselv«.i uccepL hucIi a liahility, noi recom- iiieiid the acceptance of it to other nations. .Vie the (ioveriiniellt and |icople of the I'liilcd States themselves [iri pared to lliider- taki- the ohlij^ation of payin;; to an ay;;;rievvd helli),;erent the expenses of the pfolmma- tiiiii of the war and ither indirect daiua^i'S, if, when the I'nited .States are neutral, they I'Hii lie shown to h'.iv i> periuitted the iiifi iuu;eiueut of any one, or part of any one, of tlm llnec |{uleH throujjh i; want of due dilif^ence on the part of tiieir exe>iiti\e ntHcer.s ? To attiich such truiut'iitluus ('iinsei|uciiccs to iin iiiiintciitional viulatiuii of mutr.ility 440 TREATY OF WASHINGTON. i 11 •i-v*' i — it niijilit 1><^ I'y a wiiijili^ net of iic^'li^jtMift) — would l»o to Htrike ii liciivy l»lo\v at tin intciots of|ifacf; lor war has siuricly any coiisccjucuct's iiioro I'ormidalihj to a Ixlii^'- tri'iit tlian tliosr wliicli iMi(;lit tlins In; iiutiuml liy a lu-ntral ; and, vvliiU- war ollcrs^i cliaiii'c (•( ;;ain, niMitrality woidd, if siudi claims as tlifso wiTo ouue adinittt;d, pre.MJiit witliiint any sncli coinponNation the risk of intnlcrabl*) loss. With rcsiicct to tlu! disdainuir inailo l>y Mr. I'isli cd" any expectation or wish, on tin. part id" tlif United Statt!s (iovcrnnitMit, to obtain any "nnr<)a.sonal)lo pi-cnniiny ('oni]unsation " on account of these indirect (laini-^, I think it Nudi(dent hero to oIiscim that, on the ipu'stion of amount, tin; Hritish people and (•overninent iiavo necessarily lieen oldjired to look to till) nature, and ^{rounds of the claims an they ar«^ utated in tin (,'iise of the United States, and have, id' course, hien unalde to form a, judgment iVniii any other */«/« of the expectatioim of those hy whom the claims are advanced. If iIicm' claims could be considered as well grounded in principle, it appears to Her Maji>ty> (iovernment to he ca|)ahle of demonstration that the magnitude of the damages wliich might lie the result of their adnussion is enorninus. Tho grounds of thcso views aie Riore fully stated in the Third I'art of the iiudiix -d Memoramlum. Mr. I'ish has appeah'd to the proceedings at tin W:ishington Claims Connnissiini ju conneitioii with the Confederate cotton claims. Her Majesty's ({overninent nnist. how- evei. olisei'vi' that there i.s no amilogy hetween the two eases, as, hy the Treaty, the W.ishington Commission has power " to decide in inch case whether any idaim has or lias not heeii duly made, )ireterrcd, and laid liefoie them, either wholly, or to any and what extent, according to the true intent and mi .uiing of tho Treaty;" no similai words heing used as to the powers of the (ieiieva Trihiinal. It is the liinction of thi^ Washington Commissiuii to decide upon a variety id' gem ral claims, not of one kind, nor limited or delined Ind'ortdiaiid, and Her Majesty's .Vgint was instructed that his W/;ia ./Vjcir lie to present such claiiu.s as private individuals might tender for that purpose for aeie]dance or ri'jection hy the (.'oimiiis- sioii, Ilcr .Majesty's (ilovt.'rnment not intending to make themselves responsihle i-iilin for the merits of the particulii.r claims or for the arguments hy which they minlit lie supjiorted. The jurisdiction jf the Cieiicva Trihiinal was limited to one particular class and description of (daims. 'I'hc facts are as follows: On the II ill 111" Noveiiiher, in ])ursiianco of thi' gener.al instructions which had hern given to Her .Majesty's Agi'iit, a claim upon a Imiid issued hy the so-called (^'mifeilciatu States for a sum forming jiart of a loan called the •' Cotton Loan,"' coiitrai ted li> those States, and for the jiayment id' which certain cotton seized by the I'nited States \\as ■•illeged to have been hy]»otheeated by the Conlediisite (iovernment, was tiled at Wash- iiigton : and on the 'itst I learned from you that the United .States (government oIijccIkI to claims of this kind being even presented. Some delay took place in consei|ueiiee of unavoiihible cau.Hos, with some of wliiili you are widl acunainted. And there were others, such as the necessity not only ol communicating with my colleagues, but with Sir Kdward Thornton, and of coiisiilcriiii; how far, under the same general description. tlii-re might be included claims substan- tially ilitVen'Ut. The dispatches from Her Majesty's .Vgent giving the didails of the nature of the (daims, and (d" the demurrer made to it by the United States Agent, did not re.ich me until the ()th of December. I had. in the mean time, ascertained troin .Sir Hilvvard Thornton that the expression '•acts committed" hud \u'vn used by mutual agreement in the iiegotiatioiiM whiidipnu'cded th. iippointment of the High Commission with a view to exclude claims of this (dass from the consideration of the High Coinmis- Nioners; those words being also used in the\Hth .\rtiele of the Treaty with regard to pri- vate (daims. The i|uesiion was brought bidore the Cabinet at its next uKjetingon (lie 1 Ith. and waslinally deiddedon the I Ith, as recorded in a minute by Mr. (Jladstoni!. Tlii> decision was that the CouftMlerate cotton claims should not bo pr(!H(.'iitfld unless in the case of bonds exchanged for (!otton, whiidi had thereby Ix-como the actual property d the (daimant. and direction.s were given for a dispatch to be sen'., to this clfei^t, and on the Hith I inl"ormed ymi that you might write to Mr. Fish that Her .Majesty's .\geiit would be instructed not to present any claims that did not coniu within the provisions of the Treaty. Although it appoat'H that the understanding need not iieocsaarily have extijuded be- yond the rejtiction by the (JonuuissioncrH of the claims, under the XlVth Article, by wlii(di tho Coinnii8.>)ioner8 have power to decide whether any claim ih preferred within the true intent and meaning of tho Treaty, (as was «lone with viirioius claims under a Hiinihir Artiido in the Claims Convention of IS'tA,) Her Majesty's Government acceded to the constriictioa which the United States Govorriueut bad put upon that umhtr- standing. Mr. Fish will (diservo tho feeling by whi(di Her Majesty's Govoriuuent were guided in coining to their decision on the 14th. They (h'sired to put the niOvSt favorable coii- Htriictioii upon any uiulerstauding which tho United States Govermuont might have Bitpposed to exist. luformutiuu reached me the next movuing by tolograpb of the adjudicutiuu, which "»T^ W^ COIIRESPONDENCK RESrECTING GENEVA AIIBITRATIOX. 441 Hit MaJosty'H G(iv<'rninpiit lia»l n<»t oxiti'dcd to tako |>lac(<, u|>oii tln! nu'iits of tlio claiiii li.v tin' ('oiiiinisHioiicrs. Tins rci|iiii'y t<'li';;ra|ili, to Sir Ed- ward 'riioriitoii to !)r:,(ii){(^ witliMr. Fish that tlio prrMciitatioii of claims wliicii a|i|M>ariMl tip l>f maiiifi'stly w.tl^out the trriiis of tlm Treaty should ho withheld, and that whoii Ijir Majesty's Aj^eiit was of (-;ii'iioii that a claim hfloiijrcd to a clasn that oii;;iii not to hi- |in-s<-Mt*-d, it would he di'siralilc that an a<;rtMMncnt to that clf.Mtt should lie mado and si;;iM'd hy Sir IMward Thornton and Mr. Fish. Thcso instrnetions wen- i-oniinu- niiMtcd to Mr. Fish. Ilt-r Majesty's .Af^ent has since act«Ml in acconlance with tlio decision of the Cahinot of the I Ith of Decuimlier. New claims of the like character have been tendei-d to him liy |iiirlies who were unwilling; to acifuiesce in the decision of the Commissioners as :i|i|di(alde to their own cases, hut which claims, under instructions from tier Majesty's (JitverMment, h.ive not heen presented. I havit now placed in your hands, for examination hy the Govennnent of the United States, a statement (d'tlu? reasons which, in the opinion of ller Majesty's (Joviiinuent, siilliciently show that claims for indirect losses are not within the nn-aninuol' t Ik- Treaty; that timy were lu'ver intendctl to lie included hy llcr Majesty's (iovernmenl : th.it this was piiidicly declareil liefint* the ratilication, wln-ii the crnu", if any, miy:lit have lieeii cerrccted ; that such claims nre wholly lieyond the reasonahle scope ot any Treaty i>f Ailiitiation what(u-er; and that to suhmit them for decision liy thcTrilninal would liu :i measure fran>;lit with pernicious consci(Uonces to the iiitcrusts uf all nations ami to llic I'ntiire peace of the world. I appiecijite the desire suhstantially, if imlirectly, expressed by the (iovernmeiit of llic Fnited States, to be advised of the rejisons which have prrounds on which their jml^iuent proceeds, they think it the course at once most respectful and most friendly to tile (iovernmeiit of the I'nited States to submit those ;rrounds to their impartial :i|ipi'cciation. Her .Majesty's Governm<-nt (eel contidcnt that they have laid bi-t'on; tll(^ I'i'i'siilcnt ample )iroof that tint conclusion which was ,'innounced by me on tin; lid of IVliinary, and to which J need hartlly say that they adluao, cannot be sliak(»intniont to bo to "discuss in u friendly sjiirit with Coiiiinissioners to l)e appointed liy tli(^ (jrovuruniont of the United States the various <]iiostions on which ditt'ereinies liiul arisen between Great Dritain anil that country," and to " treat for an agreement aa III the mode of their amicable settlement." The Protocol of tho 4th of May recounts that tho American Commissioners stated, III! the 8th of March, " that tho history of tho ' Alabama,' and othor crui-sers which had l«'uii titted out, or armed or equipped, or which had received augmentation of force in lir(;jit Britain or in her Colonies, and of the operations of those vessels, showed (t) ex- teiiHivo direct loaaea in tho capture and destruction of u large number of vessels with 442 TREATY OF WASIIINGTOX. tlit'ir rarjjoj'M ami in tlir lienvy national cxix'nditurfa in the jinrsnit of the « riii>it>i; nni wliich had imt lieen |ireseutcd ; that tiie cost to wiiicdi the (lovernment had heeu ]tnt ill the |>iii'siiit o| cruisers coiihl easily he ascertained l»y certilieates ot' ({overnnieiit account iie^ ii;iii-fi^ : that, in the ho|ie of an iiniifithh' Hclllniiiiit, no estimate was made of the iiiiiirtr' /.m«i», without |ireju(lice, however, to tlif riijlit to iiKhmiiiJiivfion on Ihfir accoinil in the event of nil siiili HiiiUmtnt heiii!f made. "The American (Commissioners further stated that they liojied that the 15iiti-ih ('niii- missioiiers would he .ihle to )ilace u)ioi) record an expression of le^iiet l>y ll-r Ma- jcHty's ( loveriinieiit for the depredations committed l»y the vessels whose acts were now under discnssioii. Tliey utxo pvojnwd that tlie .loiiit lli;;li CoiiimissiDn slimilil nai- islactioii of ((// Ihr clinnin, and '/ic iiilnrHl llii'mm." The IJiitish Commissioners altstaiiied •'from re|dyiii|; in detail to tlip stsitenieni of the Aiiwrican Commissioners, in the hope that the necessity for enteriiiy iip'Mi a leiifjtiiened controsei.sy mij^lit he oliviated hy the adoption of HO fair a inoilt- <>/ s,?//,. iiuiil as that which they were instniiied to propose; and they had now to repe.it. nu behalf of their (Jovernmeiit, the oiler of aiiiitration. " The Aiiieiicaii Commissioners expressed their re;;iet at this deiisiou of the r>iiti»h Commissioners, and said further that tliri/ roiilil not conxml to xntimit thr iimstiim of ih, lidhililii of flir Majmlii's tlovfninicnl to f(r/j///y(/io», (rti/cvx the principles whiili >liiiulil jjoverii the Ai liitraliir in the consideration of the facts could he tirst aj^reed upon." These principles were .siihsei|iiently discusNed and aj;reed niioii, and incor|torafed i:i the Pratt of the \Ith Article of thcTreaty. On the (itii of May, the Commissioners met for their linal confereiico, and I.nril iji- (•ray said that •• it had heeii most jiratifyiiiji to the liritish Commissioners to h- a-x'- ciated with c(dlea;;iies wlio Were animated with the same sincere desire as theiiisi-lve^ to^lii iii^ alioiit (( xdlli mint eipiiilly honoralde and Just to liotli countries." Mr. I'isli replied, that "from the first (.'onference the Aineiicaii ('oiiimissioncis h.-id lieen impicssed hy the earnestness of desire manifested hy the IJritish Coiiimissiiiiiii« to reach (( Miltlfmint wm'tliji i>f ihi two I'ownx. » * » Mis c(illeau;ni's and he eniil'l never cease to appreciate the jieiierons spirit and the open and friendly maiHui- iu ■which the Ih'itish Coiiimissioiiers had met and discussed the several <|nestioi|s th.ii liel led to the 1 iMicliisioii of ///(' Trciilii, n'h'nh il irns tiitpid would receive the apiU'oval >•!' t!ij people of lioili countries, and iroiild jiron tin' fonnilulion of a rdiol and fro ndly nnd>\- Hlaiidimi Iteiwecn them for ;ill time to come." Two days afterward the Tiei.ty was siirned with the fidlowin;; I'reanihle : '•||er Urilaiinic .Majesty and the riiited States of .Vnu'iiea, l>eiiii>- desirous to jn-ovidc for ((" uiniiiildi xitllinont of all causes ot" ditVereiice he! ween the two coiiiitries. liavr. for that purpose, apjiointed their respective I'lenipotent i-nies. ' * ' Ami tin- »:iiil I'leiiipoteiitiaries. after liaviii;;' e\cliaii;ied tlieir full powers, which were fouml to In' in due ami proper form, Intrv oijtnd to and ninclndcd the followinji Articles." In the view of Her Majesty's (Jovernnieiit the statement made hy the Aiiieric-;iu Commissioners on the Htli of March contained a waiver of the claims tor iiidir<'t't lii«'i'> contiiniciit on an "amicable Nettleincnt" boinjj; arrived at; and thi.s waiver con-i!»te.l of two pails; l-'irst. the allirmative statement th:«t " in the hope of .in amicable settlement noe>ti- mate was made of the indirect losses." The words " in the hope of an amicable sittlr- ineiit" are in them.sidve.s j;rainniatically jj;eiieral, and, unless ipialilied by a sultieipunt limitation, iii'-an, in thr hope of any smdi settlement, as the jtarties shall acknowhil^'' to fall under the ]»liraso '' amicable settlement." Now, this part of the w.aiver. h.iiiy;.! declaration in which the other jiarty had an interest, and, so far, of the nature of tli'- jiromise, C'Mildonly he ho limited by an express .•.m^iticiition followin;; it iminediatclv, or at li-ast iitibre the other party had taken any sti^p in reliance on its }jeneral eliai- actiT. Hut no such specitication was made; nor does any speciliijation at all as to tie' partieiilai form of .settlement appear in the Protociol. The jthraso cousetpiently it taiii'* the fjeiieial character above described as its literal and y;raiiiiuiitical iiieaiiiii<;. It nii;ilit be said that the conclmliii!> words of the phrase— " no estimate was iii.n'i' of the iiolirect losses " — had a special re;rard to the form of aiiiicable .settlement tlien - after inoposed by tho American Commissioners, viz, the paymuiit of a <;ross sum. T lii>. however, can only b« maintained subject to the iinaliticatioii that, if the estiiiiatr nt indirect losses was withheld in tho hope that that proposal would be accepted, ami it the view of the Americau Commissioners was that the auueptauue of that proposal aloiii- T-^^rrT W-' lis •11 If- CORKKSI'ONDKXCK RESPECTING GENEVA AKBITItATION. 443 would ciMiNtihiti' tli(! " amicalili' KcHlfiiicnt," in «'oiisi(ltMatii>n of wliicli Iht- istinmto of imliicct lossi's was witlilicltl. tliin tlir iii-xt sti-ji lor llifiii, wlnii the |tin|io>iil wasdc- cliind. waM to |iiiMiit that fstimatc ; or, il not, tlim In sonu' oIIkt s|n(ilic nianmr ti» Ki-t'|i alivi- till- claim. Hut tlicydid niMiluT; tlx.v did not iiitiniaic or ;;i\'i' ncititi* to tlir liiilisli ('oinnussioiuiH that thrii iio|ii> of an " aniii'al)h' M'tth-nii lit " had I ii liii>tialrd or di.-ajt|Hiiiite liearing obviously dei>eiid.s n|Kiii the meaning of the wtnils "no siieh s Ilielit." Now tho word " Hueh '" grammatienlly «|iinli(ieH the word " wttleinent " l>y lefi rring to the .inteicdeiit e\|»ressioii " amiealde settlement." "Siieh," theieloie, means •iimi- (alile;'and the rij;lit reserved ity llie American Coinmissioiui.s is grammalieally u lij^ht to revive the (|iiestioti of indirect Iomwh in llic en nt of no umiaihli mllli nu iit biiinj iiKitti'. and is nothing; more. It Is to he olisi'ived that at this time no luojiosal whatever hail heeii made lor iiay- iiieiit of a gross Slim, or for any iiaiticnlar form or mode of settlement. The (inly remaining (|iiestion is 'vhether the Treaty was ii.self "an amiealile settlo- iiieiit." or, which is the same tlii ig for the inirposes of the arginneiit, was in indiiiv tow.'iid .'III amiealde si'ttleiiieiil , and a step on the road to it. This (|iiestion is answered liy t lie )(reaiiil)lc of the Treatv. which declares that tho rresident of the Iniled .States hi.d (.is well as Iler Miijesty) given his Commissioners (citaiii powers "in order to pro\ idc for an amiealde sell lenient "of cei lain dill t ieiic>s, in which tliv "Alahama claims" were included : that these powers had hccn ciimpared iiiid \erilied; and that in virtue of thein the ('ommissioiieis had agreed ii|ion the Ailiilcs of the Treaty w liieli are then set fortii in order. The " amiealde seitii nieiit " is lieie distinctly recogiiixed uot as a parlicalar soliili«i o^ >he peiidiii;; i|insiions which had liecn pro]iosed and set aside, lint as an oliject of negotiation which had lieeii provided for in a manner satistactory to liotli parties, and the proxision lor which was ciiiltodied in the Treaty. The reservation, therefore, made by the ,\meiicaii Comniis- dioni'is had not eoiiie into play : the w.iiver remained in full force; and the indirect losMs were excluded by the preamble of tin- Treaty from the scope of the arbilialitiii. TAirr II. On ih<'ioii«lriirlioii of thr Tiraty »/ Wdshiiiijtou. rpon the eoiistriictioii of the Treaty of Wa.shington, apart from the I'rolocids, there aiipear to be three i|uestions : riiti. \\hat < lainis are ilescribed by the words, " //ic vluims gviiericitlh) kiunni an Ike 'Aliihitma Clitims .' ' " ,S(<(»//(/. What vessels are described by the words, " Ihf xrrenil fcuxrh, ivhirh Inirc t/iiTn riM- /(I I III' rliiiiiixfiriitricdllji kiioivii ux lli<- 'Jhibmiut Cl((imx.'"' 'J'liinl. What elaims are desoiibed by tlie winds, " «// llir xtxid vliiimx, f/yoiriiiii out of aclx III III mi tied blithe a/oirxaid rcxxilx^ (mil firiivrivallii kiioini itx the ' AIiiIhiiiki t'luinix f"^ (liciiig tlu! wdiiis iu which the subjeet-mutter of the rofereuce to arbitration agreed ii|>oii isdelineil.) Kacli of thes*' (luestions will lio examined separatcdy. 1. What elaims are described by the wonls, "the claims fjtticrirally known as the 'Alabama Claims?"" The word "known" signifies that this collective ex|»i'ession had ac<|nired a dcliiiito Hiisc. supposed to be niutiially understood, from its use in [irevions coinniuiiications, lulween the same jiartics. The word "geneiically" naturally signifies that all the claims intended were ijuxdim fHiiirix. Tilt) word "claims" itself i aMi'.i>^!\' signifies demands actually presented or notified, cither w itli or w ithoiit a full spec;;:' at ion of iiarticiilars. The dii)lomati(! correspond ii-, ■ . nicli ineeeded the negotiation, must therefore lie ri'lcired to, to discover, first wh-.i. demands had been presented, or notified; and stciiiidly, what had been the pieviciis u.se of the jihrase "the 'Alabama Claims .'"' The earliest intiinatioii of my (laiiiis against this country was in the letter of Mr. Adams to Lord liussell, of !' % .>^' o / -«^ Photographic Sciences Corporation 4^ "S? V «v \^ '^<^ 23 WEST MAIN STREET WEBSTER, N.Y. MS30 (716) 873-4503 ^ ^ •<* ^ ! 444 TkEATY of WASHINGTON. 'r!roperty was alleged to have been destroyed by the " Shenandoah." On the 7th April, 18(55, (when the war was considered by him as actually or virtually at an end,) Mr. Adams transmitted to Lord Itnssell certain reports of "depredations committed upon the connnerce of the United States" by the "Shenandoah," and achled, " Were there any I'cason to believe that the operations carried on in the ports of Her M.njesty's Kingdom and its dependencies to maintain and extend this systematic dej)- redation upon the commerce of a friendly people had been materially relaxed or prevented, I should not be under the painful necessity of announcing to your Lordship the fact that mi/ Government cannot avoid entaiUnj upon the Government of Great Britnin the rcMponsibilitif for this damage" and he proceeded to speak of " the injury that miglit yet be impending from the part which the British steamer 'City of Richmond ' had iiad in being sufl'ered to transport with impunity from the port of London men and siipitlii's, to place them on board of the French-built steam-ram 'Olinthe,' alias ' Stoerkodder,' alias 'Stonewall,' which had, through a continuously fraudulent process, succeeded in deluding several Governments of Europe, and in escaping from this hemisphere on its errand of mischief to the other." He thou went on to complain that, by reason of a series of acts, (the furnishing of "vessels, armaments, supplies, and men,") which he contended to be almost wholly attributable to Great Britain, or to British citizeus, the entire maritime commerce of the United States was in couvse of being transferred, and had already, to a great extent, passed over to Great Britain, whose recognition of the belligerent character of the insurgents he alleged to be the main and original source of all this mischief ; adding, "In view of all these circumstances, I am instructed, whilst insisting on the protest heretofore solemnly entered against that proceeding,'' (i. e., the recognition of Southern belligerency,) " further respectftiUy to represent to your Lordship that, in the opinion of my Government, the grounds on which Her Majesty's Government have rested their defense against the responsibility incurred in the manner hereinbefore stated, for the evils that have followed, however strong they might have hitherto been considered, have now failed, by a practical reduction uf all the ports heretofore temporarily held by the insurgeuta." CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 445 other siiiiilai- It is to be observed that, althongli tlie general injury to the commerce of the United States is largely referred to in this letter, Mr. Adacns advances no new cliiini for eom- pijnsation, on tiiat or aiy other acconnt, (except for captures made by the "Slienan- doah,") against Her >lijt;sty's Government; he even intimates that the particuhir claim for the (•a])tnres hy the "Shenandoah" wonld not then have been made, if iiis Ciivernment conld have felt assured that no further operutious of the hko nature would take jdace. Tiiis letter led to a prolonged controversial argument, in the course of which (on the 4tli ilay, ISCm) Lord Russell observed that he could "never admit that the duties of Great Britain towanl tlie I'nited States were to be measured by the losse ", wliieh the trade and eommeree of the United States might have sustained," and said, " Tlio (liiestion, then, really comes to this: Is Her Majesty's Government to assume or bo lia- lile to u responsibility for conduct whicli Her Majesty's Governnuint did iill in their l)()\ver to i)revt!nt and to jiuuisli ? A responsibility which Mr. Adams, on tlie part of tlie United States Government, in the case of Portugal, positively, iirndy, and justly (Icclined. Have you considered to what this responsibility would amounrf (Jreat liiitain would become thereby answerable for every ship that may have left a British IKiit and have been found afterwards used by the Confederates as a ship of war"; nay, iiime, for every cannon and every musket used by the Confederates on board any sliij* (if war, if maiinfactuied in a British workshop." To which Mr. Adams rei)lied (*^()rh May, IHfi")) by a " recapitulation" of -nine points, which he said he had desired to eni- binly in his previous arguments. These jtoints (beginning with the recognition of Southern belligerency on tlie high seas, and alleging this belligerency to havt; been in fiict created, after the recognition, by means derived from Great Britain) mentioned, miller the 7th head, " the huniiny and destroying on the ocean a larr/c number of mrrehant- fcf'fcin and a veri/ targe amount of propertg betonging to the people of the United Stated," The f^th and 9th heads wert; thus worded: "H. That, in addition to this direct injury, the a,ction of these British built, manned, and armed vessels has had the indirect eftect of driving from the sea a large portion of the commercial marine of the United States, and, to a corresponding extent, enlarging that of Great Britain, thus enabling one portion of the, British people to derive an un- just advantage from the wrong committed on a friendly nation by another portion. "9. That the injnrien thnu received by a country which has, meanwhile, sedulously endeavored to perform all its obligations, owing to the imperfection of the legal means lit baud to prevent them, as well as tlu^ nnwillingness to seek for more stringent jiowers, an- of KO firace a nature as in reaton andjunlicc to constitute a valid claim for reparation and iMlimnification.'^ Later on, in the sanie letter, Mr. Adams also said: "Your Lordshij) is pleased to observe that you can imver admit that t'le duties of Great Britain toward the United States are to be nieasun-d by tlit< losses which the trade and commtnce of the United States may have sustained. To which I would ask permission to reidy, that no such rule was ever desired. The true standard for the measun-ment wouhl sffui to be framed on the basis of the clear obligations themselves, and the losses that spring from the imperfect performance of them ;" and "thus it is that, whatever may he the line of argument 1 pursue, I am compelled ever to return to the one (ionclusion : ///(' ualion that recognized a Power asa hvlligerent before it had built a vessel, and became itself (//(! sole source of all the belligerent character it has ever possessed on the ocean , must be regarded an responsible for all the damage that has ensued from that cause to the eoiumerce of a J'ower with which it was under the most sacred of ol3ligations to preserve amity and jieaee." It will be seen that, although the general projjositions of this letter might he wido enough to include the largest imaginable demands, it nevertheless abstains IVom put- ting forward any new claim in a definite or tangible form; and purports rather to reciipitulate and adhere to the tenor of the preceding correspouilence. Ami in this si'iise it was, evidently, understood by Lord Russell, who, in his answer of 150th August, IfG."), referred to the suggestion of an arbitration contained in Mr. Adams's former let- ter of the 23d of October, 18(i3; and, while declining "either to wake reparation and 'Ompensation for the captures made by the ^Alabama,'' or to refer the question to any foriMgu folate," ott'enul a reference to a Commission of "all claims arising during the late civil war," which the two Powers should agree to refer to the Commissioners. And again, oil the '.'Uh October, he repeated: "There are, I conceive, many claims uptni which the two Powers would agree that they were fair subjects of investigation before Com- iiiissiouers. But I think you must perceive that if the United States Gorernment were to propose to refer claims arising out of the captures made .',v the 'Alabama^ and'Shiinandoah ' to the Commissioners, the answer of Her Majesty's Government must be in cousisti^ney with the whole argument I have maintained, in conformity with the views entertained •j; your Government iu former times. I should bo obliged, in answer to such u pro- posal, to say : For any acts of Her Majesty's subjects committed out of their jurisdic- ti'Mi and beyond their coiitrol, the Government of Her Majesty are not responsilde," &c. Uu the aist of October Mr. Adams addressed a long letter, with iiumerouM inclosures, to Lord Russell, with reference to the "Sbeuandoah," alleging that vcnsel to have been received by the authorities at Melbourne with knowledge of au illegal eiiuipmeut iu 446 TREATY OF WASHINGTON. this ennutry; and insisting that, on that account, Her MujvKtifs Government (isn/nnid a resjiounihililfi forall the damage whieh it hud done, tuul whicli, (h)\vii to tho latest iU'cmiiits, it was still (loin<^, to tlus peaceful connnerce of the rnite;ht tit at the outs«!t to exclude from consideration, are just and reasonable, I am instructed to say that it sees now no occasion for further delay in j^iv- in}I a full answer to His Lordship's propositions." The whole result of this corn^spondence, down to the change of Administration iu this couutr,, in IHUG, umy be thus suuuued up: 1. That notwithstanding continual complaints, oxteiuling over a vast range of sub- jects, from the recognition of the belligerency of the Southern States downwards, no "claims" against this country were ever delined, fornmliited, or presented on the pint of the United States, except for tho specific losses of American citizen^ arising from tins ca)»turt! of their vess^ds and property by the "Alabama," " Fhu'ida," aiul " Shtuiandoiili ;" and ("J) that no such form of expression as " the Alabama clnimH " had ever, down to tliis tiiut,' been used to describe even the claims in resjK'ot of those captures, much less to conipreheiul any more vague and indefinite demands of imlemnity to the general mcr- cantih^ or national interests of the United States. On the accession of Lord Derby to power, Mr. Seward in a dispatch to Mr. Adiuns, dated the 5,*7th August, lH(!fi, thus defmed the "claims" which it had been the oltject ot' the United States to press iu the prectMling corres])ondence, and of which he now ii^aiii instructed ^Ir. Adams to urg(! the settlement: "You will herewith receive a sumiiiiuy of elaims of eiti:enn of the United Slates af/ainst Great Britain for damaffes whieh ircre suf- fered hji them during the period of our laie civil war and souu; mouths therciifter. /)// means of depredations upon onr commereial marine, eoinmitted on the high sttas by the 'Sum- ter,' the ^.llabama,' the 'Florida,' the ' Shenandoah,' and other ships of war, which were built, nuinued, arnu-d. equipped, and fitted out iu Ihitish ports, ami dispatched theret'idiii by or through the agency of British subjects, and which were harbored, sheltend, l)rovided, and furnished, as occasion re»|uired, during their devastating career, in ])()rts of the realm, or iu piU'ts of British Colonies iu nearly all (larts of the globe. The len from tinu! to time brought by yourself, as the I'resl- deiit directed, to the notice of Her Majesty's Government, and made tlu; snbji'ct ot earnest ami coutiiuied appeal. That apiieal was intermit led only when Her Majesty's Goverunu'iit, after elaborate discussions, refused either to allow the claims or to refer them to a Joint Claims Commission, or to submit the t|Uestiou of liahilitii therein to any lonu of arbitration. The United States, on the other hand, have all the time insistiMl u|i(in the elaims as just and valid. This attitude has been, and doubtlessly coutiuiws to lie, well umlerstood by Her Majesty's Governnuuit. Tlio consideriitious which inelincil this Government to suspend for a time the pressure of the claims upon the attention of Great 15ritain, are these: The political excitement in Great Britain, which arose dnrinj; the progress of the war, and which did not immediately subside at its comlnsioii, seenu'd to render that period somewhat unfavorable to a deliberate examination of the very grave ply. Ho objected to refer to arbitra- tion the (piestion of the alleged prennituie recognition of the Confederate States as a belligerent ; saying " the act complained of, ivhilc it bcarn wry rcmotthj on the clainw now in (im-ntion, is one as to which every State must be held to be the sole judge of its duty." Ill another dispatch to Sir F. Bruce, of the same date, he says, "I have confined myself I'xclusively to the consideration of the .Imcrican ctaims, put forward in Mr. SiwtinVx dis- putch to Mr. Adams of the 27th Ant/lint, and arinint/ out of the dejnrdationn committed on American commerce by certain c)7(i>«c,s of the Confederate States. But, independently of tlicse claims, there may, for aught Her Majesty's Government know, he other elamm on thcimrt of American citizenn, originating in the- events of the latt> civil war, while there itrtainl.v are vtsry luuneronslhitish claims arising out of thosts events, which it is very (bsirable should be incpiired into and adjusted between the two countries. * * * The (iovernment of the United States have brought before that of Her Majesty's one (/rtw of claims of a peenliar character, pnt forward hy American citizens, in regard to wliich you are authorized by my other dispatch of this date to make aprojtosal to Mr. Seward; hut J ler Majexty's Government hare no correspondintj class of claims to nrtje npon fk attention of the American Gorernnient.'" And he, j)res»;ntly afterwards, speaks of "//«' special American claims, to which my other dispatch alludes," an expression which is adopted and repeated by Mr. Sewartl, in his reply to Sir F. Bruce, (I'^th January, l-(i7.) Ill a further dispatch to Mr. Adams (I'ith January, 1807) Mr. Seward justifies and re- atHniis the sentence in his letter r [KU't) " to British buyers for the account and bemdit of the insuigcnts ; " and afterward it'ieived under the British flag, at Liverpool. His ])ractical conclusion is that " the I'liited States think it not only easier, but more desirable, that Great Britain should !n.kiio\vledge and satisfy the claims for indemnity which we have submitted than it would be to find an e<|ual ami v ise arbitratttr who would consent to adjudicate them. If, liowcver. Her Majesty's Goveruiiicnt, for reasons satisfactory to them, should pnifer the remedy of arbitration, the United States would not object. The United States, in that case, would expect to refer the whole controversy, just as it is found in the correspoml- ciico which has taken place between the two Governments, with such further evidence :iml arguments as either party may desire, without imjtosing restrictions, conditions, 111' limitations upon the umpire, and without waiving any principle or argument on either side. They cannot consent to waive any tiuestion upon the consideration that it involves a point of national honor; and, on the other hand, they will not rerpiire that any (luestiou of national pride or honor shall be expressly ruled and determined as such." To this Lord Stanley (9th March, 1867, to Sir F. Bruce) replied : " To such an exten- sive and unlimited reference Her Majesty's Government cannot consent, for this reason, among others, that it would admit of, and indeed compel, the submission to the arbiter lit' the very question which I have already said they cannot agree to submit, llw real mnlter at issue between ttui two Governments, when kept apart frctm collateral considera- tions, (8 whether, in the matters connected with the vessels out of whose depredations the claims ')f American citizens have arisen, thecoJirse pursued by the British Govennnent, and by tliose who acted under its authority, was such as would involve a moral responsibility I'll the part of the British Government to make good, vithei' in whole or in part, the losses of American citizens. This is aplain and simple question, easily to be considered by an arbiter, t»d admitting of solution tvithout raising other and wider issues ; and on this <|uestion Her Miijt'sty's Government are fully prepared to go to arbitrati(m, with the further proviso tliiit, if the decision of the arbiter is unfavorable to the British view, the cjcamination of ^k several claims of citizens qf the United States shall be referred to a Mixed Commisaion, K'"! 448 TREATY OF WASHINGTON. with the viriv to the firttlcment of the mimn to he paid on them," His Lordship tlicii n'ponts that, (k'diiiinK it importaiit "tiiat th« adjudication of tliis (pu'stion .should not leave other qucHliom ofvlninw, i)i which their respeetire siihJe.ctH or citizeiin matj he interested, to lie matter of further disagrconuuit hetwcuMi the two (iountriea, her Majesty's fioveriiiiient tliink it necessary, in theevent of an understandiujjbcin^jcoine to l)et\veen thetwofiDv- ernuu'uts as to the manner in Avliich the upeeial .imeriean claims (irhieh hare formed tiie snti- jeet of the correnpondence of which his prexent dispnteh was the sequel) shouhl be dealt witli, that, under a C'onvtMitioii to be separately and simultaneously concluded, the fiencnil claims of the sniijeets and citizens of the two countries arisinjf out of the events of the Inle war should be submitted to a Mixed Commission," iVc. " Such, then," (he conchnled.) " is the juoposal which Her ^lajesty's (iovernment desire to submit to the Gov(>rniiieiir of the United .States; limited reference to arbitration in ref/ard to the so-called 'Ahthamu^ claims, and adjv.dication by means of a Mixed Connnission r)f j^eneral claims." The lirst occasion on wliicli these words, " the so-called ^Alabama' d 'ms" occurred in the course, of the whole correspondence was shortly befon^ the date oi this letter; in a letter from Mr. Seward to Sir F. Bruce (l^th January, 1H()7) in which he spoke ofLnnl Stanley's jirevious dispatch uf the :U)(h November, IPfifi, as settinjj forth " the views of Her Majesty's (jov»!rnmt^nt of the so-called ^ Alabama' claims presented in my disixileh to Mr. Adtnns," and as condudinj;' with a j)roi)osal of" the ])rinciple of arbitration, atteiid- t)d with s«)me modiiication in rejjard to those claims." Lord Stanley himself had si)i)keii of " the settlement of the ' Alabama and other claims," by means of the proposals wliicii he had authorized Sir F. 15ruce to make, in a note to Sir F. Bruce, dated the 24tli .Jan- uary, ISti". The same phrase, "Alabama claims," had also been used on (me or two occasions, with reference to the sanus proposed settlement, in articles which previously appeared in some of the Eiif-lish newspapers during the autumn of 1866. Lord Stanley's letter of the 9tli JIarch, 18f)7, was, by his direction, read to, and a copy left with, 5Ir. Seward ; and on the 2*1 May, 1807, Mr. Adams communicated to Lord Stanley the substance of Mr. Seward's reply, sayinjjj that " the Government of the United States adhere to the view which they formerly expressed as to the best way of dealing with these claims. They cannot, consequently, consent to a special and peculiar limitation of arbitrament in rej^ard to the 'Alabama' claims, nnch as Her Majesty's (ir>v- (!rnment su<^ij,est They cannot jjivo any p"(?feren(ie to the ' Alabama ' claims over others, in rej;ard to tin- form of arbitrament snjij^ested; and, while tlnsy a<;ree that all miitiial claims which arose durinj; the civil war /i('/(ruaj?e of this communication led Lord Stauh^y to think that his proposal niijjht. perhaps, have been understood as applyiujf only "to the claims arisinj; out of tlu> i)roceedinifs of the Alabanui, to the exclusion of those arising out of the like pro- ceedingsofthe Florida, Sheimndoah, and Georgia." He therefore wrote to Sir F. Briuc on the 24tli of ilay, 18()7, saying, " It is important to clear up this point ; and yon will. therefore, state to M"". Seward that the offer to ffo to arbitration was not restricted to the claims arising out of the proceedintjs of the 'Alabama,' but applied equally to those arisimj out of the lUe proeeediufi of the other ressels that f hare named." Keferring again to the terms of his disiiatch of the 9th of March, he then directs Sir F. Bruce to inform Mr. Sewiird that " there was no intention on the part of Her Majesty's Gorernment to give any preference, in regard to the form of arbitrament, to the 'Alabama' claims over claims in the like cateyorij'' thinking that there must have been .some misapprehension on this point, because " the question of disposing of general claims, in contradistinction to the specific claims arisin'i out of the proceedings of the 'Alabama,' and vessels of that c/fl,SN, bad not hitherto been mat- ter of controversy between the two Governments." Shortly afterward, having spoken of" the first or 'Alabama' class of claims," liesaya, " Theoneclass, or the specific claims, such as those arising out of the proceedinys of the 'Alabama' atid such wsse?'*, depend f(U" their settlement on the solution of what nuiy bo called an abstract question, namely, whether, in the niiitters connected with the ressels, out of whose depredatio'is the claims of .Imeriean citizens hare arisen, the course pursiied by the British Government, and those who acted under its authority, was such as would involve a moral responsibility on the part of the British Government /o jhaAc good, either in whole or in part, the losses of Amerienii citizens," and he repeats his fctrmer otler of separate modes of arbitration, as to the two classes of claims, viz, " those of the 'Alabama' class," or " the 'Alabama' and such like claims,'' and the general claims of the citizens of both countries. Further discussion ensued. Mr. Seward, on the 12th of August, 1867, (in a disiiatch communicated by Mr. Adams,) said that he understood the British otfer " to be at once comprehensive and sulticiently precise to conclud(» all the claims of American citizens fur depredations on their commerce during the late rebellion, which had been the subject of com- plaint on the part of the Government of the United Slates, but that the Governinent of the United States wmild deem itself at liberty to insist before the arbitrator that the iutiiiil proceedings and relations of the British Government, its officers, agents, and subjeifs, toward the United States, in regard to the robelliou and the rebels, as they occurred CORRESrONDENCE RESPECTING GENEVA ARBITRATION. 449 (lining tliiit lobollion, wiTc ainoiif^ tlio iiiiittcr.s which were coiuiectod \\\t\i the vesHcIs irho'ir (liprctidlioiix ircir fomplmuvd of.'" lie then olijfctt'd to th(^ citiistitution of ' wo (lirt'iTciit trilmiials, "one an Arbiter to di'tcniiiiie th(» i|iit'stioii of th'inneni.s in support of the. Ib'itish proposal, tlesiynalinj;' throngh- ijtit tlie spei;ial class of claims as " the no-called Alabama elaimn." After some internussion the eorresiiond«Miee was resumed by a dispatcdi of Mr. Sew- iiril to Mr. Adams, exiiressiiifi; his wish " tliat sonm means nuirlit be, found of arraniring tiic dilfeit'iices now existiuif between Enjjfiand and the United Statt^s, wineli was eom- iiiniiieated to Lord Stanley on the ir)tli February, \r*C}S. The (luestions eiiusin;^ these ilillcreiiees were thus enunn-rated by Mi'. .Seward : " 1st. The Alabama claims. 'M. The S;iii Juan tibiestion. 'M\. The (Question of Naturalized Citizens, their ri<;hts and posi- tion. -Itli. TIk- Fishery Question ;" and lie suf^ijested that " the trius method of deal- iii;; with afl these matters was by treatinjf them jointly, and endf'avoiing. I>y means lit' 11 Confeniiice, to settle them all." (Lord Stanley to Mr. Thornton, loth Fel»riiary, XrjLjotiatiojis followed, in the lirst instaiiee directed to the third and second of these tiiiir c|nestions. On the' 'iOth Octolter, Mr. li(!verdy .lohnson (who had now succeeded Ml'. Adams) calletl on Lord Stanley " to discuss with me" (says Lord Stanley, in a dis- liatcli of '.^ 1st Octolter, 18l)d, to Mr. Thornton) ''the (inestion ul' the Alabama claimn," )ini)posiiig a Mixed Commission, to whom '"all the claimn on both siden '^ should bercferrt'd. I.iii'il Slanlry "• pointtMl out the inapplicability of this method of proceeding;', as ap[)lied In tile Alabama claimx and olhcrn of the mmc c/«s.s," and su;rj;'ested, as arliitrator, the iirad of a i'rieiidly State. As to the recoj^nitioii of bellii^cMeniiy, he said that Her Majesty's (jovernment could not (h^part iVom the position which they had taki^i up, "lint that he saw no imjiossibility in so fi'amin<>; the reference as that by mutual cou- Miit, <'ither tacit or exiness, the didiculty mijrht be avoided." On (he Kttli November, IHliS, a Convention was accordin<^ly signed (subject to ratifica- tion) between Lord Stanley, on the; jtart of Ihu- Majesty, and Mr. Johnson, on the part of tile I'nited States. By Article I of this Convention, it was ag'reed that " all claimn of iiilijivin of I lev Britannic Majcntij upon the (Jovcrnineiit of the United States, ««e presented within the time specified in Article III," I viz, within six months from the day ' of the Commissioners, unless llicy or the Arbitrator or Umpire should allow a further time,) should be referred to four (oiiiniissioners, with provision for an arbitration or umpirajj;e, iu cas(> of their being nualile to come to a decision on any claim. Article IV was in these terms: " The Com- iiiissioiiers shall have jiower to adjudicate upon tlw. clann of claims referred to in the official wrnnjiondence between thetwo Governments an the 'Alabama' claimn; but bid"ore any of «/tcA •kimn is taken into consideration by them, the two High Contracting Parties shall fix upon some Sovereign or Head of a friendly State as an Arbitrator in n^spect of such 'Minn, to whom such clans of claims shall be reftsrrod, in case the Commissioners shall be iiiiiible to come to a unanimous decision npon the same." Article VI provided that" with regard to the before-mentioned 'Alabama' elann of claims, iiiitlier (Jovernment shall make out a case in sui)port of its position, nor shall any per- m\ he heard for or against any such (daim. The otHcial correspondence which haa already taken place between the two Governments respecting the qiu^stious at issue >liall alone be laid before the Commissioners, and (in the event iii;li()ii( iniiiMt.'iinsaiiil coiiliriiis tlsf sniiM' wliirli ic woiiis Al; lIl.'MIIII ■u till' .S{)-c;illc(l •Al;ilii;iiia ' el; mils, hiiil 11,,., (|uir('(l. Ill Lord SI!iii1i'\"m (lis|i.ncli of 1 >('n'iiilH r ■*, iHiis, (,> .Mi-. I'liointon. iMcniiiiaii'l il coiiNullatioiis 1111(1 conrcri'iiccs willi .Mi'. K'cvi'idv .li 1 III ol'tlic (. i>ii\ cutioii nil li. K'l li .\o\ rmiicr.wcn' inc !llisi)ii, piioi' to llii" si;j;na Thr -.11,11 'miiKt (lidiiix lull ' (11. il iillirr i^iiiiihir cliiii: lli(\U<, 'III)' .so-citllid- AUtb'imiC diid oilier niniilnr rlnlniH,'' tmtl ''IIh' ciilliil • . l!(il> iiiiii' fliiiiiix, iiikI iilliiTs iiirliiilnl iinilrr tlir siinic lii-dd,'' arc iIk il varicti( jiliia-^i' n^cd ill tlu'Mr mcinoraiida lo di'snilin tUv .siili.jcct, uli iniatid.N' ddiiird in tlui l-'nin xVrticIc ol' tliat ('oiivcidioii a.s '■' IliccUtnnnf clnimn n-firriil Id in the oflirial cin lii liclwrni llicliro (ionriniii iiIh as Ihc •Jliihn 1.- Mr. licNt'idv .I(diiis()ii, wliilc coiiiiiimiicariiiii' a If iird. (il lid iiKi I'hiiiiix.'' Ill a icttiir of the hJtli \( pliic (lis)iatrli from Mi Kxpmiiiiiir 'iiilii 1 a "(Micr a I approval of the tcnns of t lie ( 'oii\ I'litioii, ailciwai ds modi I various imporlaiil jioiiits. was accoiiipiinicd h.v a stipiiialioii tlial Wasjiin^i not Lomloii, wlioiild he tlii^ plai;i ll'!| 111 Oil. aiiij Ma,J!-sl.v"> (iovcrmiiciil a.->.M'iili'• Ihr iii.^\ldcli .Mr. Ill also sjiolic of Ilii- (daiuiH im-iil ioiicd in Arlicdr I\'as "Ihr '.llnliaiiia ' anil inn- and '• ///r './/((/>(/«it ' r/(/(//i.v," and of till' i»i'rson.s iiilcicsti'd in lliosc idiiin iliili< (iiiia ' clainiaiil Mr. Scwaid'.s dispatcli of tlit' ViTth Xovcnilirr to .M crit.v .loaiisoii ((;oniiiiiiiii>iird to Ihc I Id liiil oiilv hecanse tlicv thoimiit that special mention of Ihi III mil I'sr cliniiix liil<'|it 111' (IceiiK il men nveiiicnt rtii the jiart of !lcr .Majesi.\'s (iovernnicnt ; wliilc it cniild mil admit ol' doiiht that lh<-Kc xo-ci'lnl ^.Ualiiinia' cliiiiiixirirc jilaiiilj/ iiirhiilid, ax mil ax nil other I liiinix of cili'.inx of Ihr I'niird Slnlix, in the cnmprelieiisivc d('seri]it ion of claiii^ contained in Article I. Sccondlv. itis to he considci i'(l hy Her Majesty's (Jovermiiciir that //((■ 'Alahania^ claxx of' claimx coiixliliilc Ihc lari/rxl anil mnxl malrrial aj Ihr inliri hu/.n- oj' cl limx of ciH:ciifi of Ihc Vnilcd Slalix Uijainxt Ureal Jlrilain, which it ix Ihc ohjccl of Iki Vonrciiiinu III adjnxl, L'poii Ihr'Alalnimn' eluinix. as well as all olhcrs. this (ioveniiiiciit is content to (duaiii, and most earnestly desii judicial trial and decision. This (;ov( es, a pel teeth' fair, ciiiial, and iiiinaili.il aieiit has ahvavs cxniieitiv stated tlia*^ ii lo ilis"! imiiiat ion in favor of Uic 'Alahmna' eLiii no iiis"! imiiiai ion in tavor ot mc ' .uainnna eiiiinix. \\\\i\ can admit of no ni;iter;al il criminal ion a^aMist tlicin in tin; forms of iri.il and iiidnnicn t : hut must, on the c( trary, have tlieiii placed on the same hasis as all otlu I'la iiiis. Il iiri ihlv iild c(indiic(5 to no d end to set forlii, on this occ.isiou, llie reasons wliv : Ihi 'Alaliaiiia' claimx, mnrr Ihan anij olhrr claxn of inlrrnalional claimx (.rixlii,-/ belirccn Ihc lini cDiin I ri :■■■■. are the rerij claimx aijainxl which Ihc I'nile/I Slalix eaniutl ai/rec In. or admit i>l'(iii;i 2>rejndiciiil dixcriminalion. To [ireseiit thcs(^ reasons now would hti siiii|)l.v to rcstalc ar.nunu'iits which have bcoii continually iiresentcd l)y this Department in all the Im- nier slai;es of this cor.trovers.v ; wliih? it is fair to admit that these reasons li.avc I i controverted with eipial perscvevaiico by Her Majesty's Jiepartmeiit for I'oici;;! Affairs."' Th icral result of this corrcspoiideni'i^ was that, in the (,'onvention of the 14ll '.li ar.v. 1-n'i, other pro\ isi oils were sulistituted for those of the H'lh and \'ltli Arli- tlie ('onveiitioii of lOtli Xoxcmbrr, l-'lW, to which tln^ I'liited Slates (iovciii- iiiciit liad ohjected : d til le siiecia ineution of thi! " Alahaimi" was tr.uisferred from those Articles to Article 1, which ])rovidcd "that all claims on tlic piirf oJ' siilijrrh: i[t\ Majcxtij upon the (iovcrnnient of the L'nited States, and all i In Ihr liriln part of riliwnx of Ihr I'nilid Stalrx upon Ihc dun rifmcnl of Jicr Itrilaniiic Miiii>-lii. in in III liiii- iliij tin ralird ' AlahiimiC claimx, which may have In en presented to eiiln r (Jon iriiiiH nl forits int rposition with the other since the 'Jlitli of .Inly, IS.")