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Responsibility re

II. The United States further maintain that, it appearing as fact that Great Britain did fail to fulfill all her duties as aforefrom such said toward the United States, (Article VII,) thereupon and thereby, in virtue of the Treaty of Washington, and of the express compacts therein contained, Great Britain is bound by reason of her liability arising from such failure (Article X) to pay to the United States a sum, in gross or on assessment, for all the reclamations referred to this Tribunal, or such amount or amounts on account of said liability according to the extent thereof as decided by the Tribunal.

mission.

III. The United States find, on inspection of the Treaty of WashingScope of the sub- ton, that Great Britain has submitted to this Tribunal "all the said claims" of the United States "growing out of the acts" of the confederate cruisers aforesaid, (Article I,) without limitation, qualification, or restriction; and that, in pursuance of such general submission, this Tribunal is to examine and decide, by the express compact of the treaty, "all questions" which shall be laid before it on the part of the Government of the United States, as well as that of Great Britain. (Article II.)

IV. The United States further find as fact on inspection of the nego tiations which preceded the treaty of Washington, that the Secretary of State of the United States declared that the American Government, in rejecting a previous convention, "abandons neither its own claims, nor those of its citi zens;" that the claims thus referred to were specifically set forth in a subsequent dispatch of the same minister, as follows:

sulting

failure.

guage, claims

Meaning of the lan: growing out of the

acts of the cruisers."

The President is not yet prepared to pronounce on the question of the indemnities which he thinks due by Great Britain to individual citizens of the United States for the destruction of their property by rebel cruisers fitted out in the ports of Great Britain.

Nor is he now prepared to speak of the reparation which he thinks due by the British Government for the larger account of the vast national injuries it has inflicted on the United States.

Nor does he attempt now to measure the relative effect of the various causes of injury, whether by untimely recognition of belligerency, by suffering the fitting out of rebel cruisers, or by the supply of ships, arms, and munitions of war to the Confederates, or otherwise, in whatever manner.2

V. The United States farther find as fact that the President, in his annual message to Congress immediately preceding the conclusion of the Treaty of Washington, and which indeed constituted the inducement thereto, spoke as follows:

I regret to say that no conclusion has been reached for the adjustment of the claims against Great Britain, growing out of the course adopted by that Government during the rebellion. The cabinet of London, so far as its views have been expressed, does not appear to be willing to concede that Her Majesty's Government was guilty of any negli gence, or did or permitted any act during the war by which the United States has just cause of complaint. Our firm and unalterable convictions are directly the reverse. therefore recommend to Congress to authorize the appointment of a commission to take proof of the amounts and the ownership of these several claims on notice to the representative of Her Majesty at Washington, and that authority be given for the settlement of these claims by the United States, so that the Government shall have the own ership of the private claims, as well as the responsible control of all the demands against Great Britain. It cannot be necessary to add that, whenever Her Majesty's Government shall entertain a desire for a full and friendly adjustment of these claims, the United States will enter upon their consideration with an earnest desire for a conclusion consistent with the honor and dignity of both nations.3

1 Mr. Fish to Mr. Motley, May 15, 1869. Documents annexed to Case of the United States, vol. vi, p. 1.

2 Mr. Fish to Mr. Motley, September 25, 1869, Documents as above, vol. vi, p. 13. (See the commentary on these national or (so called) indirect damages by Mr. Abbott, in Lord Clarendon's dispatch, in Appendix to the British Case, N. A., No. 1, 1870, p. 19.)

3

Papers relating to foreign relations of the United States, December 5, 1870, p. 9.

VI. We, the counsel of the United States, insist, therefore, that such, n their magnitude, nature, and scope, are the claims submitted to the Tribunal by the express tenor, the spirit as well as the language, of the treaty of Washington, as particularly set forth in the Case and Counter Case of the United States.

Great Brita n.

To these reclamations the British Government, in its Contentions of Case and Counter Case, responds:

First, taking issue with the United States on the question of imputed negligence, or disregard, in other respects, of the rules of public law laid down in the treaty of Washington.

Secondly, alleging as legal theory, that, in the incidents brought under review, the British Government acted in conformity with, and in obedience to, the provisions of a certain act of Parliament, commonly known as the foreign-enlistment act, and that, by the law of nations, or the public law of Great Britain, the obligations of the British government toward the United States are to be measured in execution by that act of Parliament.

Thirdly, the British Government, in justification or extenuation of its own imputed delinquencies in the premises, adduces certain incidental considerations, derived from the history and jurisprudence of sundry foreign governments, including the Government of the United States.

Proposed course of

VI. As to the first of these points, the counsel of the United States propose to exhibit to the Tribunal a complete and authentic analysis of the great body of pertinent proofs contained in argument, the documents annexed by the two governments to their respective Cases and Counter Cases; and to argue thereon that such documents conclusively establish the main fact of the violation by the British Government of the rules of duty stipulated by the treaty of Washington.

VII. As to the second and third of said points, the counsel of the United States will in the sequel submit considerations which, as they conceive, conclusively establish the legal rights of the United States in the premises, notwithstanding such defensive arguments as are adduced by the British Government.

