It may be presumed that what the Government of the United States wishes to express is, that a purchase (flagrante bello) of a belligerent ship of war by a neutral, in a neutral port, has been held invalid. This is declared to be a "simple proposition." It is really very simple, and yet in the Case of the United States it seems to be misunderstood, so as to introduce a confusion as to the relative rights of belligerent and neutral.

The sale of a belligerent ship of war, cooped up by an enemy in a neutral port, has been adjudged in a prize court of that enemy to be invalid; that is, ineffectual to transfer the ownership of the ves[70] sel from the belligerent to a neutral, so as to relieve *her_from the risk of capture. This was never denied by Earl Russell, nor is it questioned by Her Majesty's government. But 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 government. Within the neutral jurisdiction, indeed, it is, if not prohibited by the local law, a perfectly valid sale, conveying to the purchaser a title to the ship, which could be displaced only by a regular sentence of condemnation in the enemy's country. If, after the sale of the Sumter, the British government had protected or undertaken to protect her at sea, as a British ship, against capture by the United States, the latter would have had just cause of complaint. But Earl Russell, instead of undertaking to do this, expressly disclaimed, in his note to Mr. Adams of the 15th January, 1862, any intention of doing so. "Her Majesty's naval and military officers at that port (Gibraltar) have received instructions not to give any protection to that vessel beyond the waters of Gibraltar." He gave Mr. 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 exposed to it when, as a freight-carrying vessel under the British flag, all her warlike fittings having been carefully removed, she left Liverpool for a port of the Confederate States. She appears to have escaped it only through the fault of the United States cruisers which had been directed to take possession of her; and, because these cruisers failed to execute their orders, Great Britain is now called upon to pay for the expenditure incurred in respect of them, as well as for prizes the Sumter had previously made when commissioned as a ship 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 prohibited in Gibraltar, the United States minister at Madrid had admitted that it might be allowed to take place in Cadiz. In a conversation with M. Calderon Collantes, on the 10th of January, 1862, which Mr. Perry after

1 This, and no more, was decided by Lord Stowell, in the case of the Minerva, Robinson's Admiralty Reports, vi, 396. It is said in the Case of the United States (p 322) that, “after reflecting upon this simple proposition for more than five weeks, Earl Russell denied it." Earl Russell did not deny it; he pointed out the misapprehension of it into which Mr. Adams had fallen; and the decision that the Sumter was not to be protected, when out of British waters, had been announced and conveyed to the officers. of the government at Gibraltar more than three months before. (See British Case, p. 19.)

2

Mr. Adams had asked "the assistance of Her Majesty's government to prevent any risk of damage to the United States from a fraudulent transaction in one of her ports; or, in default of it, of declining to recognize the validity of the transfer, should that vessel subsequently be found by the armed ships of the United States sailing on the high seas." (British Case, p. 19.)

ward reported to his own Government, the latter said, speaking of this vessel :

If they did not choose to go out to sea again, as they had entered, they might stay under the protection of the Spanish flag; and indeed their ship, if she should be sold out of their possession into honest hands, or leave all her armament and munitions of war, laying aside all pretensions to being a war vessel or a privateer of the so-called Confederate States or of anybody else, returning really and honestly to her former condition of a merchant steamer, might perhaps be liable to capture by the Navy of the United States, but she might then be repaired in Cadiz without contravening the royal decree of June 17.

THE NASHVILLE.

The case of the Nashville must fall with that of the Sumter. The supposed failure of international duty which is alleged against Great Britain in respect of the Nashville is merely this: that, having been armed and commissioned as a ship of war in a confederate port, she was, on three different occasions, admitted into British ports and suffered to coal there.

In the Case of the United States we are told that "she took on board," at St. George's, Bermuda, "by permission of the governor, 600 tons of coal, and this act was approved by Her Majesty's principal secretary of state for the colonies." By the "act" is probably meant the supposed permission of the governor. No act appears to have been done by the governor, and no permission asked or granted; but he appears (while refusing to assist the commander of the ship to obtain coal by purchase from the government stores) to have made no objection to his procuring it from private dealers, and to have placed no restriction on the quantity. No order imposing any restriction had then (October, 1861) been issued by Her Majesty's government, nor by any other [71] neutral power; *and no restriction was or is imposed by any rule of international law. No complaint as to the quantity supplied was made at the time. The amount actually shipped by the Nashville was between 400 and 500 tons.2

At Southampton the Nashville was allowed to coal, the United States ship Tuscarora being allowed to receive a supply at the same time. On her return to Charleston, she again touched at Bermuda, and obtained, from a British merchantman in that port, coal enough to assist her on her return voyage. The decision that depots of coal should not be formed in the island for the use of the cruisers of either belligerent, did not prohibit this act, as it did not afterward prevent United States ships of war from obtaining at Bermuda, on two or three occasions, like supplies when necessary. "She left," it is said, "under the escort of Her Majesty's steamer Spiteful." What is thus described as an "escort" was in truth only a necessary measure of precaution adopted by the admiral on the station. "As, when she sailed, there were several vessels in sight, some of which might have been United States, I thought it advisable," wrote Admiral Milne, "to send the Spiteful outside, to insure respect being paid to our territorial limits."3