!!, and which .yet remain iinsetthMl, as well jis any other such (daims which may he im'-l sciitod w illiin the time spccilied in Articli? HI of tliis Convention, whether or imt | arisiiii;- out of the late civil war in the L'nited States, shall lie referred." iV c, litH'll On the 'J'Jd Fidiriiary, L-^lil), Mr. Thornton icportcd to Lord (narendon the IJesol of a nia.jorit.y of tln^ L'omiuittee on Foreij;n Kelatioiis of the Senate sijiiinnvt^ iih;'' •• thr M/k- «,'' ami ^'ilii'Hti- r.il viuictic-;!!!' in llio I'liiivi'ii (■(»/•( iHjUIIKli III' Jtli N'ovi'IiiIm; , tViiin Mr. Srw- rds miiililii"! in ishiiiu'tnii. Mtiil ti» wliich llrv s;iilv:ilit;i;;fnM> Mr. Tliorntnii : in,\vliii'li Mr. hiiiiiu ' i>r;iii''Hy rui- () (lisnllow tl'i> ol' the Arliclc. IpoM //(/■. v(»-c.l//ri' this (•IniiM'. Iii- i(l ii!it. ill ll'-'-i'._ n I lie '.ili'liiiiiKi' chliiiia u\\'^\n 111' lilc il I'dUlil mil 1(1, (i-s mil ux nil iptiini of cliiiin- y"s (lovcvinni'iit i,/ I lie I II I ill HK"'- }/(( iiiijrrl iif lii( iliis (ilivi'i'iiHicnt 1, iuid iiii|)aili.'.l !r<'il tli!'*^ il ii-^l'^-' no miili'iiiil ili-- uist. iin till' fi'ii- iv ' •• li )irii!i- vcnsnii.'* wliy "ii 7 hrtircrii !hf II"' ',1.0V (iiiniil (iJ'oiiH rnu|ily tti rcstiile ill ii!i llii' liii- iisiiiis liavr liiTU lit I'or I'liii'in" loii of I 111' 111'-' li iiiiil Villi Aili- St ati'^ (Jiivi'iii- j v.'iiisrcrrcd iVoiu iiirl of Ml /;;<'(•/••: I'' (ill ilii'niix I'll 'i'" .l/(i/i ■-■'//, '"<''"'" I, !• GoviTiiiiii"! * 11, Il iiiiiy 111' I"''- \,li('llii'r or ii"l! iV ('. ,11 ih<" K'.'siiliiti"" „f till' I'liili''' li'. Sunnii'i'. \vli"| ,l,>i Ibr whifli till' ,i,,,f till' Li';;-i-l:'i , )ii vent ion _vvliHii| tr (V)inorlx.' • ial in.slnu'tioii^i [st Ai'tiflt; ot till' useutertaiuL'dbM till' .'^I'liatc to till' ('onvcntion. ami woiilil scciiii' its I'.itilii'ati'Hi liy tliat Imily.'' Tlii-i iii'W cliaiiu,'!' (".iiisisli'il in tin- inlroilin't ion ol' •• nrsm'd li\ llciMai'csty's ( io\ernmeiii. Mr. IJevcrdy .iohiison did mil olijcct to tins inler|iii'- niliiiii of iiis a mend men t. Inil, said I hat if cIoiiiik Io coinitinxtilimi on mvonnt of llir nrmiiii- :'.nii liij llir Urili^'li (torrnniiriil af Ihf Ik llii/i ri nt rii/iil.s of llir I 'oiif< drnilrx irrrr hiont/lil I'or- ir,ii;l liij llir dorrrnmrnl of llir I'n'ilid SlaUx, llir llfilish (lorrrnnirnl niiiihl,on ih iiorl. hrinij Uifirnril clninix Io ronijirnsulion for iloiniifirx dour Io lirilhli kiiIiJicIn hij Anirvintn Idorhndrx, liiir'i, if Ihr Confrdrriilrs iriTr iiol In llii/rrrnls, irrrr illffiolli/ rnfovrid (i;iiiiiixt llnni.'' Lord (.'Liirmlon, tlieii, after rel'eirin;.; totlic jirool's wliicii lier .Majesty's (lovcriiimnt had pvcii of their willinjriicss to maUo any i'<'asoiial)l<( aim'iidmcnls to meet the wishes of till' I'nited Stales, and to the dilh-rciice in the conise of ]iriieecdinu; adojited in Anier- ii':i, said '"that it diil not seem jiroper for Her .Majesty's (lovernmcnt to taUe any I'lir- iliir step in the matter, or to adopt any amendment to the (Joiisontioii, even if il had iii'cll I'l'ci! from olijeetioii." .Mr. Ilevcrdy .loliiison (-till wiilimit .'iiitlinrily) ri'iiewed liis jiroji'isii ion, in a lelti-r til Lord ('l.iiemloii. dated 'J.'itii March, l-l'.'.l, ia wiiicli he sr.'ited tii.it he had I'cison to liriic'\e that the ohjectioii of the Semite of the I'niled Slates to the Convention con- ^is|l■ll '"ill I lie fact tliat llie ( 'on vent ion )>rovide(! only i'or tlie settlement liy arliil ration Hi Ihc indiridnul rioihix of llrilish .■ liiiiis, yon hav'i constantly pressed llci' .Majesty's (iovenimeiit to adhere, as necessary' til insure, llu^ ratification of a new ('oiivc'iition liy the Seiiato of the I'liitcd States. -Viiinidiic inijxirlaiicc is attached to this deviation ; lint I hej;' leave to inform yon t iiat, III fill' oiiinioii of Her Majesty's (Government, it wonld serve no useful purpose now to iiiiisidcr any amendment to a Coiivt iitioii whicii <;in'e full effect to tlic wislies of tlii> liiilcd Stales (ioxcriimeiit, and was aiiproved liy the late rresideiil and Secretary of ^tnli'. who referred it for ral ilicatioii to the Senate, where it a.ppears to have eiieniin- tti'i'il ohjections, the nature of whicli lias not lieeii ol'iicialiy made known to Ilcr Majesty's (iovernmcnt." Mr. Iieverdy .Johnson, on the !)tli of .\pril, replied that " the desii;n of the (."oii\en- iimi of l^.")!? was to sctlle all I'laiiiis which eitlier (io\ eriiiiiciit, in lielialf of its own tilizeiis or sulijects, iiiiuiit have iijioii tiie otiicr. » * » » .11 lluil linu' nrillur dov- niniu'iil, i xiirli, iniidr a drmttnd upon thr ollirr. lint llitit. ax iiiii propoxiUoii dxxnnirx. is not llii' aw non\ Thr dorernmrnt of ihr i'niird ISIatrx hrliinx llml il hax, in ilx oirn riijhl, ('(liiii npoii thr doirrnnwnt of llrr Majrxlii. In order, therefore, to a full ,s<'tt lenient of aili'xistiiiij; claims, it is necessary that the onr which mil dorrrnmrnl mahrx, mid anij rorri- "['"tiiUnij rtiiim irhirh Urr Mdjrxtifx dorrrnmrnl nitiij loirr upon Ihc Vnitrd Stotrx, should lie, nii-'liided witiiiii the Convention of Ilic 11th .lannary, l-'li!). Mij inxlriirtionx, to irhirh .'/"'ir f.ordxhip refcrx, ircrc to jiroridc for ihr xrlllrmenl of iti" vlairnx mentioned in xiich m^lnuiionx l»y a Convit in thr nrtp)tintionff which led io the I'onmition of .'iinnurij thr including within ilaiiij dorrrnmcnIiiJ clainix ivcih heranxr mi/ iniitrncHonn onlii referred to the indiridiiiil (laimx ilfrili:eiix and snitjerttt. I forbear to speciilato as to the i;i'oundH upon wliich my iiistriic- timis werci xo limited." Hir Majesty's (itovernineiit adliorcd to tlieir decision not to entertain at tdl the suj;;- Ri'sfioii thus made by ^fr. Reverdy .fohnson ; and they intimated (in correction of an cii'oueous inference drawn by him from the concluding sentence of Lord Clarendon's i» ':(; ' '■!, '' ' ' 1 4o2 TRKATY OF WASHINGTON. I'' ]('tt< r of the .''til April) that i^. \vi\h not to ho m)iii])oso(1 that tliis jtroposal woiiM he accfplal'lc to Her Majesty's (iovrriiiiiciit, cvrii if it wcro iiiaiilt; jhhI Mr. .lolinson'.s reply. H'llk J/ir/7, IHti!).) I'roni this incident in the history (tf tho neffotiatioiis tho followin;^ conclusions of faer result: 1. That Mr. Rincrdy .rohnson'.s instrnctions from his Government nevei' extended to file asseition or settlenuMit of any other claims than tho.so of individual citizens of the Inited Statt\s a;;ainst (ireat Hritain. •J. That in suji<^estin;f (for the first time) the possible oxistenco of public claims on behalf of his Coverinnent, ht^ acted without authority. I!. That no such ]>ublic claims as those of which the (existence was snt claims ''erowinj;" or arisir>;j; (simply) "out of the acts of" the "Alabama," oi' any otlicr vessels; but claims "becanst; of the (!ouse(|uencc.s resultinjj; from a prttmature recoy;iii. tion of the Contederates durinjj the war, ani> from tho litlinjif out of the 'Alabama" iniil other siuiilar vessels in Her Majesty's ports, AND fnnii their permitted entrance into other ports." ."). Thai the words ".Ihihanio Chiimn" (or any equivalent form of expression) were never made use of, nor Wiis their tis(! ever pro|i()sed to be varied or t ]5ritish commerce, beinfj expr<;ssly anti(Mpiited, as a jirobable or possible set-otf In any claim on the i)art of the rniti^l .Statics, founded upoii the denial of a bidlij^erent statn.s, at any ;>iveu period, to the (Jonfederates. 7. That, although otlered under these conditions, the proposal was simply, and with- out ii discn.ssion, dtn'lined by Her Majesty's (iovernment. It was in Mr. Sunuicr's s[teech, at the meetinj; of the Tliiited States Senate, which refused to ratify the Convention of the 14th .January, HtJD, that the first conceptimi of public claims, of tho nature and ma by Mr. Tliornton, (IDtli Ai)ril, Ir^ll'J, to Lord Clarendon:) Voiir lordsliip will per(M'ive that the sum of iSIr. Sunnu'r's assertions is, that En<;laud insulted tiu' Ignited States by the premature, unfriendly, and unnecessary Proclamation of the Queen, enjoiniuf^ neutriility on Her M.ajesty's subjec^ts; that she owes them an apoli>;,'y lor tliissteit; that nhe in renj)0)ifiiblc for the propertji dextrojud liif the ^Alabama' and (itlnr Coiifi'dcrate cntinrrfi, and crvn for the remote damafie to Amerieaii tiliippiii)/ intcrents, inrlntiuni the 'uiereaxe of the rate of i nun ranee; that tlie ('onfederateH were no much axHinted hi/ heiutj ahh to i/tt armn o> d ammunition from Enf/hind, and no much encoura<)cd tiij the Queen'it Provtuma- tion. that the war lasted mneh longer than it wonld otherwise hare done, and that ire oiujht therefore to pai) 'maninary additional e.vpennen imponed upon the United States by the proloinja- tion of the ?('«>•.' Mr. Sumner himself did not affect to represent the latter portion, at all events, of his 8U};;>'ested demiind as "jj;rnwin<^ out of the acts of" tho "Alal)aaia." or of any other particular vessels; and Mr. Thornton's comment upon the whole of it shows very clearly tho impossibility .tf ascribing to the iicts of any particular vessils allcffcd to have been litted out from Ihitish ports, either the whole or any a.scertainal>lt: part of tho jfcueral losses sustained by American commerce during tho war, or even distiufiuishing between such h)sscs of thiit kind as were real and those which were ai)parent only. So far no step was taken by the United States Government to adopt Mr. Sunmers views or to advance claims corresponding to them. Ou tho 10th of June, lHt)9, Mr. Motley renewed to Lord Clarendon tho declaration of the wish of his Govcrmnent "that existing ditferences between the two countries should be honorably settled, and tliat the international relations should be placed on a Arm and satisfactory basis," which Lord Clarendon of course reciprocated. Then, after adverting to other subjects, lie said that " the Claims Convention had been published prematurely, owing to some accident which bo could not explain ; and that consequently, long before it came under tho notice of the Senate, it h.ad been unfavorably received by all cla.s.ses ami parties in the United States. Tho time at which it was signed was thought most inopportune, as the late President and his Government were virtually out of ottice,aml their successors could not he committed on this grave question. The Convention was further objected to because it embraced only the claims of individuals, and had no reference I to those of the two GovermMnt« on each other ;" and, " lastly, that it settled no question ami is;il wniilil lie (1 iinili r |)iisi- ■ct of liiiiiiii- ■;/, ls;it; mill ;oncl>iHii)iis III' ■r pxti'iidcil to ;iti/-t'iis of Uii- blic i'l;iini>* on jtrntiMl by liiiii • tli'liiii'il. stcd, wiTi' imt " or any (itluT liitiii'f i'fc(ij;iii- •Alal)iiinir mill , eiitriiiuc.'. iiiti) pr(>sHi()ii) wi'iT entloil so as to ins of till' (lov- 1)1- cntiTtainril; that it slioiilil ii-h tlii'y mi'^lit ■,,.s — a <'iaiiii li'V riirlils ai^aiiist (. (si't-olV ill any lijfcivnt status, nply, ami witli- s SiMiatc. wliiili it ct)m'('i>tinn dt' the '-(.'asi'" (if I thin lifad was ) Voiu- liinlsliip 11(1 iiisiilti'il till' uinatioii of tlu' lieiii an al)oll)^^v bama' atid ntk-r ttennts, iiifhiiUmj •ited hi hfiiio "'''' uvvii'x Procll it articular vfssi'ls »y ascertainalilt^ ho war, or oven lose which wcic pt Mr. .Sumner's Juue, IHOi), Ml'. his Govcrumcat ibly settled, ami ■isfactory basis, ;o other suli,)«ct''i • owiug to soiue 'before it caiiu; ,y all classes ami as thought most outofotlice,aml Convention was | had no reference I no question aua CORRESPONDKNCE RESPECTING GENEVA AKIJITRATION. 453 1 laid down no prnuuplo. Those were tlw chii-f reasons which had Icil to its rejcit ion liy the Senates" and Mr. Motley added "that uIIInMi^'h f'ley had not lieeii at once and cxidicitly stated, no disconitesy to Her Mnjesly's (ioveiiiineiit was thereby intended." On the y.'ith of September, ISOD, Mr. i'ish revived the whole subject of tht! coniio- vi'isit's between tlit^ two (iovernnuMits within its widest ran;;e in a Ion;; and elaborate dispatch t»» Mr. ^lotley, in which he referred (amonjr otherthin;;s) to thtMesiKnisiiiility iif the IJritish (Government for (at least ) " vinii; the (Convention of the 1 lt!i .lannary, IHdl*, ihinUin^ (in addi- tiiiii to^^eni-ral reasons left to be inferred from the ;;eiieral ar;;iiments of the dispatch) that " the provisions of the (Convention wcw inadeiiuate to provide, reparation tor the I'liited States in the manner and to the decree to which he considers the rnited .Slates iiititled to redress." He added: "Tile President is not yet prepared to pronounce on the <|uestion of the indemnitu-s which he thinks due by (>reat liritain to individiijil oitiztMis of the United States for tho destruction of tluur jtroperty by rebel cruisers lifted out in the ports of Great IJritain, Xor is he now /nrpaird ta upeak of the ripnni- tloii which he thiiikx due by Ihe liritiith (iocernment for the larger account of the vaxl national mjnries it has inflicted on the United Stuten. Xor doex he attempt now to mcaxnre the relatire (feel of the variom cauwn of injury ; an, whether by untimely recot/uilion of helUtjereiicy ; by siifferintj the flttiuy out of reliel cruiscrx ; or by the nupply of nhipx, armn, and munitions of war to the Confederates ; or otherwiw, in whatsoever manner. " * * All those are subjects of future consideration, which, when the tinu-. for action shall come, the Pres- iiknt will consider with sincere an' th. it " Her Majesty's (Jovernnient could not iniike any new jiroposition, or run the, risk of another unsuccc'ssfiil ne;;-otiatioii, until liii'y had inforunition more clear than that which was contained in Mr. i'ish's dispatch respecting the basis ni»on which the (iovernmeiit of the L'nitiMl States would be dis- pnscil to ncffotiate." Ibit, in a ])aper of observations upon the arguments in this liispatch, which he at the same time ((ith November, lf^()l>) transmitted to Mr. Thorn- tun, to be communicated to Mr. Fish, he remarked, under the head of ••Indirect injury U American commerce," " This ullcyulion of national, indirect, or connlruclirc claints ww^ first h'ltiujhl forward officially by Mr. liercrdy Jiihuson, in his attempt to rencir nenoliatioiis on thcVlunese Convention in March last. Mr. Thornton has shown the ditliciilty there «i)m1(1 bi.' in compiitin<; the amount of the claim, even if it were ackuowleil<;<'d, in a ilispiiteh in which he mentions the continual decrease of American tonnajic. This is [liUtly, no doubt, to be ascribed to the disturbance of comnicriiial relations conscipient OH a li)ii{f war, ))artly to the fact that many vessels were nominally transferred to liritish owners durin\. Iiiinr III fliu-c wilit Ii Ii.mI I'lir (liiir iiiiiiirili;itc icsiill. tlic iii';;nti!iti(iiMir llic Trc;il v ol' ^\ lij'Nill. 'II ley ^liiiw ciiiiiliiNiM 1\ : ( 1 ) lli.'it, flown to the -Jdlli of .liiiiiiiiiv, |-7|, (wlicii llcr Mii.ji'Ht.v's (iiixmiiiii'iit, (liinii^fli Sir 1',. 'I'liiniiloii, |irn|M>si'(l In Mr. I'i-li tl i|i|iiii iliiii'iif III' ii Jiiiiit lliuii ( 'mill III srtllc tilt" I'isjii'iv <,)lli'sti()ll, :i||il ill! nf '>! inns mH'iti iliL-' " llli' l(l;il ioiiM III' till' 1 'liilril Sli!i'-* tnwiilil !lrlM:iir'.l,\ 's |ii(s- (lis|i;it(li i\ till' "i'ltli III' Sept iiiilii'i-, Ifli'.l, fur tin' lirst tinii' iniiniiilril In I in- (Invcnnniiit III' liiis coiiiitry lli.'it tlicy cniisidcri'il ihcri' inivJil I"' j;rnuii'lH for smnc ilniins dI'm liii'.;i'r ami iMiiri' inililic iiatiirr, tlinii!;li llii'y |iiir|insi'ly alistaiiii'il at lliat tiiin- i'nnn lllMl^ill;;' tlii'in: (li) tliat till' ^rnniids indirati'd, as tlinsc mi wlilrli any siicli lar;;('r and iikhc )iiililii' claims iiii<;Iil lu' inadi*, wi-rc not limili'd to tin- ai-ls of llir AlaUama and ntln'r similar vrsscls. or In any nifii' rmisi'iiiii'ncc of llmsi' ai'ts; and (l) lliat tin- i-xjircf-siiiii '•//(( '.UiiIkiiiui' fhiiiiix" had always Item nsi'd. in llir rorri'siimidi'iicc iM'twci-n the two fJo\ rridiifiils, to dc'sciilii' tlir cliiinis of Annrii-an citi/.i'iis on accoiint of tlii'ir own di- ri'it llls^^^ l>y t ill' drjiii'dal ions of llic Alaliaina "and other similar vi- and hi nrM-r liri'ii i'ni|ilo\i'd to di'M'rilir, or as rom|iridirmli ilialr\rr of liic (ioM'riiimnl of ihr rnilid Statf: my jnildic or mil ional It was iindir tlnsc ciiiiimsiaiicrs thai Mr. l'i,-.li, on llii' IKMli id' .lannary. l-Tl, in- form rd Sir 1',, Thorn ton ihal Ihr I'ii'sidi'iil tlmii^ihl "that I hr rrmo\ al of Ihr dillciiniis ■whirh arosi' diirin;;- tin- irlu'llion in llii' I iiili'd Slairs, and whii h has I'xistiil siiii r I hi'ii. i/roiriiiii mil nf llicitils cininnilli d In/ llii .v( (v ;•«/ jv ■'>•''<■/••'■, ii'IikIi IiikI i/'inn rixr In Ilic iln i/i III rirdllji l.iiiiini iiH III!' '.Iliiliiiiiiii' cliiiiiiK, would llso he rssi'l ilial to ihi' ri'stmali.iii (if cordial and ami jdii'd (1st l'"ilirmiry. HTI) that lie cahlf iidalions hctwci'ii the two (JoviMiimcnls.'' Sir 1".. 'riioriitmi ri'- wa> aiitliori/cd l>v I'larl (iranvillc to state tlial ••it wonld ^i\i' iiir Maji'sl v's (ioMinmcnt urcat satisfaction if llii' I'h llllllH riiinuiiili hi In hji llir iiiiiiK of' III! •.lliiluiiiKi' rliiiiiis wi'vv siilimittcd to the. consideration of the saiiu' J liuli ( 'omii II, Iiy w hi( li Her .Majesty's (i nnieni had ]no])osed tliat the i|iii'sli rel.'iiin^;- lo r.rilisli possosimis in -\mih America should lie diseib.sed. i>rovided tlml all (illii r ( Id'niis, liiilli (if I'liil'iKli siihjiih (iiid rili:ciit: if llir rnilnl iS/d/* v. aiisini; onl of iii'ls commilled dniini;- the recent ci\il war in thi> coii'ilr.v, were .s/)i(i/(n7// refened to tlir .sann- Ciimmissimi." .Mr. Fish, in IIIISWC o I his I'li'iminceineiil , on the 1-7 1, alier citin" ll le exact terms ol Si;' K. Tl 101 nion s lei ler, cxpl essi d tin of I'elii nary, .alisl'ariiiiii d received the iiileHiueiiec that I'larl (iranville had aa- vith w hich I he I'icsideni '• ha Ihori/ed him to slate Ihal Her Majesty's ( .oveiiimcnt had .accepted the views of tlie rnited Stales ( iovernmeiit as to the dis|iosition in ]t{- \nnt\i' lA' lliv xo-callcd ^.Ihiliiiniii' cliiiiiix;" and that "if there lieothei-and I'arl her claimso/' /«'///,•«// .-((//i/cc/.s or i;/' . Iiu'c'rrr'i (:ili:tiix urowine out of acts emiimilted diiiiiiy' the recent civil war In this coiintiy, lif assents to the iiroinicly of their reference to the same Hiiih Commission." .Mr. l''isli, therefore, and Sir K. Thornton iiL;ieed in desciihin of c\|iri'ssimi, " Ilic cluiins iji m rivitllii kiinirii iix llir '.llnliiiiiiir ilni \>\ the sever: liirms /,/ till llir iniiiir of' llir '.llaliiiiiiii' rl/i '. [IiiIhiiiiu ' villi 111.1," one ' " //((' rliiiiiix viniiiiiiiiilii 'llir •Jliihiniiii^ c/«/'/ii.s,'' and " //((' so-mUnl d the same siiltject-mal ler. What this was is ]irovi'il. imt ro\ided for were tl 1)1' snlijccls of (ileal lliilaiii and cili/eiisof the rnited States. In si rict confminil \ with, I his view. l,ord (iran\ 11 ■hen eiinmeratinii- in his instiin' tion Her Majest.\"s lli^h ('ommissiiiiier.s (IMli I'ebriiary, 1>71 ) 'he prine ipa 1 >iili- Jed s to w hie' their at ten I ion w onld be dii ecleil, deseiibed these claims as " t he claiiii'^ count of the Alabama, Shemindoah. and certain other eriii:- on ai (olifederaleSliltcs: I 'iider 1 his head are comprised the (d: of the sii-stvlca a-ainsi (;:v»i Ibilain I'm daiiiaj;es snslained by the depred.il ions of the Alab.aimi, Slieiiaiiihiah, ana liCOli;ia, the vessels which were I'nrnislied on account of flic Confederate Slali iinncd outside of Ibitish Jmisdietion, and tlie I'^lorida, which, though built in Eii,;;laiiil, ■was armed ;ind e(|iiipped in I he ]iort of .Mobile." The same, or the c(|iiivalcnt words, therefore, as often as they are used in the I'ro- tocois of the Commissioni'is and in tlie 'i'reaty of Washin.nlon itsclt", oiinlit, upon oi'di- nary )ii i nci pies of const riic lion, to be iiii deist ood as beariiii;' the same sense. And tlii^ seems to be made mole clear by t he exclusion I'roin 1 lii^ referenee ol' any claims nf tlii'- cminlry or of the people of Canada on account ol' the iiroccedines of the Fi'iiiaiis in tlie I iiited States. Tlicie niiyht ceituinly liavo been national claims of Great IJrilain ('<)in;r,sp(>\i»i:x('K lM:8IM:("rI^(^ (jenkva AKr.iTUAriox. 455 iiri>iiiu; (lilt 111' Ihiisi' inocccdii'Ms, (in ;i(li!iliipn tu ;niy iiarl ii'iiliir losses liy ('Miiiiili.in s||liiicl>, ) w liicli ciilllil 111)1 |iil- iMy IllISC 111'. Ml cSrlllili'd nil any jilsl or inlrlli'^ililr plill- ri|>li', 11' inilrlinilr cliilnis I'nr imlilic ni' inilinniil Ihnm's liml lircn intcniU'il li> li<- li'l' (ipcii t(i the (Jii\ iiiiinilll nrilii" I'lliliil Stlltrs, Oil :i 'i> I'ai' as ilicy llioin^lit il nccosary or dc- >iialilf) till' liisloiy ol' llii'ir prdcccdinns, lici^iiis liy slaliiiy,- lln^ iirnccidiiijis at tlu'ir lii.sl conl'dcncc. on \\w ^\\t Manli. I~T I. On llial ociiision tlic Aininican ('oininis- siiiiii'is spidvc (4) of llic I'cclin;;- of llir riiitcd Stales, " lliat llh'y liiid Misiaincd a ^icat wroiii;, and lliat;;rcat injiii ics and looses vvcic inlliclcd np(ni llicir coniincicc and llicir iiialcrial iiilci'csts /)ii nilioitx af llio^i rfsuds, ns nlKiirinii {\) r.r- liiinifc iliiiil liisuci ill llir I'li/iliin mill ili slnirlliiii nf n luriir iiiiinhn' i;/' /•(•^^77^ irllli lluir mr- ijoix, mill ill llir liiiifji iiiilioiiiil i.iiiiiiililiui ill llir iHirxiiil III' Ihr i r II i m !■■< ; mnl {\\) iinliirit iiijiirij ill llir Irminftr of 11 luri/r /tiirl a/ Ihr Aiiiiriniii i iniiini rriiil miiriiif li< Ihr I'liili^h lUiij. ill Ihr riihiniri il i>iiiiiiiiiiln of iiisiirmii'r, in llir jivdIdiiijiiHoii of llii iriir, mid in llir iiilililion of a liiri/i Kiiiii III III! riisl of Ihr iritr mul Ihr siipiirrsyion. of llir rrlx llioii ; iind as aUo show inij; iC) Ilia I (in at iirilain, Ity icasoii ol' lailnrc in ine pi-oper oliseiviinec ol lier diilies jis ii iit'iilral. /("(/ hiTiniic jnxllji liiihir for Ihr iirls of thnur crninrrn mid Ihrir Iriiilrrn." So far all is preaniMe. and as ycl there h no mention at' rliiims. (ieiienil injury lo tlie cnninierec mill niiilcrial inlercslsot' Hie I'nited .Stales, " h;/ Ihr •oiirnr mid roiiilnrl of I inn I />; Kiu'i/,'' liiiTrl Uinsrs liy llie. riiiiliiriK nl' t in^ " iMalianiii " and similar crnisers, and also (;iii item iiiiw lirst added) Ini llir iiitlioiinl rxpviidiliirr in Ihrir iiiivmiil ; and indiieet pnlilic injury, "show II liy the history of ihosi^ vessels and I heir opcial ions," arc all •■poken e! ; lint till '•/.'*(/'////(/," expressly inlcired from llic sanni "history" a^^aiiist, (licat i ritaiih is li.a'icd lo •• Ihr arls of llioi^r n.-srls mnl llnir luiilirK," '1 lie Anierican Commissioneis then pidceed to speak of '•///( cliiinr: I'm' the 1 iss iiiid (lest I'Uel ion of ]irivate jn ' . r'y iihiili laid tluis J'ttr Inrii jirinrnlid." as anionnli"t;' tiialionl 1 I. liiiii, (1(1(1 dollars, withoni interest, '•which amoiinl was lialilc to In- /.really iiureascd liy elainis w)m''1i had mil yet Itciii preseiired ;" and, w ilh respect I i tin new liiiid ol' direct los.^es, now lor the liist time mentioned, they saytlnil "ilie cost to wliieh the (iovernment had lieen pill in iiiii'.-uiit ol' cruisers (toiild easily he aseeitajm d liy ccrtitiealcs of ( iovcrnment jieeoiinl inj;' ol'licers." licre Iho word " (Iniiiif" i.^ used with respect to direct losses (iniy,as il had always hccii used bel'orc, lint with iioliee lliiil direct losses ol the (iovernment. in ]iiirsiiit of the vessels rel'rrrcd to, , 'ire now nil Mill to he inclnded in thai ealctiory. as well as the losses of pvivate cili/.ens. And lliiii I'ollnw the words : " 'J'hat, in the Iio)ie of an amifaldc setlh iiient. no ( ;-l iniale was iiKiile of I he indirecl losses, wit lion t pi I j lid ice, how evi r. to t he 1 ij;lit ol indemnilieatioii nil their accoiinl, in I he event of no such settlement liiin;;, iiiadc." Here is a char waiver ol' (he (assumed) ■•ri;;hl ol imlemiiilication" for imlin ct losses ill the, event ol •' an amicalile set i lenient" liriiin- made. The meaning- ol' the w nids •• an innicahle sell lenient" has lieeii already eoiisidered in the I'msI I'art of this .Meiiioian- iliiiii. At present the (|ncsti(in is as to the meaniiin' ol' the words •' the claims ^cneri- lally known as the, • Alahama' claims." If no actual claim I'ortliesc indirecl losses had liceii previously made, it (dearly was not made now liy treatinj; it as a reserved " ri;;ht '' wliicli would or niijiht he insisted on in the event of no iimiciilili.' settlement hein-^ iiriived lit. Still le.ss could it, hy means of any siicli reservation. In; liroii;,f|il \\ itliiii ilii' ciiti'iiory of "claims" already " j;eiieiic;illy known as the, ' Alaliama' chdms." 'file next, step in till' jiroceedin^s coi'roliorates this view. For, after statin;;; their desire for an expression of i'ei;ret on the part of Her Majesty's (ioveinmriit. wliiidi tliey (lilt allied, the American Commissioners then proposed •■ that the .Ini nt lliuli Coni- niissioiiers should auree n|iiiii a sum which shoiild he jiaid hy (ireat Ihilain to the I'nited .sltates, (';/ xnlisfnrrniii of nil Ihr rlniiiin, and the interest thereon." All Ihr r!(uinn ;iiv here spoken of; lint it can hardly he possilde that, in this ]iroposal, they meant to iiifhide indirecl 1 os.se s ; lieeaiise " the rii;lit to iiideiiiiiilieatinn" on that aeeoiint was iiiily to he asserted in the- event of no amieahle settlement lieiiin' made; nor were lliese indelinile elainis siiidi as, hy any possihility, (•ould he re)j;;irded as heariii;;' inte.test. Ill Hi(^ later iiass,in-es of this J'rotdcol, wliieh rtdate to Hk; iir(K;eedin;;'s resnltin;;' in tile reference to Arhitration, and in tlu^ agreement as to tlio three " Utiles," no trace "teiiis of any recnrreiujo to llu^ rtiserved "rij>ht of imhiinnilication," or to the snhjeiit 111' indirect los.ses. " The ' AInlimnn'' rlninm" alone :ivi' s|ioken ol'. In the 1st Artieln of the Treaty itsidf, tho words " iirnrrirnlUj known," A.('., so far iiH 'liiy dilVer from other forms of exjiression previously used in respect of the same siil)j .ii'il. (lilfer only by delining that siilijict with greater aeuiuaity, so as more [niinledly tiiexelmle indirect losses. "Ueuei ically " is an lulveib of clas.sllication, with reforouco to thu nature of the siih- Ski 456 TREATY OF WASHINGTON. :4 .ject-niattor itsolf. Claiiiis for direct losses, by Mie acts of a particular class of vessels or by a (Iclinite expenditure for tlie itreveiitioti of these acts, are, in tlicir nature, (if tin' 8uin«>, calfju'ory or {^enus ; and it is the very fact of their btMiifj cajiable of beiti<>' diicctlv coiine(;teil with the acts of tliose vesstds, as an efftuit with its cause, wlTudi makes tliciii 8<>. In<),) are different in t!;' ir kind, aud open up much wider, and ■wholly different, fields of incpiiry. The Vllrh and Xth Articles of the Treaty a)»pear also to bo irreconcilable witli any other view of tlie" Claims" referred. The Arbitrators arc to "first determine, ((x /(» each vcHncl wparatvUj, whether Great Ibitain lias, by any act or omhmni, failed to fnllill any of th»r duties," &,c. ; and " shall vcrlifi/ the, fart nn to each of the naid rcnneln.^' Tiiis iu- (piiry is addressed, and is limited, to (Mutain imputed " acts or omissions " of tliis coun- try, not as to any other matters, Init as to each, acparafely, of certain vessels. The Arbitrators, if tliey should find " that Great Britain has failed to fulfill any duty or duties m aforemid," have power to "award a mtm in groan to he paid by Great ]3ritaiu to the United States /or all the claima referred." But the power of awarding a sum in jfross cannot enlarertain aud determine what claims nn valid and what amount or amounts shall be paid by Great Britain to the United States, on account of the liability nriniiiy from sKch failure as to each vessel, according to the extent of such liability as decided hy the Arbitrators." It seems impossible that )H>wer can li.ave been given to the Arbi- trators to awaid a sum in gross for claims not severable as to I'ach vessel, and whicli, therefore. The Assessors, when dealing with the case of each vessel in detail, could not entertain or allow. II. The second question, viz, what vessels are described by the words " the scrcral vessels which have given rise to the claims generically kuowu as the ' Alabama claims,' '' atlmits of being more concisely treated. Until Mr. Seward's dispatch to Lord Stanley, of the 27th August, l^fUi, the ''Ala- bama," "Florida," "Georgia," and " Shenandoah" were the only particular vessels in respect of whose acts any claims had been made. With respect to mort> general com- ])laints of the same character, Mr. Adams, in his letter to Lord Russell of the/lli A|>nl, 18():5, referred only to vessels '* supplied from the ports of the United Knujdom'^ adilinj^, " So far as I am aware, not a sini;ie vessel has been engaged in these dejiredations cx- ce]>ting such as have been so furnished. Unless, indeed, I might except on<^ oi' two passiMigcr steamers belonging to jn'i'sons in New York, forcibly taken jxjssession of ■while at Charleston in the begiiming of the war, feebly arnu'd, jind very quickly ren- dered useless for any aggressive ])urpose."' In his letter of the "JOth May. IHCi."). wlica recaitilnlating his former conqilaints, he mentioned under this head, only ^' the is^ur from Jlritish ports of a nnml)er of British vessels," by which a lai'ge amount of Ameri- can property had been destroyed; thcaclion of these llritifih hiiilt, inatmed, and armtdns- sc/« ; the ravages committed by armed s,t\r.mu'\H, fitted out from the ports of (Ireal Urit- ain ;"and " the issue of all the depredalhiij resaels j'rom lirilish ports n-'ilh liritish sivmoi. and n-ilh. in all res2}eets bui the presence of a few men acting as officers, a purely Brilixh character." Mr. Seward, in his disi)atch of the i»7tli August, 180(i, (as has been already seen.) s])okieets, and which M'ei'e Inirbored, shidtered, provided, and fnniislied, as occasion reijuired, during their devastating career, in ports of the realm, or in ports of Brilifh Colonies in nearly all parts of tin* globe." As the "Sumter" was (notoriously) not built, manned, arnu'd, ecjnipped, or titti'(l out in any lb-it ish ]>(U't, or dispatched thiu'efrom by or through the agency of any British subjects, Lord Stai\ley tliought that this was a casual and nnint(Mitional error, and poiiited it out to Mr. Seward (through Sir V. Bruce) as su(di ; especially as tin* " Georgia," in respect of which vessel particular claims were scheduled to Mr, Si'ward's dispatch, ■was not named therein; while no such claims were scheduled in n^spect nf the "Sumt'r" ' tlircctly ^h luaUcs tlicm >ntiil»iit(Ml (as, nim'.r's hjicim'!!, incniiii'aiKluni u'h wider, and \iihh'. with any k^ttiriiiiiic, IIS III i-a tolullillaiiy leh.'" Tills iii- i" of tliiscmiu- II vessels. The ill any duly or it liritain to the a sum in j^ross copo of the in- •e of duty, con- ' in, by some acts lied can oidy bo 1 ]»articular ves- i failed to fallill iird of Assessors unt or amounts ? UabiUtji nrhiiiii f,y as deeiiled by en to tht! Arhi- ssel, and whicli, iletail, could not >rds " '/*(' Kirmtl al)anni clanns,'"' 18()(;, the '' Ala- icular vessels in re i>'i'neral eoni- of'the/tli Ainil, (/(/(»(»." addinj;, ']>reilations ex- 'pl one or two I possession ot ry (juiekly reu- liy, l.-^ti'i. when only " till' issiii' lonnt of Anieri- (1, iiikI iiniiiil ris- n ()/ (Iriiil Hi'il- liritixh Knimcii. a purely llntixli n already seen.) le • Slimier,' the ")•(■ liiiill, mdiniid, hi) or tliroiuih thi- and fiiniislied, •aim, or in ports )ed, or fitted out ,• of any Mritish oiial error, and the '' tieorjiia," vard's dispatch, res\teet of the ih," "(leor.uia," f(l2th.JaiuiMry, received certain II sold to Ihitish CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 457 As this was the first occasion, so it was .also the last, on which mention was mado of any ship or shii)s, not allofjed to have Ixieii titted out, armed, e(| nipped, or manned in any Hritisij port, but which had merely been allowcul to receive limited sniiplies of coal or other necessaries in IJritish wate-rs, as cominjr within the catejjory of vessels whoso acts could be made the foundation of (duims aj^ainst CJreat Hritain. The words "tho vesstds which have j^iven rise to the claims jjiMicically known as tho Alabama claims" cannot possibly be extended to vesstds of this character, unless it be on tlie jjronnd of this oiM^ mention of the "Sumter" iii the coutt^xt which has been cited in these *two letters of Mr. Seward. In the " Case," how(!Ver, i>res»!nted on the part of the American Govenumjiit under the Treaty, (laniaj!;es ar<' claimed in n^spect of live vessels (" Se.mter," "Nashville," "Retribution," "Tallaliassee," "Chi( kanianj;a,") which weie in every sense American ; and which are not allej^ed to have biJtui built, fitted out, armed, t'lpiippitd, or manned in any part of the British dominions; and in ihc 7th volumu of the Ai)pendix to that "Case," farther claims of the like characiter appear to be niado iu respect of tho acts of two other similar vessels, ("Boston" and "Sallie.") It may be hero observed that, by th« general list of claims filed in the State Depart- ment of tho United States, besides these vessels, not less than eight other American ships ("Calhoun," "Echo," "Jett" Davis," "Lapwing," "Savannah," "St. Nicholas," "Winslow," " York,") in respect of whose acts no claim is now made against Her Majesty's (»ov(;rnment, appear to have been also engajn'-d in belligerent naval opera- tions on the i»art of tho Confederate; States, wliich resulted in the destruction of ships aud other property belonging to citizens of tho United States. When Lord Stanley (24tli May, 18()7) spoke of "tho proceedings of the 'Alabama' and rcuHclH of that clann," and (10th September, 18(57) of " claims arising out of the depre- dations of tho 'Alabama,'" and "o/ressfi/s of the like character;" when Mr. Reverdy Johnson ('^rjth March, IHO'J) spoke of the possilde public claim of the United States Government, as resulting (iH?tr «/(«) "from the Jitthig out of the ^ Alabama^ and other similar veHneh in Hir Majeatifs yortH, and from /'(eir perniitted entranci; into other ports;" when Mr. Fish ('i'ltli September, 18(1;)) spoke of the destruction of American commerco " by rebel crimentfittedout in thcportsof Great Britain" and injury " by xnjferiilij the fitting on t of rebel eriiixers, or by thesnpply of Mpx, arms, and munitions of war to tlie Confederates ;" when Mr. Motley ("ilUl October, 18()!)) spoke of" the destruction of American commerce !»// eriiiserti of lirilinh origin carrying the insurgent fiag;" it is clear that they did not in- clude, or mean to include, as if belonging to one and the same category of vessels, ships alleg(!d to be of British origin, and ships of American origin, with the fitting out or iMjuipmeut of which British 8nl)jects hail been in no way concerned. In Lord (Jranville's instructions to Her Majesty's High Commissioners, it is also plain that the former class of vessels alone is contiMujilated. In the narrative of the proceed- ings of the 8th March, 1871, contained in the lUitli Protocol, it seems eiiually cbuir that tile I'liited St'ites Commissioners had also the same class of vessids in view ; for they sjioke of " the hixtory of the Alabama and other ernixers irhieh had been fitted ont, or armed, or iqiiipiied, or which had reeeircd angmeulatiou of Jorcc iu drcat Britain or in her eolonicH ;" and they exiMcssed a hope "that the Biilish Coinmissionerfl would be able to place upon record an expression of regret by Her Majesty's (Jovernnient for the depredations com- mitted by the vcuseln whoxe actn were now under dixcnuHion." Her Majesty's ('ommissioners (on a later day) replied "that they were authorized to exi>ri'ss, iu a friendly spirit, the regret felt by Her Majesty's (Jovernnieiit/oc the excape, under whalrrer eireumxtanees, vf the '■ Ali(hiinia' aud other irxxelx from Britixh portx, and for t\w depredations committotl I'lj them ;" which expression of regret was accepted by the American Commissioners as "very satisfactory." In the first Article of the Treaty itself, tho expression of Her Majesty's regret, in these identiial words, immediately ]M('eedes the ngreeineiit of reference liy which the cliiinis i'efi.rii'd are described as '■'■growing ont of act x committeil by the afurcxuid rcxxelx." Tlie necessary c(Micliision appears to be thai the vessels iiiti'iided to be referred to iu the Treaty were only such as could, in good t'aifli, be alh'geil to have been fitted ont, 01' iiriiied, or eipiipped, or to have received an angiiieiitatioii of force in some jtart of tho Ihitish dominions — the three Rules in the Vltli Article of the Treaty being, of cour.so, iiuitcrial to be regarded in determining all ip .stioiis of fait in any case alleged to bo "t'tliis nature. The "Sumter," "Nashville," ai.il other ships above nii'utionid have never hi'eii alleged to coiiio within any of the terms of this description, unless, indeed, it is i.^iw meant to be said that the permission to any Confedeiate vessel to obtain, in a liiitisli iiort, such limited supplies of coal as were permitted to both the belligerent piuties l»y Her Majesty's regulations ought to be i .emed an improper " augmentation 'iftlie force'' of such vessel within the meaniiig of the second Itule. HI. The solution of tho third question, vi/, what claims are described by tho words "«// the xaid claims, growing out of act.i connniltid by the aforexaid rexxelx, and gcnericallg known as ihe Alabama elaimx" (being the words in which the siibject-nnifter of the ref- iTciice to arbitration agreed upon ■ i defined,) has been anticipated by the conclusions iilready arrived at. It may b« added, however, that tho words "growing out of acta mnmitted by tha aforesaid vessels" cannot, without forcing them altogether beyond WW u 'WH vyw-ii vHSiS ^■i->h ^Bwl M ' ■ . > 1 •; f' ■i r 1 458 TREATY OF AVASHINGTON. tlii'ir fair and natural snnso, he applied to claims for indirect losses, not result in;; from any paiti<'nlar arlK comm'ittid Ity any partienlar ship or sliips, hnt alleged to result (so far as tliey may lie refcraltle at'all to naval ormaritinn^ canses; fiom tin- very exi>ti'ii((i on tile lii.nii seas of a naval force iieloni;i.i<;- to tlie Confederate States, and reeonni/nl l)y (Jreat Mritain and otlier neutral powers as lia viui; a l»elli<;erent eliaracfcr and lulli^-- erent ri;;'lits. If the (Confederate States liad, in fact, procured all tiuMr eruiscis iViini IJritisli siiurees, tliis criticism would still liold ;^()od ; nuudi nuu'e when srveral (in tai't a cofisideralile majority in nunil)er) of the (Muisers actmdly eniployey them, and hv Avliich losses were indicted ou United States citi/cns, were otln^rwisc procured. PAKT iir. On the amount of the claims for indirect losses. "The claims as stated hy tin; Anwriean C'ommissiom'rs may his classilied as follows: "1. Tile (dainrs for direct losses j^'rowinj^- out of tiie destruction of vessels and tluir carjidcs hy (he insurgent cruisers. " XJ. 'I'lic national expemlitures in tle^ pursuit of those cruisers. 3. Tin- loss in the transfer of the Aiiier'ean conunereial marine to tlu! liritisli llan-. >\v out of tlu' aci." committi ■1. The (Mdianced ]»aynu'nts of insurance. "5. The prolongation of the war and tin addition of a lar^e sum to the cost of tli- ■war and the suppression id' the rehcllinn. '• So far as !hest! various losses and ex])enditnre; the sever;il cruisers, the I'nited Stales are eniitled to ask compi'usation ai.d rmmnera- tion thi'rcfur before (his Tribunal."'— (I'liited States Case, j). 41)'.).) 111'. l''ish obser\(^s that '" an extravagant measure of . What \\as the sum total of these expenses .' U|ion this jtoint there is, in a Ibrni generally if not precisely a|ipropiiat('. " - . - . . • . . .. ii^^, MI.IIIIII.OIIII ofticial evidence from America. In (he h'eporr of the Special Commissienier of Iv'evenne for lHl)!», (p. vi,) they iir(> stat-d at ;),ll'.).'),ulii- ••iently sn|iplied for estiniat in;f the annni'it which " in e<|nity" (ireat I!ritaiu oujilit to pay. it Avliich rel'i ma.v iiH renci Iced be said that the aiuonnt, siii;i;'ested by t he passa<;i's and fans to is ni.ade, forms an inerediole demand, lint, in jiernsin^- and cxaiMin- in;;' this Case, the business of lierMa.iesty's (iovernnient has been (o deal, not willi any .•ibstiaci rule of credibility, I ml w ilh actual, re;;nlar, and formal jilcas, staleil and lodii'cd a^^ainst (ireat liiitain on behalf of one of the j;rcatest iiatiims ot' tin- earth. I it. then I nnaccountalde," in view of (he evidi nee as it slands, that (he prc-^ and that s(atesmeii of (his ecmndy should have fornn'd (In* idea, (hat "an extravagant measure of damages" wa.s scuight by the (joveriiment of the United States / CORRESrONDEXCE RESPECTING GENEVA ARBITRATION. 459 fum iiilliii;^; riom to ^(■^ulr (si) I lC(oj;lii/,itl V iiiul licUi^- riiiscrs tVom (tmI (ill fact licin, and by ircd. If: iiiiiK'ins fioiii tlic (lis)»!itc1inf Mr. I'i.sli tliiit no siudi idea lins m'or hi^cii cntcifaiiicd liy llial (iiiviTiiiiU'iit. Ilaviiiu; this aiit lii'iitic assiiiaiicc so siijiplicd, it iii;iy lie dci'iiicd littli' material to iiniiiiii' wlictlifr on this inijiortant matt<'r the iaiii;iia;4(' of tiie Case lias hcOn misunderstood Iiy Her Majesty's (Jovernnieiit, or whether it is now disavowed. II', however, it has liecn iniseonstrued, the ndseonstriietion iindoiihtedly lias not heen (oniiiK ' to Enj;land, but has been liirgoly shared by writers ou the Continent of Earoiie. Wi'ic this Goveruinent indeed ]irepared to ae'iniesco in the submission of tlieso claims, it would still remain to ask in what way tin; (iovernnieni of tlio United Statcjs ]in)|iosed to ;;nard aj;ainst th(> aeeeptaiUM^ by the Arliitrators of thoseenormoiisestimates wliieh, taUeii without aiitlioritative, comment, tin? lani;uai;e of the l!ase siij;j''ests. Jhit it is scarcely necessary to ol)scrve. that the ([uestion of more or less in this matt(!r is ciitii'cly distinct, from the <|nestion of princiide on which the statements and ar^^nments of Her Majesty's Uovernmeut are founded. il as follow^;; ,(ds and llu-ir f Tiirlnsurc 3 in Xo. Ill] a tlu! JJiitish lie cost of till! committiil by 11, d reniiineia- iceii siipiiiwi'd, (,[' the slates-^ ()ii accoiiiil (if tes aiitlmriiy, I'tion. ha-. Inl ate est iiiiati' ; e eonclusioil. [■en " the iviil tlu! war WHS 1 the cruisers." mine wlicthi'V tales till' <'X- le (;ase pio- lelermine the oiuiielisiltieil terest ill N'l'W terest at that lerefori', is to e exiielisi's of total of those y aiiprojiriatc, i-,inlier of till' u- l.-j(MI,ll|lll,(llll) • t down t(. til" IS this liead iirt of that coMimuiiication, beiiij;' intended, as you iiiforni me, to explain to the ruited States, more fully than can be ilone in the form id' a letter, and as Her Majesty's (iovernment is anxious to do, the considerations which eansed tlieiu to hold the belief at the time ol the ratilieation of the Ti'eaty that a waiver had liceii made id' the (daims tor ihdireet daiiiau'es. Ilaviii;;- informed me that lier Majesty's (iovernment, reeoi:;iii/iiid ultimo, yon add th.at tlmse reasmis were piirposidy omitted at that time in tlu^ hope id' obtainiiin, witluuit any controversial discussion, the assent thereto of the (iovernnient of tlu^ I'liited States.' Your J,ordslii}» then inocecds, in reply to ^Ir. Fish's note, to discuss the whoh; (pies- lion of the rijiht of tin; Tnited States, under the ]U-ovisions of the Treaty, to put for- ward in their Case preseiiti'd at (ieueva their (lainis lor indirect losses and dama.^es, and to state the i^rounds lor your denial id' such riyht and tiie areumeiits by which lliat denial is sinij^ht to be sustained. And your liordshi]) idoses this full and loiifi' statement of views and ariiuments by cxpressiiijn- the contideni l'eelin;;-of Her Majesty's (iovcrnineiit that tlieyli;i\e laid be- lore the I'resident ampli' proid' that the comdnsion wliid (d' F(d)ruary, and l>y which you think it is hardly necessary to say they ad- luac, cannot be shaken. This conclusion 1 nndeistand to be that " Her Majesty's Government hold that it is no! within llu province id" the Tiibunal of Arbit rat i(Mi at (ieiieva to tiecide up(Ui the claims for imlirecd losses and injuries put forward liy the United States." Almost every moment of a\ailabhv time since the recei])t of your l.oi'dship's uotiOi.'is Iji'cn occupied with the cojiyinirof it, in order that 1 may be .abh! to transmit it in time loovertake at (^neeustown the mail steamer whiidi leaves Liverpool to-day. 1 theri!- lofe make my a(d\iiowledy;nient (d' I he deli very of yonr comuiunieation brief, and hasten lolnrwaid it to my Go\ einnieiit at lamie, that it may have, with the least iiossiblo ilelay, the attention and answer from Iheie wiiich it may be tliou;;;lit to require. 1 have the honor to be, very respeidfullv, your obedient servant, ROUT. C. SCIIENCK. 460 TREATY OF WASHINGTON. No. 14. General Schenck to M^. Fish. [Telegram.] London, 1st April, 1872. Have you any objection to British Government filing Counter Case, without prejudice to their position in regard to consequential damages'? Keceived at 9.40 a. m. SCHEXCK. No. 15. Mr. Fish to General SchencTc. [Telegram.] Washington, Ainil 2, 1872. AYe unrlerstaud the British Government is bound to file Counter-Case, and that their so doing will not prejudice any jmsition they have taken, uor affect any position of this Government. The rights of both paities will be the same after filing as before. Is the inquiry made at their request ? FISH. No. 16. Mr. Fish to General SchencJc. No. 181.] DErART3IENT OF STATE, Washington, April 10, 1872. Sir: I have given very careful attention to the note of tiie 20tU March, addressed to you by Earl Granville, professing to state the reasons which induced Iler Majesty's Government to make the declara- tion contained in his previous note to you of 3d February, that, in the opinion of Her Majesty's Government, it is not within the province of the Tribunal of Arbitration at Geneva to decide ui)on the claims for indirect losses and injuries jmt forward in the Case of the United States. His Lordsliip declares this statement lo be made upon the invitation which this Government appears to have given. I should regret that what was intended only as a courteous avoidance of the naked presenta- tion of a directly opposite opinion to that which had been expressed on behalf of the British Government, uusustained by any reasons, should have subjected His Lordship to the necessity of an elaborate reply. It Avas not the desire of this Government to invite any controversial dis- cussion, nor have they now any wish to enter upon or continue such dis- cussion. Some remarks, however, appear in the note of His Lordship which seem to require a reply. It opens with a seeming denial of the accuracy of my assertion that claims for indirect losses and injuries are not put forward for the iiist lii^. CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 461 time in the "Case" presented by this Government to the Tribunal at Geneva— that for years they have been prominently and historically part of the "Alabama claims'' — and that incidental or conse(piential damages were oft(Mi mentioned as inchided in the accountability. It cannot be supposed that His Lordship intends more than to say that the claims for indirect or national losses and injuries were not "formu- lated" by this Government, and the amount thereof set ^orth in detail qnd as a s[)ecific demand, for he admits that on the 20tli November, 1862, within a few weeks after the "Alabama" had set out on her career of pillage and destruction, Mr. Adams suggested the liability of Great Britain for losses other than those of individual sutiercrs. In his note of that date to Lord Kussell, I\Ir. Adams stated that he was in- structed by his Government to "solicit redress for the national and private injuries already thus sustained." On thelDth February, 1.SG3, Mr. Seward instructed Mr. Adams that " this Government does not think itself bound in justice to relinquish its claims tor redress for the injuries which have remiltcd from the Jitting out and dispatch of the Alabama in a British port. ''^ As the consequences of this fitting out began to develop themselves, and their effects in encouraging the rebellion became manifest, IMr. Adams, in an interview with Lonl Kussell, indicated them (as described by the latter in a letter to Lord Lyons under date of 27th March, 180.)) as "a manifest consi)iracy in this country (Great Britain) to produce a state of exasperation in America, ami thus bring on a war with Great Biitain, irith a view to aid the Confederate cavse.''^ In a note dated April 7, 1805, addressed to Lord Russell, iMr. Adams, after complaining of the hostile policy, pursuant to which the cruisers were fitted out, says, "That policy I trust I need not point out to your Lordship is substantially the destruction of the whole mercantile nari(/ation helongiuff to the people of the United States.'''' " It may thus be fairly assume*! as true that Great Br-itain, as a national poa-er, is, in point of fact, fast acquiring the entire maritime commerce of the United States.'