VIII. Preparatory to which, we submit to the wisdom of the Tribunal the following general considerations of law applicable to the General consider defense set up by the British Government.

at ons of law.

Great Britain guil

1. We maintain, and undertake to prove, that, even if the provisions of the foreign-enlistment act were the measure and limit of the international duties of the British Government in the tv of culpable nealpremises, still, on the facts, there was culpable negligence on the part of Great Britain. The British Government didment act. not do, by way of prevention, or repression, or punishment, all which that act permitted and required.

gence even when measuring its duties by the foreign-enlist

International di

municipal law.

2. But the international duties of Great Britain are wholly independent of her own municipal law, and the provisions of the above-cited act of Parliament do not rise to the height of ties independent of the requirements, either of the law of nations or of the rules of the Treaty of Washington. That act makes no adequate provision, either of prevention or punishment; and it contains no provision whatever of executive prevention, without which no government can discharge its international obligations, or preserve its own international peace.

3. If, as a question of local administration, that act was deficient in powers, it was the international duty of Great Britain, as a government, to pass a new act conferring on its ministers the requisite powers.

Defects of foreignstrest act.

4. In the domestic institutions of Great Britain, no constitutional obstacles existed to prevent the enactment of such new act of Parliament; for, to affirm the existence of such obstacles would be to deny to Great Britain the capacity and right to subsist in the family of nations as a co-equal sovereign State.

In fact, Great Britain has since then, in view of political complications on the continent of Europe, enacted a new act of Parliament, such as she ought before to have enacted, and that on the suggestion of the United States.

They might have been remedied.

These are not

ity.

5. The British Government throughout argues these questions as questions of neutrality. We deny that they are such; we questions of neutral deny, as hereinbefore stated, that Great Britain had right to interpose herself as a professed neutral between her treaty ally, the United States, and the rebels of the United States. But we place ourselves, at present and in this relation, on the premises of the defensive argument of the British Government. And, standing on those technical premises, the counsel of the United States maintain that the neutrality of a government, as respects two belligerents, is a question of international, not municipal, resort. Its legal relations are involved in the question of the rights of peace and war.

Hence, to depend upon punitive municipal laws for the maintenance of international neutrality, is itself neglect of neutral duty, which duty demands preventive interposition on the part of the executive power of the State.

Great Britam le

United States.

6. Great Britain, therefore, on the narrow and inadmissible premises of her own defense, was legally responsible to the United gally responsible to States for the acts of the cruisers in question, whether as for non-execution of her then existing act of Parliament, which was want of due diligence, or for undertaking to depend on that act, which not only involved want of due diligence, but implied refusal to perform the duties of a neutral.

IX. The counsel of the United States will have occasion to refer to Sir R. Phillimore's some of these points in the sequel, when they come to authority cited. present, in full and affirmatively, their own views of the international obligations of Great Britain, and of her delinquency in the premises as respects her special obligations toward the United States.

Meanwhile, in vindication of the suggestions in this behalf now made by us, we submit to the consideration of the Tribunal appropriate extracts from the great work on "International Law," by Sir Robert Phillimore, of whom it is little to say that, apart from his eminence as a judge and as a statesman, he is facile princeps among the authorities of this class in Great Britain.

We cite as follows:

There remains one question of the gravest importance, namely the responsibility of a state for the acts of her citizens, involving the duty of a neutral to prevent armaments and ships of war issuing from her shores for the service of a belligerent, though such armaments were furnished and ships were equipped, built, and sent without the knowledge and contrary to the orders of her government.

The question to what extent the state is responsible for the private acts of its subjects (civitasne deliquerit an cires?) is one of the most important and interesting parts of the law which governs the relations of independent states.

It is a maxim of general law that, so far as foreign states are concerned, the will of the subject must be considered as bound up in that of his sovereign.

It is also a maxim that each state has a right to expect from another the observance of international obligations, without regard to what may be the municipal means which it possesses for enforcing this observance.

The act of an individual citizen, or of a small number of citizens, is not to be imputed without clear proof to the government of which they are subjects.

A government may by knowledge and sufferance, as well as by direct permission, become responsible for the acts of subjects whom it does not prevent from the commission of an injury to a foreign state.

A government is presumed to be able to restrain the subject within its territory from contravening the obligations of neutrality to which the state is bound.

The government of the owner of the captured property may indeed call the neutral to account for permitting a fraudulent, unworthy, or unnecessary violation of its jurisdiction, and such permission may, according to the circumstances, convert the neutral into a belligerent.

In fact, the maxim adverted to in a former volume of this work is sound, viz, that a state is, prima facie, responsible for whatever is done within its jurisdiction; for it must be presumed to be capable of preventing or punishing offenses committed within its boundaries. A body-politic is therefore responsible for the acts of individuals, which are acts of actual or meditated hostility toward a nation with which the goverument of these subjects professes to maintain relations of friendship or neutrality.

The relation of neutrality will be found to consist in two principal circumstances: 1. Entire abstinence from any participation in the war.