1 See Appendix to British Case, vol. vi, p. 110.

2 See Appendix to British Case, vol. v, p. 14.

3

"

Appendix to British Case, vol. ii, p. 127; vol. v, p. 2. The following are the instructions which were given by Admiral Milne to the commander of the Spiteful on the occasion:

“ You are hereby required and directed to put to sea forthwith, in the sloop under your command, and proceed outside on the coast of these islands, with a view of preventing the confederate steamer Nashville, now about to leave the harbor of Saint

Her Majesty's government has deemed it respectful, as well to the United States as to the arbitrators, to examine the claims made in regard to these two vessels, and the reasons which have been produced to justify them. But Great Britain may surely, with some justice, complain of being called upon to meet, before a tribunal of arbitration, demands as to which the sole difficulty consists in treating them as serious, and in discovering how the arguments employed can be imagined to lend them any support whatever.

George's, from interfering in any way whatever with vessels of any nation so long as they are within three nautical miles of the shore of the Bermudas and their reefs. As soon as the Nashville is out of sight, you will return to anchorage.

"Given under my hand, on board the Nile, at Bermuda, 23d February, 1862.

[72]

*PART VI.

THE FLORIDA AND ALABAMA.

PART VL--The

In the Case of Great Britain, the facts relating to the Florida, Alabama, Georgia, and Shenandoah, were stated in considerable detail. The building of each of these vessels, her Florida and Alabama. original departure from this country, and the circumstances under which she received her equipment, and was armed, manned, and fitted out for war, were presented to the arbitrators as accurately and fully as Her Majesty's government was enabled to present them by the means of information at its command; while so much of the documentary evidence, whether favorable to Great Britain or not, as appeared 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 the time when the events respectively took place, whether brought to its knowledge by the minister of the United States or ascertained by independent inquiry, were, in this recital, kept distinct from facts which did not become known till afterward. The general course of conduct pursued by the government, in respect of equipments or apprehended equipments of ships of war within its jurisdiction, was at the same time placed before the tribunal, and attention was invited to those cases in which the means of prevention employed proved effectual, 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 chronological 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 report transmitted by him that they 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.

Her Majesty's government does not complain of this mode of statement, which has doubtless been adopted for sufficient reasons. But it manifestly imposes on the arbitrators the duty of distinguishing for themselves between allegations which are proved 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 a charge 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 that such diligence was not in fact exerted; and of this they have to be satisfied, not by assertion only, but by proof.

It has been observed in the Case of Great Britain that, in countries

where (as in Great Britain) the executive is subject to the laws, foreign states have a right to expect that the laws should be such as, in the exercise of ordinary foresight might reasonably be deemed adequate for the repression of acts which the government is under an obligation to repress, and, further, that the laws should be enforced and the legal powers of government exercised, so far as may be necessary for this purpose. But it was added that, where such laws exist, foreign states are not entitled to require that the executive should overstep them in particular cases, in order to prevent harm to foreign states or their citizens, nor that, for this purpose, it should act against the persons or property of individuals, unless upon evidence which would justify it in so acting if the interests to be protected were its own or those of its own citizens. The principle which these propositions convey is of supreme importance to all nations in which the paramount dominion of law is recognized, the protection which it secures to civil and political liberty valued, and the executive not intrusted with large and arbitrary powers. On no other terms, indeed, could such states undertake to subject themselves to any international obligations whatever. No constitutional state could reasonably be assumed to have engaged to break through or set aside its laws, in the interest of foreign nations, whenever an occasion [73] might arise for which the laws were found to have imperfectly* provided beforehand. It has been further shown that the law of Great Britain, as it existed at the time when these occurrences took place, were such as, in the exercise of ordinary foresight, might reasonably be deemed adequate for enabling the government to discharge its obligations as a neutral power. It has appeared, also, that the powers which the government possessed, to prevent fitting out, arming, and equipping within its jurisdiction of vessels intended for the naval service of the Confederate States, or the departure, with that intent, of vessels specially adapted within its jurisdiction to warlike use, were defined and regulated by law; that the law provided certain modes of prevention, and required, before authorizing the condemnation of a suspected vessel, that the facts alleged against her should be capable of proof; 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 sufficient to warrant condemnation. By proof, it was added, in a British court of law, is understood the production of evidence sufficient to create in the mind of the judge or jury (as the case may be) a reasonable and deliberate belief of the truth of a fact to be proved, such as a reasonable person would be satisfied to act upon in any important concerns of his own. And by evidence is understood the testimony, on oath, of a witness or witnesses, produced in open court, and subject to cross-examination, as to facts within his or their personal knowledge. Testimony which is mere hearsay, as to the existence of common reports, however prevalent and however generally credited, or as to any matter not within the knowledge of the witness, is not admitted in an English court. These rules, which in England have been deemed expedient for securing the due adminis tration of justice, may not be regarded as necessary in some other countries. But there was clearly nothing in them which could be supposed to be inconsistent with the dictates of natural justice; and, this being so, it was the right of Great Britain to adhere to and apply them in all cases arising within her jurisdiction, as it would be the right of Italy,

1 British Case, p. 51.