^ That Lord Russell regarded this as the foundation of a claim for dam- ages for the transfer of the commercial marine of the United States to the flag of Great Britain is api)arent, in his reply to Mr. Adams, under date of May 4, 1805, when he says: "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 may have sustained." Again, on the 20th May, 1805, Mr. Adams, writing to Lord Russell, distinctly names indirect or consequential losses. His language is, " that, in addition to this direct iu]nry, the action of these British-built, manned, and armed vessels has had the indirect effi ct of driving from the sea a large portion of the ct . -ircial marine of the United States, and to a corresponding extent enlarging that of Great Britain;" that "inju- ries thus received are of so grave a nature as in reason ami justice to constitute a valid claim for reparation and indemnification.'" In the same note he says, "The very fact of the admitted rise in the rates of insurance on American ships only brings us once more back to look at the original cause of all the trouble." It is difficult to imagine a more definite statement of a purpose to require indemnification. On the 14th February, 1866, after the presentation of the above-recited coninlaints, Mr. Seward, writing to Mr. Adams, said : " There is not one member of this Government, and, so far as I know, not one citizen of the United States, who expects that this country will waive, in any m I 462 TREATY OF WASHINGTON. iH: case, tlu' i tlie Uritish (lorrrnment J'or the lanjer account of th^ vast national injuries it has indicted on the United States.'' In thesaau^ instruction I also wrote what seems pertinent to (he jji'es- ent i)hase of the (pu-stion betweS7(>, page L'O.) It caniu)t be denied that these public or national claims (now called "indirect") were prouiiuently before the Senate of the United States when the Convention of 14th January, ]8t)l\ was under advisement in thai body, nor that they were sab.sequeutly actively canviissed before mr CORRKSPONDENCE RESPECTING GENEVA ARIUTRA TIOX. 4G3 tlio i)('oi»l(', i»f both conntrit's, siiul osijocially by tlio ])i'('s.s of (Iroat IJritaiii. It is <'(|iiiilly iinlispiitiiblc tliiit in my note to Mr. ^Motley, of Sciitcm- bcr L*r», 1S(;:», to which Lord CliirciKlon icplicd, thcro was ijicsciUimI tlic ivparatioii wliich tlic rrcsidcnt thon,nh( "(bic by tlic l>riiifeliion in the Uin'ted States, and which have exi.sted since tiieii, (/ro/riii,'/ out of the (tct.s committed by the several vessels which liiive ,>4i\('ii nse to the claims <;'enerically known as tii<' '.Via ba ma claims,''' ill tlie full coiilidenoe that no claim w^uld be made by the I'nited Slates lor the national losses which Icid been continuously pres(>nted. It is not to he denied that " differences" had arisen between the two (lovernments resiiectinj;' these claims, and the Treaty attests that the two (lovernments were desirous to i)rovide Ibr amical)le settlement of ((// ciiiiscs of ilffcrciicc, and for that iuiri)ose appointed their icspcctivo Pleiiijiotentiaries. It is thus declared in the outset that the amercements wliieh are al)nut to be formulated are not intended to be an •• amicable si'ttlement," but are intended, on the contrary, '-'■ tn proridc for a speedy settlement." The snl)jeet of the submission in a. solemn Treaty will not lie naiTower than the declared object sou,i;ht to be ac'comiilished in the ivCercnce, iiud that oI>ject was declared to be the removal of (W/ c«//«- lilaint.s (did chdiiis. Tiie Treaty also attests that the ditferences which had arisen, uroirhir/ init (f the attts committed by the ^jeveral vessels which had i^iveii rise to llie claims f/cnvricnili/ known as the Alabama claims, stiU exist, and that ill order to remove and adjust all coniphdiits (titd rlahii.s, " all tiie claims (li'oicini/out of //(tw(t'^s* committed by the aforesaid vessels, and (,ciiei'icalli/ known as the xVhibama chiinis, shall be referred to a Tribunal of Arbi- tration." Y'oii can bear witness that not even an intinnition of the character now [>uf forward by Earl CJranville was made at anytime diiriny; the deliberations of the .Joint llij;h (jommission. If Her Majesty's Commissioners weie ajipointed, entered njxin, and 'oiitiiiued tlie negotiations with this (rovewimeiit under instructions iiiid with the convi(;tion that the corres[)ondence between Sir Kdward Thornton and myself did not cover, and was not intenV': gli the whole of the debate, you heard advanced in the Jlousc of Lords as well the opinion held by the United States as that now put forward in behalf of Great Britain. It is true that Mr. Adams did not "define or formulate" claims for national losses. He did, bowever, "notify" tiiem to Her Majesty's Government. During the war these claims were continually arising and increasing, and could not then be "defined," and the time for "formu- lating" them would not arise until a willingness to enter u])on their con- sideration arose. It is to be remembered that in the spring of 1803 Her I^Iajesty's Gov- ernment exhibited some impatience when Mr. Adams communicated losses, and claims of indennification therefor, and Lord Kussell, under date of 0th March of that year, wrote to Mv. Adams that " Her Majes- ty's Government entirely disclaim all responsibility for any acts of the Alabama, and they hoi)ed that they had already made this decision on their part plain to the Government of the United States." In July, 1803, Lord Kussell referred Mr. Adams to his note of 9th March, and repeated tlie disclaimer of all liability ; and on the 14th Sep- tember, in stdl more marked language, he expressed the hope "that Mr. Adams may not be instructed again to i)ut forward claims which Her Majesty's Government cannot admit to be founded on any grountls of iiw or justice." Lord llussell's replies to Mr. Adams att'ord the answer to Lord Granville's remark that " no claims (except direct claims) were ever defined or formulated." But although the United States, under these circumstances, could not consider that hour as the most favorable to a calm examination of the facts or principles involved in cases like those in question, and notwith- standing these admonitions, it became imperative on Mr. Adams still to present complaints. On 30th December, 1802, he had complained of acts with the intent to "procrastinate the war." On March 14, 1803, he wrote to Lord Kussell that " the war had been continued and sustained by the insurgents for many' months past mainly by the co-operation and assistance obtained from British subjects in Her Majesty's kingdom and dependencies." He repeats a similar com- plaint on 27th March, and again on 28th April, coupled with the sug- gestion of the responsibility attending those who " furnish the means of protracting the struggle." At no time during the occurrence of the events which gave rise to the differences between the two Governments did the United States fail to present ample and frequent notice of the nature of the indirect in- juries, or of their inclusion in the accountability^ of Great Britain. Lord Granville admits that Mr. Johnson proposed the national claims in March, 1809. I mentioned them in my instructions to Mr. Motley, in May, 1809, and again in that of September of that year. Although I made co claim or demand for oither direct or indirect injuries, I did present the vast national injuries, so that Lord Clarendon, in his reply, 30 i.— n It ,'B ,':;rv:;-. 466 TREATY OF WASHINGTON. maiiit'ested no diflicult.y in discerning that the United States did expect,. and would demand, the consideration of national, indirect, or conse- quential losses. I can therefore have no doubt whatever that the assertion in niy in. struction to you of 27th February, commented upon by Lord (Jranvillc, does "accurately represent the facts as they are shown in the corre- spoiulence between the two Governments." Earl Granville endeavors to limit the nature and extent of the claims, by an argument based upon the " expression *' the " Alabama claims," which (he says) first occurs in a letter which he designates. It may he true that this " expression " appeared for the first time, in the otticiiil correspondence, in the letter and at the date indicated ; but His Lord- ship overlooks the fact that in this letter the language used is " the so- called Alabama claims," showing evidently the adoi)tion, for conven- ience, of a then familiar term in common use, designating by a short generic name the whole class and variety of claims, for the various injuries of which the United States had, at different times, made com plaint. The question, however, is not what was understood by the expres- sion "Alabama claims," in 1SG7, but what the same expression implied in 1371, when introduced into the Treaty. It n»ight not be dillicult to show that the expression had in 18G7 acquired a definite sense far more comprehensive than that to which Earl Granville desires to restrict it. It is impossible to deny that in 1871 it was as comprehensive iu signification as the United States claim it to have been. The ofiicial correspondence of this Government, which was published, and is within the knowledge of Her Majesty's Government, included the indirect injuries under the expression " the Alabama claims." They wero prominently put forward iu the debates and the public discussions on the rejection of the Johnson-Clarendon treaty. The American press abounded in articles setting them forth as part of the "Alabama claims." The President enumerated them iu his annual message to Congress, in December, 18G9. The British press, iu the summer of 18G9, and subsequently, discussed most earnestly the indirect losses under the title of "Alabama claims." Continental jurists and publicists discussed the national claims on account of the prolongation of the war under the head of " Keclama- tions" having " qu'un rapport mdirecf, et nullement un rapport dired avec les depredations reellement commises par les croiseurs." In the year 1870, Professor Mountague Bernard, subsequently one ot the Commissioners on the part of Her Majesty, and whose name is signed to the Treaty, published a very able but intensely one sided and partial defense of tlie British Government, under the title of "A Histori- cal Account of the Neutrality of Great Britain during the American Civil War." The XI V^th ehapter of this work, as appears in the table of con- tents, is entitled the "Alabama claims." Under this head he presents the demand nuide by the United States for redress for " the national as well as the private injuries." Professor Bernard knew the extent of onr complaints and of our demands. In this work he summarizes an instruction from this Department to the Minister of this country in Great Britain as presenting "the opinion of this Government" that the conduct of England " had been a virtual act of war." He says, "The estimate which the American Government has thought fit to adopt ot its own claims * * * is not favorable to a settlement;" that among the reasons for the rejection of the Convention of January 14, 1869, was the fact that it embraced only the claims of individuals,. la did expect,, ct, or conso- ion ill my in- id (liaiiville, in the corie- )f the cUiims, itrna chiiins," i. It may be n tlie ottlciiil ut His Lord- ed is " the HO- , for conven- ig by a short i- the various s, made com y the exproH- ^ssion implied »t be dillicult leftnite sense lie desires to ompreheusivc ^as published, , included the " They were isciissions on nericau press bama claims." to Congress, tl}', discussed lania claims." lal claims on )f " Keclama- apport direct •s." uently one of lose name is )ne- sided and )f "A Histuri- merican Civil table of con- 1 he i)resents le national as extent of our mmarizes an 8 country in ent" that the says, " The it to adopt ot settlement ; " 1 of January individuals,. CORRESPOXDEXCE RESPECTIXO GENEVA ARniTRATION. 407 and liad no reference to those of the tiro Gorernmcnts on each other, lie sets forth that the President assigned, among the reasons for his dis- approval of that Convention, that " its provisions were inade9) "pre- pared to speak of the reparation which he thinks due by the British Government for the lanjer account of the rast national injuries it has inflicted on the United States.'' And, further, that this (lovernment held that "all these are subjects for future consideration, which, when the time for action shall wwc, the I'resideiit will consitler with sincere and earnest desire that all differences between the two nations may be adjusted amicably and compatibly with the honor of each and to the promotion of future concord between them." With this knowledge of the demand for " national"' redress; that the American opinion regarded the conduct of Great Britain as "a virtual act of war;" with the ex|)ressed opinion that the American estimate of its claims was extravagant ; with the knowledge that a jirevious Con- vention had recently been rejected, becau.se, among other reasoiLS, " it embraced only the claims of individuals, and had no reference to those of the (jovernment ; that the President expected reparation for the vast national injuries'^ which Great Britain had inflicted on the United States, and that lie " held all these subjects for future consideration when the time for action shall come ;" when " the time for action" did come, Professor Bernard, bringing this knowledge, appeared* as one of Her Majesty's Commissioners to treat on these very subjects. It would be doing great injustice to the other eminent and distin- guished statesmen and diplomatists who were his associates on the Brit- ish side of the Oommissi(m, to entertain the belief that they brought less knowledge on these points than was held by Professor Bernard. I hold that enough has been shown to establish that the British Com- missioners who negotiated the Treaty did not enter upon the important duty committed to them in ignorance of the nature or of the extent of the claims which the American Government intended to present and to have settled. Earl Granville's effort to limit and confine the meaning of the expres- sion " the Alabama claims" might induce one who had not the text of the Treaty at hand to suppose that the reference to the Tribunal of Arbitration was limited by the restricted meaning which he attempts to give to the phrase "Alabama claims." But the words of the Treaty impose no such limitation ; they are that, " Whereas differences have ttvisen between the Government of the United States and the Gov- erument of Her Britannic Majesty, and still exist, growing out of the acts committed by the several vessels, which h.ave given rise to the claims genericalJy known as the 'Alabama claims.' Now, in order to remove and adjust all complaints and claims on the part of the United States, and to provide for the speedy settlement of such claims which are not admitted by Her Majesty's Government, the High Contracting Parties agree that all the said claims growing out of the acts committed by the aforesaid vessels, and generically known as the 'Alabama claims,' be referred," &c. All the claims growing out of the acts committed, &c., are the subject of reference. That which grows out of an act is not the act itself; it is something consequent upon or incident to the act — the result of the art; and whether the claims to which Her Majesty's Government now takes ex- I Im ■1 11 H p 1 1 ^t f|- H mMi 468 TREATY OV WASHINGTON. ception bo tlio results of the lujts coiumittod by the vessels is, in the opinion of this (fovermnont, for the «le(!isioti of the cVrbitnitors. After tnc positive ih'cliiratioii of Esirl Oranville that it " neveV could biivc been expected" that Her Majesty's Government wonhl accept the proposition of ])aynient of a gross sum in satisfaction of all our claitns, it is apparent that an exposition, at this tiaie, of the reasons whicili led the President to hojjc that tin' nnncablc settlement which he proposed, conjded with the siiy<;estion of larjfe pecuniary concessions on our pait, would be made, will not tend to remove the dirterences now existiii;; between the two (lovernments respecting the jurisdiction of the (leneva Tribunal. I as deejdy iegr<'t that Her IVIajesty's Government cannot understand upon what that liop«i was founded as I deplore what now appears to have been the jjredetei'mination of Her ^Majesty's Government to reject every proposal whi(di involved an adnussion of any liability on the i>art of (Jlreat liritain. Another proposal, having no similitude to the previous one submitted by us, was made by Her Majesty's Commissioners. They accepted, with- out objection, the American statement of the subject-matter in dispute, as it was made, and they proposed, instead of the ''amicable settlement" ottered by the American Commissioners, " a mode of settlement" by arbi- tration, a litigation, a lawsuit in which Great Britain should deny all lia- bility to the United States for all the injuries complained of. After sundry woditications, their proposal was accei)ted by the United States, who were thus compelled to bring before the Tribunal the same presentment of their losses which they had lai«l before Her Majesty's Commission. The subject-matter of the submission made by the American " Case" to tlio Geneva Tribunal ditteis in no particular from that which was accepted as the statement of the American claims, without objection on the part of the British members of the Joint High Commission. The Tresident is now, for the first time, authentically informed that a waiver by this Government of the claims for indirect losses which were formally presented was, in the opinion of Her Majesty's Govern ment, also contained in this second proposal, was a necessary condition of the success of the negotiation, and that "it was iu the full belief that this waiver had been made that the British Government ratified the Treaty." Such a relin(piishment of a part of the claims of this Government is now made by Earl Granville the pivot and real issue of the negotiation. He appears to imply that the price paid by Her Majes- ty's Government to obtain that waiver was the concessiou referred to in His Lordshii)'s note, and whi(di, he says, would not have been expected by this Government " if the United States were still to bo at liberty to insist upon all the extreme demands which they had at any time sug- gested or brought forward." Here, again, is a clear intimation that Her Majesty's Government were not iu ignorance of the character of our demands, but that they were well ''X«oich," and that the (lonsideratiou to be paid for their waiver (whether real or iuuiginary) had been deliberately determined. Is it not surprising that such "extreme demands" should be waived on the one baud, and such "concessions" made on the other, without a word of reference or suggestion that the one was conditioned on the other! You can bear witness that at no time during the deliberations of the Joint High Commission was such an idea put forward by Her M.ajesty's Commissioners. The Protocols are utterly silent on the subject. CORHKHPONMKNCE RESPECTING GENEVA AHHITRA llnN'. 4G9 our ciaiins, That no such loliiKinislinu'iit whh incorpoiatrd into tli<^ text of tho Treaty is c^lear enoii},'li. Why not, if thus dccnu'd at tlie time, hy llcr Majesty's Govoninient, the hinj;e and essential part of tl»e Tr«'aty ;' What are termed tlie "■eonecssions" on the part oi" (ireat Britain ap- pear in the Treaty. If the reliiKpiishnient by the l'nite«l States of a part of tlieir ehiini was the eciuivalent tlierefor, wliy is not tinit set forth? Throu<{liout tlie Treaty are to be i\n\m\ reeiprocal };rants or concessions, each accompanied by its Reciprocal et|uivalent. How could it happen that so impcntant ower given to the Tribunal of Arbitration, of awarding a sum in gross, in case it finds that Great Britain has failed to fulfill any duty, or of remitting to a Board of Assessors the determination of the validity of claims ]uesented to them, and the amounts to be paid. By the Article VII, "in case the Tribunal find that Great Britain has failed to fulfill any duty or duties as aforesaid, it 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 Cheat Britain be found by the Tribunal to have failed of any of its duties, it is clearly within the power of the Tribunal, in its estimate of the sum to be awarded, to consider all the claims referred to it, w hether they be for direct or for indirect injuries ; there is no limitation to their discretion and no restriction to any class or description of claims. The United States are "prepared to accept theaw^ard, whether favor able or unfavorable to their views." They are confident " that it shall be just." ,i:ii::a,- awardinff a CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 471 Earl Granville refers to the allusion made in ray instruction to you of 27th February, to the presentation by Her Majesty's Agent to the Claims Commission now sitting in this city of a claim for a part of the Confederate cotton loan, the express exclusion of which from the coh- sideration of the Commission his Lordship admits l:ad been mutually agreed upon in the negotiations which preceded the appointment of the High Commissioners, and was provided for by the wording of the Treaty. He thinks, however, that there is no analogy between the inoceedings before the Washington Commission and those before the (leneva Tribunal; such, at least, appears to be the inference to which his argu- ment is intended to lead. He cites from Article XIV the power given to the Claims Commis- sioners " to decide in each case whether anj* claim has or has not been duly made, preferred, and laid before them, either wholly or to anj'^ ex- tent, according to the true intent and meaning of the Treaty," and he adds that " no similar words" are used as to the powers of the Geneva Tribunal. It is true that "no similar words" are used, but his Lordship has over- looked the nuich broader and more comprehensive i)owers given to the (ieneva Arbitrators by the words in Article II authorizing them " to examine and decide all questions that shall be laid before them on the part of the Governments of the United States and of Her Britannic Majesty, respectively." These grants of power are to be taken in connection with the subject- matter referred. The subjectnmtter of the reference to the Washington Commission is the claims for alleged wrongful acts by either Government upon the nersons or property of individuals or of corporations, citizens or sub- jects of the other Government. Articles XII and X IV prescribe certaiji requirements as to the man- ner, the channel, and the time of presentation of the claims to be exam- ined. The words "made, prepared, and laid before" have no possible refer- ence to the nature, the character, or the ground-work of the claim, and can be construed oidy as applying to each claim, which is a proper sub- ject of reference, the test of the requirements of the Treaty, with respect to the manner, the channel, and the time of its being brought before the Commission. The subject-matter referred to the Arbitrators at Geneva is "all the claims growing out of acts committed l)y the vessels which have given rise to the claims generically known as 'the Alabama claims,' in order to remove and adjust all complaints and claims on the part of the United Htates, and to j^rovide for the speedy settlement of such claims." In connection with such claims, and with the purpose expressed in the Treaty, the Arbitrators have the broad grant of power to "examine and decide all questions that shall be laid before them on the part of" either Government. If Lord Granville can find in the words he has quote«l power in the Washington Commission to determine whether or not a claim i>resented is within its jurisdiction, it will be difficult to deny the same power to a Tribunal to which the more comprehensive grant is ma involving upwards of fifty millions of dollars. My allusion to it was not in the nature of a complaint of its presenta- tion. EarlGrauvillehaskindly furnished certain dates. From Iiis note we find that it was on the 21st November that he learned that the United States remonstrated against the presentation of this class of claims; that prior to the Cth December he had ascertained from Sir Edward Thorn- ton (who it is known h.ad left England on his return to the United States as early as the 28th day of November) that claims of this class were intended to be excluded, and that the Treaty contained words inserted for that object ; that the remonstrance and request of the United States were not considered by Her Majesty's Government until the 11th of Decem- ber; that a decision thereon was not made until the 14th, (on which day, I may add, the Agent and Counsel of the British Government brought the case to trial in Washington,) and that the announcement of the decision of Her Majesty's Government was not made to you until the 16th December, two days after the case had been adjudged. These dates illustrate my allusion to this case. The United States calmly submitted to the Commission the decision of its jurisdiction over a claim involving in its principle the question of liability for many millions of dollars, which, it is admitted, hail been expressly agreed to be withheld from the province of the Commission, and thereby avoided jeoparding the Treaty, and the serious embarrassment w' ich might have resulted from their undertiilving to become the judges in their own behalf. I cannot pass over without notice the allusion made by Earl Gran- ville to your presence in the House of Lords on the occasion of the debate of the 12th of June last, and the fact that you did not at any time challenge either of the conflicting interpretations of the Treaty expressed on that occasion. I may add that similar rertections npou the conduct of this Government in tliat relation, uttered by i)rominent statesmen and newspapers in Great Brit lin, have been made public, and thus brought to my notice. To all of these it is sufficient to say that the President does not hold it as any part of his duty to interfere with the differences in the Par- liament, or the public i)ress of Great Britain, respecting the true con- struction of the Treaty. The utterances in Parliament ?ire privileged; the discussion in that high body is looked upon by us as a domestic one, of which this Government has no proper cognizance. If it is bound to take notice, it has the right to remonstrate. To concede either to a foreign State would be, on the part of a Par- liamentary Government, the abandonment of the independence whicii is its foundation and its great security and pride. Had you interfered, therefore, either to remonstrate or to demand explanation, you would have exposed yourself and your Government to the very just rebuke which the United States have had occasion to ^mm CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 473 igno- admiuister to diplomatic agents of foreign Governments, who, in ranee or in disregard of the fundamental principles of a Constitutional Government with an independent legislature, have asked explanations from this Government concerning the debates and proceedings of Con- gress, or of the communications by the President to that body. You had a right to assume that if Her Majesty's Government desired any official information from you or your Government respecting the Treaty, oi desired to convey any information to you or to your Govern- ment, they would signify as much in the usual forms of diplomatic inter- course, as was done by Lord Granville in his note to you of February 3. Certain it is that it would have been in violation of recognized diplo- matic proprieties had you, on the occasion referred to, taken sides with either of the opposing views of the Treaty uttered on that occasion in Parliament. Further than this, it appears to me that the i)rinciple8 of English and American law (and they are substantially the same) regarding the construction of statutes and of treaties and of written instruments generally would preclude the seeking of evidence of intent citside the instrument itself. It might be a painful trial on which to enter, in seeking the opinions and recollections of parties, to bring into conflict the differing expectations of those who were engaged in the negotiation of an instrument. While the United St.ates have nothing to fear from departing from the eminently just rule of law to which allusion has been made, it abstains from such departure. Very much of the matter so elaborately and ingeniously presented in the memoranda attached to the note of Earl Granville could be iitly and appropriately addressed by the British Government to the Tribunal which is to pass upon the points presented therein. It would require amplification, if not correction of statement, to make it present all the facts essential to a correct judgment, and might require a reply before that Tribunal. It would certainly require explanation as to many of its presentations, and its logic would be denied ; but it does not seem to require a reply from me in the form of diplomatic correspondence. As to what is contained in Part III of that Memorandum, I repeat in substance what I mentioned in my note to you on this subject, of 27th February, that the indirect losses of this Government by reason of the inculpated cruisers are set forth in the American '' Case" as they were submitted to the Joint Iligh Commission in the first discussion of the claims on March 8, and stand in the Protocol approved May 4. They were presented at Geneva, not as claims for which a specific demand was made, but as losses and injuries consequent upon the acts complained of, and necessarily to be taken into equitable consideration in a final settlement and adjudication of all the differences submitted to the Tri- bunal. The decision of Avhat is equitable in the premises, the United States, sincerely and without reservation, surrender to the arbitrament designated by the Treaty. What the rights, duties, and true interests of both the contending nations, and of all nations, demand shall be the extent and the measure of liability and damages under the Treaty, is a matter for the supreme determination of the Tribunal established thereby. Should that august Tribunal decide that a State is not liable for the indirect or consequential results of an siccidental or unintentional viola- tion of its neutral obligations, the United States will unhesitatingly accept the decision. Should it, on the other hand, decide that Great Britain is liable to this i. re , . '■ ^1 . { i^file ■■'OT 474 TREATY OF WASHINGTON. Government for such consequential results, they have that full faith in British observance of its engagements to expect a compliance with the judgment of the Tribunal which a solemn Treaty between the two Pow- ers has created in order to remove and adjust all complaints and claims on the part of the United States. To the judgment of the Tribunal when pronounced the United States will, as they have pledged their faith, implicitly bow. They confidently expect the same submission on the part of the great nation with which they entered into such solemn obligations. I am, &C.J HAMILTON FlSn. No. 17. No. 198. Sir; General i^'chcncl- to Mr. Fi,sh. [Extract.] Legation of the United States, London, Ajyril IS, 1872. (Received April 39.) * * * * I spent some time with his Lordship, occupying mjself principally in the eudepvor to make him understand how little proper comprehension there is here of the state ox public feeling and opinion in the United States. They believe, and the Government has seemed to share in the impression, that there is a very general desire among our people, includ- ing the most of our prominent men, that the claims for indirect damages should be withdrawn, and the Arbitrators not asked to consider or decide on them. I explained to Lord Granville that much of this misappre- hension comes from the course of the English press, giving prominence as it does to every article, letter, or publication of any sort coming from America or purporting to be written by an American taking the British view of the question, and studiously excluding all that would tend to prove the almost entire unanimity of our i)ress and citizens in support of the position taken by their Government. 1 warned him against trust- ing to the correspondence and writing of certain persons and jouruals that I named, as affording any true exposition of the general sentiment in our country. And I represented to him that both the Government and citizens were much more generally concerned to have all claims of every sort, whether regarded as substantial or shadowy, go to the Arbitrators to be decided upon, so that every existing complaint and grievance might be blotted out and wiped away forever, than they were troubled about either the character or amount of the award to be rendered by the Tri- bunal. What was most especially desired, I assured him, was that a decision of the whole question and extent of the liability of a neutral should be arrived at, so that the rule and the law for all might be known in the future. Indeed, among other things 1 told Lord Granville frankly that I re- gretted to have to inform him there were not a few of our best peoi)le who were growing so dissatisfied with the position which Her Majesty's >Government weia now assuming, that they were beginning to say that Great Britain, they supposed, must be permitted to lake her course and • annul the Treaty, in which event the United States could surmise such .an unhappy end of our labors and hopes as well as this Government. CORRESPONDENCE RESPECTING CfENEVA ARBITRATION. 475 All I said, and there was a great deal of it, was expressed and received ia the most friendly manner, and helped to give us, I hope, a better mu- tual understanding, whether it may have or not any. other effect or result. His Lordship, I am more thcan ever satisfied, is sincerely and painfully earnest in his desire to save the Treaty, and I have no doubt that this is equally true of other miuisters. ****** I have. &c.. KOBT. C. HCIIENCK. Ko. 18. Mr. Fish to General Sehenck. [Extract.] ^0. 184.J Depaktment op State, ^ya,shiH(Jton, April 23, 1872. Sir : It is unnecessary now to consider what action this Government might have taken with regard to the present phase of the Alabama claims question had the British Government calmly presented their views with respect to their construction of the Treaty in relation to what are now familiarly called " the indirect claims." The public dis- cussion which they have thought proper to excite, and the discourteous tone and minatory intimations of some of the utterances of the ministry, impose upon the United States a different line of action from that which might have been adopted in response to a calm presentation of a different construction of the Treaty from that which is entertained by this Government, and of the apprehensions which the imagination of the British public seem to entertain of the possible magnitude of the award that may be made for that class of the claims. Not doubting the correctness of the position which this Government has occupied, and fully convinced that the " indirect claims" Avero not eliminated from the general complaint of the United States, I am not disposed to question the sincerity of those who hold to the opposite view. This Government is very anxious to maintain the Treaty and to pre- serve the example which it affords of a peaceful mode of settling inter- national differences of the very gravest character. Neither the Government of the United States, nor, so fjir as I can judge, any considerable number of the .^ merican people, have ever at- tached much importance to the so called "indirect claims," or have ever expected or desired any award of damages on their account. They were advanced during the occurrence of the events of the cruisers' depredations, and pending the excitement and the irritation caused by the conduct of Great Biitaiu. They became more prominently associated with the case during the discussions attendant upon the Johnson-Clarendon Treaty, and its rejection ; and it was impossible for the American Commissioners not to lay them as part of the American complaint, and as forming part of the American claims, before the Joint Ui}?h Commission. That they were not excepted to by the British Commissioners is no iault of this Government. Being left in the complaint, and set forth, unchallenged, in the Pro- 476 TREATY OF WASHINGTON. tocol, (signed only four days before the signing of the Treaty, and wboii the Treaty was completed in form and substance, and was being en- grossed for signature,) tbey could not be omitted from the " Case." * # * * * * Tlie United States now desire no pecuniary award on their ac"'^- at. You will not fail to have noticed that through the whole of r^^ *.orre spondence we ask no damages on their account; we only desire a judg- ment which will remove them for all future time as a cause of differenc(i between the two Governments. In our opinion they have not been dis- posed of, and unless disposed of, in some way, they v.ill remain to be brought up at some future time to the disturbance of the harmony of the two Governments. The United States are sincere in desiring a "tabula rasa" on this Alabama question, and therefore they desire a judgment upon them by the Geneva Tribunal. * * # * * * * In the correspondence, I have gone as far as prudence would allow in intimating that we neither desiretl or expected any pecuniary award, and that we should be content with an award that a State is not liable in pecunifiry damages for the indirect results of a failure lo observe its neutral obligations. It is not the interest of a country situate as are the United States^ with their large extent of sea-coast, a small Navy, and smaller internal police, to have it established that a nation is liable in damages for the indirect, remote, or consequential results of a failure to observe its neutral duties. This Government expects to bo in the future, as it has been in the past, a neutral much more of the time than a belligereut. It is strange that the British Government does not see that the inter- ests of this Government do not lead them to expect or to desire a judg- ment on the " indirect claims;" and that they fail to do justice to the sincerity of purpose, in the interests of the future harmony of the two nations, which has led the United States to lay those claims before the Tribunal at Geneva. I need not repeat to you the earnestness of the President's desire to prevent a failure of the Arbitration, or any repudiation of a Treaty which is so hopeful of beneficent results, nor need 1 urge you to continued efforts, by all that is in your power, consistently with the honor and dignity of this nation, to bring about an honorable understanding be- tween the two Governments on this question, which has been, as it appears to us, so unnecessarily and unwisely raised, to the inimiuent peril of an important Treaty. I am, &c., HAMILTON F18H. No. 19. General SchencJc to Mr. Fish. [Extract.] !>; 210.] Legation of the United States, London, April 25, 1872. Sir: At this moment it appears too probable that the Government here will * * * * » # # take such a course as will put an end to the Arbitration at Geneva and to the Treaty. CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 477 I will not now attempt to explain or comment on the situation. The development and the events of the last few days you will have gathered from ray telegraphic communications, and from tiie re])orts of j)rocced- iiigs in Parliament, and articles from the London journals, which I con- tinue to send you. If there is to be a disastrous termination of all our work, from which we had hoped so much of good for the two countries aiul for the world, the obstinate refusal of the British Government and people to go on with a solemn and high engagement tliat, without any sacrifice of their dignity and interests, might have been conducted to a conclusion which would have blotted away all serious causes of disiigreement between them and us, will be not a little owing to the course of some of our own citizens. The difficulties have been wonderfully increased of late, aiul Great Britain encouraged in her position by the tone of some of the Ameri- can journals, by inconsiderate declarations of some public men, and by much writing, telegraphing, and conversation, not wise and thoughtful, though generally, perhaps, not mischievously iiiteuded. This has led at last to a common conviction here that the best and most influential men of the United States desire to have our Government recede from its position. I await still your commujiication in rei>ly to Lord Granville's note of the 20th ultimo. I hope, also, with that, or sooner by telegraph, to . ceive instructions from you, which may direct and help me in any con- tingency likely to occur. I shall doubtless have much to report and bring to your consideration nowvery soon. In the mean time, I will not fail to keep my mind anxiously directed to any and every expedient by which the Treaty may possibly be preserved, although our interest in maintaining 5»nd executing its provisions is certainly not greater than the need of this nation, which does not seem to me to fully weigh and appreciate the unhappy consequences to flow from its repudiation. I have, «&c., EOBT. C. SCHENCK. M Mill No. 20. Mr, Fiih to General Schenck. LTON FISH. [Tt'logram.] Washington, April 27, 1872. iTou are aware that neither in the Case presented in behalf of this Government at Geneva nor in the instructions to you have the United States asked for pecuniary damages on account of that part of the Alabama claims called the indirect losses, which the British Gov- ernment think are not within the province of the Tribunal. We think it essential, however, that the question be decided whether claims of that nature can in the future be advanced against the United States as a neutral by Great Britain when the latter is a belligerent; for if Great Britain is to be at liberty when a belligerent to advance claims for indirect losses or injuries against this country, then our claims must be maintained and we must press for compensation. A conversation with Sir Edward Thornton induces the belief that the 1 1 -s- f 1 u . 1 ' t « i 'K 1 (m JaM IkMIL 478 TEEATY OF WAHHINGTON. British Government may make a proposal to you to the etfect that Her Majesty's Government engages and stipulates that in the future, should Great I3ritain be a belligerent and this country neutiul, and should there be any ftiilure on the part of the United States to observe their neutral obligations, Great Britain will make or advance no complaintsH or claims against the United States by reason or on account of any in- direct, remote, or consequential results of such failure; and that, in consideration of such stipulation, the United States shall not press for a pecuniary award of damages before the Geneva Tribunal on account of the claims respecting which Great Britain has expressed the opinion that they are not included in the submission, namely, the transfer of the American shipping, increased iusurance, and the prolongation of the war. Should a proposal to this effect be made by the British Government, the President will assent to it, it being understood that there is no withdrawal of any part of the American Case, but an agreement not to demand damages on account of the claims referred to, leaving the Tribunal to make such expression of opinion as it may think proper on that question. It is presumed that such an agreement may be carried into effect by an exchange of notes. FISH. [Kroia Uritiwh IJliie Book, "North America.," Xo. i), (lH7'2.i p. "i.] Ko. 21. Uarl Gmmillc to Sir E. Thornton. FoREKJN Office, April 29, 1872. Sir : General Schenck told me this day, in a conversation, that lie had not yet received the answer from Mr. Fish to my letter of the 20th ultimo, but that he Lad received a telegraphic message, the substance of which he could not officially communicate until after the delivery oi Mr. Fish's answer. He then read to me as follows : You .are aware that neither in the CaMO presented iu behalf of this GoviTuiiienr nor in the iiistructious to yon, have the United States asked for peeuniary damages on acconnt of that part of the "Ahibama claims" called the indirect losses, which the British Government think are not within the province of the Tribuual. We think it essential, however, that the question be decided whether claims ol that nature can in the future be admitted against the United States as a neutral bj Great Britain when the latter is a belligerent ; for if Great Britain is to be at liberty while a belligerent to advance claims for indirect losses or injuries against this coun- try, then our claims must be maintained, and we must press for coDipeusation. A conversation with Sir E. Thornton induces the belief that the British Govern- ment may make a proposal to you to the effect that Her Majesty's Government engages and stipulates, that in future should Great Britain be a belligerent, and this country a neutral, and should there be any failure on the part of the United States to observe their neutral obligations, Great Britain willmake or advance no complaints or claims against the United States, by reason or on account of any indirect, remote, or cou- seqnential results of such failure; and that, in consideration of such stipulation, the United States shall not press for a pecuniary aAvard of damages before the Geneva Tribunal on account of the claims respecting which Great xiritain has expressed the opinion that they are not included in the submission, namely, the transfer of the American shipping, increased iusurance, and the prolongation of the war Should a proposal to this etfect be made by the British Government, the President will assent to it ; it being understood that there is no withdrawal of any part of the American Caee, but au agreement not to demand damages on account of the claims referred to„ CORRESPONDENCE RESPECTINCr OENEVA ARBITRATION. 479 t that Her ire, should nd should jerve their jomplaints of any in- id that, in t press for oil account ihe opinion transfer ol' leaving the Tribunal to make ouch expression of opinion as it may think proper on that question. It is prcsiiuiod that such an aKN'CE KESPKfTIXO fiENKVA ARMITRATIOX. 481 No. L»2. General ISchenck tn Mr. Fish. [Tt'lt';^ram.] London, April ;>0, ISTli. Your 181, leeeivtMl last iiiylit, has betMi by soiiio accident wet and hliirretl, but 1 hope to make it all out to-day. Meantime your telegram, which came Sunday night, was the occasion of a stri(;tly confidential interview with (Iranville yesterday, lie objected to this (Jrovernment making iirst movement, but that point is now conceded. They object to having Arbitrators express opinion on indirect claims, when the two Governments agree"that they are not to be the subject of award. After consideration by Cabinet the following paper was given me last night confidentially as the drauglit of a possible communication to be made to me, if the United States have promised to assent to it and will lireviously put Her jMaJesty's (rovernment in possession of the terms of the assent : Ilor Mnjcsty's (tovt'iniiKiit adlierc to fliuir viow tliat it is not within the j»rovinc»^ of tlio Arbitrators to consider or to (hx'ide ujton tiio claims for indirect lossos, viz, this transfer of the American shipping, the increased preminms of insnrance, and the jiro- longation of the war, and that consei[nentl.v the Government of the United States mii;iit not to press for a consideration of snch claims. They are, however, ready to state that, in the event of the Government of the United States agreeing that the Arbitra- tors are not to have regard, in any award that they may make, to the above-mentioned rlainis, Her Majesty's Government v ill, on their part, agree that the view which they have heretofore presented of the inadmissibility of such claims shall still continue to lie their principle of action and comlnct in all like cases and in similar circnuistances; mid that they are re.ady, in pnrsimnce of the recognition of snch principle, to give us- ^iiiance to the United States that, if Great Britain should, at any time hereafter, be a liuiligerent, while the United States is a neutral, claims of that nature, in similar cases iiiul similar circumstances, will never be advanced agaiust the United States, such an iissurance for the future being reciprocally given by both parties. An arrangement such as IS luire sketched out might be carried into effect by an exchange of notes, which shall be communicated to and recorded by the Arbitrators. In submitting this draught of their proposal, I should inform you that I have insisted on this language, " the United States agreeing to refrain from pressing for compensation or for any pecuniary award for the bove-mentioned claims," SCHENCK. I «■ [From British Blue Book North America, No. i>, (H72,) |). 1.] No. 2;J. Sir E. Thornton to Earl Granville.^ [Extract.] Washington, April 30, 1872. (Keceived May 12.) I called ui)on Mr. Fish at the State Departrvent on the 25tli instant, Thursday, the day of the week on which he requests that members of 'The substance of tliis dispatch was received by telegraph on the 27th of April. 31 A— 11 482 TUKATY or WASHINCJTO.V. tlie Diploiiiiitic- r>oa;;es, Ker Majesty's Government wouhl be oblij^ed to announee its intention of withdrawinj^ entirely from the Arbitration at (leneva. 