2. Impartiality of conduct toward both belligerents.

This abstinence and this impartiality must be combined in the character of a bona-fide neutral.

The neutral is justly and happily designated by the Latin expression in bello medius. It is of the essence of his character that he so retain this central position as to incline to neither belligerent. He has no jus bellicum himself; but he is entitled to the continuance of his ordinary jus pacis, with, as will presently be seen, certain curtailments and modifications, which flow from the altered state of the general relations of all countries in time of war. He must do nothing by which the condition of either belligerent may be bettered or strengthened, quo validior fiat.

It is for him perpetually to recollect, and practically to act upon, the maxim, "Hostem esse qui faciat quod hosti placet.” +

4

We do not overstate the point when we say that these texts, from such an authority, but recently published, (1871,) and in full view of the present controversy between the two governments, compose, not only a complete answer to the legal doctrines of the Case and Counter Case of Great Britain in this behalf, but affirmation of the larger premises of argument assumed by the United States.

1. Sir Robert Phillimore avers that, so far as foreign States are concerned, the will of the subject is bound up in that of his sovereign.

Now, among the persons who equipped, manned, and armed the cruisers of the confederates in question, were liege subjects of Great Britain.

True it is that these liege subjects of Great Britain were hired to perform the acts in question by rebels of the United States, and the British Government strangely supposes that, because these rebels were citizens of the United States, therefore Great Britain was not responsible for their acts. The argument implies that foreigners in Great Britain are independent of the local jurisdiction. That, of course, is an error. But, if it were otherwise, the British Government would remain responsible for the acts of the Lairds, and all other British subjects, including Prioleau, an American converted into a British subject for the special object of violating the laws of Great Britain, and committing treason against the United States with impunity, under shelter of the flag of Great Britain.

2. Sir Robert Phillimore, at a blow, strikes to the earth the whole fabric of the British Case and Counter Case, in declaring that no government has a right to set up the deficiency of its own municipal law as excuse for the non-performance of international obligations toward a foreign State.

1 Phillimore's International Law, vol. i, preface to 2d ed, p. 21.

2 Phillimore's International Law, vol. iii, p. 228.
Phillimore's International Law, vol. iii, p. 218.

4 Phillimore's International Law, vol. iii, pp. 201-2.

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3. He lays down the rule that a government may by knowledge and sufferance, as well as by direct permission, become responsible for the acts of subjects, (including commorant or transient aliens,) whom it does not prevent from committing injury to a foreign State. This proposition is not presented by Sir Robert Phillimore as based on any express treaty stipulation, but as being the doctrine of the law of nations. As such it serves to construe the "due diligence" of the Treaty of Washington.

4. In expounding the proposition of the impartiality requisite in the character of a bona fide neutral, he declares that such neutrality is vio lated by any act which betters or strengthens one of the belligerents, or by any act which gratifies one of the belligerents.

It needs only to consider the analysis of the facts hereinafter presented, to see how much the British Government did to strengthen and to gratify the rebels of the United States.

5. Finally, he affirms that if a government, professing neutrality, permits a fraudulent, unworthy, or unnecessary violation of its jurisdic tion, such permission may, according to the circumstances, convert the neutral into a belligerent.

That is the position of the counsel of the United States on this point; and it may be shown by signal examples in the previous history of Great Britain, that she herself has acted on this principle with respect to governments which, professing neutrality, did acts to strengthen or favor belligerent enemies of hers.

X. We now proceed to develop more distinctly the nature and basis of the legal theory of the United States in regard to the questions at issue between the two governments. We commence by laying down a series of propositions, which are, as we conceive, axioms or postulates of the public law of Europe and America.

Legal theory of the United States respecting questions at

Issue.

1. The right to engage in war, and so to become a bellig Right to make war. erent, is inherent in the quality of sovereignty.'

2. We assume, also, that the right to maintain peace and to stand neutral whilst other sovereigns are belligerent, is inherent in the quality of sovereignty.

Right to give cause for war.

3. As the right of war and peace is inherent in sovereignty, so is the right to give cause of war to another sov

ereign.

4. Such cause of war may consist in acts of professed warfare, as the invasion of a foreign country in arms, the reduction of its cities, the military devastation of its territory, the capture of its merchant-vessels, or the armed encounter of its ships of war. 5. Or such cause of war may consist in acts equivalent to professed warfare, as in affording aid to one belligerent against another, such belligerents being each sovereign; or by prematurely conceding the quality of belligerence or of independence to the rebels of another sovereign; or by aiding such rebels in fact, while pretending friendship for their sovereign.

6. True neutrality between belligerents consists in holding absolutely aloof from the war in fact and in truth, as well as in proNeutrality. fession. To profess neutrality, and not to observe it, is disguised war.

7. War is by land or sea; and war by sea may consist in combats between ships of war, or in the capture of merchant-vessels War; what it is. and their cargoes.

What may be cause.

1 Vattel, Droit des gens, éd. Pradier-Fodéré, tome ii, p. 337, (note.) Cauchy, Droit maritime, tome i, p. 18; tome ii, p. 14. Martens, Droit des gens, éd. Vergé, tome ii, p. 198.

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