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

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

award can be made

Britain.

Great

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

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

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

1British Case, pp. 30, 51. British Counter Case, pp. 73, 81.

The Counter Case of the United States contains (in section iii, par. 15) some observations on the explanations, given at page 57 of the British Case, of the meaning of the terms "registry" and "clearance," and of the duties of the officers of the Government charged with the registration and clearance of vessels in British ports. The United States invite the attention of the Tribunal to extracts of the British Merchant Shipping Act of 1854, and of the Customs Consolidation Act of 1853, as conferring, in their opinion, more extended powers upon the officers of the British Government than are stated in the British Case. The point is not one which is material to the questions at issue; the acts in question were designed exclusively for commercial and fiscal purposes, for the protection of the revenue and the proper regulation of British shipping, and their provisions could not be applied to the prevention of attempted or apprehended violations of neutrality, for which the necessary powers have been conferred by separate legislation in the ForeignEnlistment Act. The statement made in the British Case was, however, perfectly correct; and although, for the reasons above mentioned, Her Majesty's Government thinks it unnecessary to enter into the matter in detail, it will be ready, should the Arbitrators so desire, to furnish a statement showing what has been the uniform practice of the branches of the Administration charged with the execution of these laws, and proving that that course was followed in the case of each of the vessels under discussion.

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

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

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

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

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

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

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

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

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

(d.) That, vague and scanty as were the allegations in Mr. Adams's letter, inquiry was instantly directed by the Government. No information, however, could be obtained tending to connect the vessel in any way with the Confederate States. She was declared by the builder to be ordered for a firm at Palermo, a member of which, being a native of that city, was registered, on his own declaration, as her sole owner, and had frequently visited her when building. She had on board no troops and no arms or military supplies. The contrary supposition, entertained at one time by the United States, was founded on a mere misunderstanding of blanks in a printed form of clearance. Her first destination, as stated in her clearance, was Palermo; and her crew were nominally (and, as they evidently believed, really) hired for a mercantile voyage. On the one hand were the positive statements of the builder, the regis British Case, p. 53; British Counter Case, pp. 74, 75; Appendix to Case of the United States, vol. vi, p. 383.

2 British Case, p. 53; Appendix to Case of the United States, vol. vi, p. 215.

3 Appendix to British Case, vol. i, p. 1.

British Case, pp. 54, 55; Appendix to British Case, vol. i, p. 10.

British Case, pp. 56, 57; British Counter Case, p. 75; Appendix to British Case, vol. i, pp. 7, 8.

British Case, pp. 58, 65; Appendix to British Case, vol. i, p. 161.

tered owner, and the collector of customs; on the other, the suspicion of Mr. Dudley that the vessel was still intended by her owner to pass, sooner or later, into the hands of the Confederate Government. But a suspicion is one thing, reasonable ground of belief another; and the British Government, while it would have been bound to act on a reasonable belief that there was a present fixed intention to employ her as a Confederate ship of war, was neither bound by international duty, nor empowered by its municipal law, to act on a bare suspicion that she might pass into that employment;1

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

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

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

50. As to the subsequent departure of the Florida from Nassau, the Arbitrators have seen that this vessel, from the time when she entered the waters of the Colony, was watched by the local authorities; that

British Counter Case, p. 75.

2 British Case, p. 55; Appendix to British Case, vol. i, p. 3.
3 Appendix to Case of the United States, vol. i, pp. 529, 649.
British Case, p. 58; Appendix to British Case, vol. i, p. 7.
5 Appendix to British Case, vol. i, p. 3.

Ibid., vol. i, p. 6.

7 British Case, pp. 61-63; Appendix to ditto, vol. i, pp. 12–23.

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

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

The Alabama.

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

5

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

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

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

(e.) That, on the 4th July, the result of this inquiry was communi

1 British Case, p. 64; Appendix to ditto, vol. i, pp. 14, 27.

2 British Case, pp. 64-66; Appendix to ditto, vol. i, pp. 38-52.

3 British Counter Case, pp. 76-78; Appendix to British Case, vol. v, pp. 19-25. 4The United States have called attention in their Counter Case (section v, par. 3) to the fact that the success of the Florida in passing through the United States blockading squadron off Mobile was described by the Admiral in command as only a case of "apparent neglect." It is clear, however, that the Government of the United States did not so regard it, by the very severe sentence passed on the officer in fault, who was summarily dismissed from the service. (Appendix to British Case, vol. i, p. 73.)

5 British Case, p. 117; British Counter Case, pp. 81, 86.

British Case, p. 81; Appendix to ditto, vol. 1, p. 177; British Counter Case, p. 82.

7 British Case, p. 82; Appendix to ditto, vol. i, pp. 180, 181.

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cated to Mr. Adams, with a suggestion that he should instruct "the United States Consul at Liverpool to submit to the Collector of Customs at that port such evidence as he might possess, tending to show that his suspicions as to the destination of the vessel were well founded.1

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

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

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

(i.) That on Tuesday, the 29th, the Law-Officers reported their opinion that the evidence was sufficient, and that the vessel ought to be seized.5 53. It has not been shown by the United States that, before the time when the first representation was made to the British Government, any circumstances proving or tending to prove that the vessel was intended for the service of the Confederate States were, or ought to have been, known to this Government or any of its officers.

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

55. It may be proper here to notice the allegations made in the Case and Counter Case of the United States, that it would have been useless to make any representations to the British Government, because that Government required to be furnished with technical evidence of a violation of the law before it would act, and even before it would institute inquiry, and would listen to no representations which did not furnish such evidence; that "Her Majesty's Government declined to investigate charges and to examine evidence submitted by Mr. Adams as to repeated violations of British territory, which subsequent events proved were true in every respect;" and that an expression in a letter written by Earl Russell, in March, 1863, coupled with the division of opinion in the Court of Exchequer, respecting the case of the Alexandra, in January, 1864, was "an abandonment in advance of the obligation to use due diligence." All these assertions are erroneous. The British Gov

British Case, p. 84; Appendix to ditto, vol. i, p. 184.

2 British Case, p. 84; Appendix to ditto, vol. i, p. 185; British Counter Case, p. 84.

* British Case, p. 87; Appendix to ditto, vol. i, p. 188; British Counter Case, p. 84.

+ British Case, pp. 92-94; Appendix to ditto, vol. i, pp. 194-198.

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