3Ir. Fish added that ho should sincerely re;^ret to luuir of sueh an ainionneement being imule, for that ir could only be looked upon as a mena(H', and would destroy all hope of an understandiu}; upon the subject. .Mr. Fish then sent for the (bauyht of his disjiatch to (leneral Srdienck in answer to your Lordship's note of the L'Oth ultimo, and read it to me. Your Lonlsliip will probably have; reeeived a copy of it from (leneral S(dienck yesterday or today. IMr. Fish also read me i)art of the dispatch whicli lie had sent to (liMieral Schenok on the lUth instant, and in which Mr. Fish expressed liis sur- I>rise that Her Majesty's (lovernment should object so much to a decision by the Tribunal of Arbitration at (lenevaon tlie matter of the indirect claims; for that it must be aware that the United States Government neither expected nor desired a money-award on ac feeliuiA'on tiie siiltjr'ct, 1 sail(« that it nii;;lit foi-m tlie basis of an arranji'cmcnt, and that 1 would have no ol)j('ctiou to tele;;raph tlu^ substance of liis(!ommunication to yoni- Loidship. iJut 1 asked wiiether the I'resident wonhl be able to a<;ree to such an arranycnuMit without rcceivin<; the sanction of the Seuatt^ to it. .Mr. Fish r*'plicd with confi- dence that he I'ould do so, for that it woidd l>e nn'rely an a;;reeiuent as to the ref^ulation of tln^ modt^ of reference to tln^ Tribunal, which was entirely in the hamls of the I'^vecntive. rmmediately after my interview with ^Ir. Fish on the L'.">th instant, E found, in tiie evenin}:;' newspai)er, allusions to what In? had su<;ji«\sted, and cou[)lcd with it a statement that the l'resi«lent disayiccd with Mr. Fish upon the subject. The latter paid u\o a visit on tlie afternoon of the 2(»th instant, and assured me that the President was entirely in accord with him as to the possibility of an arranjjienient on the basis to whi(!h he had alluded in his (conversation of the ])revious day; an- GovcrunnMii their assi-iit. VNVIELK. 4, 1872. have not am to you [gilt att'ortl ith regard fton. The im of 30 th infereni..' vernment. iment pro ain of the nee of the t, and that y silV en by ed by Her the basis No. 27. Gcncnd St-hcnvh to Mr, Fisii. [Tch'griuii.] L' NOON, Muli r», 1872. Your telegram of yesterday received to-day. AVill endeavor to see CJranville to-night or early to-morrow. \\"\\{ urge him to modify his jnoposal in accordance with your views. AVill you examine it, in(;hnling introductory paragraphs as given in my tele- grams of A})ril .'!0 and 3Iay .», and, taking it for a basis, suggest exactly what modiUfatious would make it pos.siiile for the President to assent to it? Also give me draught of such reply as you would bo willing to make. I am confuhMit this Governnu'ut will not agree to the last para- uraph of your telegram of April 27. They may agree that if the United States will engage not to ])ress lor award for indirect danmges, nothing need be said about any modiiication of the original Case, nor Avhether such agreenuMit is a withdrawal or not a withdrawal of any part of that Case. Ifather than agree to submit the indirect claims to the Judgment of the Tribunal, I aj^prehend this (roverinnent, l»acked by Parlianuuit, would (!ease negotiation ainl make an absolute dcclai'ation against ])ro- oeeding with the arbitration. Gould the President assent to their otl'er if 1 can get the following substitute for w hat I telegraphed April .'JO I Her Mii.jcstj's Govcriiiiicnt are now ready t:i Mtiitc that if tho rnitcd States will and »lo iif^ree not to ])reHs t'oi- a iieeuniai'y award het'orc the Trihnnal of Arhitnition at (ieneva, «)n aeconnt of ehiinis for indirect losses or dania-cs, namely, the increased lircniiuins of insnranee, the transfer of American shiiijiinji. and th'.^ iirolonj^ation of the war, then Iler Majesty's (iovernnient will and do. on their part, i'n;;af;e ami stijin- lato that, shonld (ireat Itritain at any time in the future l>e a Itelligennt while the, I'nitiHl States is ii neutral ; and should then* bo any failure on the ]iart of the United states to observe their neutral oblijratioiis. Great Ihitaiu will imikv; or a)ivan'Hi no lomplaints or claims a;«'N, to he mutually and reci]U()eally observed by l>oth parties in the future. The notes which are exchanjjed on this subject to be presented to the 'I'ribunal of Arliitration and entered on its record. SCIIKNCK. 486 TREATY OF WASFFIXOTON. ^0. 1'8. Oencral ScliencJc to Mr. Finh. [Teli'ffraui.] LONUOX, M(;ij G, 1S72. Had tno hours' (li.sciissiou with Granville last nif^ht. To-day ho hands 'jjc, as the result of conference with his colleagues, the followinj; amc'ided proposal. Compare it with their former offer and inform nu; how far you can assent or must object. I told him I thoujf-ht it not modified so as to be yet satisfactory, but agreed to submit it to you. Her Majesty's Government nre ready to engajjo that, in the event of the Govciii- iiieut of tlie United States aRTceinjj; tliat the Arlfitvators are not to have rejuanl, in any award that they may malse, to the elaini.s for indirect losses, namely, tlie. transit i of the American shijjpinjj;, tlie increased itn'miiims of insurance, and tlie prolonffation of the "vvar, Her Majesty's Government will, on their part, af,d States that if Great Britain should at any time herc- afier he a belligerent while the United States are neutral, Great IJritain will never advance any claims inconsistent with that principle, such an engagement for the future heing reciprocally given by both ])arties; the not(!S which are exchanged on this subject to be presented to the Tribunal of Arbitration and entered on its records. In the pi'efatory paragraphs he strikes out, at my suggestion, tlic words "without prejudice to the arguments heretofore advanced by Her Majestv's Government." Keceivedat 1.20 a. m. SCIIEXCK. Xo. 2!). M>\ Flfih to doicral ^ScJuiU'J:. [Telegram.] \Va.siii>«gton, May G, 1872. Your telegram received during the night. An agreement which is to bind the future action of this (lovernniont can be made only by treaty, ami would reipiire the assent of the Senate. Should tlie Tribunal decide that a nation is not responsible in pecu- niary damages for the consequential results of a failure to observe its neutral obligations, such decision (;ould luit fail to be regarded as set- tling the «piestion between the two Governments in the future. If the British Government desire to open negotiations to define by treaty the extent of liability for con.seciuential danniges resulting from a failure of obserNJim-e of neutral obligations, the I'resident will care- fully consider any i)roposals in that .] Sir iJ. Tliornion to Earl (IranviUe.^ [Extract.] Washington, May G, 1872. (deceived May 20.) I (tailed vipon INLr. Fish on the 2(1 instant and learned from liiin that he had on tlic previous daj^ reeeived a telefjrani from General Schenck, which, however, was so unintelli^^ible that he had been obliged to tele- gra))h back that it should be re))eated. Mr. Fish, however, seemed to have made out enough of the telegram to have discovered the wish of Her Majesty's (lovernment that the claims for indirect danniges should not be submitted at all to the Tribunal of Arbitration even as an abstract question, or for the purpose of obtaining an opinion upon them. With refer«Mice to this point ]Mr. Fish said that it was impossible for the United States (iovernment to agree to with- draw those claims, though it might consent to ask no money compensa- tion for theiM ; for that, even if it were true that it was in error in sup- ])osing that 1 1- ^ were included in the Treaty, though he insisted that they wer'i ,•;' ij.i.ded, no nation whi<;h had any respect for itself could consent to .iiiiar.w claims which had been formally presented after due reflection. Mr. Fish told me that he should, after consulting with the President, instruct General Schenck that, however anxious liis Government was that the arbitration should proceed, it could not recede from any part of the Case which had been ])resented to the Tribuiml. On the following day the President desired one of his secretaries to write to the republican membersof the Committee on Foreign delations of the two Houses, requesting them to meet him at the State Depart- ment on the next day. The democratic members of the committees were omitted from the invitation. Tlie (piestion of the indirect claims was discussed, but it liPS been im- possible to ascertain precisely what «leci.sion, if any, was come to. I saw Mr. Fish this «: oniug at his o.vn house, wiien he referred to the telegram which 1 :- Iiad received or. tlie Ist instant from General Schenck, afid riid ti i u. i- oMajesty's Government recpiired that the United States Gove^ ii, < aould formally acknowledge that the indi- rect claims were not wii./ . tho 8coi)e of the arltitration. This, he said, was impossible, becauf ii* • '.ad been presented to the Tril)unal under ilie linn conviction that I'lcy were in(;lnded in the Treaty. AVishiiig, however, to ao his utmost that the arbitration miglit continue, he lad yesterday instructed General Schenck, tliat if \ fer Majest; '.^ Governin jnt Avere disposed to negotiate for a re(;iprocal agrcMiient, that onch nivrty as a belligerent should abstain from demanding compensation for indi- rect damages from the other being neutral, the President would take the matter into 1 "'.^ serious consi^^eratioi witli an earnest desire to meet the views-of He M : ^ sty's Government. The substance of lli .^^ li:'tpatih was receiv^Ml hy tclejfraph on the lUl of May. ^ '■ ■ y f ■H'O i ; '■ 1 i ■ ^Ite^ii 488 TREATY OF WASHINGTON. [From Uritisb Blue Book "North Ameiicii," No. 'J, p. G.] Xo. :;i. E(i)i Grancille to Sir E. Thornton. [Kxtr.U't.] FoiiEHiN Office, ^k^^J (», 1872. With rcicH'once to my (lisi»iitcU of tlic iM instiint, I lui ve to statu to you that General Schcnck iutbrnied lue Uist night of the instructions he hail received from Mr. Fish. In the first phice, he mentioned an objection wliich liad occurred to himself. lie thought that the sentence "without prejudice to the argu- ment heretofore advanced by Her Majesty's Government," ought to be " withont prejudice to the arguments heretofore advanced by either party.'' Ii/ did not appear from what he said that Mr. Fish objected to tlie preface — at least, has not criticised it. I observed that the preface was ours, and did net commit the United States Government. General Schenck then proceeded > sty that Mr. Fish objected to embodying in the proposal the declar;. at " Her Majesty's Govcru- inent adhere to their view that it is not \' n the provin(;e of tlie Arl)i tratoi'S to consider or to decide upon the (;.aims for indirect losses, viz, the transfer of the American shipping, »S:c.'' Mr. Fish considers that it is not necessary to insert in a statement, of what is to be agreed ui)on, an insertion as to tlie i)rincii)le on wliicli the two parties differ. The United States Government could not, in liis opinion, enter ui)on a basis of an agreement recognizing a principle of coinluct and action whieh they do not admit. Mr. Fish also objected to tlie phrases " in similar cases and similar circumstances." No two cases are similar, and circumstances similar to those arising during the rebellion in AnuH'ica (^aimot occur in Groat IJritain. Couse»iuently, tlie terms of the proposed agreement guarantee nothing to the United States, lie prefers the language whi(!h he used, '• that Iler Majesty's Government stipulates for the future, that should (Jreat Britain l)e a belligerent, and the UnitiMl Slates a neutral, and should there be any failure on the part of the Ui.ited States to observe their neutral oltligations, (ireat IJritain ■will make or advance no com- plaints or claims against the United States by reason or on-accoiint of any indirect, remote, or consefpieutial damages, the result ot such failure." General Sclien(;k said he ju'eferred that language. L replied that I could not agree with him in this resp(»ct, but I thought the words which I had given to him before he dictated to me his scheme of a draught note would meet this objection. Mr. Fish adheres to having some exi)ression of opinion from the Arbi- trators as to the admissibility of indirect claims, insisting that it is within the jurisdiction of the Tribunal to consider that question. He insists also that there i v,\\\ be nothing from which it is to be implied that any part of the United States Case is withdra^'n. Gen- eral Schenck then said that he wished to make a suggestion, although without instructions. I observed that there must be a limit to these suggestions stated to be without instructions. lie believes tiuit the whole thing nuiy be simplified by stripping tlie proposal of all that is unnecessary, and preserving that which is agreed CORRE.SPONDEXCE UESPECTING GENEVA AKBITKATION. 489 ), 1872. to to you IS he hail cuneil to the iii'ffu- • ht to 1»(' by oithci' id to till' le United )ieeted to s (roveiu- the Arhi- isses, viz, ;tatenu'iit, on Avhich not, in his •ineiple of I similar ; siniilai' in (livat uavantee he used. it should utnil, and > obsei'N'e 3 no eoin- eeount of ot sueh ed that I ds whieh ught note tlie Avbi- thiit it is on. Ik to be ivn. (Ion- [iilthoush to these i.ping the is a}?reed I between the parties, without Ji statement of the views of either or the claims of either. He could understand why ]\[r. Fish objects to havinj^' it dechired that there is any witlulrawal of any part of the Case; but if the thing be virtually done, why, (leneral Sciienck observed, give it a name ? I3ut he also understood why (irreat Britain, making an agreement which amounts to a settlement on this point, should uot want — or con- sent to ask — the opinion of the Arbitrators on that agreement, kle had dr.aughted a brief statementof the mutual proposal which he submitted to me, and would also ask Mr. Fish if it were possible for the President to assent to it, if presented by Her Majesty's Government in this form, as a substitute for that already communicated to him. He did this w ithout obtaining for it Mr. Fish's instructions, and for the present therefore entirely couhdentiall}-. General Schenck pro- ceeded to read the following statement : Ttor Majesty's Govei'iimcnt arc now ready to state that if the United C iitcs Avill and do agieo not to press for a pecuniary award bi^tbre the Tribunal of Arbitration at (ieneva; on account of claims for indirect losses or damages, viz, for the increased pre- miums of insurance, tin; transfer of American shippinjf, and tlie prolongiition of the war, then Her Majesty';. Government will and do engiige, on their part, and stipulatf* rliiit should Great Britain at any time in the future bo a belligerent while the L'nitcfl -fates is a neutral, ami should there bo any failure on tlio part of the United States to observe their neutral obligations, (Jreat Britain will make or advance no complaints or ihiims against the United States by reason or on accountof any indirect, remote, or conse- M'ljuential results of such failure. This rule or priiu:iii!e not to advance or press coiii- plaiuts or claims for indirect, remote, or consequential damages, to l>e luutiuilly and ifciltrocaliy ol>served l)y botli parties in the future. The notes which are exchanged on this subject to be [>resented to the Tribunal ot Arbitration, and entered on its record. I told General Schenck that J. could not give him any formal ans\ver without consulting my colleagues; but I desired to impress upon him that, individually, I was perfectly convinced such a (h-aught would not further in any degree the negotitition. He obser^e.^ tlnit it had no ofliciiil char- acter; that it was only a suggestion of his o\,u, and that it would only have validity if agreed to by Her jMajesty's Government and by Mr. iMsh. He continued to say, that the only chance of an agreement Avas for each party to consider what modifications each should make with a. view to an approximation; and that this would be more easily arr.\-ed at by leaving out all unnecessary matter. I told him that, generally speaking, 1 was sure my colleagues did not desire to introduce any un- necessary words. They only desired tluit the meaning of what was agreed upon should be perfectly clear; that no jmssible misunderstand- ing should arise. For instance, the words which he ])rererred as to not pressing for a pecuniary award, instead of those proposed by us, '' not to have regard . . . to,"iit itiou with L'tod to by id proposi- to by :\lr. ninilar cii- L' principle ttliisc'voii- ^VILLK. ■hurl: hj Kari V Mr. Fi.'^li I'll it. GoveiniMt".il. IS for imlircct Tri1»iuivl <>t , but incri'ly the rnitud lutide by me ey cannot ail- statenieiit ot imiauce of an \lv. Fish's e or alter the terms or the ]>rinciples of a treaty, lie is of the opinion that the suggestion expressed in iny in- struction of L*7th April went to the extent of his authority, acting with- out the assent of the Senate. The projiosal submitted in your telegram of last eveuing is ba.sed upon a theory antagonistic to this princi[>le. The Tresident is anxious to exhaust all proper etl'orts to reach a set- tlement of the important (piestions and the vast interests to two States, submitted 'o the Tribuiud of Arbitration, if it can be done without the .sacrilice of a principle and consistently' with the tlignily ami the honor of the Government. lie will, therefore, be willing to consider, and, if possible, will present lor the con.sideration of the Senate, any new article which may be i>ro- Ito.sed by the IJritish Government, which, while it settles the princii)!e involved in the presiMitation of what are called the indirect claims, will remove the ditlerences which have arisen between the two Governments iu their constructions of the Treatv. risii. No. 34, General iSchcnelc to Mr. Fish. [ To ! eg ram — F. x t ra e t . ] London, .l/^n/ 7, 1S72. Your telegram of yesterday was received this morning. x\fter soire di.scussiou, Lord Kus-selTs motion was postponed yester- day to next .Sionday, on Lord Granville's [)romise that on or before that (lay he would produce the correspondence or make a statement as to the position of the negotiations now going on. This was only acceded to upon a distinct assurance being given that the Government would not retract its position, that the claims for indirect damages are not within the intention and scope of the reference. To this I am sure they will adhere if no agreement or adjustment be made between now and next Monday. I have little doubt that they will make a declaration which will be decisive against submission to arbitration, and will have the nearly, if not quite, unanimous support of both Houses of Parliament. Desirable and important as it is to both parties and to all nations to have a decision of the Arbitrators, that a nation is not responsible in Ml •'I Bt 1 m 402 TREATY OF WASHINGTON. peciiniiiry daiiia^'os for consoiiuentlal results of failiiro to observe neu- tral obligations, I see no chance of jjettinrr this (loverninent to a<;re(' in terms to a submission so as to obtain such decision; they will not consent no unite in asking the Tribunal for an opinion on the (juestion. although wo assure them that we expect, and they have every reason to feel confident, that that opinion would be against aflirming such national responsibility. The above portion of this telegram I have read to Lord Granvillo, and have his admission that it is a correct statement. May I hop«> that if you do not mean to decide that no other way can be found out of the controversy, and therefore the arbitration and Treaty must fail, you will conclude to instruct me explicitly on their proposals (!omniuni(!ato(i to you in my telegrams of the ."ith and 0th ? # * * # # # * * SCIIKNCK. [Fnnii lliitisli Itliii' Udok "Xortli Aiiitiic a." No. '.', (I'^'TQ.) p. •^.'] Xo. '.J~). IauI Hr<(i>fUlv io ^ir IL TItonilon. [Kxtiiii-t.] FoiiE[(iN Office, May 7, 187-'. General Schenck called on me to-day, and read to me a telegraphic message from 3Ir. Fish, of which he did not give me a copy, but tho substance of which Avas to the following etil'ect : An agreement to bind for the future would seem to require theassonr of the Senate, but if the Arbitrators were to give a decision on tiie case which is now before them it would be settling the ([uestion for the future. If, under these circumstances, the Jlritish (lovernment want to open negotiations for detlning the extent of liability for conse(iuential dam- ages resulting from a fiftlure of observance of neutral obligations, tin' Tresident would consider carefully any proi)osal in that direction. I told (fcncral St'henck that the only meaning I could attribute to the message was, that ^[r. Fish nmintained the position to which Gen- eral Schenck was aware Her ]MaJesty's Government could not assent. General Schenck then proceeded to read me a draught of a message which he had sent. The message described what had passed in the House of Lords on the Gth instant correctly up to a certain point, but made some statements as to the assurances of the Government which were not accurate. He stated that the motion of Lord llussell had oidy been deferred on the assurance of the Government that we would not appear before the Tribu- nal of Arbitration unless some settlement was previously made. It went on to declare his conviction that we should adhere to this resolve that Lord Russell's motion would be carried nearly unanimous- ly. A i he further declared, while recapitulating the reasons why the matter i^hould be referred to arbitration, viz, in order to have the matter finally settled, and that it was certain tliattlie Arbitrators would decide 'TWf'r COKRKSPON'DEXCK RESPECTING! GENEVA ARBITRATION. 493 agaiiiHt the indirect claims, yet the Englisli Government would never allow the indirect claims to be submitted to Arbitration. He stated ho believed his message was correct. I said that I had no objection to tell him that the statement of what had passed in the Uouse of Lords was not historically accurate, as I had only given the assurancti that 1 had nothing to withikaw or retract from what I had said last year or this in Parliament. As to his view of the course which Ilor Majesty's Government were likely to take, he was aware that while 1 had avoided anything which might be quoted as an ollicial menace, he had himself freriuently told me that he was perfectly aware, from the tone of my language, of the resolution of Her Majesty's Government to refuse to submit the iiulirect claims to Arbitration, and that Thad therefore no wish to object to his j^iving his own opinion to his (Government. n ill No. 30. Mr. Fish to General ^Schench-. [Tek'jjram.] * AVashlngton, Maij 8, 1872. All the propositions made by the British Government involve covertly, probably without design, what this Government cannot agree to, namely, the withdrawal from the province of the Tribunal what we believe to he entirely within their competence, i need not repeat our conviction that the Arbitrators have the right to decide whether the claims to which Great Britain objects are or are not admissible, and that the United States will be content to abide their deciision, whether favorable or adverse to that class of claims. The lU'oposition of the British Government is upon the basis that the view which they have heretofore presented shall be a principle of future action and conduct. The view which they have presented is not a principle, but an opinion as to the construction of a specific treaty, and is av)plicable only to one pending ditterenee on an incidental and tempo- rary question, and cannot l>e a principle of future action. This Gov- ernment holds a directly opi)osite view with regard to the competence of the Tribunfil to consider the validity of the claims, and, although sincerely desirous of coming to an honorable understanding, cannot adopt tiie British view, or make it the Jvisis of a recii>rocal engage- ment. In my telegram of yesterday I exidained that the President cannot, and will not, withdraw any part of what has been submitted within his construction of the intent and spirit of the Treaty. If the British Gov- iTument i)ersists in their demand, the responsibility of whatever failure of the Treatj'^ may ensue must rest with them, as you will have advised them of the impossibility, resulting as well from the constitutional ina- hility of the President to withdraw what this Government is of opinion has been iiubmitted within the intent and meaning of the Treaty, as from his unwillingness to compromise the rights and the dignity of the Government by yielding to a demand not founded on right or sustained by any valid construction of the Treaty. He hopes, however, that the British Government may see the way to : ' I- % 494 TREATY OV WAHIIINGTON. maintain tlio Treaty in tlio .sujjj-ostion of a now article, as njontioiied in my tele;,niun of yesterday. Hliouhl tliey not a«lo|)t this sngj^estion, tiif int'eren(!c will be alnK)st nnavoidahle that th«'y have deliberately deter- mined to abrojiate the Treaty. If, however, they adopt the siij;j;estion, you may say thai the ]»robability is that Congress will atljourn about the latter i)art of this month. Time may l)e saved, therefore, if nej^o- tiations on th's point shonld bo con p. 0.] 2so. 37. IJarl GnoicUlc to Sir E. Thornton. FoKEiCf-N Office, May S, 1872. SiiJ : \Vith reference to my dis])atch of yesterday, I have to state to you that I received a note from (Jeneral Schenck this morning, askinj,' mo to postpone the Cabinet, as he had Jnst received a long telegraphic message in cipher from his Government, of the substance of which he would inform me at the Foreign Ollice at half-past 3 o'clock. General Schenck accordingly called upon me in the afternoon, and informed me that the United States Government claim, and insist upon their claim, that under the Treaty the claims for indirect losses wliicli have been put forward are admissible to be considered by the Arbitra- tors, although they do not expect, and never have expected, a pecu- niary award of damages for such claims. Great Britain denies that such claims come within the scope or province of the Arbitrators to con- sider or decide upon. The argumentative discussion has ended, leaving each party adhering to their position. The United States Government in this condition of things have been Avilling to accept a proposal from Great Britain, that, in consideration of not pressing for a pecuniary award on these indirect claims, Great Britain would, on her part, agree to engage not to advance in the future in any case when she should be a belligerent, and the United States neutral, such claims for indirect damages as are put forward by the United States Government in the Case presented on their behalf to the Tribunal of Arbitration at Geneva, and to make that reciprocally tbe rule for the future. Great Britain is understood to object to this- f>u the ground that an agreement not to press for compensation for these indirect claims is not sufficient, because the Arbitrators in that case might themselves proceed to take them into consideration, and make them tbe subject of an award, and therefore Great Britain has only been willing to establish the rule in regard to indirect damages on condition that the American part of the Case at Geneva, which puts forward these particular claims, should be entirely withdrawn from the cousid- Mitioiu'd ill I'stioii, til*' itrly lU'iter- ia};Kt'«tioii, DUiu uboiir re, if noj«(>- ,11 liOinloii. ', time that tlio British .'spoiulcnco intends to FISH. .'■] (ij S, 1872. ', to state to iiing, asking; telegraphic bf which he 'rnoon, and insist upon rsses which the Arbitra- ed, a pecii- denies that ators to con- vty adhering s liave been onsideratioii aims, Great in the future nited States vard by the )ehalf to the procally the i to this- f^ii Bon for these in that case 1, and make las only been on couditiou )uts forward the consid- COUKKSI'OXDKNCE RESPKrTIX(} GEXKVA ARISITKATIOX. 495 oration of the Arbitrators. Tlie Presie from 3Ir. Fi{ih, and the tliree personal suggestions of Cieneral Hchenck as to the mode of executing Mr. Fish's proposals. 1 stilted that they saw objections to the three modes proposed, and were not themselves prepared to frame an Article. They thought it would be better to return to the i)roposal of an interchange of notes. They un- derstood that the i)roposal of an Article was intended by Mr. Fish to obviate a ditUculty occasioned by the form of words as to the agreement which the United States was to make. Tliey were willing to substitute for the words " having regard," &c., the words, " will not bring the in- ossess, by the adoption of a new Article, what was his objection to obtaining their consent to annnterchange of notes I I was sure Her Majcsiy's Government would feel great objection to I interrupting the course of negotiation by abruptly transferring it to I Washington. I concluded by saying that I carefully avoided anything that might I he construed into menace, bul, in conse«}uence of the views and infor- mation he had presented to me yesterday and to-day, 1 took an unfa- vourable view of the chances of settlement. I am, &c. GRANVILLE. No. 43. General Sehenek to Mr. Fish. cle in order il reason lor [Telegram.] London, May 10, ISTl*. Lord Granville has this moment sent a message requesting me to I telegraph you immediately that a (Cabinet will be held this morning, aud that he wishes me to meet him afterwards. This looks like reconsidera- Itionof what he said yesterday. I hjive come to the conclusion that I they have two reasons for their conduct: One, an unwillingness on the part of Mr. Gladstone to seem to retract the extreme position he took lilt the beginning as to the ii»terpretation of the Treaty; the other, an actual unwillingness to adopt any rule to limit claims against neutrals I ill the future, their only object being to get rid of a portion of the I ilemunds of tlie United States. SCHP^NCK. ^\i i'^^'? 500 TREATY OF WASHINGTON. Jfo. 44. General Schench to Mr. Fish. [Telegram.] London, May 10, 1S72. Lord Granville a few minutes since brought to me in person the following draught of an article which, if the Government of the United States think fit to adopt, will be accepted by Iler Majesty's Government. 1 made no comment on it, but said I would telegraph it to you immedi- ately : Whereas the Governnieut of Her Britannic Majesty has contended in the recent correspondence with the Government of the United States as follows, namely : That such indirect claims as those for the national losses stated in the Case presenteil, on the part of the Government of the United States, to the Tribunal of Arbitration, at Geneva, to have been sustaiued in the loss in the transfer of the American commercial marine to the British flag ; the enhanced payments of insurance ; the prolongation of the war, and the addition of a large sum to the cost of the war and the suppression ot' the rebellion — firstly, were not included in fact in the Treaty of Washington, and fur- ther, and secondly, should not be admitted iu principle as growing out of the acts com- mitted by particular vessels, alleged to have been enabled to commit depredations upon the shipping of a belligerent, by reason of such a Mant of due diligence in tbo performance of neutral obligations as that which is imputed by the United States to Great Britain ; and Whereas the Government of Her Britannic Majesty has also declared that the prin- ciple involved in the second of the contentions, hereinbefore set forth, will guide their conduct in future ; and Whereas the President of the United States, while adhering to his cjntention that the said claims were included in the Treaty, adopts for the future the principle con- tained in the second of the said contentious, so uir as to declare that it will hereaftei guide the conduct of the Government of the United States, and the two countries are therefore agreed in this respect : »^ In consideration thereof the President of the United States, by and with the advico and consent of the Senate thereof, consents that he will make no claim on the part of the United States, in respect of indirect losses as aforesaid, before the Tribunal of Arbi- tration, at Geneva. SCHENCK. [From British Blue Book "North America," No. 9, (1872,; p. 12.1 No. 45. £arl Granville to Sir E. Thornton. FoEEiGN Office, May 10, 1872. Sir : General Schenck, at an interview with me this day, read to me a statement, which he subsequently gave to me, and of which I inclose a copy, summing up what he regarded as the present position of the question between the two Governments of the claims for indirect losses. 1 said, in reply, that I received this paper as another proof of tbe desire which General Schenck had so persistently shown, while stronglj' supporting the views of his Government, to maintain the Treaty of Washington. There were some passages in it upon which I might make observations, but I thought the letter, which I was about to send to him, would prove to be the most practical and satisfactory answer. He would CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 501 not fail to remark tbe labors which Her Majesty's Government had bestowed on an attempt to remove the obstacles to a satisfactory settle- ment of the misunderstanding which had arisen. am, &c., GRANVILLE. [For inclosure in No; 45, see p. 51(5.] No. 4G. General Sclienck to Mr. Fish. [Extract.] No. 224.] Legation op the United States, London. May 11, 1872. (R*»ceived May 27.) Sir : 'When I received last evening from Lord Granville the draught of the new Article which is proposed by Her Majesty's Government as a supplement to the Treaty of Washington, I hastened to communicate it to you by telegraph. This, with the labor of carefully preparing it to be transmitted in cipher, made it impossible to furnish in time for the mail of to-day, copies of the papers, less important in their character, which accompanied that draught. These accompanying papers consist of two notes with their respective inclosures, of all of which I send copies now. The first is a note of the 10th instant, addressed to me by Lord Gran- ville, recapitulating in a general and compendious way what had re- cently passed between us, and concluding with the information that although they think it belongs to the Government of the United 'States to frame the suggested Article, yet, in order to meet our wishes d to save any inconvenient delay, they would transmit a draught of an Ai t le. which if the Government of the United States thinks fit to adopt will b«' accepted by Her Majesty's Government. Accompanying this note and appended to it are a copy of the draught or memorandum, in relation to a proposed exchange of notes on the subject, which was communicated to me on the 6th instant, and a copy of a memorandum which he made of one of our several interviews, being that of the 8th instant, when I com- municated to him the substance of your telegram of the 7th, and in- formed him that the President would be willing to consider, and if pos- sible would present to the Senate, any new Article which might be pro- posed by the British Government. The second is the brief note from Lord Granville, also of the 10th instant, with which he transmitted the draught of the Article referred to in his first. But the draught which he inclosed was not in fact and precisely, in terms, the one which I have telegraphed to you. After it had been copied and prepared to be sent in cipher, Lord Teuterden came in haste to the Legation from Lord Granville to recall it, and substituted the amended form which I forwarded to yon. I preserve and send you a 502 TREATY OF WASHINGTON. copy of the draught which was withdrawn, as well as of the one whicli was finallj' submitted, simply iis marking a step in the progress of tlie negotiation. As these two notes, with their inclosures, were of the same date, and delivered at the same time, I acknowledged the receipt of the whole together, stating that I would immediately transmit the Article to you by telegraph, and that I did not doubt it would be considered at oiiee by my Government, and the result of that consideration communicated to me through the same medium, and with as little delay as possible and in the same friendly spirit in which the proposal of Her Majesty's (lovernment had been ottered. A copy of my note of acknowledg- ment is inclosed herewith. This evening I have received from Lord CJranville a note, for the first time formally acknowledging the receipt of your dispatch to me of tlic 16th of April, a copy of which I had communicated to hi j on the 1st instant. This note, although dated on the 0th, has obviously just been written, and is now delivered to me antedated in order to keep up tlic chronological sequence and logical connection of the correspondence. 1 transmit herewith a copy of it. # * * m « « * I have the honor to be, sir, your obedient servant, liOBT. C. SCIIENCK. llnclosure 1 in Nc, 4R.] -Earl Granville to Oineral Schcucl: roKKir.N Oi'FiCK, Mag M, 18'± SiK : In replying to tli« comniniiicatiou ■nliicli you made to nie on ibe 8tli instant, I think it well to recapitulate the recent connnunieatiou which I have hud with you on the subject of the arbitration on the Alabama claims. On the 29th of April you made an informal communication to me which you sub.->'a''-i. But inasmuch as the Government of the United States hold that the claims are adu..^dible to be considered by the Arbitrators under the Treaty, he cannot with- draw the claims as not being rightfully put forward without its being such an altera- tion of the terms and principles of the Treaty as is inconsistent with bis understand- ing of it, and the interpretation which has been put npou it by his Government. The Treaty itself, however, may be amended in such a manner as to accomplish the object and remove all diifereuces between the two Governments arising out of their (liiferent interpretations of its provisions. General Schenck is therefore s .uthorized to state that the President will bo willing to consider, and, if possible, will present for the consideration of the Senate, any new article for the Treaty which may be proposed by the British Government, which, while it settles the piiuciple involved iu the presentation of what are called the indirect claims, will remove the differences which have arisen between the two Governments in the consideration of the Treaty. The President is earnestly desirous to do everything consistent with his duty and with the great interest for the future of both countries, and to preserve principles, so important to civilization as he thinks are involved in the Treaty, of which he is anx- ious to preveu*^ the failure, and to this end he is willing to exhaust all proper efforts as far as can be done without abandoning any principle and consistently with the honor and dignity of both Governments. ticle'in addi- [luclosurc .') in Xo. 4ti. | Earl Granville to General Schenck. FoKKiON Ofi'ick, May 10, 1872. Sir : I have the honor to transmit to you herewith the draught' of an Article referred to in my preceding note of this day's date. I have the honor to be, with the highest consideration, sir, your most obedient, hum- ble servant, GRANVILLE. "t. I ;> i .504 TREATY OF WASHINGTON. [Incloaure 4 ia No. 46. i * General Schenck to Earl Granville. Lkoation of TiiK United Statks, London, May 10, ld7"2. My Loud : I have the honor to acknowledge the receipt, at 4 o'clock p. m. to-day, of your note of this date, in which you take occasion to recapitulate some recent com- iiiunicationa we have had with each other on the subject of the Arbitration ou the Alabama claims, and to state briefly, according to your understanding and note of tho transactions, what occurred subsequently iu consequence of those communicatiuiiH. You refer to and furnish me at the same time with copies of a draught of a proposed note delivered to me on the 6th instant, and your memorandum of a conversation I had with you afterward, at an interview ou the 8th instant, in which it was suggested to you to propose an Article in addition to, or in amendment of, the Treaty of the 8th of May, 1871. This suggestion of a Treaty stipulation, you will remember, was made in conseqiieiico of the failure to obtain from you any drancrht of a note which, iu the opinion of tho Government of the United States, was 1:.; conformity with the proposal which Mr. Fish telegraphed to me on the 27th of April., is I informed you he was led to expect would be made. Your Lordship proceeds to say that the Treaty is, in the judgment of Her Majesty's Government, clear and sufficient, and excludes from the Arbitration the claims for indirect losses advanced by the Government of the United States, and that it is there- fore difficult for Her Majesty's Government to take the initiative in the manner the United States have projposed ; that Her Majesty's Government think it belongs to tlie Government of the United States, to whoso friendly suggestion the communicatious •which have taken place since the date of Mr. Fish's reply to your letter of the 20th of March have been due, to frame the suggested article ; but yet, in order to meet their wishes and to save any inconvenient delay, you will transmit to me a draught of an Article, -which, if the Government of the United States think fit to adopt, will be accepted by Her Majesty's Government. And I have also to acknowledge the receipt of another note of this date from yoiu- Lordship, which was delivered to me at the same time, inclosing the draught of an Article in the preceding one referred to. I will hasten to communicate immediately by telegraph this draught to my Govern- ment; and I doubt not it will be considered at once, and the result of that considera- tion communicated to me through tlie same medium, and with as little delay as ])ossible, and in the same friendly spirit iu which your proposal is offered. I have the honor to be, with the highest consideration, my Lord, your Lordship's most obedient servant, ROBT. C. SCHENCK. [Incloaure 5 in Xo. 46.] Earl Granville to General Schenck. Foreign Office, May 6, 1872. Sir n have the honor to acknowledge the receipt of Mr. Fish's dispatch of the 16th April, which you communicated to aie on the 1st instant. I abstain from addressing any observations to you on the tenor of that dispatch pending the result of the com- munications which are now passing between us, aud which it is the earnest hope of Her Majesty's Government may lead to a satisfactory settlement of the questions under discussion between our two Governments. I have the honor to be, with the highest consideration, sir, your most obedient, humble servant, GRANVILLE. No. 47. The following dispatch was published in the supplement to the Lon- don Gazette, May 17, and communicated, in accordance with instructions from his Government, by Sir Edward Thornton, in a note dated May 31, 1872. (Received June 1.) CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 505 W (TATK8, tiy 10, li:!7„>. m. to-day, of I recent coni- ation ou tlio d note of the municatiunH. if a proposed )nver8atioa 1 ias suggested ity of the 8th consequence pinion of the il which Mr. led to expect FTer Majesty's tie claims for it it is there- I manner the lelongs to the uinuuicatioiis )f the 20th of to meet their Iraught of an dopt, will be Earl Granville to Sir E. Thornton.^ Foreign Okkick, May 13, 1872. Sir : Her Majesty's Government have I'efraiued from continuing an argnmentative discussion with the Government of the United States upon the scope and intention of the Articles in the Treaty of Washington relating to the Arbitration on the "Alabama claims." There are, however, some passage' in Mr. Fish's dispatch on this subject of the 16th ultimo, upon which it seems desira'ile that, for your own information, and for use in any future communications with tae Government of the United States, you should be put in possession of the views of Her Majesty's Government. In the first place, Mr. Fish takes exception to the assertion in my letter of the 20th of March, that although it is true that, in some of the earlier letters of Mr. Adamis, vague suggestions were made as to possible liabilities of this country, extending be- yond the direct claims of American citizens for specitic losses arising from the capture of their vessels by the "Alabama," "Florida," "Shenandoah," and "Georgia," no claims were ever defined or formulated, and certainly none were ever described by the phrase "Alabama claims," except these direct claims of American citizens. Mr. Fish states that I cannot be disposed to intend more than to say that the claims for indirect or national losses and iniuries 'vere not "formulated " by the United States (jovernment, and the amount thereof set forth in detail and as a specific demand. I did not, however, confine myself to saying that no claims of tlii? nature were ever ilefined or formulated, but added that uo such claims have ever been ' described " as ''Alabama claims." Mr. Fish admits that the claims for indirect or national losses were not formulated or defined, but proceeds to cite various passages in the correspondence in which hu considers that they were brought forward. Hedoes not mention one instance in which they were described as "Alabama claims." The fact is that, throughout the correspondence, the representations made by the United States Government respecting the actual claims for injuries sustained by American citizens from the depredations of khe "Alabama" and other cruiseia wore interspersed with complaints of the supposed premature recognition of the belligereni rights of the Confederate States by the issue of Her Majesty's Proclamation of Neu- trality, and of the proceedings of blockade-runners. Nearly all the passages cited by Mr. Fish will be found, when read with their con- text, to have reference to these complaints, and to the indefinite suggestions of lia- bility founded on them. On the other hand, on turning to the Memorandum, inclosed in my letter of the 20th of March, it is apparent that the jihrase "Alabama claims'' has uniformly been used to distinguish the actual claims on account of the acts com- mitted by the "Alabama " and the other cruisers from t!iese complaints of the " atti- tude " assumed by Great Britain. Mr. Fish lays great stress on the statement in Mr. Adams's letter of the 20th Novem- ber, 1862, that he was instructed to " solicit redress for the national and private injuries already thus sustained." The injuries thus sustained were, as appears by the inclosures in Mr. Adams's letter, the destruction of the " Ocmulgee," and othci" vessels by the "Al- abama." As already pointed out in the Memorandum, Mr. Adams spoke merely of the " depredations committed on the high seas upon merchant-vessels " by the "Alabama," and of " the right of reclamatiom of the Government of the United States for the grievous damage done to the property of their citizens," and referred to the Claims Commission under the Treaty of 1794 as a precedent forawarding compensate', a. There is not a word in the letter to suggest any indirect or constructive claims. In the dispatch of the 19th of February, 1863, Mr. Seward, in a similar manner, uses the term " its claims " with obvious reference to the claims put forward by the United States on behalf of American citizens; those, indeed, being the only claims that had been indicated in the correspondence between Mr. Adams and Lord Russell to which he was alluding. I must remark that this dispatch of the 19th of February, 1869, was not communi- cated to the British Government. Mr. Fish has omitted some important words in the next passage which he adduces- from Lord Russell's dispatch to Lord Lyons on the 27th of March, 1863. The dispatch gives an account of a conversation with Mr. Adams, at the close «if which Lord Russell said that it was his belief " that if all the assistance given to thi) Federals by British subjects and British munitions of war were weighed against simi- iven to the Confederates, the balance would be greatly in favor of the lar aid Federals? Mr. Adams totally denied this proposition. " Bat above all," ho said, " there is a man- ifest conspiracy in this country, of which the Confederate Loan is an additional proof,, to produce a state of exasperation iu America, and thus bring on a war with Great 506 TREATY OF WASHINGTON. Britain, with a view to aid the Confederato cau8»s and secure a iiioiunioly of the tradt; of tlie Southern States, whose independence these conspirators hope to establisli by these illejiral and unjust nieasunts." Mr. Fisii omits the words "of Avhich the Confederate Loan is an additional proof.' which, taken with the context, show that Mr. Adams was then speakinjj, not of tiic case of the "Alabama," but of the assistance in money and materials which Iumoii- sidercd was improperly rendered to the Confederate States by blockade-ruuuiny and the Cotton Loan. Mr. Adams's letters of the 7th of April and 20tli of May, and Lord Russell's letter of the 4th of May, 18G5, are commented on in the Memorandum, Part II, and it is unnec- essary for me to make any further observations on them, as Mr. Fish does not reply to those which I have already offered. Whatever nuij' have been the purpose to iv- quire indenniitication, no claim was present»;d or notified, and the grievances of whii li comitlaint was uuule were in no way identified with the " Alabama claims." The dispatch of the 14th of February, 18(16, was not communicated to Her Majesty's Goverumeut ; but, on referrin;; to the :5d volume of the Appendix to the American Case, p. G28, in which it is k'^'*'"; >* ap])ears to refer to the possibility of fresh ncftrolju- tions in rej^ard to a revision of the Neutrality Laws and to Lord Russell's refusal of arbitratit>n. Both these subjects are referred to at paes not reiily iirpose to rc- ces of wliiili [er Majesty's lie Anua'ieiiM resh nc^jfol in- n's refusal of latch aeeord- link that the should liave ,s the justiee lit, and those m." to sulunit to tioii with "a ud," (sec Mr, 1 to it, stated on and com- ) any foreign he claims of e " claims of ana of dopre- Sninter,' the s annexed to I), coinmuiii- ioned in that of the 2d of The context proceedinp;" paragraph, ido of Great ide ; second, si)atch goes ' the British uid iiugener- ed as having March, 18G3, g the entire and are yet iband of war to procra^ti- ■respondence ts, blockade- ■ferred to the jur Lordship egret of the saction must etofore made shipment of nee it" [the its of appar- olter of ueii. trality, to restrict rather than to expand the avenues of legitimate trade. ' The rf»j>on- sibilitiifoi' thin ' [i. <•., for this restriction] 'uiust rest mainly upon those who, for motives best known to themselves, have labored and continue to labor so strenuously and eti'ec- tually to furnish the means for tlie protraction of the struggle.'" I have reviewed the passages cited by Mr. Fish in support of his argument, that the "Alabama claims" included other cluiiiis than those for the actual losses of American citizens, in order to show bow little support they alford to it; but this is almost siiper- lluous, as a conclusive answer is att'orded by tiie very volume of disiiatches from whicli Mr. Fish Las taken these extracts. Mr. Reverdy Johnson, in a dispatch to Mr. Sewanl dated Fi>bruary 17, 1809, (page 7C7,) ccuitaining a report of his negotiations with Her Majesty's Government, states : . " I hear that in some ([Uarters objections are made to the ClaimsL'onveiition, for whicii I was not prepared. " 1. It is said, I ain told,tha^the claims to be submitted should not be nil that have arisen subsecpient to .July, 18.'i:{. " *-i. That no ]>rovision is made for the submission of any losses which our Govern- ment, as such, may liave sustained by the recognition of the insurgents as belligerents, and the depredations upon our commerce by the 'Alabama' ami other vessels. * * * "As regards the second «)bJection," he urges, " I am at a loss to imagine wh.at would be the measure of the damage which it supposes our Government should be iudeiiuii- lied for. How is it to be ascertained ? IJy what rule is it to be measured f A nation's honor can have no coinytensation in money, and the depredations of the 'Alabama' were of property in which our nation haresent session, and that of his Ad- ministration." Thus, according to an uncontradicted statement in an otficial dispatch from the United States Minister in London to the Government at Washington, otticii^lly published by the United States Government, that Government had never exacted anything on its own account," and the claims, '' known aa the 'Alabama claims^ " had been limited during the whole war, and in the subsequent negotiations up to February, 1869, to the claims for the value of the property destroyed, and that which would have resulted from the completion of the voyages in which the captured vessels were engaged. Mr. Johnson confirmed the statement in his dispatch, in a letter to Mr. J. A. Parker, published in the "New York Journal of Commerce," 30th November, 1870: "My iti- 508 TREATY OP WASIIINGTOV. Htrnctions, as did thoite uf Mr. AdaiiiH, looked excluaively to the adjuHtinoiit of ituli- vidual cluinifl, and no alleged couiiniHsion or oiniHsion of the Britiali Government of Ler duty to the United States pentliug the war was given in any part of the corn;- Hpondeuco between tbc two (iovernnients as having any iutlucnce upon other than indi- vidual claims." It is not easy to understand how a class of claims which had been knovn under oni; appellation for seven years could have suddenly acquired a far wider antl more oni',rf)ii,s signiticance. Mr. Fisli relies on Mr. Reverdy Johnson's proposed amendment of the Clarendon- Johnson Convention, on these public or national claims having been prominently be- fore the Senate whenjthat Convention was under ailvisement, (by which it is to be pre- sumed he refers to Mr. Sumner's speech, the only . ,'t of the proceedings which wan published,) on the President's Message of December, 1869, and on his dispatch to .Mr. Motley of the 25th of September, 1861). Mr. Johnson's proposal, however, was not to include national claims umhir tiie head of "Alabama claims," but to superadd them by inserting certain words after the wonls " agree that," in the lirst Article of the Convention. Had his proposal been adopted, the Article would have stood thus : " The High Con- tracting Parties agree that" — here comes the insertion — " [all claims on the part of Her Majesty's Government upon the Government of the United States, and all claims of the Government of the United States upon Her Majesty's Government, and] all claims on the part of subjects of Her Britannic Majesty upon the Government of the United States, and all claims on the part of citizens of the United States upon the Government of Her Britannic Majesty, including the so-called 'Alabama claims,' " &c, Mr. Johnson avowedly made this proposal, as Lord Clarendon iuformed you in his dispatch of the 22d of March, 1881>, to introduce " claims to compensation on account of the recognition by the British Government of the belligerent rights of the Confeder- ates, " which the British Government might balance by "claims to compensation for damages done to British subjects by American blockades, which, if the Confederates were not belligerents, were illegally enforced against them." Mr. Johnson's belief was that the Convention was unacceptable because it did not include national claims on account of the recognition of belligerent rights, which he purposely distinguished from the "Alabama claims," and was in no respect therefore inconsistent with his dispatch of the 17th February, limiting the meaning of that ex- pression. The information on which he founded that belief was derived, as he reported to Mr. Fish on the 9th of April, 1869, from a private source ; and his suggestion made in the same dispatch, that instructions should be given to him to endeavor to supply the omission, w^as not favorably entertained by the United States Government, who telegraphed in reply that " as the Treaty was then before the Senate no change was deemed advisable." The only intimation, as I have stated, which Her Majesty's Government possessed of the propriety of making any demands for national losses having been debated or con- sidered by the Senate, was, by the publication of Mr. Sumner's speech, in which he urged that England was lial)le for national injuries of the most extensive character ; but these injuries were rhetorically deduced, chiefly from the Proclamation of Neu- tiality, and the supplies furnished through the blockade. The effect of Mr. Sumner's speech in England was reported by Mr. Johnson to Mr. Fish on the 10th of May : " If an opinion may be formed from the public press, there is not the remotest chance that the demands contained in that speech will ever be rec- ognized by England. The universal sentiment will be found adverse to such a recog- nition. It would be held, as I hear from very reliable source, to be an abandonment of the rights, and a disregard of the honor of this Government." Her Majesty's Government never learned that Mr. Sumner's views were indorsed by the Government of the United States. Mr. Fish next mentions hia instructions to Mr. Motley, of the 25th of September. These instructions, however, were not communicated to Her Majesty's Government, and when Mr. Motley told Lord Clarendon on the 10th of .June, 1889, that the Con vention " was objected to because it embraced only the claims of individuals, and had no reference to those of the two Governments on eiwh other; and, lastly, that it settled no question, and laid down no principle," he proceeded to speak of the "risk and responsibility" incurred by a Government which conferred belligerent rights, and thns his representations naturally connected themselves with Mr. Johnson's proposal with regard to tbeynutual claims of the two Governments. Mr. Fish amuits that, in hia dispatch of the 2,5th of September, he " made no claim or demand for either direct or indirect injuries." These indirect injuries could not therefore have received the designation of "Ala- bama claims " from that dispatch. Indeed, on examining the extracts which he gives from it with their context, it is apparent that the " vast national injuries" whicTi he states that he presented in it are ascribed to other causes than the acta cohimitted by the Confederate cruisers. wm ('ORKESl'ONI)KNCE RESPECTING GENEVA ARBITRATION. .> 09 e it (lid not (le no claim Ml of "Ala- Tho firnt extract, beginning "The number of our shipK thus directly deHtroyed," &c , follows a piiragrapU coniplaiuiug of the l'roclania< ion of Neutrality : " In virtue of the Proclamation, maritime enterpriHCH in the ports of Great liritaiu, which would othcr- wlHe have been piratical, were rendered lawful, and thiin Great Britain became, and to the end continued to be, the arsenal, the navj-yard, aniident's Message of December, 1869. This Message does not mention the " Alabama chxims," but speaks of the " injuries resulting to the United States by reason o*' tlie ourse adopted by Great Britain during our late Civil War." I have thus been able tn fih»»w, upon the testimony of Mr. Reverdy Johnson, the American Minister, corroborated on examination by the extracts cited by Mr. Fish, that for the first seven years of the discussion up to 1869, none but direct claims were " known as ' Alabama claims ;' " and that in the only authoritative document in which national indirect injuries were mentioned, up to the time of the recent negotiation, they were not described iw " Alabama claims," or as claims of any description. Mr. Fish states that "oojjtinental jurists and publicists discussed the national claims on account of the prolongation of the war under the head of ' ri^claniiitions,' having ' qu'uu rapport indirect, et uullement ua rapport direct avec les d[a,ic'sty'H Govttrnineiit are unablu to NCf tlic forco of thiH argument. Whatever may have heen th(< reason, the faet reinains. tliat np to Ihe time of tlie arrival of tiie Itritish Hiuh (JomniissionerH at Washington, the term "Ahibama elainis" Inid a recogni/.ed and well-lvnown meaning; as direct claims, and tliat no other clainis had been jtreHented to the Britisli (Jovernnient. Nor, indeed, were these othe • claims even tlien presented. The American lll)j;h Commissioners, as ajtpears by the I1(if1i Protocol, stated tliat the history of tiie "Alabama," and other crnisers, sliowed extensive direct losses, and iii- ilirect injury, and tliat (Jreat Mritain had become .justly liable /or tlir actn of those crnisers and their tenders ; that IhccUthnH for the loss and destructitm of private juo])- erty, which had thus far lieen presented, amounted to about l-l,(>()(),()(l(> dollars, ami "that in the hope of an amicabh! settlement, no entimate was made of the indirect losses, without ]»rejudic«% hinvever. To the rij^ht to indenmifleatioii on their account, in the event of no such settlement beinjj made." The " indirect losses " were thus nu'utioned, not as c/aiiiis, but as };rievauees, and were nuMitiom-d only to bo withdrawn from »liscussion, Mr, Fish says that it is nnfortutuite that the British Tli^jh Commissioners diut was any eftbrt nuule to limit or reduce the scope of the submission, or to exclude the indirect claims ?" CORRESPONDENCE RESPECTING (JENEVA ARBITRATION. .» II /^autTs, iiiid Th«! atiHWor to tliiH Ih that, iw th« lh'Ht|)1a<;(>, tlioliritiNli ll'jjii C(l tlint aft(!r tlui waivor tlusy wen) njjnuMl with tlie riiit m>fon«l )ii»<>i>, that thvy did limit tht^ m'opu of tlie HiihniiHHion. Tho ItritiHh Hi^h ConiniiNHionvrH, in the information which they Iwno fniiiishi-d to Her MaJoHty's Oovernment, Imth dnrin^^ the n<';rotiation and siiK-r the ineHentiition of tho Aineriean C'aNe, havu niuformly maintained that tlie chiinm for indirect loHNes were not included, nor intended l>y them to he inelinled, in tiie terms of tho HulnniHsion to arbitration, and you are aware that tlie MritiAh Hi^li CommiHNioners ohjeeted to the luloption of a form of reference to tlie Arliitrators, whitdi nii^rht from itH vajroeiiess l>e taken to permit the introduction of hucIi claims, and that it was not until after leii;;th- I'lied disciissit)!) in the CommisHion that tint terms of reference as they now stand in tin- Treaty were settled. Her Majesty's (jiovernment cannot acknowledge tln^ the nature of the claiinssultinit- ted waH left to inference. <>ii the contrary, the precise claims referred to arbitration were closely deiined and limited. Mr. Fish writes as though the reference to arliitration eoinprised " dilViTencps " and "complaiiits," and "all claims;" liut the Itritish Ili^h ('oiM;i.issionerses|ieciaily ^nardid ji;;ainst this. The claims submitted nnist be liotli ''claims ^rowiu<; out of the ai ts committed by the aforesaid vessels," i. «■., "Alabama" and other cruisers, (lud claims " neiierically known as the 'Alabama claims.' " The use of the words "acts committed" adinittiMlly excludes the (|Uestions ef block- iide-runniiiy ami concession of bellij^erent riffhts fnuii tlie arliitration, and the speciti- cation ;es. When the same expressiou is used again it must be taken to have the same mean- ing. I will ' (it follow Mr. Fish into the etymolojfy of the word " fjencrically." "(Seiieri- cally known as the 'Alabama claims'" seems to bo the same as the "class of claims known n': V. e 'Alabama claims,'" the phrase used in tho Stanley-.Johnson Convention, and serves to distinguish this class of claims from every other class of claims which the United States Government might have to prefer. The "Alabama claims" have been designated as a "class of claims" to avoid the misapprehension, which at one time seemed to have occurred to Mr. Seward, that the words "Alabama claims" might be constnifd as meaning only claims on account of injuries sustained from the one vessel "Alabama." The phrase itself goes very far to define its own limited meaning; for, while it is qnite intelligible that, for brevity's sake, tho name of one vessel should stand for others of a particular class, of which it is the principal example, it appears to bo contrary to all reason that the name of such a particnlar ship should be used to describe claims for general national losses, such as those for the decline of the commer- cial marine of the United States and the prolongation of the war. Mr. Fish, with reference to the remark in his dispatch of the '^7th of February, tli.at tho indirect claims are covered by one of the alternatives of tho Treaty, states that the Government of the United States are " of the opinion that they are covered by the alternative power given to the Tribunal of Arbitration of awarding a sum in gross, in case it finds that Great Britain has failed to fulfill any duty, or of remitting to a Hoard of Assessors the determination of the validity of claims presented to them, and the amounts to be paid." The Vlth Article of the Treaty, after stating the three Rules, proceeds : " Her Britan- nic Majesty has commanded her High Commissioners and I'lenipotentiarics to declare that Her Majesty's Government cannot assent to the foregoing Rules as a statement of principles of international law which were in force at the time when the claims mnttiuned in Artiele I arose ; but that Her Majesty's Government agrees that in de- ciding the questions between the two countries arising out of those claims, the Arbi- trators should assume," &c. Article VII provides that " the said Tribunal shall first determine as to each vessel sepa- rately whether Great Britain has, by any act or omission, failed to fulfill any of the du- ties set forth in the three foregoing Rules, or recognized by the principles of interna- tional law not inconsistent with such Rules, and shall certify such fact as to each of the 1 i 1 1 ;M 'l 512 TREATY OF WASHINGTON. said vessels. lu case tbo Tribunal find tba'o Great Britain has failed to fulfill any dutif or duties as aforesaid, it may, if it think proper, proceed to award a sum in yross to liu paid by Great Britain /or all the elaims r-iferred to it." All the claims must mean all the " claims mentioned in Article I." Mr. Fish admits that the indirect losses are not covered by what be terms the o Iut *' alternative " of the Treaty, viz, the provision in Article X, that " in case the Tri- liiinal finds that Great Britain has failed to fulfill any duty or duties as aforesaid, and does not award a sum in gross, the High Contracting Parties agree that a Board of Assessors shall bo appointed to ascertain and determine what claims arc valid, ami what amount or ainounts shall be paid by Great Britain to the United States on ac- count of the liability arising from such failure, as to each vessel, according to the ex- tent of such liability as decided by the Arbitrators." Mr. W. Beach Lawre'.oe, the distinguished American publicist, in a letter dated tlu^ 'JOth iilamo, and published in the Springfield Independent, observes: "As in t-ach rase determined against Great Britain, the Board of Assessors are, by Article X, to as- certain and determine the amount which shall be paid by Great Britain to the I'nitcd States on account of the liability arising fnmi such failure as to each vessel, accordiiij; to the extent of s.ich liability as decided by the Arbitratv;r«, there would seem to In- no room for indirect damages. Besides the difficulty of deciding on a claim indctci- minablo in its nature, there would be the further embarrassment of apportioning t!ic amount of injury growing out of the rets of each vessel in the general account. Is it, jiossible that the Assessors are to decide what part of the prolongation of the war is to be assigned to each vessel ? I .am aware that there is a provision that the Arbitra- tors may, after they have decided as to each vesk' i separately, award a sum in gmsi IVtr all the claims referred to them. I »;annot, however, perct^ive how that provisioiii in any wise extends the scope of the ;.. ^'er of the Tribunal." Her Ma jesty's Govern- ment cannot perceive it either. By both Articles V'll and X, the Arbitrators are to determine the extent of the lia- bility of Great Britain as to each, vessel, /". e., as to each cruiser separately. Throiigli- out, the claims are strictly connected with the acts of the cruisers. Mr. Fish acknow 1- edges that, if the claims are considered in detail, the indirect losses cannot be takip into account; and yet, as he states, they have been "' presented at Geneva, not as claims for which a specific demand was made, but as losses and injuries consequent upon tlif acts complained of, and necessarily to be taken into equitalile consi«leration on a liual settlement and adjudication of all the ditferencos submitterl to the Tribunal." I have already pointed out that "claims'- and not "ditferonciw" have been sub- mitted; and Mr. Fish's contention would amount to this, that, in awarding «laniaH;os for a specific want of due diligence in regard to a particular vessel, the Arbitrators should take into consideration a variety of grievances not necessarily connected tvitli that vessel, and which could not bo made matters for a claim if examincKi in detail, and award a gross sum not proportioned to tl want of diligence or to the injiuy tliereby occasioned, but swelled by the amount of all th>! injuries and losses of which tlie United States may have complained in all the cor ipoudence of which the history of the cruisers forms part. That is to say, tliat the Arbitrators should give.indgmeiit in one matter and intlict a ]Miiialty for another matter. A principle so contrary to the ordinary practice of jiiris- ]»rudeiice could iiof have been presumed by the British High Commissioners, or by Her Majesty's Govirnment, to have been intended to be introduced, unless the inten- tion was exjilained to them; but, from first to last, no mention of indirect losses was made in connection with the payment of a gross sum. If the American High Commissioners desired that the alternative of the award ot ii gross sum should cover the elaims for indirect losses, why were thej' not moro explicit f a.i 1 why did they not re«(uire some provision to be made in the Treaty to explain this fur the guidance of the Arbitrators? Mr. Fish says that "the claims for indirect losses were presented to the British Coni- inissioners as sohMuuly and with more dvlinittness of speeifivation than were presented 'w them to the American Commissioners the claims for alleged injuries which tho pcojilf of Canatla Avme said to have sulfered from what was known as the Fenian raids.'' Ihit the indirect losses were never "presented" us "claims," and are even now saiil not to be " priisented as claims " for which a specific demand is made while the Fenian raid "claims" were proposed for consideration on the 4th of March , agft't? " Isouglit liefore" the High Commission on the '.ifith of A|U'il> when tho iliitish .i.igotiators said that " they were instructed to jircsent these claims," and it was not until the Ihl of May that they said that "they would not urge further that the Hettlemeut of these claims Miiotild be includen8tructive and inferential character." Thus while the American indirect losses were only mentioned once, ^nd then as it were ihcidentally, tiie Fenian raid eluims were repeatedly and formally presented, ami when tlieir withdrawal from the negotiation was ugree«l to at its close, it was with a jHunark. which could have had no just bearing, hud not it boon believed that all con- WIT CORRESPOXDEXCE RESPECTIXG GENEVA ARBITR.VTIOX. 513 stnictivi! and consetiueutial claims hail b.H'n wiMi«lr.. Mr. Fish expresses doubts as ♦^o thu noiiits raised in ;ny lottor of tlie20tli of Marcli, tliat thti Wasliin^ton ClaiMis (Joniiiiissioners liavc, and tlib ArhitratoiM have not, power to dt'.cido upon thn extent of tlii'ir own .jnrisdii-tioii.aiid tliat :>o words iii mil ur (.) those conferring that power are to be found in I'uo articles relating to the Geuova Arbitra- tion. It will W seen, on com|>aring the Treaty of Washington with tho Claims Convention between (ireat Britain and the United States of the rtth of February, IHo;?, that t' , words which 1 had (pioted from theXIVth Article of tho former are identical with tho words used in tlie llli! Article of the latter, under which the Chiio! . Coiuniissioners were empowered to give, and did undoubte; 1 ■■'■•f. i 514 TREATY OP^ WASHINGTON. [BVom British Blue Book "North America," No. 9, (1872,) p. 18.] No. 48. Sir E. Thornton to Earl (IranrlUe.^ [Extract.] WAsniNGTON, May 13, 1872. (Keceis-ed INIay 20.) I paid a vi.sit to ^Ir. Fish at the State Department on the 0th instant, when he read nie a number of telegrams which had recently passed between liiinself and Oeneral Schenck relative to conversation.s which yonr Lordship had held with the latter on the subject of the indirect claims. Mr. Fish ajipeared to think that not only did Tier Majesty's Govern- ment resent claims for indirect damages was not granted by the Treaty, bnt that it further wished to compel the United States to recognize and admit that it was so. Mr. Fish added, that as his Government had always, and in the most formal manner, declared and argued tie contrary, it would be a humiliation to which the United States could not submit, now to confess that the presenta- tion of the indirect claims by the United States Government was mat. I hat to give anything like a detailed account of what passed or was said in the almost daily interviews and conversa- tions, and sometinu'S much oftener than daily, and often lasting for bours at a tinu', which took ])lace between Lord Granville and me. I sought, as my telegrams will show, to keep you continually, regularly, and clearly informed as to results, and witii my last dispatch (No. 224) I furnished you (;opies of all the notes and written matter which came to me with the new Treaty Article [)roposed by this Government. Perhaps, however, I cannot better report or explain to you the man- ner and spirit with which 1 sought to }>resent and urge the views of our Governmt'tit in this contention about the presentation of the claims for indirect damages, than by tbrwarding to you the annexed copy of a paper which I read to Lord Granville on the morning of the 10th instant. By referring to my several telegrams of the 9th, you will observe that nt the end of that rincipally and olteuest ours. Our continental jwsi- tion, our extended sea-coast, our numerous ports, the enterprising char- acter of our citi7>ens, and the ditUculty of restraining their spirit of ad- venture, surely make the rule that would thus be establishe«l more val- uable and more favorable to the United States than to perhaps any other country. All this we secure in exchange for the surrender of ceitain claims which we were pressing before the Arbitrators at (Jeneva, not with a view to pecuniary (compensation, but only because they wen* a portion of the grounds of disagreement between us and (Jreat Britain, upon which that Tribunal was empowered, for the sake of iKMlect peace, to make an award, while we ourselves did not hesitate to admit that it must be to our gain to have the decision against us. * # ♦ 1 have the honor to be, sir, your obedient servant, JiOBT. C. SCIIENCK. [Inclo n o in No. 4!).] Siimmaiy of I'icwxof (he Uniled Stnhunn t'lr intHrert ilaimn read by General Svhinrk to I'arl (intHviUe on May Id, IHT'J. Goiioial Sclu'iick, in an interview with Lord Granvill»N Huniincil np wliat lii' ro^anlt'd an tlie present position of tlie rpiestion between tlie two GoverniniMits in tlie followiii;; remarks, wliieli bo liuil reclnced t«» writing to prevent niisunderMtandin;? of his views or lanKiiagi! : When we jiarted, after our loinr conversation yesterdny, your last words to mo wore these: " I i>' w s'c/khcA /() iMfl duty to toleyraiih Inst iiijibt, an I toM you I would, to my (ioveiiimout, ami I addi-J to thfin, "I told Lord fiiaiivilh? that I was of the sami^ mind." It was painful to me lieyoiid cxprcsfiion to liavre(!t1brt, which must now, in this picssure of time, i»e hastily and impertectly nuide, to jiresent the views and position of my (iovernnu-nt in relation to tho points on which we so unfor- tunately diU'er. The (lirticulty lias its root entirely in the opposing interpretations given to the Treaty by the two Governments. The Unitf'd States understand that it was the intention of that instrument to provide (I mode for the settlement, wiping away, and blotting out Ibrever of all claims against (ireat Hritain growing out of the acts of tlit! Alabama and other such cruisers; and tlicy claim therefore to put forward, and have i>ut tbrward. in their Case befor;; the Arbitrators, the wholeoftheirdemandsfordamages, direct and indirect. This they insist they may rightfully do; and that they are entitled to ask and exjx'ct of the Arbitrators a decision as to each class of claims, as to its admissibility behue the Tribunal for con- sideration in the first iiistanee, and if arclation. Each is lioiiud to admit good faith and fair iineiition in the other. Both nations desire mutual and cordial friendship. Both are earnestly and sincerely desirous to maintain the Treaty. Some other way t)Ut of the dil1i(;ulty, tht-refore, must be found if these objects are to lie attained. Anticipating this ii reconcilable disagreement on the jioint of interpretaticui. \ari(uis I'xpiMlieiits were suggested as i)robable means for escape fKun the dilemma, even be- t'lae the ccuicliision of the discussion had been reached ; but muie of these suggestions were adopted or acted on, an, and the ]irolongation of the war. If such n proposal should bo nindo by the Biitish (ioveriiiiH'Ut they were in- formed that tho I'resident would assent to it. But it was to be under.stood that thero was no withdrawal of any ]»art of the Case of Ihts United States, but an ngreement not t(i demand damages on acct ot ♦hoso particular claims, leaving the Tribunal to iiinkt^ such expression of opin'on as it uiight think ])roper on that question. A coni- nuiniention to this effect was made to ti.'( British Government, antl a form of a note was given m*; containing i i some sort ii pio])osal of this kind to be submitted to my Oovernmeiit, but it was foii.id to bo in so many essential particulars difleient from tho Hiiggostiou which was und astood to have bet'i made l»y Sir Edwar«l Tliornton, and i I' if [!<»» 518 TREATY OF WASHINGTON. which hnil t'oininpndcd itself to Mr. Fish, that it was not assontod to by the Presiticnt. A iiiodiliciitioii of this note wassnbsequently made, and it was snbniitted iii an amended form. The modified note omitted or chan;;cd some portion of what was objectionablo in the tirst i)roi)08al, bnt was still so far diort of what is consistent with the views und position «)f the United States that it could not be accepted. Thojjronnds of objection to the proposal as framed and presented by this note I will ber»;after state. There was then a sngjjf^stion nmde to Her Majesty's Government that tiieir proposal mi^rht bo submitted in the shape of a new article to be added to the Treaty of Wash- ington. This would etleetually bind both nations for the future to the observanc'e of the rule which they might agree on, and would renn)ve, if itroj)erly an«l carefully framed, all objections nuule to au interchange of notes as a secure and *;rt'eetive mode of reacdiing the object in vitnv. But Her Majesty's Goverinnent, it is understood, altogether decline, or have thus far declined, to open any negotiation to deliiu! by treaty the extent or limit of the respon>*i- bility of a neutral to a belligerent for iiulirect or consequential damages. I deeply regret this, and my Government regrets it; and I will proceed to ex]dain luesently wherein it is thought a treaty stipnlaticni has an advantage over any other form of agreement, and ouglit to W desired by both jiarties. But to return to tlKMliflicuUy — nay, the impossibility — of adjusting the disagreement by an interchange, of iu)tes, if we must adopt the form and substance itf the projiosid otVered in tliat shai)e by the British (Government. In the fust i)lace, that i)roposal, as Great Britain ajijiears to be only willing to present it, either directly stipulates for, or imi>lies, a withdrawal or abandonment on the part of the United States of the indirect claims; that is, to regard and treat them as eliminated I'roni the case yuesented to the Arbitrators, and not to be in any way considi-red or adjudged as the svibject of award by the Tribunal. The British Government holds — notwithstanding the principle that every tribunal must necessarily, by its very creation, possess an inherent right and power to decide questions relating to its own jurisdiction, considering inevitably and at the very threshold whether a matter brought before it is or is not one of which it can take cognizance — the British Government hcdds that the Arbitrators cannot look at the indirect claims even for the purpose of determining that thej' are inadmissible. This is not overstating their ytosition, extravagant as it nuiy seem, when they maintain that under the Treaty the United States ha«l no right to put such claims forward in their Case. But the United States not only nuiintains that the meutiouing and putting forward of these claims is rightful, with a view to obtaining a judgment as to their admissibility, bnt also hold that it was the intent and meaning of the Treaty that they Hhould be submitted for whatever tluiy nuiy be wortli, even if this has to be done only with a view to get rid of them as a cause of dilVcrence and complaint between the two countries. Now, the Presitlent of the United States, acting through his Agent at Geneva, can put fnrwiird, withhold, or withtlraw such ]u)rtion of the claims as he may think proper. That is iu)t denied. Bnt if any of these claims are contemplated and intended by the Treaty itself for submission, such withholding or withdrawing of them by the President alone is not au extinguishment tif them. Tlio power of the President of the United States is limited by the Constitution. He cannot of himself make a treaty ; nor can ho alter, abridge, or depart from the spirit or intention of a treaty. To do that refjuires the assent, advice, and concurrence of the Senate. H' the Treaty submits these claims, as he is of ojiinion it ch>arly does, to tlie consideration of the Tribunal, then his putting them into the Case, or his taking tliem out of the Case, does not dispose of them. 11 tlu'y are withilrawn by him, tliey are only laid away, preserved perhaps to be a future pliigue, unsettled ; kept as a possible source of irritation ami complaint. They can he extinguished only by some judgment of the proscribed Tribunal ai)poiuted for their consideration, or by being given uj) through the action of tlio whole treaty-making power exercising its constitutional functions in Itehalf of the nation. Thus you should clearly see the reascm why the I'resident nuiy be able to agree not to i»rcs8 for a money-award on (daims which he regards as now before the Tribiimil, but to leave them to be «lisposed of or commented on by tlie Arbitrators, while ho refuses to witlulraw tlu-iii as not being properly a subject for their eonsideiation. There is objection, too, to the substance of the pro|iosal made in the British note. The engagement, to be of value in tlie future, should be reciprocal. The note jtro- fesses to make it so; but Iu»w .' The otl'er of Her Majesty's Government is to auree that the view which they have heretofore presented of such indirect claims shall be their principle of future action and conduct; and that at any time when the United States may be a neutral, and Great Britain a belligerent, she will not advance any claims incnnsii.tciit with that principle. This is vagiH' ; and yet it is limited and narrow. It is a vague undertaking to promise generally to adhere to a " view " or a " princi- ple," when there must be a search to ascertain what that view is, or principle is ; and it is a narrow undertaking which contiuos itself to an abnegation of the right to pur- CORRESPOXDENX'E EESPECTINCJ OKXEVA ARBITRATION. 519 ¥mr Prehitk'ut. an uiucud(;d cti()nal»li> in o views iiud s noto T will loir proposal t,v of Wa«h- hH«irvan(!« of ml can'fnlly fectivo mode lave t-lins far the responisi- •». I (let'ply in ])resently jther form of lisaj^reenient tlie projKwal ; j)roposal, as iilates for, or ■ the indirect sented to tiie ect of award ninciplo that lit right and levitahly and e of wliich it aunot look at iuadmissihle. hey maintain ns forward in f and pntting it as to their aty that they be done only weeu the two nova, can pnt hink propter. ended by tiie the President f the United ; nor can he that reqnires these claims, n his pnttinj; of them. 11 o be a fntnre Tln-y can be ted "for their eaty-making to ajjree not the Tribnnal, MS, while he era t ion. British note. The note pro- to auree that ihall be their Jnited States e any claims or a " princi- eiple is; ami right to pur- HHo certain specific classes of damages, when the particular kinds of injnry ont of which those damages may arise are only to be determiruHl by comparison. There shouhl be general words of description, and a clear ennneiation of ])rii)eiple, in any rule that is to serve as a law of action, instead of a reference only to spetnal cases that have be- fore occurred; because no two cases can ever be exactly similar. A rule depending for i^s applicatiuu only on tests of comparison would breed disputes instead ot remov- ing tliem. A treaty stipulation might be made free of all these objections. Ill the first place there could be no question about its mutually binding force ; and in the next place, being the joint concurroiit -r of such character and natnn* that they might be dangerous to the very existence of any nation, and make the condition of a neutral possibly worse than that of a belligerent. To insist that the Treaty is so clear in its terms as in no sense to admit of the American interpretation, in only going back to and begging the (piestion which has been fruitlessly discusse<7>>,) p. 19.J No. 50. Sir E. Thornton to Earl Granville.^ Washington, May 14, 1872. (Received May 2G.) My Lord: I have the honor to iuforin your Lordship that, during a conversation which I had late last night witli Mr. Fish, he said that the public was extremely anxious and intensely curious as to what had lately ,- N,l' ■i- 1: J$. 520 TREATY OF WASIIIN<;TON. pavssed between the two Governments on tlie snbject of the indirect claiins, and tliatlie tlionglit it would be admirable to take some measure to allay this impatience. lie sngfje.sted that it would bo well either to send to Congress in open session, or to publish, the four notes whieii passed between your Lordship and (Jeneral Schenck on the subject ol' claims for indirect damages, two telegrams relative to the presentiitioti of the British Counter Case, and a dispatch from General Schenck to Mr. Fish, which the latter read to me. To the i>ublication of the three latter there did not seem to be the slightest objection, nor, as 1 thought, to that of the four notes. But Mr. Fisli did not seem satisfied with my oi»inion, and said that, as he did not wish to do anytiiing which might at all embar rass Her Majesty's Government, he would rather that 1 would tel graph your Lordship upon the subject, in the hope that you would give your assent to the publication of the above-mentioned documents. 1 have, «&c., KDWI). TIIORXTON. [From British Blue Book " North Anierieii," No. 9, (lf^72,) p. 20.] No. r*i. Earl GranciUe to Sir E, Thornton. Foreign Office, May 14, 1872. Sir : I asked General Schenck to-day whether it would not be desir- able to draught the identic note, to be addressed by the British and Ignited States Agents to the Arbitrators, communicating to them the Treaty Article if it should be concluded. General Schenck assented to this suggestion. 1 am, &c., GRANVILLE. [From British Blue Book '< North America," No. 9, (187-2,) p. 20.] No. 52. Earl Granville to Sir E. Thornton. Foreign Office, May 16, 1872. Sir : As you have informed me by telegraph that the correspondence which has passed between Her Majesty's Government and the Govern ment of the United States, respecting the claims for indirect losses put forward in the Case presented on the part of the United States to the Tribunal of Arbitration at Geneva, has been presented to open Con- gress by Mr. Fish, I have to state to you that the correspondence will also be published in a supplement to the London Gazette of to-morrow, together with the dispatch which I addressed to you on the 13th instant, commenting, for your information, on sonie of the historical parts of Mr. Fish's last dispatch. CORRESPONDENCE RESPECTIX(J GENEVA ARBITRATION. 521 I mentioned to General Schenck that this wonhl ])robably be dop \ You have been informed of the substance of this dispateli l>y lele- graph. I am, &.('., (IIIANVILLK. Pffy [From Miitisli IJluf liook '• North AiiMuitu,' No. 1», (Id'a,) \>. •-><».] No. .">;{. *S7r /;. Thornton to Karl OrdnrUle: [Extract.] Washington, May 17, 1872. (Received 3[ay I'S.) T have the honor to inclose a copy of the New York Herald of the 15th instant, in whicli are published copies of the President's ^Fessage to the Senate in secret session, and of the documents which accompa- nied it. It Is supposed that copies of these documents must, by some surreptitious means, have been abstracted from the Senate, and it is said that the whole of them were telegraphed to New York during the night of the 14th instant, at the expense of the New York llerald^ winch published them on tlie morning of the 1 r)Hi instant. Mr. Fish was informed by telegrai>li[r. Fish entirely agreed with me that a public discussion would be most inexpedient. With reference to the copy of jNlr. Fish's telegram to General Schenck of the 27tli ultimo, there is no doubt that, on that day, it was he who suggested that your Lordship should, in answer to his dispatch to (ien- eral Schenck, make a proposal of the nature described in my telegram forwarded on the same day. The utmost that I did was, on his urging me to give my private opinion upon the suggestion, to say that 1 thought it might, with some modifications, be taken as the basis of an arrange- ^F ' Tb« siibstuiicu of tluH dispatch was rcceivrtl by telegraph on the J7th of May. 522 TREATY OF WA.SHINiJTON. ment; hut I did not, and of course coiiM not, state, on hearing h\u-Ai a sujigfstion for the first thne, that Her Majesty's pcar8 to me that, when you instruct Sir Edward Thornton in regard to signing the Treaty, if it should be concluded, it would be as C0RKi:SI'O\F)i:X('E UK8PECTIN0 (JENEVA ARHITRATION. iViS w»>II to \ul\^^1 the joint note to tlio Arbitrators, l)rin}j;in;4 it to tlieir notice, ,si<;neil at tlie same time by him antl ^Fr. Fi.sli. If it were not for the greater convenience, and savinj; of time when time may be precious, I confess I should have been ghul if you and 1 couhl liave ]»ut our hands and seals to it togetlier. riYoni Uritish IJluc liook " Xoitli Amerifa," No. D, (187!i,) i». •,''J.J >o. to 2, upon its report on the Article, and had actually made it to the Senate in secret ses8ihof the Article, down to the words "Great Britain," would remain the same; but that, with regard to the next paragraph, the Committee had objected that Her Majesty's Gov- ernment had not yet declare«l, but was only now going to declare, by the present article, that the principle involved in the second contention would guide its conduct for the future. The Committee also thought it better that the "Government" should be substituted for the " President" in the third paragraph, and as it vseemed to have an objection to the phrase, " adhering to its conten- tion," it had been proposed that it should be altered, and that both Governments should then agree that their conduct in future, and in their relations with each other, should be guided by the above-men- tioned principle. Mr. Fish said that the committee supposed that neither Government wished to bind itself in this Article as to its rela tions with any other Power. If Mr. Fish's description is correct, it would not seem that any alter- ation has been made in the substance of the Draft Article. Your Lordship will have perceived that, in seiuliug the Draft Article to the Senate for its advice, the President quoted the precedent of the Treaty of 184G on the Northwest Boundary. If the Draft Article should be now approved, and if the same precedent is still to be followed, the Article will have to be signed, and again submitted to the Senate for its sanction. This must either bo done before the 29th instant, the day now fixed for the tinal adjournment of the session, or the President will have to summon an extraordinary session of the Senate, for the purpose of submitting to it the signed Article. ' The substance of this disitatch was rcooivcd by telegraph on the 20th of May. ■I. » (Si ; tf;- r)24 TREATY OF WASIIINOTOX. No. 58. . iicnerul tSchcncli to Mr. FIhIi. No. 230.] Legation ov the UNiTin) States, Jjondouy May L'.j, 1872. {Received June o.) Sill : I forwanl lieiewith copies of a correspondence wliich has taken place between Lord (Iranvi le and myself in rejjard to the proposed identic notes to be eoniinunicated to the Arbitrators at (Jeneva, in case of the new Treaty Article beinjj adoptet«! or i mil net idsst's.slioii'.d not be atlniilliMl as the rcNtilt of tail in e to oh.scrvi' m-ntral oltlij;ationH, so far us to (Ifciarc that it will hereafter j;iiisol'uion fo adjourn xinc din on the 2!>rh instant, and that a treaty embodying the Article must l>e i>resented to the Senate and receive its approval. It is important, therefore, that authority oe siieedily {j'^en to Her Majesty's ]\Iinist«>r here to sij^ii the convention, U' the Jiritish Government con- (jlutles to enter into the a>{ insurance ; the ]iro- lon^^alion ol the war, and the addition of a larj^e .■tnm ♦'■ the cost of the war and the snppre ■■,ion of the rebellimi — Firstly, wen; not incdmi"d in the Treaty '..f Wasliinj^fon, and further, and seemidly, should not be iulmitted in principle as }.;i'owinj; out (d' the actH commilted by parlienlar vtss« Is, al- lejjed to have been enabliMl to commit di - jiredatiims upon the shippm^j af a bdliirt.- reiit, by icaMHi of smh want nf due dili- j;enee in the perfornianci' of the neutral ns as that which 's imputed liy the United St ites to (Jr'-at I5iitaiii ; iind Wiierea.s the (iovernmei.t of Her IJrilan- ) iiic .\!:!Jesiv has also diel.iitd that the prin- | ciple involved in the se •ond of the contei Whereas the (iovernment of the UnitcM'. lions, hereiiibclore set forth, nill ^iiide 1 States has eoiileiided that (he said claiii!"- their coiidnct I'l fittiiie; and w« I I'icliidi .' in the Treaty ; and Wiieri'as the Vresideiit of llie I'liited I \\ '\erea.: both (Joveninienta adopt for States, whilst adberinjr to his content ion [tlie fi.tnro the p-iiieiple that claims for that tlie said claims were inclmb'd in the '''ri'aly, adojits for the future th(< principle contiiiiu-d in die second i>f the said conten- tions, so lar us t. declare Unit it will here- uflrr ;;nidt.' 1l;i. conduct of the (io\ernment remote or indirect losses sh > .Id not be ad'oitted as ther'-Hnltof failiuc, toobbcrve neutral obli^rations, so far as to deehir that it will hereafter ),{uide the condticl of both (Jovernincnts in their rolutiou!* »f the t'liitc 1 .States, and the two countries | with each other : Xow, therefore, are therefor.' ajireed in this respect. I In considiralion thereof, the I'yesideiit of the L'liiled Slates, by and with the advice Btid '..osiseiil of the .Senate tliereof, consents that lie \\\\\ make no claim on the part of the United States, in re(>k " North Anierioa" No. l>, (187'2,) p. '^'i.] No. 02. Sir E. ThnrnUm to Earl aranrillc.^ "WASiiiNtJTON, Ufay L*7, 1.S72. (Received .fmie S.) My Loud : I have the honor to inclose copy of a note, dated the L'oth instant, from Mr. Fish, and its inch)sure, which I received yesterday at half i>ast I p. ni. It trarsniits copy of a resohition of the Senate, wliich \vi;8 aj^reed to at half past 8 p. ni. of the L'.ith instant, and which recom- mends to the PresithMit the iiej^rotiation with the British Government «»f an Article snj>plementary to the Treaty of Washington of May S, lS7i, to be ratilied afterward b^' the Senate in the terms ihereinalter men- tioned. Mr. Fish had, dnrii;j? the night of the L'5th instant, oiven me what Im believed to be the words of the Artiide as adopted by the Senat*', but he could not jjuarantee their being cor'cct. I thought it ''<»st, however, to telegraph tliem at once, though conditionally, to your ordship, and they afterward turned out to be the exact words adojH mI by tlie Senate. Your Lordship is aware that the whole of the discussior has be«'n carried on in secret session, and as much annoyam-e was felt at the unauthorized publication by the New York Herald of the 7i to Sir /■.'. 'I'hiinitoii. Dl.l'.MMMIN I Ol Si VI K, liaxhi Ill/ton, Moil "i*"), 11*72. Siu : I have tin' honor to iiulosc a fopy of a fcsoliitioii of the Sciiiifc of tln« I'liitrd States, fxpicssinii li^i \\!ilin\ t'rmniMit arc i»f opinion tliiit lln' ilrlinitioii hy tln> S'iiuitt^ of tlio pi'inci|)li- wliirli liotli (iovcrnnifiits arc iirrpmril to adopt lor tlic (iitiiri' is so \ a^jiiu that it is iin|iossililt> to state to w hat it is or is not a,i|iiii'alilf, and tlicy lu'lit-vt^ tiiat it would only lead to Cntiirc niisundi'istaiidiiiy;s. 'I'iicy prcfiT tin- ai'tirlc as tiicy had y tlie Semite would be held by them to prevent taking before the Arl)itrators, to be (ioiisidered by them in making their award, that part of the claims which relates to the cost of pursuit and enptiire of eruiseiv., he states that h(> must on behalf of Her Majesty's (Toveriimeiit decline to answer my (piestioti as to the ett'ect of the Arti«rle as alt«?re .Senate. Her Majesty's Gov«'rnnient are not al»le to liinl for it. as amended, any |l draughltil ^ iiieans or standard of interpretation; the words apixar to iurlnde tiie willful niiseon- ihict of a neutral, an well i\>* ;i failure from want of dm; diligence. 'J'hey cannot snp- or iudirri'l _ ^ofio this to be the meaning of the American nt hold all the claims made by the United States for losses whieli were the direct results of the acts of vessels mentioned in the Treaty, to be claims ibr indirer Mi\j -sty's va should taki place, Her Majesty's (Jov- trument would be ready to agree to au,v suitable proposal lor that pur|)ose, which they |ircsume could only be iloue by a short treaty between the two Governments. SCUENCK. 34 A— II 530 TREATY OF WASHINGTON. No. 67. Mr. Fish to General Schencl: [Kxtraet.l No. 214.J Department op State, Washington, May 28, 1872. Sir: Late last eveniiiff Sir Edward Thornton called at my house: havinj;, as ho stated, a telegram from Lord Granville, the general pur l)ort of which he mentioned, to the ett'ect that the British Government Laving received the amendment proposed by this Government to their proposed supplemental Article, would prefer their own draught, but that they would accept the proposed alteration, substituting, however, for the words "for remote or indirect losses," the words " of a like nature," and for the words " failure to observe neutral obligations," the words " such ■want of due diligence on the part of a neutral." I told him frankly, and earnestly, tli.at no change or alteration of any kind is admissible or can be entertained. I added thtit the United States now have a case against Great ]iritain, he interrupting me by saying, " the United States thinJc they now have a case." 1 proceeded, saying ; that it made no ditterence, that having now a case, they desire to x)ress it for a decision, or to have the i)rinciple of exemption ot national liability for indirect losses established for the future ; that that principle is the ecpiivalent or consideration of abstaining from a demand before the Tribunal for damages on account of the indirect losses ; that as now altered, the Article prevents the presentation of indirect claims against the United States,on account of the Fenian raid8,while the British draught would exclude only claims arising from the acts of vessels, &e., and UTw'.cr circumstances which may possil>ly never again occur. * * lie then asked me about the preamble and the propose«l note to the Arbitrators. In reply, 1 told him that it was useless to discuss cither while his Government is contemplating any change in the Article. lie said it might be well to have an understanding, in order to save time in case his Government accept the alterations ma«le to the Article. In this view, I showed him a draught otai»reamble which had been pn • parod in the Department, reciting, simply, that the two Governments, deeming it advisable that " there should be an additional Article to the Treaty signed at Washington on the 8th day of May, 1871, have for that purpose named as their IMenipotentiaries,"&c.,and saying that I seei»o occassion for any other recital ; and that as to the propose*! note we will not sign it. He ask if there was any ob)e<'tion to their signing sucli note, to whicii i replied that we couhl not control them in that respect : they had the poweitomake such represcntatitnisto the Tiibunal as tin ^ thought proi)er ; that there might be no objection on our part to tin former part of the proposed note, but that the latter clause was not necessary, as the ellect of the Article aceomplished what was then statetl as a r(!quest ; that we wouhl lay the Tivaty, if agreed to, befoiv tli Tribunal, and our counsel woul, bi'foiv til tuUl absta t\ )ut I desire- tide. IVCI'IVlHt uris. »>tpe>: '^>ep''en»'». *.u, anddi> CORRESPONDKNCE RESPECTING GENEVA ARBITRATION. 531 claiming any authority to speak, ho remarked that he believed that claim had been created as a direct claim ; one on which the Tribui."' Avas to pass, and decide whether or not it be one for which compensa- tion is to bo made. I am this morning in the receipt of your telegram communicating the proposed changes to the Article which Sir I^dward Thornton ha«l communicated to me, as above mentioned. Lord Granville's evasion of a rci)ly to your question respecting the pursuit, &c., of the cruisers, is significant and suggestive of caution. It is verj- possible that the whole thing will fail ; if so, this country will stand before the world having done all that it could to maintain the Treaty, and the civilizing principle which it established. The respon- sibility of failure must rest with Great Britain, who evidently w ill have shown a reserved intent, and an object of future advantage not avowed. * * * ]Much as this Government will regret the failure, it can stand it as well as can Great Britain. There are some things in the telegram received this morning which may require comment; but I incline to hope that what may seem arro- gant in Lord Granville's remark, that he wdl not insist on certain language in the proposed preamble, arises from the constraint of the telegraphic form of coijimunication ; and so, too, the suggestion of a con- dition that assurance be given, in writing, of certain things. As presented in your telegrani, these observations appear such as [ am confident you would not have listened to, without repelling them. 1 confidently hope that their unpleasant apptuirance is to be attributed to the style of telegraphic correspondence. t^ir Edward Thornton was told by me, some days since, what I under- stood would probably bo the expected change recommended by the Senate committee, lie has made some mistakes in transuiitting it. I gave him no copy ; he must have rei)orted it from memory. But what- ever it was, it was a thing under consideration, and the committee's report was changed by the Senate. I see, therefore, no importance to be attached to a variance in the final action of the Senate from what was at one time expected ; although what was expected isditierent from what Lord Granville has understood to have been expected. I am, sir, your obedient servant, HAMILTON FISH. m [From Uiitisli Hhie R n)k " Noitli Anu>rica," No. !•, iV'*7i,) -.. -^7.] No. (5S. Sir K. Thornton to Karl aronriUcJ [Extract.] WAsniN(rT(tN, May I'.S, 1.S72. (lieceived June 8.) With regard to the alterations which Ilcr Miijesty's Governniont de- sires should be made in the supplementary Article as re(!ommended by the recent decision of the Senate, Mr. Fish said that it was out of the power of the United States Government to accede to them, or indeed to ' Tlu> substance of this diitputcli was received by telcgruitb uu tUu 'i-rtb uf Muj . 532 TREATY OF WASHINGTON. any chaiijje of tbe words, as they bad been decided upon by the Senate. He informed me tbat be bad himself bad a long discussion with the Committee on Foreign Eelations of the Senate upon the subject, and tbat he was convinced, from the nature of tbat discussion, that it would bo in vain to submit to the Senate the alterations now transmitted by your Lordship ; for tbat it bad been expressly intended by tbe Commit- tee that the principle sljould be enlarged, and tbat the non-admittance of indirect claims should be extended to all such claims, and should not be limited to those of that particular class which were specified iu the contention of Her Majesty's Government. These views of the Committee had been fully sui)ported by the Sen- ate, who considered tbat tbe adoption of tbe wider principle with regard to indirect claims would be au equivalent for the consent given by tbe I'resident that be would make no claim for indirect losses before tbe Tribunal of Arbitration at Geneva. He was convinced, from bis knowl- edge of the feelings of the Senate upon the subject, that any further appeal to that body would have no ettect whatever. From a great deal that I have heard from other quarters, and from tbe extreme difficulty with which tbe sanction of tbe Senate has been obtained to the supplementary Article, even as modified by it, 1 can- not but ac(|uiesce in Mr. Fish's opinion that any further reference to the Senate would be of no avail. [Froui British Uhw Hook "North America," No. [), (l.«7>,) p. W.] No. 69. Earl Grani'iUc to Sir E. Thornton. Sik: FoRT^lGN OFFirE, May 28, 1872. I asketl General Schcnck to-day vviiether he had received any instructions from bis (loverniiient to inform her Majesty's Government of what was the scope and cvtt'ut of tbe i)rinciple which is proposed by them to us in the draugiit Article which b;is been recommended by the Senate. He ariswiTcd that be had received none e.\(!eptiiig those which were contained iu the several telt'grams which have been comnuuiicated to Her Majesty's Government, and lie added that the general principle could only bo laid down and the interpretation made when cases arise. He referred me again for explanation of the position taken by the United States, includinjj tlu'ir view in relation to the necessity of a general rule with regard to indirect damnges, to the remarks which he made to me and retluced to writing, and of which he furnished me a copy on the 10th of May. lie added that the Article as [)assed by the Senate was connected with what he had tiierein statetl. 1 replied that I bad no recollection of anything which he had written on the lOth of May, ent could assent, it would be imi)ossible to secure enough of the time of the Seiiate to agree to a treaty which promises only further delay and [U'ocrastination. I regret not to see an indi-^ation of a desiie or disposition on the i)art of the British Govenunent to come to an agreement which will be honorable to this Government. If the Ibitish <-o\ernment has any pro))osals to make they will be fairly considered, witL the most sincere desire of a fratdc, friendly, and honorable agreement. We neither ask nor will consent to anything else. • • • 534 TREATY OF WASHINGTON. The tone of Lord Granville's notes seeras to assume that the Senate and this Government are to accept what Great Britain may have sug- gested. Our view is very different. Fisn. [Fioia Dritish Hlue Book "North Amorira," No. 9, (1872,) p. 3\>.] No. 71. Earl (Iranville to Sir E. Thornton. FoiiEiGN Offick, May 20, 1872. Sill: General iSchenck called upon me early this nvuiiing, and in formed me that he had received a telegram from Mr. Fisli stating that the Government of the United States declined to agree to the alterations which Iler Majesty's Government had proposed, as set forth in my letter to him of the 27th instant, in the Article of the supplementary Treaty. Mr. Fish says that, holding to the opinion that the claims for indirect losses are admissible before the Arbitrators, the establishment of the principle embodied in the Article, or assented to l)y the Senate, has been its object in atlhering to that Article ; and that the recognition of that principle by such supplen entary Treaty will be the inducement for withdrawing the claims. General Schenck further said that he last telegraphed to Washington last uiglit the whole of the communication, containing the additional obeservation which 1 made to him in myletterof yesterday, but that le did not expect to receive any further telegram from his Government before early to-morrow morning. He understood that Congress had agreed not to adjourn till next Monday, the 3d of June. Before that day, and probably to-morrow, he expects to receive a reply to the proposal to extend the time for arbitration beyond the 15th of June, and he there- lore thought he should not have to trouble me before noon to-morrow. 1 am, &c., GRANVILLE. [Fioin Hritish Bin." Book "North America," No. '.», (1872,) i).:?2.] No. 72. Memoranthnn vcmmnnicated by General Schcmk, May 30, 1872. I assume that your object, like ours, is to aftirm the principle that neutrals are not to be held liable foriiulirect and remote damages which may be the result of a failure to observe neutral obligations, and to establish that principle, as a rule, to be observed between our two n.ations. Your proposed form of Article, as it was amended by the Senate, we think does that. You think it is too vagus. We think your proposal, either as originally made, or as modilied by your proposed amendment of the language of the Senate, would be altogether uncer- tain as a rule in practice, confines itself to hypothetical cases which may never occur; and, instead of recognizing and applying the general principle, limits the rule to some three classes, only indirect claims, being those whi<'h are put forth by the United States in their Case at Geneva. CORRESPONDENCE RESPECTING GENEVA ARBITRA.TION. 535 No. 73. General Schenck to ,Vr. Fish. [Telegram.] London, May 30, 1872. (Received I) p. in.) Your telefjrain of yenterday received and cointuuuicated to Lord iJranville. lie said he would coidiiie liimHelf to one remark, namely, that your statement at the beginning? from the words " he raises," down to the word " views," was inexplicable to him. AVhat had been the course they had pursued ? They had at the request of the Crovernment of the United States draughted an Article founded on an idea of that Government. Tiie Government of the United States had amended that Article, and in answer they had not merely stated an objection to the amendment, but had draughted a reamended Article for tlieir considera- tion, lie said he would not make any further argument until he had submitted to his colleagues the communication which had just been made to him. I stated that I did not wish to go into any argument, but would just state again what was my view of the present situation and difterenco between us, though it was but repeating former statements. I said to him, "I assume that your object, like ours, is to affirm the principle that neutrals are not to be held liable for indirect and remote damages, which may be the result of a failure to observe neutral obliga- tions, and to establish that principle as a rule to be observed between our two nations. Your proposed form of Article, as it was amended by the Senate, we think does that. You think it is too vague. We think your proposal, either as originally made or as modified by your proposed amendment of the language of the Senate, would be altogether uncertain, as a rule in practice confines itself to hypothetical cases which may never occur, and, instead of recognizing and applying the general principle, limits the rule to some three classes only of indirect claims, being those which are put forward by the United States in their Case at Oeneva." The Cabinet is now in session. SCHENCK. No. 74. General Schenck to Mr. Finh. I| No. 243.] Legation of the United Stated, London^ May 30, 1872. (Received June 11.) Siu: Inclosed with this I send copies of all written correspondence wbich has passecl between Lord Cranville and me since my No. 230. These notes taken in connection with the several telegrams which have passed between you and me, of which copies are also forwarded to you with another dispatch today, will bring up the history of what has taken place here for the last live days in relation to the proposal for a sup- plementarj^ Treaty. Y'our telegram of the 28th, declining, on the part of the United States, to agree to the proposed altering of the supple- mentary Treaty, was received in the night aiul commuuicated to Lord Granville very early yesterday morning. I would give you, with these documents, some narrative and comments, and it was njy intention to 536 TREATY (tP WASHINGTON. do 80, but your Ion;; tch>^rain in answer to the observatioiiH of LonL Granville, containtMl in his note which I tele<;raphe(l to you in full at nii(hiip;ht of the 28th, haH this nutnient arrived and retinires to be do- ciphered an.iir<: I ill X' u cuiuvciitioii hIioiiNI [hi coiicIikIiiI fiiiliodyin^ tliti draii^lit Article. I liavt- Iciirncil t'lniu Sir K. Thumtuii that Mr. KiNh would infi'ir tlii' oiiiiNHioii of tlio words "in order that the .saniM may l>o t'otnniiinicatfd to the 'I'liliiinal of Arbitration, appointed nniler the tirHt articU) of the Tn-aty Miuinil at WaMhin>;ton on the f^th of May, I'^l, for (he ;;iii(l uncoof tho proceedinfjH of that Trilinnal," and I have this day ini'orined Sir K. Thorn- ton that he may tell Mr. I'IhIi that Her MaJeNty'H (iovernnieiit will not inniHt on the words whieh ht^ dcHin-H to omit in the preamble, if iit^ will >{ive .>ir 10. Tiiornton an nHouranci) in writing that the (iovernmeni of the Cnited States will atrree to the form of noto whieh 1 propo.sed, and of wliieh I sent yon ii copy on the '^Oth instant, eoni- iminioatiii); the Cuilvention on tliu part of the two (JovernmentH to tho Trilinnal ot Arhitration at Geneva. I have to add that Sir K. Thornton has a general full power enabling him to si;;n a Convention, and instrnetions to do Mt if tho propo.HalH.e,ontaineit in this, and in my other letters of this day's date, are agreed to. I have the honor to be, with the hi;;lieHt ninsideratioii, sir, your most obedient. humble servant, (iUANVlLI.K. ! Ii.closiirc ',' ill No. Ti.] I'roitoHid intain'ilc lo siipi.tfinritlul Trtaly. Her Majesty the t/iieeen of the I'nited Kin>;doin of Great Ihitain and Irelainl, and tho United States of Anieriea, ha\ iii^ resoU ed to I'oiii'liide a Convention in t!ie terms el the Articles liereinaflei' set forth, in order that the same may be communicated to tin Tribunal of Arbitration appointed under the tiist .\rticle of the Treaty signed al Washington, on tlu< ~lh ol Slay. HTI. for the guidance ut" the proceedings of thai Tribunal, have named as their rh-nipotenliaries, that is lo say 1 liulogurc .1 ill No. 71.) Jiari Gr.it vUlc to General Scheiuli. KoHKhiN Oi'M'icK, Lu.NDo.v, May '£7, l'**".*. Sik: I have loKt nu tim» in hiying heforu the Cabinet tliu tulogrttpliio dispatidi from Mr. Fish, which you communicated to me this afternoon, informing yon of the result of tho deliberations of the Senate on the draught Article submitted for theii adviee by thn rresident of the I'nited .States, it ajipeared from this dispatch tlnit the Senate had agreed to advist^ an«l consent to the adoption of tint ])roposu«l article, with the Hulmtitntion for the third and fourth paragraphs, of two oaragraphs, aH follows : "Ami whereas the (ioverninent of the Initial .States ha.s contend«*d that the said chiims were iiulndcd in the Treaty; and whereas both Governments adopt for the fu- ture the principli; that claims tor remote or indirect luHses should mil bo admittiMl u» CORRKsroXr»EX(E UKSPECTINCJ GEKEVA AKIUTRATION. 537 tliM roHiilt of tlw fiiiliiro trv<> lUMitral oltlipitioiis, ho t'iir um to tlui-litrc that it will li«ri!Hft an altered by the Senate, or to state what pouMible eonutruction it may bear. Iler Mi^jeHty's (tovernment are of opinion that the detinition asi therein expresHcd, of tlio i»rinciple which both (iovt^rnmentN are jtrepared tu adopt for the future, Im so vajrue that it iu imitosMible to state to what it is or i.s not applicable, and they beliuvu that it would only lead to future misunderstanding's. That Her Majesty's (jovernmcnt })refer the Article as they had drau)rhted it, but have no objection to accept the Articlu lu the torm proposetl by the .Semite, with the substitution of thu words " of u lik» nature "for the W(M°ds " for remote and imlirect losses,'' and the substitution of thu words "such want of due diliyeno! on I he part (»f a neutral " for the words '• the fail- ure to observe neutral obli;rat ions." The article would then run thus: "And whereius both (iovernnients adopt for the fu'iiP' the principle that claims of a like nature should not be aduiittec, with the hi^fliest consideration, sii, your most obetlieut, hum- li'o MTvant, (iKANVlLLE. [Iiicliisuid I in No. 7^.1 (iiiiiral Sthiiirl to I'miI (ifaiirilli. I.K.tiATKlN Ol Tin: I'MTKI) .StATKS, My Lmiii>: I received late last evt-niii)' your note(tf yesterday's date, informing mc> in relation to the fiuiii of ]U'(!amble which you had instructed Sir Edward Tliorntou to communicate to Mr. I'isli, as that to which Her Majttsty's Government were prepared to a;;ree in case a coiiveiitiou should bi> coucluilod embodying thedraught Article, that you had since h ariied from Sir Edward that Mr. Fish would preft^r the omission of the words " in order that the same may be cinnmunicated to the Tribunal of Arbitration aitpointed under the first Article of the Treaty signed at Washington, on the 8th of May, H71, for the guidance of the proceeilings of that Tribunal," and that you hiul intornied Sir Edward Thornton that he might tt'll Mr. Fish that Her .Majesty's Govern- ment will not insist on the words which he desires to omit in the preamble, if ho will give Sir Eiiward Thornton assurance, in writing, that the (Jovernment of the United States will agree to the form of note whi(rli you proposed, and of which you sent me a copy on the 'JOtli instant, communicatingfhe Convention on the part of tlic two Gov- ernments to the 'I'ribiinal of Arbitration attieneva. In the same note you a iiu 1< sstand that Sir Edward Thornton's authority to sign is limited by his instnictioiK. ui'l only t<» be used in the ease that the proposals contained in your notes ad«iies-i' -i to ne yestenlay am agreed to by tho United States. I have the honor to be, witli the highest consideration, uiy Lord, your Lordship's most (dtedieiit servant, ROBT. C. SCHEXCK. ■.%. IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I 1.25 *"IIIIIM |||||M |lllllM |||m " 12.0 lAO 1.8 1.4 11.6 Photographic Sdences Corporation ^ ^< ^^ <^ O^ k 23 WEST MAINS T>?Ea WEBSTER, N.Y. H.'BO (716) 872-4503 ^ >" mx. .^ C?j i/l ^ ^ 538 TREATY OF WASHINGTON. [Inclosure 5 in Xo. 14.] General Schenck to Earl Granville. Legation of the United States, London, May 28, 1872. My Lord : I received last night, between 9 and 10 o'clock, your note informing mo that you had lost no time in laying before the Cabinet the telegraphic dispatch from Mr. Fish, which I communicated to yon yesterday, informing you of the result of the deliberations of the Senate on the draught Article, submitted for their advice by tlio rrcsident of the United States. You remark that in communicating that dispatch to you I inquired whether any possible interpretation could be given to the proposed Article in the form in which the Senate have modified it, taking all its parts together, which would prevent taking be- fore the Arbitrators, to be considered by them in making their award, that part of the claim called "direct claims" in the Case, which relates to the cost of pursuit and cap- ture of cruisers; and you state that you must, on behalf of Her Majesty's Govern- ment, decline to answer that (xucstion as to the effect of the Article as altered by the Senate, or to state what possible construction it may bear. I will here only interpose, as to that question, to say that the point was brought to your Lordship's attention, in connection with the delivery to you of the Article as the Senate had proposed to amend it, because I desired by the iniiuiry to remind you that, ■whatever might become the form in which the article might ultimately be adopted, it could not bo intended to open any question in relation to claims to the introduction of which Her Majesty's Govornmeut had never objected, "notwithstanding the doubt how far those claims, though mentioned during the conferences as direct claims, came withiu the proper scope of arbitration." I quote the language of your Lordship's note to me of the 20th of March last. The Government of the United States is of opinion that the language of the Senate can- not be interpreted to exclude those claims ; but I am now instructed to say that the Article, in whatever form adopted, as to the proceeding before the Arbitrators at Geneva, must be understood to prevent only the presentation of the claims enumerated in the second contention of Her Majesty's Government. Your Lordship in this note proceeds to inform me that Her Majesty's Governnieut are of opinion that the definition, as expressed in the Senate amendment, of the priu- cii)le which both Governments are prepared to adopt for the future is so vague that it is impossible to state to what it is or is not applicable, and they believe that it would only lead to future misunderstandings. That Her Majesty's Government prefer the Article as they had draughted it, but have no objection to accept the Article in the form proposed by the Senate, with the substitution of the words " of a like nature " for the words " for remote or indirect losses," and the substitution of the words " such want of due diligence on the p; ft of a neutral" for the words " the failure to observe neutral obligations." The Article would then run thus : "And whereas both Govern- ments adopt for the future the principle that claims of a like nature should not be ad- mitted as the result of such a want of due diligence on the part of a neutral, so far as to declare that it will hereafter guide the conduct of both Governments in their rela- tions with each other." I hastened last night to telegraph the full substance of all this communication to Mr. Fish. I am as yet without any answer to that telegram, and without instruction or infor- mation as to the disposition of ray Government to entertain or consider the changes which Her Majesty's Government propose to the Senate's amendment. But I am not prepared to believe that the modification can be assented to by the President. Such change of language would alter the whole character of the agreement. I cannot permit to pass unquestioned the expression of the opinion of Her Majesty's Government as to the vagueness of the definition of the prinaiple which both Govern- ments are prepared to adopt, and of the impossibility of stating to what it is or is not applicable, although in replying I may but in effect repeat what I said to you in au interview of the 10th of this month, and of which I gave you a memorandum iu writing. What the United States has all along proposed as the ground on which the two Gov- ernments might safely, honorably, and consistently meet, is the establishment of a rule, to be the law or contract in the future between them, declaring that neither of them shall demand compensation from the other for remote or indirect losses arising out of, or being the result of, failure in the observance of neutral obligations. This rule should be the expression of a principle to be applied to cases as they may arise; and ought not to consist in a reference to cases or circumstances which may or may not ever oc- cur, and be limited to those instances, without application to other cases in which the damage done or alleged may be eciually or further removed from the act of which it is assumed to be the result. They do not see that there is vagueness in such a rule or difficulty iu its application CORRKSPONDENCE RESPECTING GENEVA ARBITRATION. 539 TATE8, ei/ 28, 1872. ' iforming mo ispatch from result of the ilvice by tho svhetlior any in which the it taking be- ,t part of the luit and cap- ^ty's Govern- tered by the ,s brought to article as the ad you that, adopted, it troduction of ig the doubt claims, came 3h last. Tiie 1 Senate can- say that tlie .rbitrators at \ enumerated Government of the priu- raguo that it hat it would it prefer the rticle in the like nature " words " such 'e to observe l)oth Govern- Id not be ad- ral, 80 far as n their rela- unicatioa to ion or infor- the changes lut I am not lideut. Such [er Majesty's )oth Govern- is or is not to you in au lorandum iu he two Gov- mt of a rule, her of them ising out of, 9 rule should ; and ought not ever oc- n which the f which it is application to tacts, beyond what may be said of any other principle embodied in statute or treaty law. Consider, my Lord, what is the history of that difference between our two Govern- ments which has IcJ to the negotiation for a supplemental Treaty Article. The United Stacus have put forward in their Case at Geneva, for the consideration of the Arbitrators, curtain claims, to which the British Government objects. Great Britain founds her objection to those claims uot merely on her interpretation of the Treaty, according to w^hich she insists they are inadmissible, but also ou the ground that audi claims are, from their very character and nature, such as ought not to bo presented ; ''that such claims," to use the emphatic language of your Lordship, "are wholly be- yond the reasonable scope of any treaty of arbitration whatever, avl that to submit them for decision by the Tribunal would be a measure fraught with pernicious conse- quences to the interests of all nations and to the future peace of the world." That Her llajesty's Government " cannot see that it would be advantageous to either country to render the obligations of neutrality so onerous as they would become if claims of this nature wore to be treated as proper subjects of international arbitration." What is that nature of tho claims iu «iuestion which makes ihomso objectionable to Her Majesty's Government? They are indirect, remote, cousequeutial. Will you, thou, unite with us, asks tho Government of the United States, in an agree- ment founded upon that principle for which you contend, and as broad as the principle itself, " that claims for remote or indirect losses should not bo admitted as tho result of failure to observe neutral obligations;" and will you unite with us in a declara- tion that this principle " will hereafter guide tho conduct of both Governments in their relations to each oiher ?" Can Great Britain continue to reply that wliilo she desires to make such a rule, a rule consistent with the position she has taken against the whole class of remote or indirect claims, against a neutral, she must persist in coufiniug it in terms to only such peculiar descriptions of that class of indirect claims as happen now to be the subject of contention between her and the United States, and which particu- lar kind of claims may never have existence .igain ? Will it not seem, if this be tho limit of the agreement, that tho object is not to affirm and vindicate au important principle, but only to find an expedient for excluding from consideration, or extinguish- ing altogether, certain matters which arc unfortunately now a present cause of contro- versy ? I have the honor to be, with tho highest consideration, my Lord, your Lordship's most obedient servant, ROBT. C. SCIIENCK. 'I- Siu: [Iiiclosure C iu No. 74.] Earl Granville to General Selwnek. Foreign Omcf:, London, May 28, 1872. Ic reply to the inquiry contained in your letter of this day, respecting the lim- itation placed upon the immediate exercise by Sir Edward Thornton of the general full power to sign treaties with which he is provided, I have the honor to acquaint yon that while we are far from asserting that the form of Article proposed by Her Majesty's Government is not capable of further improvement upon sufficient cause being shown, Sir Edward Thornton has no instructions to use his full powers, except in accordance with the arrangement we have proposed. I have the lionor to be, sir, your most obedient, humble servant, GRANVILLE. [luclosure 7 in No. 74.] Earl Granville to Genei'al Schcnck, FoHKiGN' Offick, London Maij 28, 1872. Sih: I have toacknowlcdge thereceiptof tho letter which you have done mo the lionor to address to mo, in reply to my letter of yesterday, in which I informed you that I had laid before the Cabine*^ the telegraphic dispatch from Mr. Fish, stating the result of the deliberations of the Senate ou tlie draught Article submitted by tho President for their advice. As you acquainted me to-day that you had not received any reply from Mr. Fish to your communication of my bitter, I think it bettor to defer till I hear from you the view taken of my letter by Mr. Fish, before replying to the observations contained iu your letter. I have the honor to be, with the highest consideration, ;">', your most obedient, humble servant, GRANVILLE. 540 TREATY OF WASHINGTON. [liiclosuro 8 in No. 74.1 Eurl Grain-illv to General Sclwnck. Foreign Offkk, London, May 28, 187:J. Silt: I tliiiik it ilesiiiil)le at oiico to address to you the following observations, in ad- dition to wliat is stated in my letter of yestorday : Her Majesty's Government proposed an Article on the suggestion of the American Government. That Article has been amended by tlie Senate. Her Majesty's Government are not able to find for it, as amended, any means or standard of interpretation. The words appear to include the willful misconduct of a neutral as well na a failuie from want of due diligence. They cannot suppose this to be the meaning of the American Government. Her Majesty's Government hold all the claims made oy the United States for losses which were the direct results of the acts of vessels mentioned in the Treaty, to b« claims for " indirect losses as the result of the failure to observe neutral obligations." Her Majesty's Government hold many of the claims for the losses above mentioned to be claims for losses which are " remote " as well as " indirect," while " resulting from a failure to observe neutral obligations." Her Majesty's Government are unable to signify an assent to a form of Article ol' which they cannot for themselves discover the scope, and with respect to which, owing probably to the difficulty of telegraphic communication, they have not been apprised of the meaning which the American Government attaches to it, or of the reasons which have led to its being proposed. If the Government of the United States think it desirable to give the information which Her Majesty's Government wish to receive on these points, and also think that for that purpose some adjournment of the time of meeting of the Arbitrators of Ge- neva should t.ike place. Her Majesty's Government would be ready to agree to any suitable proposal for that purpose, which they presume could only be done by a short treaty between the two Governments. I have the honor to be, with the highest consideration, sir, your most obedient, humble servant. GRANVILLE. [ludosure 9 ill Xo. 7-1.1 General Schencl' to Earl Granville. LiXiATKiN OV TIIK UnITKD StATKS, London, May 28, 1872. My LoiU) : I received at 8 o'clock this evening your note of this date, in which yon say you think it desirable to address to me, as you therein proceed to do, some obser- vations in addition to what is stated in your letter of yesterday. I shall hasten to-night to communicate the whole of this note by telegraph to my Government. I liave the honor to be, with the highest consideration, my Lord, your Lordship's most obedient servant, ROBT. C. SCHENCK. No. 75. Oc7ieral SohencJc to Mr. Fish. [Telegram.] London, May 31, 1872. (Received 7.35 a. ui.) At 2.45 tbis morning' Lord Granville sends me the following, date(T 30tb: lEarl Granville to General Schencl.'] Siu: I am nimble to admit the accuracy of the description which Mr. Fish has given in the telegraphic message which you have communicated to me to-day of tho course which Her Majesty's Government has pursued, or of the objects which they have had in view. I can only attribute such a misunderstanding to the imperfection una- CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 541 voidably attendant on negotiations by telogrnph, which makes it difticnlt for either party clearly to understand tlio views and arguments of the other. This circnnistance seems to strengthen the reason for the snggestion which I made in favor of an .adjourn- ment of the meeting of the Tribunal of Arbitration at Geneva. Her Majesty'.s Govern- ment have stated their objections to the words proposed by the Senate. I have already informed you that they did not pretend that the words suggested by themselves were incapable of improvement, atul they have resolved to make a suggestion which they trust will meet the views of both Governments. I proceed therefore to put you in pos- he American ^| session of a draught Article, of which I inclose a copy, and which, if adopted by the I Government of the United States, Her Majesty's Government would bo prepared to I accept : " Whereas the Government of Her Britannic ifajes*^.7 has contended in the recent } correspondence with the Government of the United States as follows, namely, that such indirect claims as those for the national losses stated in the Case presented on the part of the Government of the United States to the Tribunal of Arbitration at Geneva, to have been sustained by the loss in the transfer of the American commer- cial marine to the British Hag, the enhanced payments of insurance, the prolongation of the war, and the addition of a large sum to the cost of war and the suppression of the rebellion — firstly, were not included in fact in the Treaty of Washington ; and further and secondly, should not be admitted in principle as growing out of the acts committed by particular vessels alleged to have been enabled to commit depredations upon the shipping of a belligerent by reason of such a want of due diligence in the performance of neutral obligations as that which is imputed by the United States to Great Britain ; and whereas the Governmeut of the United States has contended that the said claims were included in the Treaty ; and whereas both Governments .adopt for the future the principle that claims against neutrals for remote and indirect losses should not be admitted as resulting from the act of belligerents which such belliger- ents may have been enabled to commit by reason ofa want of due diligence on the part of a neutral in the performance of neutral obligations so far as to declare that this principle will hereafter guide the conduct of both Governments in their relations with each other : now, therefore, in consideration thereof, the President of the United States, by and with the advice and consent of the Senate thereof, consents that he will make no claim on the part of the United States before the Tribunal of Arbitration I at Geneva, n '"Ji ect of the several classes of indirect losses hereinbefore enumerated." No. 70. 3[)\ Fish to General Sehenck. [Telegram. — Extract.] Washington, May 31, 1872. As stated iu a previous dispatch wliicli you communicated to Her Majesty's Governmeut, unless a treaty be signed and ratified by this I Government this day, so as to be transmitted to London by to-morrow's steamer, for ratification by Her Majesty, it will not be possible that it become operative In time to be laid before the Arbitrators at Geneva on 15th June, on which day the existing Treaty re(iuircs that the arguments be presented. Your telegram reached me this morning witliin thirteen hours of the departure of the last conveyance by which a copy of a treaty can leave here to take the steamer of tomorrow. It would be impossible for the Senate, within that time, to consider the important change proposed of the form and terms iu which, after long deliberation, they have agreed to advise the President to negotiate the proposed Article. Her Majesty's ministry has already been apprised of this. To propose a change of language, involving a change of objeci and of effect, at this late period, is therefore practically to defeat any agreement. Lord Granville admits that the language of the Article first proposed by Her Majesty's Government might be improved. The President 542 TREATY OF WASHINGTON. thinks that the same may be said of that now proposed by Lord Gran- ville ; it appears to him to leave a large class of very probable cases unprovided for, and he holds that the result of bad faith, or of willful misconduct toward either of these two Governments, will never be the subject of pecuniary compensation. I have suggested to Sir Edward Thornton that we sign the Article as recommended by the Senate, and thus put it in operation, and allow the arbitration to proceed. It is not believed that there is any such difference of object between the two Governments in the definition and limitation which each desires to place upon the liability of a neutral, as to prevent an agreement on the language in which to express it, if time be allowed for an exchange of views by some other means than the telegrapl- There is no probability of a practical question on the extent of that liability arising immediately. This Government is willing'at once to enter upon negotiations for tlie purpose of ascertaining whether language can be employed which shall more clearly express the views which it is believed are entertained by both parties. Fisn. [From British Blue Book " North America," No. 9, (187'.',) p. 33.] No. 77. ■ " Uarl Granville to Sir E. Thornton. Foreign Office, May 31, 1872. Sir : I send you the draught of a Convention for adjourning the period for the presentation of the arguments under the Vth Article of the Treaty of Washington, to be used, however, by joxx. only in case of the new Treaty Article proposed by us not being agreed to, and an adjourn- ment being agreed to, in which case you are authorized to sign it as it is now sent to you. I {im, &c., GRANVILLE. [Inclosnre in No. 77.J Skelvh of a Convention. Her Majesty the Queen of the United Kingdom of Great Britain and Ireland, and the United States of America, deeming it expedient to extend the time assigned in the Vth Article of the Treaty of Washington, of the 8th of May, 1871, for the delivery in duplicate to each of the Arbitrators appointed under the Ist Article of the said Treaty, and to the Agents of the respective parties, of the written or printed argument, showing the points and referring to the evidence upon which each of the said parties respect- ively relies, in regard to the matters submitted by them for arbitration under the afore- said Ist Article, they have agreed to conclude a Convention for that purpose, and have accordingly named as their Plenipotentiaries : That is to say, «&c. CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 543 Akticlb I. The High Contracting Parties agree that the period appointed under the Vth Article of the Treaty of Washington, of May 8, 1871, for the delivery in diiplica'e to eacii ot the Arbitrators, and to the Agents of the respective High Contracting Parties, of the written or printed argument, showing the points and referring to the evidence upon which each of the said parties respectively relies, in regard to the matters submitted by them for arbi'^ration under the 1st Article of the aforesaid Treaty, shall not bo in- sisted on, but tL.4 't shall be open to the High Contracting Parties, within the period of three months fi jm the date of the exchange of the ratitications of the present Con- vention, jointly to notify, through tlieir respective Agents to the Arbitrators, the day on whicli those Agents will be prepared to deliver at Geneva the said arguments to the Arbitrators. Articlk II. A copy of this Convention shall be fortliwith counn\inicated_by the Agents of the High Contracting Parties to tba several Arbitrators. AlMICI.E III. The present Convention shall be ratilied, and the rati lications exchanged at LouloDf. within weeks from the date thereof. [From British Pino Book -'North America," No. 9, (187-2,) p. 4(i.] Xo. 78. Sir E. Thornton to Earl GranciUe. [Extract.] Washington, May 31, 1872. (Received June 11.) I received a visit from Mr. Fish early in the morning of the 29th instant, when he read to me a telegram he had received from General Scheuck, a copy of which was forwarded in your telegram of the 2Sth instant. Mr. Fish said that he could not entirely understand the ground of your Lordship's objections to the supplementary Article as recommended by the Senate, lie went on to say, that as the session was now so near its close, and as there was an immense amount of business still to be got through, he believed that it would be quite impossible to obtain an Executive Session for the purpose of taking into consideration even so short a Treaty as would be necessary to agree upon an adjournment of the meeting of the Tribunal of Arbitration, more particularly as in transmitting such a Treaty to the Senate for its sanction, it would be necessary to state that the supplementary Article recently recom* mended by that body had been rejectetl by Jler Majesty's Government, and to accompany that statement by the confidential telegrams which had passed between General Schenck and himself upon the subject. Mr. Fish added, that even if such a Treaty of adjournment were signed and ratified, there would still be the same difficulty about making a convention as to the course which was to be pursued with regard to indirect claims. It could not be done immediately, and it would be a matter of great difficulty to convoke the Senate in Extraordinary Session during the summer for the purpose of ratifying such a conven- tion. It could not, therefore, be submitted to the Senate till it met in December next, and it could not be foreseen when it might be taken > 544 TREATY OF WASHINGTON. into consideration ; and it would, therefore, be very difficult to decide until what date the meeting of the Tribunal should be postponed. It is at present «lifficult to prevent members of Congress from avail- ing themselves of any opportunity to interrupt the most necessary and pressing business, and to make violent party speeches in both Houses. No. 79. Oeneral SchcncJc to Mr. Fish. Nc. 24G.] Legation of the United States, London, June 1, 1872. (Received June 13.) Sir : I transmit herewith a copy of Lord Granville's note to me of the 30tli May, communicating, on the part of Her Majesty's Govern- ment, another amended draught Article, received at 2.45 yesterday morn- ing, and of which, both note and amended Article, I sent you the full text by telegraph early the same morning. I transmit also a copy of my note to Lord Granville, acknowledging the receipt of the above-mentioned communication, and informing him that I would immediately telegraph his note and the new draught to you ; and a copy of my note to him sent at midnight last night, conveying to him a copy of your telegram of yesterday received at that hour. It is now afternoon, and I have as yet heard nothing from his Lord- ship in answer, or in relation, to that telegram. I have the honor to be, sir, your obedient servant, ROBT. C. SCHENCK. [Inclosuie 1 in No. 79.] General Scli?nclc to Earl Grannlle. "jS Gkeat Cumberland Plack, Hyde Park, W., Friday, 2.45 a. m,, May 31, 1872. Mv Lord : I bave just been callcil from my Led to receive your note, dated the 30th, putting me in possession of another form of a draught Article which Her Majesty's Government would be prepared to accept if adopted by the Governmeut of the United States. I will hasten to communicate you- note ond the draught to Mr. Finh by telegraph, 80 that they may reach Washington at the earliest possible hour for consideration there. I am, mv Lord, with the highest considenition, vour Lordship's most obedient servant, ROBT. C. SCHENCK. [Inclohure 2 in Xo. 7r.] General Scherc^c to Earl GraiMlle. 58 Great Cumberland Place, May 31, 1872, midnight. My Lord: I have just received from Mr. Fish a telegraphic dispatch, of which I hasten to communicat; to yon the inclosed copy. I have the honor to be, my Lord, with the highest consideration, your Lordship's most obedient servant, ROBT. C. SCHENCK. ( OHRKSPOXUKNCK ini.SIMX'lINO (JKNKN A AIMMTKATION. ')[!") No. SO. .1/^. /V.\7( (<> ilntcral SchciicK. [Tflcurjiiii. 1 \VASlII.\:iTON, ./««r 1, ISTl.'. Tlie lif'th Article of the Treaty requires tlie written ar;;niiients to lie presented by the loth .June. The atljoiirnnicnt of the Tribunal without ainentlinj;' tiiat Artiele would, aa we are advised, ])racti(;ally amount to a diseontinuanee, and that Artiiile can be amended only by a new treaty. The oi>inion attributed to me rej''ar. m.) Your telegram of yesterday was received at midnight, and imme- diately communicated to Lord CJra ville, who ha.s Just sent me an answer as follows : \ Had (rniiirillc to doieral iWicHr/,.] Siu: III ii'ply t(» the comnmniciitiou which I rcfcived from you tliiis iiunniiin, I hc^j; to int'di'in you that Her Majesty's (Joverumoiit hohl that by the Aiticle adoptott by the Seuiitc, cases of bad faith and willful iiiiseoiidiiet are bntught within the scope of the l>iopo8ed aj^ieeinent, which deals with pecmiiaiy compensation. It appears to be the view of the Government of the United States that sncli cases are not a tit subject of pecuniary comi)ensation, and I am infornu'd by Sir Edward Thornton th.at Mr. Fish is of opinion that tlie ArticUi adopted by the Senate is capable of imi)rovem(;nt. The President thinks that the 'Article last projtosed by Her Majesty's (Joverimient is al><> capable of improvement. The American (iovernment state that " it is not believe ])revent an agreement on the lan}>;ua;j;e in which to exjiress it if time be allowed for the exchan<>e of views by some other means than the telegraph." The Hritish (iovern- nient must decline to sign a treaty which is not in conformity "with their views, and which does not express the })rinciple8 which the American (iovernment believes to be entertained by both parties to the negotiation, and which, immediately after being signed, would become the subject of negotiation with a view to its alterati'o. 8;{. General Schenck to Mr. Fish. LTelcf^raiii.] London, June 2, 1872. (Received 1.20 o'clock.) Your telejjram of yesterday just received. I will communicate it to Lord (Irranville to-morrow. jMust I say it is tinal ? They hold here that after the Arbitrators have received the arguments from the Agents on the 15th they may adjourn for a time, an|;.NCI: RKsrECTIN(i tJENKVA AIJIUTKATION. 547 (Icmral Schenck to Mr. Fish. [Teltsyraiii.] London, June .{, LS7l*. (Uecclved ll.L'."» p. ui.) I found this morning I hiul partly misunderstood Lord (Iriinvillo. Her Majesty's Government are of opinion that the Arbitrators must meet on the liitli, but tiiat it is not necessary for tlie Ajjents to i)resent the arguments at that time. Such delivery of arguments they think may, by joint agreement, be postponed. This (ionelusion was under advice of !iir lloundell Palmer. I asked Lord Granville if he would consider this point again when in Cabinet to djiy, and tell me how they thought the parties could proceed under the tifth Article without such delivery of arguments. It seemed to me that the Arbitrators need not necessarily assemble then anj»more than they did to receive the Counter Cases. Perhaps, however, the parties might, by mutual agreeinent, waive the ju'esentation of arguments at that date, being a matter which related not to the Arbitrators, but to a duty to be performed by their own Agents. He has just sent me the following communication : [/•Jirl oraiirilh to (Iciural Svlivnck.^ Su{ : In reply to the ((lU'stion wliich yon jnifc to iiie this nH»inin<;, 1 have to state to you that Her Majesty's Government eonsiihjr that the Arbitrators ninst no doubt meet on the ir>th of June, but the liftii Artich* of the Treaty, thonj;h it conteuiphites the (lehvery of written ar^^nments on that day, does not make the further prosecution of the arbitration iinpossibh^, if on that day neither purtif \)rtiHontH any written arfjument . The Arbitrators have full jiower to adjourn, and they have also AiU power to call, after the 15th, for any further statements or arfjuments, written or oral, from time to time as they may think fit. If, therefore, b(»th parties agree not to presi lit an^ argument till a later day than the 15th,re(iuesting the Arbitrators to adjourn, and if the Arbi- trators should, on any day to which they may have adjourned, accept the ari;um(;nt which both parties may tlien wish to tender to them, this will be (|uite within their power. SCHENCK. No. 80. Mr. Fhh to General SvJunck. No. 210. J Department of State, Washington, June 3, 1872. Sir : Your dispatch No. 233 of the 18th ultimo, inclosing copy of supplement to the London Gazette of the day previous, has been received. This copy of the Gazette brings to the Department the first notice it has had of Earl Granville's note of the 13th ultimo, which probably appeared in print, submitted to the British public, long before it reached Sir Edward Thornton, to whom it purports to be addressed. The avowed purpose of Earl Granville's note is to notify Sir Edward Thornton that Her Majesty's Government have refrained trom continu- ing " an argumentative discussion with the Government of the United States, upon the scope and intention of the Articles in the Treaty of Washington, relating to the Arbitration on the 'Alabama claims;'" and to put him in possession of the views of that Government, with reference SCHENCK. r)4s •ii{i:atv of \vasiii\(;T()\. to some piissii;;('s wiiicli ucciir in my note 'm you of the Ititli ol' Ajui', Of coiifse it will not be iissiimcd tliiit llic oltjcct of its j)ui>li('iiti(Hi in ress(Ml in the coirespondence of this Departmen't on the subject) to remit all discussion as to the scope and ineanin{jf of tln^ Treaty to that Tribunal. Had this feelinj;' been reciprocated by J I er ]>rajesty's Clovernment, the discussion whi<'h lias occuried between the two (Jovernments upon the true meaninj;- of the Treaty inij»ht have been in a great measure avoided, Upon the present point of contention between this Governtnent and that of (ireat IJritain, namely, whether the claims for " uationul losses " impn- huiy denomiimted "inclirect «hunaj«es," are by the terms of tlie Treaty fairly within the province for the consideration and decision of the (Jeneva Tribunal, the United States it is believed will lose nothing by the fullest discussion of the question. In my note to you of the Kith of A))ril, I had occasion to vsay, "It is ditlicult to reconcile the elaborate line of ar/jument put forward by Earl Granville to show a waiver of e'aims for indiiect losses, with the idea that at the outset of the negotiations Her Majesty's Government did not consider the nnitter of i)ublic or national injuries as the basis of an out stan(l States l,i)])|i()iiit ''('Xiiiniiif t.iti's aiHl iity would mvictioii. L'Xlurssnl I remit all Trihuiial. nieiit, tlic upon the i> avoided, t and that iPs" popu- lie Treaty oil of the othiiijf by lav. "It is (I by Earl I the idea nt did not of an out d States.", does not sterennses. V facts on that you se on this einand. Ai>ril to arl Gran- ite loan is Ir. Adams lie assist- perly rei: ton loan." why they )nal proof ( <>i;K'i:si'(t\i)i:N(i; hkspectino \. 't-W) ot the eoMspiraey whi<',li Mr. Achtms was pointing; out, as tendinii' to hrin;^' on a Wiir with a view to aid the ('onfeih'rat*; cause. My objecjt was noi to fortify wliat Mr. Aritisli iJIue Jiook, N's Mr. Adams thou;^lit made manifest a conspiracy, of which the " (,'onfeder'te loan was an additional proof," and he tlius broufi'ht the existeiic ■)f a (;onspiracy with a view to prolonroof of which INlr. Adams had been speakinj;'. Lord (Iran- ville has unhappily misconceived the subject which formed the lea conspira- tors for the success of the ConfederatiiS, and for a monopoly of the trade of the SLinthern States: this, in the estimation of Mr. Ailains, was the evidence of the existence of the conspirac^v of which the (Confeili'rate were ueitner or tuein commumcarea to tier .uajesty s iioveniment. ii his Lordship means that these notes were not ofticially coinnmiiic .ted to his (Tovernment at the time of their date, he is unquestionably ri{;lit, but then he controverts what was not alleg^e*!. I had said " the olUcial correspondence of this (lovernraent which was j^nblished and is within the knowledge of Her Majesty's (rovernment ;" this Lord (Sranville doe.s Wm^iXi noo TREATY OF WASHIXfiTON. not deny, and tliis I re-assert. A volume containing: the notes roCtM rod to was placcid in the possession of the IJritish Joint C'oinniissioi»ers, and was again iorinally delivered to the Agent of Her Majesty, at (ieneva, in December last. Lord Granville himself niore than once (piotes from it, thus establishing what 1 have asserted, that the conteuts of that volume were within the knowledge of Her Majesty's (lovermnent. Lord (Jranville refers to a di.si)atch to JMr. Seward, dated 17th Feb rnary, 18(»1), in which Mr. Keverdy Johnson reviews the obJe(;tions made in the United States to the Convention negotiate1». informing him of the then recent action of the Semite of the United States, on what was familiarly known as the "Johnson-Clarendon Treaty," the viewsofthi.iGovernment are thus expressed in relation totheclaimsof the United States against the IJritish Government: '• Upon one point the Pies ideut and the Senate and the overwhelming mass of the people are con CORIJKSI'ONDEXCE KESPECTING (iENKVA AKfJlTKATIOX. 5.51 s ivf'errod )iMMs, and t (Jeneva, lotes from ts of that lent. 17th F.'h- i>l)j(»(!tions liiin. His to "" pa^'i' ch he had ^eriiment, le at pat. James, ill not be lis official n bligations by tiie latter. It remains to not) !e one other passage in the dispatch of Earl Gran- ville, alluding to my reference, in the note of the lOth of April, to the 552 TREATY OF WASHINGTON. work ot rrot'essor Bernard. His Lordsliip says : "Still less can tliey (Her iVIajesty's (.Jovernineut) admit that because Mr. Bernard, in the 14th chapter of his work, gave certain extracts from Mr. Fish's dis- patch, under the head of 'Alabama claims,' that dispatch became the standard by which the claims known as Alabama claims were to be measured." Here again his Loidship repels what was not proposed. Mr. Bernard was quoted to show that Her Majesty's Government entered upon the negotiation of the Alabama question with a knowledge of the existence of the claims of tl»e United States for indirect losses. There was no suggestion that the dispatch whiens, moreover, that in the extracts given by ]Mr. Bernard, in the chap- ter to wiiich Mr. Fish refers, the three passages cited by Mr. Fish in his present dispatch as relating to indirect injuries ai;d national losses are omitted." I am bound to suppose that the repeated apparent denial of what was not asserted is the result or consequence of the haste in which his Lord- ship's note was given to the piess. In my dispatch to you I had not said that the passages cited by me were«among the extracts given by Mr. Bernard "in the chapter" to which I referred. My language was, "/>t thifi worJc he summarizes an instruction," »&c. I have, therefore, to repeat what I said, namely, that the passages cited by me api)ear in Trofessor Bernard's work; and I must direct your atteiition to the fact that, while Lord Granville tlenies (what was not asserted) that these passages do not appear in a certain chapter, he does not deny (what- ever may be the impression casually produced by his language) what I asserted, namely, that the i)assages do appear in Professor Bernard's work. I refer to pages 492 and 41)3, where they will be found. Referring to a former dispatch of mine, Lord Granville thinks that it is apparent that the "' vast national injuries; " presented in it are ascribed to other causes than the acts committed by the Confederate cruisers, and among other extracts from the dispatches he quotes me as saying, " nor does he (the President) attempt now to measure the relative effect of the various causes of injury, as whether by untimely' recognition or belligerency, by suffering tlie fitting out of rebel cruisers, or by the supply of ships, arms, and munitions of war to the Confederates, or oth- erwise in whatever manner." With regard to the interview of Mr, Adams with Lord Pussell, in March, 1803, the statement by the latter that the former had referred lo the Confederate loan as "additional jiroof" of what Mr. Adams had alleged to exist, has been advanced to prove that Mr, Adan.s was not si)ealiing of the subjexit which he sought the interview to discuss, but of something of which neither he nor Lord Ilussell made any mention. Here the argument api)ears to be of the same nature, that because some "additional" causes of complaint other than those put forward before the Joint High Commission, and befoie the Arbitrators at Geneva, have l>een advanced in some correspondence on the i)art of this Government, that a certain class of claims are not included under the head of "Alaljama claims." Lord Granville says, " Mr. T^sh gives as a reason for no claims for national losses having been 'defined' or 'formulated,' that Lord Kussell objected in July, 181)3, to any claims being put forward." A reference to my dispatcli to you of the IGth of April last shows liie as giving a different reason. I said, " During the war these claims CORKE.srONDEXCE RESPECTING GEN'EVA AKBITRATION. ^K)3 m were coatiniiiilly arising and increasing^, and could not tlien be defined, and the titne for fornuilatinj; them wonhl not arise until a willinjjness to enter upon their consideration arose." Lord Russell's objections were mentioned, it is true, in addition to the reason above quoted, but although " additional,-' they are not therefore exclusive. The communications which the liritish High Commissioners may liave made to their (lovernment, either pending the negotiation or since, can scarcely be urged with seriousness upon this (Tovernment for ac- ceptance in the construction of the Treaty. One of those gentlemen is reiK)rted assaying recentl}^ " that we, the (Britisli) Commissioners, were distinctly responsible for having represented to the (lovernment that we (they) understood a promise to be given that these claims were not to be put forward, and were not to be submitted to arbitration." He does not sny by whom, on what occasion, or in what manner, such l>romise was made. He involves all his colleagues in the representation made to their Government, that such promise had been made. But this seeking aliunde, outside of the Treaty and of the Protocol, to estab- lish a meaning or to explain its terms, has had the effect, which the honorable baronet who made the declaration anticipated, to raise " a personal question," and 1 cannot allow this reference made by Lord (iranville to the information furnished to Her Majesty's (Jovernment by ITer High Commissioners to pass without alluding to the representation which Sir Stafford Northcote (one of those Commissioners) says that the commissioners are responsible for having made to their Government. In justice to myself and my colleagues on the American side of the Commission,! must take this occasion (thelirst that has jiresented itself since I have seen the speech of Sir Stafford Northcote) to say that no such ])romise as he states that the British Commissioners represented to their Government, as having been understood by them to be made by the American Commissioners, was in fact ever made. The official com- munications between the American and the British Commissioners (as you are aware) were all made by or to me as the first named of the American Commissioners. 1 never made and never heard of any such promise, or of anything resembling a promise on the subject referred to. None was ever nmde by me, formally or informally, officially or unofficially ; and I feel entire confidence in making the assertion that none of my colleagues ever made any i)romise or any declaration or statement api)roaching to a l»romise on the subject. AVhat may have been the understantling of Sir Stafford Northcote, or of bis colleagues, I cannot uiulertake to say, but that the American Commissioners gave him or them any grounds to un- derstand that such a promise was given, as he says tlu^y represented to their (iovernment as having been made, I am bound most respectfully but most emi)hatically to deny. 1 cannot conceive from what la? has imagined it, as the only direct allusion to the three classes of claims (called the " indirect claims") was that made on the i>art of the Ameri- can Commissioners on the 8th day of March, and is set forth in the 30th Protocol in the words in which it was made. The British Government has, in the corresponden(!e which has recently taken place, endeavored to construe the withholding of an estinmte of those "indirect claims" in coniu'Ction with a proi>ositi(m on behalf of this Government, which was declined by the British Commissioners, into their waiver. I have already tliscussed that question, and shall not here again enter upon its refutation. The Protocols and the state- ment approved by the .loint Commission furnish the substantial part of what passed on that occasion. I am at a loss to conceive what lep- 554 TREATY OF WASHINGTON'. resentiUio!!, outside of the statement Diaile in the oOtli i'lotocol, Sir Stiiffonl Xorthcote can have made to his Government. He refers tti some " personal qnestion,'' somethiii}>: which, nntil the time of his ad- chess, he and his colleasues had ben-i nnder otUcial restraint from dis- cussing-, bnt the Protocols and the statement to whidi I have referretl had been before the i)nblic both in (Ireat liritain and in the United States for nearly a year before his declaration. It is only within a day or two that the Journals containing his address have reached me. I have this day Addressed a letter to yourself and to each of our colleagues on the Commission, calling attention to Sir Statt'ord's statement, and in due time may make public the correspondence. Returning to Lord Granville's dispatch in the sui)plement to the Lon- don Gazette, I llnd little else that has not already been discussed or that requires further reply. It n)ay, however, be noticed that the remote or consequential nature of claims does not appear to have been a serious objection to the presenta- tion of such claims on the part of the British Government against the United States. Lord Granville, in the dispatch in the supplement, recalls the fact that the British Commissioners repeatedly put forward the Fenian raid claims, but not until the 3d of May, (after the American Commissioners had declined to treat on them,) did the British Commis- sioners admit that a portion of the claims were of a constructive an 1 inftorential character, having thus persistently, for nearly two mouths, kept before the Commissioners those constructive claims. Jt is nor necessary now to consider the relative admissibility of "constructive"' and of " indirect " claims, as the ground for pecuniary compensation against a Government, under the principles of International Law. His Lordship again refers to the case i)resented by the British Gov ernment to the Claims Commission, sitting in this city, for the Confed- erate cotton loan. While questioning the accuracy of my statement, that " the United States cahnly submittt d to the Commission the decis- ion of its jurisdiction," he proceeds to establish its accuracy by statins the motion made by the Counsel of this Government to dismiss the claim. If the British Government will follow this example, and move the Tribunal at Geneva to dismiss the claims which it thinks are not included in th.> submission of the Treaty, a similar result may be obtained, and the benetits of the Treaty and of the principles of peace ful arbitration of grave differences between nations may be established. I am, sir, vour obedient servant, HAMILTON FISH. [Iiiclosiire in No. 8(i.I Karl liunsell to Lord Lyons. FoKKKi.N Oi ruK, March 27, H0:>. Mv Loud: Mr. Admns baviiijj asked for an iiitm'viow,! luiil iiloii;r(;()iiversiiti<)ii witli liim yesterday at the Foreijiii OHiee. Hi? read iiiu a dispatch of Mr. Siiward on the Hubjoct of tlie Alabama and Oreto. In tbis dispatcdi, whicli was n(»t iiiitVieudly ill its tone, Mr. Seward coinpbiiiis of tlie depredations on American eoinmert'c committed by vessels fitted ont in British ports, and manned, for the most part, by British sailors. He allmlos to the stron;r feeling e.vcitcd in the United States by the destruction of her tradiiijr vessels and their cargoes. He repeats the conipluinr cnninion in America, that En<;land is at war with the United States, while the United States were not at war with England. He expresses his hope that Great Britain, in exeention of her o»vn laws, will put an end to the litting ont of sneh vessels to prey on the eoninierce of a friendly nation. I said tliat the phrase that England was at war COnKK.SI'OXUKNX'E RESPKCTI\(i GENEVA AUUITRATIO.N. 55') ill witli Aiiu'iicit, but Aniericii whs not at wiir with Eiifjland, was rather a limine of rhot- oric than a true description of facts. That thi^ facts wcro that two vessels, tlie Oretu ami the Ahibauui, liad ehuletl the ojieratioii of the Forei^jn-EiilistuKMit Act, and liad, against the will and purpose of tlie British Goverunuint, niaile war upon AtncriiMn commerce in the Aiuerican seas. That the tittiuy; out of the Alabama, the oix^ration aj^ainst which the Foreij^u-EolistnuMit Act was especially dire(!ted, was carrietl on in l'ortu>;uese waters at a >jreat distance from any Ihitish i)ort. That the most Htrin;^»!iit orders had been <>iven lonj; ago to w.itch the proceedings of those wiio might bo sus- pecred of litting out vtissels of war for Confederate purpos -s. That if there were six vessels, as it was alh'ged, fitting out iu British ports for sucli purposes, let eviresont tho aigninonts of the respective (iovonmient.s on the l.jth. The fifth Article of the Treaty requires that the ar^iinienth be presented within a specified time, which time will expire on the loth. Being a treaty recpiirement, the Executive Department of the (lov- ernment cannot depart from its obligations, and has not the i>ower to consent to a change of its terms. If an adjournment is contemplated by Great Britain, with the idea of future negotiation, it is right that, with reference to the Senate Article, it should be understood that this Government cannot negotiate on a ])roposition wiiich involves the i«lea that it may be guilty of intentional ill faith, or of willfid violation of its international duties, or that it re- gards such acts on the i)art of another I'ower tiie subject of compensa- tion by the payment of daioages in money. Fisn. Lrmni ISritish I'Aiir Jiook " N«irth Aiiieiica," No. 11, (l^^T'i,) \k :?r.] No. 88. Memoyutidnm read by Lord (iranvUle in the House of Lords. 1 have spoken to General Schenck as to the annoyance which has been felt in and out of Parliament at the publication in the United States of the papers submitted to the Senate in their secret session. . 1 tohl him that, for obvious reasons, I much regretted it, but that 1 believed that it was no act of the Government of the United States. Sir E. Thornton had informed me that these papers had been surrep- titiously obtained.. General Schenck told me that he believed that the Government of the United States had not, through any of its De[)artments — the President, the Senate, or the Secretary of State — been a party to the publication ot that correspondence. It appeared to have got out surreptitiously through the enter])rise (if it may be called by so innocent a name) of the news- pai)ers. I have also spoken to General Schenck, ami alluded to the unfavor- able impression which has been created by certain passages in that cor- resi)ondence wherein ^Ir. Fish declares the determination of the Presi- dent to maintain tlu^. indirect claims before the Tribunal of Genev'a. 1 told General Schenck that, from the various conversations which 1 have held with him, and from his written communications, I have been led to believe that the position of the United States was this: The President held tiiat the indirect claims were admissible under the Treaty; that the Treaty was made ami ratified in that sense; and that, therefore, although he might by interchange of notes or otherwise, agree not to ])ress for compensation for those claims, yet as being within the scope of the Treaty, it was not in his power to withdraw them — that could only be done by the exercise of the full Treaty-making power, including the concurrence of the Senate ; that it was for this purpose that the J'resident preferred, instead of an interchange of notes, that Her Majesty's Government should adopt a supplementary Article, which for some sutiicient consideration might enable the Government of the United States to declare that they would nnike no claim for such losses, and that the Arbitrators wouhl thereby be prevented from entertaining these indirect claims. COKRESPONDENC'E RESl'ECTINCJ (lENEVA AltMilTlJATlUN. o")? General Scheiiek iiit'onned me that he agreed witli ineiu my coiistrnc- tion of what had passe*!, and I have submitted to him this rei)ort of oar r^nversatiou. I re id this in the House of Lords last night. FoREKJN Office, June 4, 1872. Xo. .S!>. ftencrni ^clienrlx to Mr. Fish. [Tfli'graiii.] London, June 5, 1872. (Received at 10,4."> a, m.) Opposition members in Parliament have strange and unworthy suspi- cions and fears that tiie last clause of the Article, although in the lan- guage of their own (iovernment, is not explicit enough to prevent the indirect clafms from being again brought forward. Might we not otter that if this Government will accept the Senate language for the expres- sion of the rule, we will agree to the last clause of their form, as com- municated to you in my telegram of the 3lst May, adding thereto the words "but will thereupon abandon those several enumerated claims as a cause of difference between the two countries to be considered ]>y the Arbitrators in making their award.'' SCHKXCK. Xo. WK ^f^'. Fish to General SchencI:. [Telegvaiii.] AVasiiinoton, June o, 1872. We cannot agree to the suggestion in your telegram of this date. This Government deals with the British ( rovernment, and not with oppo- sition members of Parliament. If that Government adopts the unworthy suspicions and fears referred to in your telegram, and advances them as reasons for modifying the proposed Article, or suggests that this Gov- ernment will not in good faith act upon the agreement contained therein, all further negotiations must cease at once. If it does not adopt or entertain those suspicions, there is no reason for proposing to alter the language "/hich was proposed by itself, has been accepted by us, and which is sufficiently explicit. You may say that this Government regards tiie new rule contained in the proposed Article as the consideration, and will accept it as a tinal settlement of the three classes of the indirect claims put forth in our Case, to which they objected. It is useless to expect that any change can be made in the Article as agreed to by the Senate. A treaty in the words which the Senate luul agreed upon could be ratified by that body without debate and in a few minutes. Any change, however immaterial, would involve discussion and debate, and in the crowded state of their business would itievital)ly lead to the defeat of the Treaty. 1;;-' r.n 58 TKPUTY OF WASHINGTON. We think, also, that this Government has made a large concession for the sake of maintaining the important principles involved in the Treaty. It can niake no more. FISH. No. 91. General Schenck to Mr. Fish. LTelegrain.— Extract.] London, June C, 1872. (Received o p. m.) Your telegram of yesterday received this morning. * #''» » # * * You will do me the justice to believe I have had no exchange of views w ith anybody here but the Government, through the proj)er channel. 1 must also do justice to them ; they have not adopted or sympathized with the fears and suspicions of others in regard to the last clause of proposed Article, but defended it as sufticient. I, of course, would have resented any intimation from them that my Government could jwssibly act in bad faith. I knew your earnest desire to save the Treaty. I knew that, for the consideration expressed in the rule as amended by the Senate, the Gov- ernment of the United States intended to abandon altogether the three classes of indirect claims, and although I knew the difficulty of opening the main question in the Senate, I thought they might at once agree to show their frienre the Arbitrators. The Government of the United States must see that it is impossible for Her Maj- esty's Government to authorize Her Majesty's Minister at Washington to sign a treaty, the words of which appear to Her Majesty's Government to say one thing upon a mere understanding to the contrary effect. The second note is as follows: [Earl Granrille to General Schenck.'] Siii: There is a difference of opinion between the Government of the United States and Her Majesty's (Jctvernnient as to the necessity of presenting the written or printed corrj:spondence respecting (JENEVA ARUITKATION. fh)d essioii for le Tretity. FISH. 5 p. m.) B of views lannel. I upatbized clause of ould have 1 i)ossibly it, for tlie , tbe Gov- tbe tbree f opening I agree to intention, sing tbeir [ received whicb I itely, and •change in iir;;iuuuiit8 on the l.'>th of Juno. I beir to sug^eHt to you Mint the flt'tU Articlo ih ilirectory; it speaks of Humotliing which it Nhull bo the «luty of tlie A;;«Mits of the two Governiuents to do within a certain time ; it does not say that the 'I'reaty is to hipsc if this duty is neglected or not perft>rnie(l by the Agents or Agent of botli Uov- ernuients, or of either of them. It would hardly bo suggested that the Tn^aty would lapse if one only of the two Agents omitted to lodge a written or printed argument, such as this Artiulc contemplates, yet there is no more reason for saying that such a written or printed argument to be then delivered is a nine qua tion of tlie Treaty if both Agents omit it than if only one does so. Tlio Article is in its nature one of procedure only for tiio mutual information (it may be) of tlie parties, and entirely for the assist- ance of the Arbitrators, but mainly for the benetit and advantage of the parties them- selves. who, in such a matter, may or may not choose to avail themselves of it, nor would any practical inconvenience or disadvantage arise to either party (in case the arbitration jnoceed) from an agreement not to jtresent such arguments until a later date, the Arbitrators having full pow«'r at any later date to admit such written or oral argu- ments as they may think fit. Jler Majesty's Government would iiiakti: no ditticulty as to a suitable arrangement for the presiMitation of the argiuneiits if a Convention were signed by Mr. Fish and Sir Edward Thornton and ratified by the Senate, although there was not time for the nitititiations to bu e rchanged in London previously to the ir>th of June. Third note thus: [Eurl Graiirille to (ien.rul S-hincl.} Sii{ : I have to state to you that with the view of obviating the ditticulty con- nected with the meeting of the Arbitrators at Genevii on the 1.'>th instant, anil the pre- sentation of the written or priiited argument under the fifth Article of the Treaty on that day. Her Majesty's Goveniiient are still ready either to agree in an application to the Arbitrators on the l.'jth to adjourn at once without the presentation of the argument of either Government, or to ctmclude a new arrangement with the treaty-making power of the United States for the enlargement of the time ; or, instead of the amend- ments to the Treaty Article which Her Majesty's Government last proposed, they are willing to conclude it with the following additions: First, to insert after the paragr.aph, as altered by the Senate, the words, " the remote or indirect losses mentioned in this agreement, being losses arising remotely or indirectly from, and not directly from, acts of belligerents." Second, to insert after this paragraph another paragraph : " further, the stipulations of this Convention as to future conduct have no reference to acts of intentional ill faith or willful violation of international duties." The objections to nego- tiating on a proposition which involves the idea that either country may Its guilty of intentional ill faith or willful violation of its international duties might be mot by such a declaration as that proposed in the second of these additions being inserted in the Treaty Article, or, if the United States should prefer it, by an interchange of notes, aitpioved by tlic Senate at the time of ratification. schp:nck. which you ii portion of Iranght Ar- ch I called show that "indirect" d in the re- by certain e to observe with refer- latter, and pect to the id to make r Her Maj- jn a treaty, pen a mere ited States or printed No. 02. General Hchenck io Mr. Fish. [Telt'gram.] London, June C, 1872. (Received 7.2J p. m.) Since my former telegram to-day I bave seen Lord Granville and stated to him that it is useless to expect that any change can be made in the Article as agreed to by the Senate, and I communicated to him what you authorized me to say, that our Government would regard tbe new rule as consideration for and settlement of the three classes of in- oOO TREATY OF WASHINGTON. direct claims. I tboujj^lit it best to jmt that part of my commiiiiicatinn in formal writinnf and have liuiuled him a note us follows: Ideiiertil Sdieiick to Karl Uruiirillt:'] My IiO|{i>; III tilt! i-onvciHiitimi W(» had yestenliiy iiiiil wliicli Wiis ri'siiincil MiIn nioiniiif?, you Htatftd to 1110 that I lor Majesty's (iovoiiiiiit'iit havi'o|>osed Article, niiil which the (Jovernmeiit of the United States had accepted, and I re]ielled the idea that anybody should think it jiossible that the (Tovernment of the United States, if they should yield th«>se claims for a consideration in a settlement be- tween the two countries, would seek to briiiji; them up in the future or would insist that they were still before the Arbitrators for their consideration. I am now author- izeming, I beg^ >pted by the scope of the It appears to be the view of tlie floveniment of the United States that snch cases are not a lit Hiiliject of pecuniary compensation, and I am informed by Mir Edward Tliorn- ton that Mr. Fish is of opinion that the article adopted by the Senate is capable of im- prov(!nient. The Tresident thinks that the Article last proposed by Her Majesty's Government in also capable of improvement. The American (Sovernment state that " it is not believed that there is any sucli differ- ence of object between thetwo(ioverumentsin the definition and limitation which each desires to places upon the liability of a neutral, as toitrevent an agreement on thelan- guage in which to express it, if time bo allowed for the exchange of views by souio other means than the telegrap)'." The British Government must decline to sign a treaty which is not in conformity with their views, and which does not express the principles which the American Gov- ernment believes to be entertained by both parties to the negotiation, and which, im- mediately after being signed, would become the subject of ncgu.iation with u view to its alteration. In this position they repeat their readiness to extend the time allowed for the Arbi- tration to meet at Geneva, and they hove, as your are aware, provided Sir E. Thornton with full powers to sign a treaty for this purpose ; or they are willing to concur in a joint application to the Tribunal of Arbitration at once to adjourn tlie proceedings of the arbitration, which they are advised it is within the competence of the Arbitratorii to do upon such an application without a fresh treaty. 1 have, &c., GRANVILLE. |Iiiclo8ure 2 in No. 97.] licncral Schenvk to Earl GranciUc. Legation of tiik Unitkd Statks, Lovdon, June 1, 1872. My Lord : I received an hour ago your note of this date in which you reply to the telegram of Mr. Fish, which I communicated to you this , o: ning, and inform mo that Her Majesty's Government decline to sign a treaty of the character and with the ar- rangement for the future, suggested by Mr. Fish, but repeat their readiness to extend the time for the Arbitrators to meet at Geneva, for which purpose Sir Edward Thorn- ton has ful ' powers to sign a treaty ; or they are willing, you state, to concur in a joint application to the Tribunal of Arbitration to adjourn their proceedings, which they are advised it is within the competence of the Arbitrators to do upon such an application without a fresh treaty. I have sent the full text of your note to Mr. Fish by telegraph. I have, &c., ROBT. C. SCHENCK. llnoIoBnreS in Xo. 97.] Earl Granvill'; to General SchencJc. FoRKioN Okfick, June 3, 1872. Sir : In reply to the question which you put to me this morning, F have to state to you that Her Majesty's Government consider that the Arbitrators must no doubt meet on the 15th of June, but the filuu Article of the Treaty, though it contemplates the delivery of written arguments on that day, does not make the further prosecution of the arbi- tration impossible, if, on that day, neither party presents any written argument. The Arbitrators have full power to adjourn, and they have also full power to call, after the 15th, for any further statements or arguments, written or oral, from time to time, as they may. think fit. If, therefore, both parties agree not to present any argument till a later day than the 15th, requesting the Arbitrators to adjourn, and if^the Arbitrators should, on any day to wbinh they may have adjourned, accept the argument which both parties may then wish to ten \t to them, this will be quite within their power. I have, sic, GRANVILLE. 564 TREATY OF WASHINGTON. [Inclosure 4 in No. 97.] Earl Granville to General Schenck, Foreign Office, June 5, 1872. Sir : I laid Wfore the Cabinet the telegraphic message from Mr. Fish, which you com- municated to me on the 3d iustai ... That message is only in answer to a portion of the objections raised by Her Majesty's Government to the alterations in the draught Article proposed by the Senate, and does not notice the other points to which I called your attention in my letter of the 28th ultimo, and which were iutended to show that the effect of those alterations is to transfer the application of the adjectives "indirect" and "remote" from one subject with reference to which they have been used in the recent correspondence, viz, claims made as resulting from the "acts committed" by certain vessels, tb a different subject, viz, those made as resulting from " the failure to observe neutral obligations." It is evident that a loss which is direct and immediate with reference to the former subject, may be indirect and remote with reference to the latter, and this appears to Her Maj- esty's Government to be actually the case, with respect to the claims which it is as- sumed the Government of the United States still intend to make before the Arbitrators. The Government of the United States must see that it is impossible for Her Majesty's Government to authorize Her Ma^jasty's Minister at Washington to sign a treaty, the words of which appear to Her r»iaje8ty'8 Government to say one thing, upon a mere uuderstarding to the contrary effect. I have the honor to be, with the highest cousideration, sir, your most obedient, humble servant, GRANVILLE. [Inclosure 5 in No. 97.) Earl Granville to General Schenck. Foreign Office, June 5, 1872. Sir: There is a difference of opinion between the Government of the United States and Her Majesty's Government as to the necessity of presenting the written or priu*ed arguments on the 15th of June. I beg to suggest to you that, 1st, the fifth Article u directory; it speaks of something which " it shall be the duty of the Agents" of the two Governments to do within a certain time. It does not say that the Treaty is to lapse if this duty is neglected or not performed by the Agents or Agent of both Gov- ernments, or of either of them. 2d. It would hardly be suggested that the Treaty would lapse, if one only of the two Agents omitted to lodge a written or printed argu- ment, such as this Article contemplates. Yet there is no more reason for saying that such a written or printed argument, to be then delivered, is a sine qua mm of the Treaty, if both Agents omit it, than if one only does so. 3d. The Article is, in its nature, one of procedure only, for the mutual information (it may be) of the parties, and entirely for the assistance of the Arbitrators, but muiuly for the benefit and advantage of the parties themselves, who, in such a matter, may or may not choose to avail themselves of it. 4th. Nor would any practical inconvenience or disadvantage arise to either party (in case the arbitration proceeds) from an agreement not to present such argu- ments until a later date, the Arbitrators having full power at any later date to admit such written or oral arguments as they may think fit. Her Majesty's Government would make no difficulty as to a suitable arrangement for the presentation of the arguments if a convention were signed by Mr. Fish and Sir Edward Thornton and ratified by the Senate, although there was not time for the rati- fications to be exchanged in London previously to the 15th of .June. I have the honor to be, with the highest consideration, sir, your most obedient, humble servant, GRANVILIE. llnclosure 6 in No. 97.) Earl Granville to General Schenck, Foreign Office, June 5, 1879, Sir : I have to state to you that with the view of obviating the difficulty connected with the meeting of the Arbitrators at Geneva on the 15th instant, and the presenta- CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 565 ne 5, 1872. chyoucom- Bt Majesty's Senate, and etter of the rations is to one sabject viz, claims eut subject, ions." It is tner subject, to Her Maj- ich it is as- Arbitrators. er Majesty's , treaty, the pon a mere st obedient, lNVILLE. ine 5, 1872. nited States n or printed th Article i.. Bnts" of the Treaty is to " both Gov- the Treaty riuted argu- saying that f the Treaty, tture, one of entirely for tace of the themselves se to either such argu- ite to admit irrangement l0 a. m.) communi- )ns at the following the United jtovernment e Senate, to vithout any the proceed- >oth parties ment of the L at Geneva, to obtain eady nearly e the course Adams, and CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 569 TDost consistent with the declarations they have heretofore made most respectful to the Tribunal of Arbitration and the most courteous to the United States. The British Arbitrator will proceed to Geneva, and at the meeting of the Tribunal the British Agent will be directed to present to them a statemen); to the following effect : " Her Majesty's Government regret to be under the necessity of iniorming the Arbi- trators that the difference between Her Majesty's Government and the Government of the United States referred to in the note whicii accompanied the presentation of the British Counter Cas« on the 15th of April last, has not yet been removed. Her Majesty's Government have, however, been engaged in negotiations with the Government of the United States, which have continued down to the present time, for the solution of the difficulty which has thus ai'isen, and they do not abandon the hope that, if further time were given for that purpose, such a solution might be found practicable. Under these circumstances, the course which Her Majesty's Government would respectfully request the Tribunal to take is to adjourn the present meeting for such a period as may enable a supplementary convention to be still concluded and ratified between the High Contracting Parties. In the mean time the High Contracting Parties not being in accord as to the subject-matter of the reference to arbitration, Her Majesty's Government regret to find themselves unable to deliver the- written argument, which their Agent is directed to put in under the fifth Article of the Treaty, (although that argument has been duly prepared and is in the hands of their Agent,) or to take any other steps at the present time in the intended arbitration. It will of course be understood by the Tribunal that Her Majesty's Government (while they would consider the Tribunal to have full power to proceed at the end of the period of adjournment if the difference between the High Contracting Parties should then have been removed, notwithstanding the non-delivery on this day of the argument by the British Agent) continue, while re- questing this adjournment, to reserve all Her Majesty's rights in the event of an agree- ment not being finally arrived at in the same manner as was expressed in the note which accompanied the British Counter Case." SCHENCK. No. 102. Oeneral Schenck to Mr. Fish. [Telegram.] London, June 11, 1872. (Eeceived at 3.40 p. m.) Have acknowledged Lord Granville's note telegraphed you this morn- ing, saying I have transmitted it to my Government, at Washington, where 1 have no doubt it will be received and considered in the same friendly spirit in which it is intended, and as a sincere effort yet to pre- serve the Treaty between the two countries. SCK^NGK. No. 103. Oeneral Schenck to Mr. Fish. [Telegram.] London, Jnne 12, 1872 — 3. 45 p. m. (Received at 10.45 p. m.) Have this moment received another long communication' from Lord Granville. It is in a very friendly spirit. He recapitulates the hi.story of the negotiation for a supplementary Article, and then proceeds as follows : lEarl Granville to General Schenck.} Her Majesty's Government believe, therefore, that they have met all the objections, so far as they have been informed of them, which have been from time to time advanced to the suggestions which they have made, and that this recapitulation of the negotia- ' For full text of this note see p. 573. 570 TREATY OF WASHINGTON. tion shows that, unless Her Majesty's Government have erred in their viow of the prob- able intention of the Senate, the two Governments are substantially agreed, or that, if there is any difference between them in principle, it is reduced to the smallest propor- tions. On the other hand, the objections which Her Majesty's Government entertain, and have expressed, to the language of the amendments made by the Senate, are founded upon reasons to which they attach the greatest importance, though the^ think it pos- sible that the Senate did not intend to use that language in the sens iich, according to the view of Her Majesty's Government, the words properly bep*^ The Government of the United. States have stated in the telographic message from Mr. Fish, to which I have already referred, that there are some cases not provided for in the words suggested by Her Majesty's Government on the 30th of May. If the Gov- ernment of the United States are of opinion that these cases are not covered by the last proposed form of Article, and will state what are the c reason to s to obtain idy nearly onrse most tful to the ■ibunal the eftect : \r the Arbi- einiueut <»f tion of tbe Her Majes- lovernraent be solution bat, if fur- ticable. lent would f for sncb a ,ud ratified to the 8ub- jret to find !cted to put sn duly pre- tbe present government b tbe end of ing Parties i day of tbe irnment, to ally arrived tbe British nt, humble, NVILLE. ATES, 11, 1872. ^rday, refer- tbe United fentary Arti- |e that Her lost cousist- ae Tribunal rdsbip then tbe British tatement to In the note mg been re- Inued down Itbat if fur- practicable. }overnment riod as may jtween the te, the High leference to leliver their Vent is duly the present CORRESPONDENCE RESPECTING GENEVA ARBITRATION. 573 time in the intended arbitration. And you add that it will of course be understood by the Tribunal that while Her Ms^jesty's Government would consider tbe Tribunal to have full power to proceed at the end of the period of adjournment, if the difference between the High Contracting Parties should then have been removed, notwithstanding tbe non-delivery on that day of the argument by the British Agent, they will continue, while requesting this adjournment, to reserve all Her Majesty's rights in the event of an agreement being finally arrived at, in tbe same manner as was expressed in the note which accompanied the British Counter Case. This note, my Lord, in its full text, I transmitted this morning to my Government at Washington, where I have no doubt it will bo received and considered in the friendly spirit in which it is intended, and as a sincere effort yet to preserve the Treaty between the two countries; and I will not fail to communicate to you at the earliest moment the answer which may come from Mr. Fish. ' I have the honor to be, with the highest consideration, my Lord, Your Lordship's most obedient servant, ROBT. C. SCHENCK. [Iuclo8uro 6 in No. 104.] Earl Granville to General Svhenck. Foreign Office, June 11, 1872. Sir : It may be useful that I should briefly recapitulate the negotiations which have passed with respect to the supplementary Treaty Article in order that there may be a distinct and connected record of them. On the 10th of May Her Majesty's Government, although they considered that the proposal of the form of Article would como more conveniently from the United States Government, proposed the draught Article as originally forwarded to you on that day. This draught Article was substantially the same as tbe draught note, the interchange of which bad formed the subject of previous correspondence. On the 26th of May Her Majesty's Government learned that tbe Senate had recom- mended tbe President to negotiate a convention on the basis of this draught Article, with tbe substitution of two other paragraphs for the fourth and fifth paragraphs of the English draught, as follows : " Whereas tbe Government of Her Britannic Mi^esty has contended in tbe recent correspondence with the Government of the United States as follows, namely : That such indirect claims as th^ise for the national losses stated in the Case presented on the part of the Government of the United States to the Tribunal of Arbitration at Geneva, to have been sustained by ' the loss in the transfer of the American commercial marine to the British flag ; the enhanced payments of insurance ; tbe prolongation of the war, and the addition of a large sum to the cost of the war and tbe suppression of the rebellion ;' firstly, were not included, in fact, in the Treaty of Washington ; and further, and secondly, should not be admitted in principle as grow- ing out of the acts committed by particular vessels, alleged to have been enabled to commit depredations upon the snipping of a belligerent by reason of such a want of due diligence in the performance of neutral obligations as that which is imputed by the United States to Great Britain ; and whereas the Government of the United States has contended that the said claims were included in the Treaty ; and whereas both Governments adopt for the future the principle that claims for remote or indirect losses should not be admitted as the result of the failure to observe neutral obliga- tions, so far as to declare that it will hereafter guide the conduct of both Governments in their relations with each other : " Now, therefore, in consideration thereof, the President of the United States, by and with the advice and consent of the Senate thereof, consents that he will make no claim on the part of the United States in respect of indirect losses, as aforesaid, before the Tribunal of Arbitration at Geneva." Her Majesty's Government objected, as I informed you in my ktter of tbe 27th of May, to the definition as therein expressed of the principle which both Governments are prepared to adopt for tbe future, as too vague, and proposed the substitution of the words, " of a like nature," for the words, " for remote or indirect losses," and the substi- tution of the words, " such want of due diligence ou the part of a neutral," for the words, " the failure to observe neutral obligations." On the 29th of Ma}'^ you communicated to me the substance of a telegraphic dispatch from Mr. Fish, stating that the Government of the United States declined to agree to these alterations, as the establishment of the principle embodied in the Article as assented to by the Senate had been its object in adhering to that Article. You had previously explained to me. on the preceding day, that what you considered that the Government of the United States desired was the establishment of a general principle to be applied 574 TREATY OF WASHINGTON. to cases OH tlit^y tui^ht ariNo, and notliiuite«1 to particular caHOH orcirciimfttanccs which may or may not over occur. Her Majesty's Government did not pretend that the words sngjjested, by themselves, were incapable of improvement, and made another proposal to yuu on the 30th of May, which they trusted would meet the views of both Governments, as follows: " Whereas the Government of HerJ Britannic Majesty has contended in the recent correspondence with the (lovcrnment of the United States as follows, namely : "That such indirect claims as those for the national losses stated in the Case pre- , sented on the part of the Government of the United Htates to the Tribnnal of Arbitra- tion at Geneva, to have been sustained by 'the loss in the transfer of the American com- mercial marine to the British tiag ; the enhanced payments of insurance ; the pro- longation of the war; and the addition of a large sum to the cost of the war and the suppression of the rebellion;' firstly, were not included in fact in the Treaty of Wash- ington ; and further, iind secondly, should not be admitted in principle as growing out of the acts committed by particular vessels alleged to have been enabled to commit depredations upon the shipping of a belligerent by reason of such a want of due dili- gence in the performance of neutral obligations as that which is imputed by the United States to Great Britain ; "And whereas the Government of the United States has contended that the said claims were included in the Treaty ; "And whereas both Governments adopt for the future the principle that claims against neutrals for remote and indirect losses should not be admitted as resulting from the acts of belligerents, which such belligerents may have been enabled to com- mit by reason of a want of due diligence on the part of a neutral in the performance of neutral obligations, so far as to declare that this principle will hereafter guide the conduct of both Governments in their relations with each other : " Now, therefore, in consideration th*-! i >f, the President of the United States, by and with the advice and consent of the Stii:ite thereof, consents that he will make tio claim on the part of the United States, before the Tribunal of Arbitration at Geneva, in re- spect ot the several classes of indirect losses hereinbefore enumerated." On the 3l8t of May, Her Majesty's Government vcere informed by Sir E. Thornton that Mr. Fish acknowledged that the Article recommended by the Senate was capa- ble of improvement, and thought that the one proposed by Her Majesty's Government might also be improved, and believed that, with sufficient time, an agreement could be come to satisfactory to both countries, which have the same object. On the same night yon communicated to me a telegraphic message from Mr. Fish, stating that " it is not believed that there is any such uiiference of object between the two Governments in the definition and limitation which each desires to place upon the liability of a neutral as to prevent an agreement on the language in which to express it, if time be allowed for an exchange of views by some other means than the tele- graph," and that it appeared to the President that the form of Article last proposed by Her Majesty's Government left a large class of very probable cases unprovided for, and that he held (with reference to an observation in my letter to you of the 2dth of May) " that the results of bail faith or willful misconduct toward either of the two govern- ments would never be the subject of pecuniary compensation." Her Majesty's Government, in their earnest desire to meet the views of the Govern- ment of the United States, therenpon made the proposal contained in my letter to you of the 5th instant, the effect of w^bich is to leavo the Article as proposed by the Sen- ate, with the addition merely of some few words of definition, which, if the intention of the Senate was that which Her Majesty's Government have been willing to believe, (though they think it insufficiently expressed,) do not in any way affect it in principle, viz : " The remote or indirect losses mentioned in this agreement, being losses arising remotely or indirectly, and not directly, from acts of belligerents," and of a declara- tion as to acts of willful violation of international duties, which might either be in- serted in the Article or made at the time of the exchange of ratifications. Having learnt, on the 7th instant, that the Government of the United States enter- tained objections to the use of the expression " acts of belligerents," Her Majesty's Government informed yon that they were willing to change it to " acts of war.'' Her Mtyesty's Government believe, therefore, that they have met all the objections, so far as they have been informed of them, which have been from time to time ad- vanced to the anggestions which they have made, and that this recapitulation of the negotiation shows that unless Her Majesty's Qovcrumeut have erred in their view of the probable intention of the Senate, the two Governments are substantially agreed, or that, if there is any difference between them in principle, it is reduced to the small- est proportions. On the other hand, the objections which Her M^esty's Government entertain and have expressed to the language of the amendments made by the Senate, are founded upon reasons to which they attach the greatest importance, though they think it possi- ble that the Senate did not intend to use that language in the sense which, according to the view of Her Majesty's Government, the words properly bear. anccs which them selves, ;JOth of May, II the recent ely: he Case pro- 1 of Arbitra- aericau coin- se ; the pro- war and the ity of Wash- growiuf;; out I to commit I of due dili- Y the United hat the said that claims as resulting bled to com- perfonnance LT guide the ;ate8, hy and nke no claim aiieva, in re- E. Thornton te was capa- Government ement could ra Mr. Fish, Ijetween the ice upon the to express lan the tele- [iroposed by led for, and 3th of May) ;wo govera- ;he Govern - ;ter to you by the Sen- le intention to believe, n principle, jses arising ~ a declara- ither be in- sates enter- r Majesty's yar." objections, o time ad- tion of the eir view of lly agreed, the small- ertain and re founded k it possi- , according T CORRESPONDENCE RESPECTING (JENEVA ARIUTRATION. 575 The (io\ drnment of the United StateR have stated, in the telegraphic messago from Mr. Fish to which I have already referred, that there are some cases not provided for in the words suggustod by Her Majesty's Government on the 30th of May. If tlie Gov- crnuiciit of the United States are of opinion that these cases are not covered by the last proposed form of Article, and will state what are the ci»scs in question, Her Majesty's Government cannot but think that the two Governments might probably agree upon a form of words which would meet them, without being open to the objec- tions which they have felt to the wording of the Article as proposed by tiie Senate. Her Majesty's Government have never put forward their words as an ultimatum, and they will be willing to consider, at the proper time, other words, if an adjournment is agreed upon. I havu much pleasure in taking advantage of the present occasion to request yon to convey to the Government of the United States the appreciation by Her Majesty's (iovornmcntof the frank and friendly declaration contained in your letter to me of the (3th instant, respecting the last paragraph of the draught Article. Her Majesty's Government had never supposed that the Government of the United States had differed from Her Majesty's Government in the sense attached to that por- tion of the Article, but they look upon the declaration made in your letter as an addi- tional proof of the anxiety, which they are confident is shared by both Governments, of bringing the negotiation to an honorable and successful issue. I have tlie honor to be, with the highest consideration, sir, your most obedient, humble servant, GRANVILLE. No. 105. Mr, Fish to Oeneral Schenck. [Telegram.] Department of State, Wa8hington, June 13, 1872. Telegraph aud write to Davis, Hotel Beau Rivage, Geneva, as follows : See my telegrams to Schenck of second and ninth June. If arguments are filed in good faith, without offensive notice, we will assent to their motion for adjournment. FISH. [From British Blue Book " North America," No. 10, (1872,) p. 2.] Ifo. 106. Earl Granville to Lord Tenterden. Foreign Office, June 12, 1872. My Lord : Should the Arbitrators inqnire for how long a period the adjournment requested in the note which you are instructed in my other dispatch of this day's date to present to them, is desired, you should state that Her Majesty's Government understand that in order to afford time for the consideration of a supplementary convention by the Senate in the session commencing in December, it would be requisite that the adjournment should be for a period of eight nionthS) with power for the Arbitrators to meet at any earlier date, upon being convened for that purpose by the secretary, on the joint request in writing of the Agents of the two Governments. I am, &c., GEANVILLE. 576 TREATY OP WASHINGTON [From British Blue Book " North America," No. 10, (1872,) p. 2.] No. 107. Uarl Oranville to Lord Tenterden. Foreign Office, June 12, 1872. My Lord : Sir Koundell Palmer having consented, at the request of Her Majesty's Government, to attend the meeting of the Tribunal of Arbitration on the 15th instant as Her Majesty's Counsel, I have to instruct you to be fruided by his advice in all your proceedings. I am, &c., GRANVILLE. [FroDJ British Bine Book " North America," No. 10, (1872,) p. 2.] No. 108. Earl Oranville to Lord Tenterden. Foreign Office, June 12, 1872. My Lord : If any circumstances not provided for should occur while you are endeavoring to obtain an adjournment according to your in- structions, you will telegraph the particuLars to me and ask for instruc- tions. I am, &c., GRANVILLE. [From British Blue Book " North America," No. 10, (1872,) p. 2.] No. 109. Lord Tenterden to ^arl Oranville. Genev.i, Tune 14, 1872. (Received June 21.) My Lord : I have the honor to report that I arrived here this morning, in company with the Lord Ciaei: Justice, Sir R. Palmer, Mr. Sanderson, Mr. Lee Hamilton, and Mr. Langley. Count Sclopis, Baron Itajuba, Mr. Adams, and Mr. Bancroft Davis, together with the United States Counsel, Mr. Evarts, Mr. Gushing, and Mr. Waite, are here, and M. Staempfli is expected to arrive this evening or to-morrow morning. The meeting of the Tribunal has been fixed for 12 o'clock to-morrow, the 15th instant, in pursuance of the resolution adopted on the 16th of December last. I 1 am, &c., TENTERDEN. <-'c)Uin:sr<)M»i:NCK kesimxiinj! (iKNK\A akiutkatkjn. .")77 No. IH). Mr. Jhtc'iH to Mr. Fish. [T»>le|;riiin.] Geneva, June l.'>, 1872. (Kowivcd al (l.-lo p. in.) Our nrgiiineiit prescMitod. Tenteidoii i»r(\soiit.s note in loiin alnlo^3t identical with (Jranville's note of 10th to Sehonck, of which you liave copy, and says ho i.s in.strncted to withhold Jiiitish argument. Tribunal adjourns till Monday lor con.sultution on our side. DAVIS. No. 111. Mr. Fhh to Mr. ])ai'i.-i. [Telegram.] DEPAiiT:MENr OF State, Wash! ny ton, June 18, 1872. If there is to be an adjournnuiit, let it be not beyond first January, so as to allow time for a Treaty, if one be agreed upon, to be submitted to the Senate in December, and theieafter for the necessary legislation respecting flsh^^T'les, assessors, &c. The President sees no objection to such adjourniaent, if asked for by the defendants, and nothing objec- tionable shall have been presented. You and Counsel will understand, and, if necessary, can say, that there can be no extra session of the Senate called ; and there will bo no extra session in ^Marcli. FISH. ■.I No. 112. Mr. Davis to Mr. Fish. [Telegraui.] Geneva, June 10, 1872. (Received 4.50 p. m.) Tribunal will this morning make declaration reciting British motion for adjournment, and reasons given for making it, namely, the difi'er- euces between the Governments as to competency of Tribunal to deter- mine the three classes of indirect claims, and then continues : The Arbitrators do not propose to express or imply unv opinion upon the point thus in diifereuce between the two Governments as to the interpretation or efioct of the Treaty, but it seems to them obvious that the substantial objoct of the a(\journmeut must be to give the two Governments an opportunity of determining whether the claims in question shall or shall not be submitted to the decision of the Arbitrators, and that any difference between the two Governments on this point may make the adjournment unproductive of any useful effect, and after a delay of many months, during which both nations may be kept in a state of painful suspense, may end in a result which it is to be presumed both Governments Avould equally deplore, that of making ^his arbitration wholly abortive. This being so, the Arbitrators think it right, to state that after the most careful perusal of all that has been urged on the part o Government of the United States in respect of these chums, they have arrive J, •. - 37 A— II I I \ \ I j i .78 TREATY OF WASHINGTON. vidually and collectively, at the conclusion that these claims do not constitnte, Tii>on the principles of international law applicable to such cases, good foundation for an award of compensation or compntation of damages between nations ; and should, npon snch principles, be wholly excluded from the consideration of the Trilmnal in makinu; its award, even if there were no disagreement between the two Governments as to the competency of the Tribunal to decide thereon. With a view to the settle- ment of the other claims, to the consideration of which by the Tribunal no exception has been taken on the part of Her Britannic Majesty's Government, the Arbitrators have thought it desirable to lay before the parties this expression of the views they have formed upon the question of public law involved, in order that, after this declara- tion by the Tribunal, it may be considered by the Government of the United States whether any course can be adopted respecting the first-mentioned claims which would relieve the Tribunal from the necessity of deciding upon the present application of Her Britannic Majesty's Government. ])Ayis. Xo. 113. Mr. Bavis to Mr. Fish. [Telegram.] Geneva, June, 19, 1S7L*. (liecjeived at G p. in.) The Counsel write me as follows : AV^o are of the opinion that the .announcement this day made by the Tribunal must be received by the United States as determinative of its judgment upon the (juestion of public law involved, upon which the United States have insisted upon taking the opinion of the Tribunal. We advise, therefore, that it should be submitted to, as pre- cluding the propriety of further insisting upon the claims covered by this declaration of the Tribunal, and that the United States, with a view of maintaining the duo course of the arbitration on the other claims without jidjournmeut, should announce to the Tribunal that the said claims covered by its opinion will not be further insisted upon before the Tribunal by the United States, and may be excluded from all consideration by the Tribunal in making its award. DAVIS. No. 114. ^fr. Fish to General Schenvl: [Telegram.] Department of State, Washingtorij June 22, 1872. Send following by telegraph, and also by mail, without delay, to Davis, Geneva : [Mr. Fish to Mr. Davis.'] Your telegram of 19tli informs me that the Tribunal has made .a declaration stating that the Arbitrators have arrived at the conclusion that a class of the claims set forth in the Case proseuted in behalf of the United States do not constitute, upon thei prin- ciples of international law applicable to such coses, a good foundation for an award of compensation or computation of damages between notions, and should, upon such principles, be wholly excluded from the consideration of the Tribunal in making up its award. You also inform mo that the Counsel of this Government before the Tribunal at Geneva have advised in writing that they are of opinion that the announcement thus titute, upon ation for an and should, Tribunal in iovernments (> tbo settle- no exception 3 Arbitrators B views they this declara- Inited States which would pplicatiou of DAVIS. t l». m.) ribunal must he question of u taking the ted to, as pre- 8 declaration he duo course nounco to the nsisted upon consideration DAVIS. ATE, 22, 1872. y, to Davis, ation stating lima set forth pon the prin- r an award of \Ci, upon such in making up le Tribunal at fnceinent thus CORRESPONDENCE RESPECTING GENEVA ARBITRATION. O 79 made by the Tribunal must bo received by the United States sis determinative of its Judgment upon the ([uestion of public law involved, upon which the United States have insisted upon taking the opinion of the Tribunal ; that the Counsel advise, th(ded from its consideration by the Tribunal in making its award. I have laid your telegrams before the President, who directs me to say that li« accepts the declaration of the Tribunal as its judgment upon a (inestion of public law, which he had felt that the interests of both Governments required should be decided, and for the determination of which he luid felt it important to present tlio claims referred to for tlie purpose of taking the opinion of the Tribunal. This is the attainment of an end which this Governmtint had in view in the putting forth of thost, claims. We had no desire for a pecnniary award, but desired an expres- sion by the Tribunal as to the liability of a neutral Ibr claims of that character. The President, therefore, further accepts the opinion and advice of thci Counsel as set forth above, and authorizes the announcement to the Tribunal that he accepts their declara- tion as determinative of their Judgment upon the important question of public law upon which he had felt it his duty to seek the expression of their opinion; and that in accordance with such judgment and opinion, from henceforth ho regards the claims set forth in the Case presented on the part of the United States for loss in the transfer of the American commercial marine to the British Hag, the enhanced payment of insur- ance, and the prolongation of the war, and the addition of a large sum to the cost of the war, and the suppression of the rebellion, as adjudicated and disposed of; and that, consequently, they will not be further insisted upon before the Tribunal by the United States, but are henceforth excluded from its consiileratiou by the Tribunal in making its award. FISH. No. 115. Mr. Darin to Mr, Fish. [Telegram.] Geneva, June 25, 1872. (Received at 8 p. m.) Couusel write me reganliug the statement sent Sclienck for you to-day : We concur in the form of communication to the Tribunal of the action of our Gov- ernment which vou propose to make. DAVIS. No. IIG. General Sclienck to Mr. Fish. [Telegram.] London, June 2G, 1872. (Received at 11 a. m.) Davis telegraphs as follows : IMr. Davis to Mr. Fink ] At the Conference couveaed this day [June 35] by Count Sclopis, I said tbe declara- tion made by the Tribunal, individually and collectively, respecting the claims pre- sented by the United States for the award of the Tribunal for, first, the losses in the transfer of the American commercial marine to the British tiag ; second, the enhanced mmmmmtmmi 580 TREATY OF WASHINGTON. i)ayniciit of iusmaiicc ; and third, the i»ioloiigt.Hoii of the war, and the addition of a argo snra to tlie cost of the war and the 8upj)ros8iou of the rebellion, is accepted l)y the President o? the United States as deterndnative of theii judgment upon tlie im- portant question of public law involved. The Agent of tne United States is authorized to say that consequently the above-nientioued claims will not be further iusi'ted upon before the Tribunal by the United States, and may bo excluded from ali consideration in any award that may bo made. To this Lord Tenterdon replied : "I will inform my Government of the dcclaratioQ made hy tb" Arbitrators on the I'Jth instant, amd of th*^ statement now made by the Agent oi the United States, and rtMjuest their instructions." The Tribunal then adjourned to Thursday at 11, to enable him to communicate by tele- graph with his Government. sche:\ck. No. 117, Mr. Schenclc to Mr. Fish. [Telegram.] London, June 27, 1872. (Keceived at 12 in.) Duvis tele{»rai)lis me to send you the following : lilr. Davis to Mr. FMi.l Lord Tciitcrdeu will say this day to Tribunal, Her Majesty's Government linding tlie communication on the part of the Arbitrators recorded in the I'rotoco' of their pro- ceedings of the 19th instant nothing to which they cannot assent consistently with tlieir view of the interpretation and effect of the Tnnity of Washington, hitherto maintained by them ; and being informed of the statement made ou the 25th instant by the Aj^ont of the United States, that the several claims particularly mentioned in that 8ta{"m",nt will uot be further insisted upon before the Tribunal by the United States, and may bo excluded from all consideration in any award that may be made, antl assuming that the Arbitrators will, upon such statement, think fit now to declare that the said several claims are, and from henceforth will be, wholly excluded from their consideration, and will embody such declaration in their I'rotocol of this day's proceed- ings, they have instructed the undersigned, ujwn this being done, to request leave to withdraw the application made by him to the Tribunal on the loth instant for such an adjournment as might enable a 8uppleni*?-.t?ry convention to be concluded and ratified between the High Contracting Parties, and to request leave to deliver the printed argu- ment now in the hands of the undersigned, which has been prepared ou the part of Her Britannic Majesty's Government, under the fifth Article of the Treaty. With reference to the other claims to the consideration of which, by the Tribunal, no exception has been taken on the x)art of Her Majesty's Government. SCHENCK. No. 118. Mr. Davis t<^ Mr. Fish. [Telegram.] Geneva, Jtme 27, 1872. (Received at 3.45 p. ni.) British argiuneut filed. Arbitration goes ou. DAVIS. ("CKKESPOXDENCK HKSPECTING GENEVA ARBITRATION. oSl dditiou of a vccepted by [)ou the im- i authorized si'- ted upon )U8ideration 1 inform my t, and of the istructious." cate by tele- it 12 III. t tinding the of their pro- stently with on, hitherto 25th iustaiit aeutioncd in ' the United je made, and declare that 1 from their ly's proceed- ie8t leave to ; for such an and ratified rinted arjju- i l)art of Her itli reference ceptiou haH ENCK. 5 p. in.) xVVlS. [From Mritish IJhie Book ''North America," No. 10, (1^*7-2,) p. \2.'\ Xo. 119. Earl Gmnvillc to Lord Tcnterden. Foreign Office, Jfdi; 1, 1872. My Lord: I have received and laid before the Queen your several dispatches reporting your proceedings at Geneva, between the 14th and 28th idtimo, and I have to convey to you Her Majesty's entire approval of the able and prudent manner in which you have acquitted yourself iu the discharge of t)ie important and delicate duties with which you were intrusted. Her Majesty appreciates to its full extent the value of the assistance which Sir Roundel! Palmer was good enough to alford, at no small per- sonal sacrifice, in the solution of a «iuestion of such importance ; and, although I shall convey directly to Sir Eoundell Palmer the thanks of Her Majesty's Government, I think it right to i)lace on official record Her Majesty's gracious sentiments, and you will have the goodness to furnish him with a copy of this dispatch. I should not do justice to the feelings of Her Majesty's (Jovernment if I did not at the same time acknowledge the conciliator^' s[)irit shown by your American colleagues. And, although the existence of such good feeling, on the part of the .i . ^ts of the two countries, facilitated the deliberations of the Arbi- rr>v. ( '•s in dealing with the question which first engaged their attention, it is still the duty of Her Majesty's Government to acknowledge the thoughtfulness and wisdon'. which caused them to adopt and act on the conclusions at which they spontaneously arrived. I am, &c., GRANVILLE. * Xo. 120. Oeneral Schencl- to Mr. Fish. No. 2U0.J Legation of the United States, London, August 1 2, 1872. (Received August 23.) Sir: { u S;'iL-.irday, the 30th instant, the day on which Parliament was pi. 'f' cnorl i did not receive official copies of the Queen's speech iu time for th, 'r-iil of that day. I foiward now, herewith, two copies. You wi" i ^,*"' e what Her Majesty is made to say in regard to the declaratioi: tf .ae Arbitrators at Geneva on the subject of the claims for indirect losses; that it is entirely consistent with 1 he views which she announced, at the opening of tlie sess-ion. On tie contrary, the ground taken in ilie Queen's speech in T'ebi'iary latt was, that the United States had put forward certain claims winch Her Majesty's Government held not to be within the scope of the Treaty. But the Arbitrators studiously avo'ded giving any opinion on that point, and CO" "i!K'>^ themselves to an expression of opinion, in effect by the Tribunal, that rinut reference to the question of aduiissibility or inadmissibility of such if'- ander the Treaty, they could not, under the principles of public law , be considered in making up an award, because of their re- mote or consequential character. I have, «&c., liOBT. C. SCHENCK. 582 TREATY OF WASIflNGTON |Iiiclu our part it on the me, Id an 3r on the nan he is tain cou- a condi- adstone's y be well ;iou with ed by iii- rst inter- Sir John e British lat could rnments, le to the 3 a joint an which ernment At this lould, in Jabania, chat had iss than ed with.^ January, i to him. < read to to him ; lontially and did irport of on 24th ig to the COKRESPOXDENCE RESPECTING GENEVA ARBITRATION. 587 Hdmi.ssiou of lijibility on the Alabama claims, that " on consultation, I had concluded that it was not best to make that specitic statement, but instead thereof, to say that it would he essential that some important con- cessions should be made as to that class of claims, and some expression of regret at tvhat had been done.^ My language in the paper was : " It is necessary, and due to candor, to note that, unless Great liritain is willing to, and to express some kind words of regret for past occur- rences, it would be better to take no steps.'' Sir John gave me a copy of a telegram Avhich he sent to Lord (Jran- ville, bearing date January 24, in which occuis the following sentence : " The Government hope, also, that in the course of the Protocols some expressions of regret not inconsistent with the dignity of England, nor involving admission of national wrong, may be made." We had now progressed so far as to render the appointment of the Joint Commission a strong probability, and I desired official assurance that the British Gov- ernment icould make the expression of regret, without which we should have proceeded no further. I was then furnished a copy of a telegram from Earl Granville to Sir Edward Thornton, dated 25 January, 1871, saying : " We adhere to arbitration as to the point of international law on the Alabama ((uestion, hut we should express regret at the fact of escape and depredations ; we do not object to points properly selected for arbi- tration," «&c., &c. Having this assurance, the notes between Sir Edward Thornton and myself, preliminary to the appointment of the Commission, were passed. I am, &C., HAMILTON FISH. No. 12G. General Schenck to Mr. Fish. No. 353.J Legation of the United States, London, March C, 1873. Sir : The receipt of your No. 329, correcting the error of Mr. Glad- stone in his statement made in Parliament, that the expression of regret by Great Britain contained in the Treaty of Washington " was not in the nature of a condition precedent," has already been acknowledged. You say that, without a desire to provoke anj'^ discussion, it may be well to place in the archives of this legation some facts in connection with the question. And I do not understand that you deem it neces- sary to have me bring your dispatch on the subject, at present, to the notice of Her Majesty's Government. But I cannot forbear, before filing- it away, to express to you my great satisfaction that you have thus made authentic record of the facts on this point which preceded the negotiation of the Treaty. Although not needed as confirmatory evidence, I venture to set down also my testimony on the subject. Being at Washington, holding my appointment as Minister to Great Britain, but instructed by the President not to proceed to my post, but to remain and await the issue of the unoflflcial preliminary negotiations between you and Sir John Rose, because in case of agreement between 588 TREATY OF WASIIIXGTON. tbe two (.irovcrniuents to create a Joint Commission 1 wuh to be noin- inated one of the Commissioners on the part of the United States, I liad the honor to be confidentially informed and consulted during the preparatory steps. I well remember that, from the beginning, you re- quired official assuran 'J that the British Government would make ex- l-r^ssion of regret for what had taken place in regard to the Alabama and other cruisers, declining to pass the preliminary notes with Sir Edward Thornton until this, among other things, was distinctly under stood. I am, &c., ROBT. C. SCIIENCK. THE AMERICAN COMMISSIONERS AM> THK STATEMENT OF SIE STAFFORD NORTHCOTE, AT EXETEI!. IX HKLATIOX TO AX ALLEGED TKOMISE OF EXCLUSION OF THE INDIRECT CLAIMS OF THE UNITED STATES, J N. TABLE OF CONTENTS. I'llgc. No. 1. A i»a8MaK«! f'lom ii njk^ccIi of Sir Stullord Noitlicotts ;it ExctiT, May 17, 1H72, as published in tb« Pall Mall Gazette of May IH .')!>:{ 2. Extract lioin the London Times of May SJO, 1872, giving a reitoit of tin- Hpecch of Sir Stafford Northcote, at Exeter yx\ :{. Extract from an instruction of Mr. Fish to Ueneral Scbenck, .June :{, 187'-^ , .-.iu; 4. Copy of a letter of Mr. Fish addressed to eucb of tbo American Com- missioners -,i)7 '). Letter of Judge Hoar, in answer to Mr. Fish's letter of Jr.ni) fi ........ ',l)H ti. Letter of Judge Nelson, in answer to Mr. Fish's letter of J uue ;{ iVJH 7. Letter of General Scbenck, in answer to Mr. Fish's letter of Juno 3 .">9!) 8. Letter of Judge Williams, in answer to Mr. Fish's letter of .June '\ (JOO J>. Extract from tbo 3()tb Protocol o' the Confereuces of the Joint High Commission OOj 10. Extract from a speech of the Marquis of Ripon, in the House of Isolds', .June 4, 1872, taken from the Loudon Times of June 5, 1872 cm 11. Letter of Sir Stafford Northcote to Earl Derby, June 5, 1872, read in tins House of Lords Juno G, taken from the report of the proceedings in the House of Lords, in the London Times of June 7 m:\ SIR STAFFORD NORTHCOTE S DECLARATION. No. 1. A passage from a speech of Sir Stafford NortJcote, delivered on the nth day of May^ 1872, before the Exeter Cl^amber of Commerce, as published in the Pall Mall Qas^ette of May 18. " Two questions have been raised : one a personal question, as to what was the understanding between the Commissioners at the time the Treaty was negotiated ; and, second, a general one as to the claims for con- sequential damages, or indirect claims. With regard to.the personal question I will only say t .lis — that we, the Commissioners, were distinctly responsible for having represented to the Government that we under- stood a r.omise to be given that these claims were not to be pot for- ward by the United States. But if we are to maintain that position, we of course must be brought into painful relations, and perhaps painful questions, between ourselves and cur American colleagues upou that Commission. No. 2. Bxtract from the London Times of May 20, 1872, giving a report of the speech of Sir Stafford Northcote at Exeter. SIR STAFFOUD NORTHCOTE ON THE ALABAMA NEGOTIATIONS. We gave a brief telegraphic anramary in the Times of Saturday of a speech delivered by Sir Stalibrd Northcote at Exeter. The right honorable gentleman spoke ou several topics of in orest, the chief of which was the question of the Alabama claims. We subjoin a fuller repovt of this portion of his speech. "I need n;*t tell you," he said, '" that this has been a year of great anxiety and of great t.'ouble to us all connected with the questions raised under that Washington Treaty. And perhaps you will forgive my saying that to myself per- sonally the time we have been going through has been of very con- siderable anxiety, [he he says they represented to their Government as having been made, 1 am bound most respect- fully but most emphatically to deny. I cannot conceive from what he has imagined it, as the only direct allusion to the three classes of claims (called the " indirect claims") was that made on the part of the Ameri- can Commissioners on the 8th day of March, and is set forth in the 36th Protocol in the words in which it was made. The British Government has, in the correspondence which has recently taken place, endeavored to construe the withholding of an estimate of those " indirect claims " in connection with a proposition on behalf of this Government, which was declined by the British Commis- sioners, into their waiver. I have already discussed that question, and s s P r< S S( a S .hj and 8IR STAFFORD NORTHCOTE's DECLARATION. 697 shall not here again enter upon its refutation. The Protocols and the stat^einent approved uy the Joint Commission furnish the substant'al part of what passed on that occasion. I am at a loss to conceive what representation, outside of the statement made in the 36th Protocol, Sir Stafford Northcote can have made to bis Government. He refers to some "personal question," something which, until 'the time of his address, he and his colleagues had been under oflQcial restraint from dis- cussing, but the Protocols and the statement to which I have referred had been before the public, both in Great Britain and in the United States, for nearly a year before his declaration. It is only within a day or two that the .iournals containing his address have reached me. I .have this day addressed a letter to yourself and to each of our colleagues on the Commission, calling attention to Sir Stafford's statement, and in due time may rmke public the correspondence. I am, sir, your obedient servant. General Robert C. Schenck, ner of it. That you may better understand this, I send you, from the Times, a fuller report of his remarks than is contained in the extract you have inclosed me from tbe Pall Mall Gazette. In reply to your appeal to me on the subject, I have no hesitation in saying distinctly and emphatically, sis one of the American Commission- ers, that if any promise of tbe kind mentioned by Sir Stafford North- cote was given, I had no knowledge of it whatever ; nor do I believe that any such promise was made by ray American colleagues of the Joint Commission, or by either of them, individually or collectively. W^hat might have been the "understanding*' of the British Commis- sioners it is impossible for me to say. Their high character as honora- ble gentlemen forbids my doubting for a moment the assertion of either of tbem when he states that such an impression existed in his mind. The American Commissioners can only answer for what they themselves may have said or done to give just or suificient occasion for any under- standing of ^hat sort. 600 TREATY OF WASHINGTON. I would comment further on tbe langnuge employed by Sir Stafford in •connection with his statement, and on what that language, as reported, seemed to imply; but a letter of his afterward addressed to Lord Derby, which it seems you could not have seen when you wrote to me, has been read in Parliament and published, giving quite a different view of the matter. It is not left now to be suspected that the British Commission- ers were misled or deceived by some private communication made to them. In the letter to Lord Derby, a copy of which I send you here- with. Sir Stafford explains that the ground of his " understanding" was the statement made by the American Commissioners at the opening of the conference on the 8th of March, and which is set forth in the Pro- tocol ; but that he did not rely even upon that, or on anything outside of the Treaty itself, to support his conclusion. How this opinion, founded on the terms of the Treaty and the words of the Proctocol, which are open for interpretation to all the world, should "bring the British Commissioners into painful relations with their American colleagues," and cause "painful questions to arise between them,^ I do not comprehend. It is enough to know that the proof of the " promise" is claimed now to be derived inferentially from the language of the Treaty and Proctocol; and f am sure that differences of opinion as to the meaning to be assigned to those documents ought to bo and can be discussed without any need or danger of making the contro- versy a " personal question." I am, my dear sir, very sincerely and truly yours, ROBT. C. SCHENOK. No. 8. Letter of Judge Williams in ansicer to Mr. Fish's letter of June 3. Department of Justice, Washington, June 24, 1872. Sir : I have the honor to acknowledge the receipt of your letter of the 3d instant, inclosing an extract from an address by Sir Stafford Northcote in the Exeter Chamber of Commerce, in which he says, referring to the claim for consequential damages under the treaty of Washington: "We (the British Commissioners) understood a promise to be given that these claims were not to be put forward by the United States." I have no means of knowing what the British Commissioners under- stood upon that subject, for an understanding may be founded upon an inference or an argument; but if Sir Stafford Northcote means to say that any promise as to said claims, noc found in the Treaty or Proctocol accompanying it, was given by the American Commissioners, I am pre- pared respectfully to controvert the assertion. I was never a party to any such promise, nor did I ever hejir of anything of the kind, and the probabilities that it was made are not very strong, for the British Com- missioners must have known that any promise modifying the Treaty would have no validity if not submitted to and approved by the Senate of the United States, which, of course, could not be the case with any such promise, of the existence of which there is no written evidence. I SIR STAFFOBO NOETHCOTE's DECLARATION. 601 presume, if Sir Stafford Northcote nsed the language imputed to him, that he was betrayed into an inaccuracy of expression, and that he only intended to say the British Commissioners understood that the claim for consequential damages was not to be put forward, and not that any promise to that effect, outside of his construction of tne Treaty and Pro- tocol, was given by the American Commissioners. Yours, very truly, GEO. H. WILLIAMS. Hon. Hamilton Fish, Secretary of State. No. 9. Extract from the 36th Protocol of the Conferences of the Joint High Com- mission. At the conference held on the 8th of March the American Commis- sioners stated that the people and Government of the United States felt that they had sustained a great wrong, and that great injuries and losses were inflicted upon their commerce and their material interests by the course and conduct of Great Britain during the recent rebellion in the United States ; that what had occurred in Great Britain and her colonies during that period had given rise to feelings in the United States which the people of the United States did not desire to cherish toward Great Britain ; that the history of the Alabama, and other cruisers, which had been fitted out, or armed, or equipped, or which had received augmenta- tion of force in Great Britain, or in her colonies, and of the operations of those vessels, showed extensive direct losses in the capture and destruction of a large number of vessels, with their cargoes, and in the heavy national expenditures in the pursuit of the cruisers, and indirect injury in the transfer of a large part of the American commercial marine to the British flag, in the enhanced payments of insurance, in the pro- longation of the war, and in the addition of a large sum to the cost of the war and the suppression of the rebellion, and also showed that Great Britain, by reason of failure in the proper observance of her duties as a neutral, had become justly liable for the acts of those cruisers and of their tenders ; that the claims for the loss and destruction of private property which had thus far been presented amounted to about fourteen millions of dollars, without interest, which amount was liable to be greatly increased by claims which had not been presented ; that the cist to which the Government had been put in the pursuit of cruisers could easily be ascertained by certificates of Government accounting ofiScers; that in the hope of an amicable settlement, no estimate was made of the indirect losses, without prejudice, however, to the right to indemnifi- cation on their account in the event of no such settlement being made. The American Commissioners further stated that they hoped that the British Commissioners would be able to place upon record an expression of regret by Her Majesty's Government for the depredations committed by the vessels whose acts were now under discussion. They also pro- posed that the Joiut High Commission should agree upon a sum which 39 A— n 002 TREATT or WASHINOtON Ihoald bd paid by Greftt Britain to ttie United States in satisfaction of all the claims and the interest thereon. The British Oommissioners replied that Her Majesty's Government could not admit that Great Britain had failed to discharge toward the United States the duties imposed on her by the rules of international law, or that she was justly liable to make good to the United States the losses occasioned by the acts of the cruisers to which the American Oom- missioners had referred. They reminded the American Oommissioners that several vessels, suspected of being designed to cruise against the United States, including two iioa-clads, had been arrested or detained by tbb British Government, and that that Government had in some in- stances not confined itself to the discharge of international obligations, however widely construed, as, for instance, when it acquired, at a great cost to the country, the control of the Anglo-Chinese tiotilla, which, it was apprehended, might be used against the United States. They added that although Great Britain had, from the beginning, dis- avowed any responsibility for the acts of the Alabama and the other vessels, she had already shown her willingness, for the sake of the main- tenance of friendly relations with the United States, to adopt the prin- ciple of arbitration, provided that a fitting Arbitrator could be found, and that an agreement could be come to as to the points to which arbi- tration should apply. They would, therefore, abstain from replying in detail to the statement of the American Commissioners, in the hope that the necessity for entering upon a lengthened controversy might be ob- viated by the adoption of so fair a mode of settlement as that which they were instructed to propose ; and they had now to repeat, on behalf of their Government, the offer of arbitration. The American Oommissioners expressed their regret at this decision of the British Oommissioners, and said further that they could not con- sent to submit the question of the liability of Uer Majesty's Government to arbitration unless the principles which should govern the Arbitrator in the consideration of the facts could be first agreed upon. The British Oommissioners replied that they had no authority to agree to a submission of these claims to an Arbitrator with instructions as to the principles which should govern him in the consideration of them. They said that they should be willing to consider what princi- ples should be adopted for observance in future ; but that they were of opinion that the best mode of conducting an arbitration was to submit the facts to the Arbitrator, and leave him free to decide upon them after hearing such arguments as might be necessary. The Araericais Commissioners replied that they were willing to con- sider what principles should be laid down for observance in similar cases in future, with the understanding that any principles that should be agreed upon should be held to be applicable to the facts in respect to the Alabama claims. The British Commissioners replied that they could not admit that there had been any violation of existing principles of international law, and that their instructions did not authorize them to accede to a pro- posal for laying down rules for the guidance of the Arbitrator ; but that they would make known to their Government the views of the Ameri- can Commissioners on the subject. At the respective conferences on March 9, March 10, March 13, and March 14, the Joint High Commission considered the form of the declara- tion of principles or rules which the American Oommissioners desired to see adopted for the instruction of the Arbitrators, and laid down for ob- servauce by two Governments in future. \ SIR STAFFOltD NORTHCOTE's DECLARATION. 603 At the close of the conferoDce of the 14th of March the British Gom- liiidsiotiers reserved several qaestions for the consideration of their Qor- ernment. Note.— Thia Prootoool coDtains the only statement with respoot to the " indireot losses" made by the American Commisaloners. (See also No. X, extract of Marquis of Kipon's speech.) It was officially published, both in Oreat Britain and in the United States, nearly a year before the meeting of the Exeter Ciiamber of Commerce, of May 17, 1878, havine been laid before both Houses of Parliament about the 3d June, 1871, and printed in British Parliamentary Papers, North America, No. 3, 1871, which was reCaircNi at the Department of State June 20, 1871. No. 10. Extract from a speech of the Marquis of BipoHj in the House of Lords ^ June i, 1872; taken from the London Times of June 5, 1873. My Lords : There seems to have got abroad an opinion that Her Mf^jes- ty's Commissioners at Washington, last year, relied on what has been described as a secret understanding subsisting l)etween them and the American Oommissioners, that these indirect claims would not be brought forward. I should entirely agree with an opinion which I believe was expressed a day or two ago by a noble and learned lord, who generally sits •behind me, (Lord Westbury,) that if Her Majesty's Commissioners had been induced, by any such understanding, to employ language which, in their judgment, admitted these claims, they would be liable to just and severe blame. But I distinctly deny, on the part of those who were engaged in these negotiations, that that was the case. We may have failed or we may have succeeded in employing language which excludes these claims. I will not detain your lordships now by enter- ing into any elaborate argument on that subject, so fully stated in the correspondence on the table ; but, whether we failed or whether we suc- ceeded, we were not induced to employ language which we considered would admit those claims by any consideration of that kind, and which, in this correspondence, is described as a waiver. On the 8th of March, as referred to in the Froctocol, these claims were mentioned by the United States Commissioners — mentioned in a manner which, in sub- stance, is described in that Proctocol on your lordships' table / and through- out the course of th& subsequent negotiations these claims were not again brought forward. No. 11. Letter of Sir Stafford Northcote to Earl Derby, June 5, 1872, read in the House of Lords Jun6 6 ; taken from the report of proceedings in the House of Lords in the London Times of June 7. THE TREATY OF WASHINGTON. The Earl of Derby : My Lords, before the order of the day is called on, I may be allowed to trespass on your lordships' attention for one moment. I have received, since the debate of the night before 604 TBEATT OF WASHINGTON. iMt, a letter from my Bight Honorable friend Sir Stafford Xorthcote, one of the Gommissioners who negotiated the Treaty of Washington, which. a« it involves a matter of personal explanation respecting a statement which had been made by him, and referred to in this House, I have been requested to read to your lordships. It is as follows : 86 Harlvt Strkkt, W., June 6, 1879. Dkar Lord Derby: I observe that, in yonr speeoh in tbe Hoqm of Lords last niffht, yoD referred to a recent statement of mine with regard to the negotiations at Washiuston in a manner which shows me that yon, as well as many other persons, baye misnnderstood my meaning. It has been supposed, and you seem to have supposed, that I said that an under- standing existed between the British and the American negotiators that the claims for indiraot losses should not be brought forward ; and it has been inferred firom this that we, relying upon that understanding, were less careful in framing the Treaty than we should otherwise have been. This is incorrect. What I said was, that we had represented to our Government that we understood a promise to have been given that no claims for indirect losses should be brought forward. In »o saying, I rrfnred to the etatement voluntarily and formally made hy the Amerioan Commiesionert at the opening of the conference of the 6th of Marehf which 1, for one, understood to amount to an engagement that the claims in question should not be put forward in the event of a treaty being agreed on. I will not enter into a discussion of the grounds upon which I came to that conclu- sion ; but u>ill aimply say thflt we never for a moment thought of relying upon it, or upon any other matter outeide of the Treaty itself . We thought, as I stiil think, that the Ian- guage of the Treaty was sufficient, according to the ordinary rules of interpretation, to exclnde the claims for indirect losses. At all events, we certainly meant to malte it sc. I remain, yours, very faithfully, STAFFORD H. NORTHCOTE. The Earl of Derby. « Perhaps you will kindly read this in the House of Lords to-morrow. )te, one wnioh. btemeut vebeen \, 1873. >rdfl last ktiont at penou, I nnder« a claims rom thii aty than ernment 3t losses sHIy and he 6th of laims in conola- , or upon the lan- ition, to ike it sc. 30TE.