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Britain, under contracts for that purpose made directly with the insurgent authorities. All this was known by the British Government, long before either of these vessels, after completing their armament and receiving their commissions, appeared at any of the ports of the Kingdom, asking permission to coal or to repair; in fact, it was known before they had appeared in the ports of any nation.
For the purposes of this argument, it matters not whether Great Britain did or did not use due diligence to prevent the construction or escape of these vessels. The fact that the insurgents, in procuring them, committed an offense against the neutrality laws of the realm, and subjected themselves to punishment therefor, remains undisputed. The individual agents, who, within British jurisdiction, committed this crime against British municipal law, made themselves subject to the penalties of that law. The authorities of the insurgents, who promoted the crime, subjected themselves to such measures as Great Britain might see fit to adopt in order to resent the wrongs inflicted on her, and to cause her sovereignty to be respected. 12. When these vessels were upon the sea, armed and fitted for war,
the insurgents had advanced one step towards providing they were themselves with the means of prosecuting a war against
the commerce of the United States; but they needed one thing more to make any war they might wage successful, and that was a base of operations. Without this, the United States would still, to a limited extent, have remained in the possession of the advantages they had gained by a successful blockade. The great difficulty to be overcome was the supply of coals. To po nation could this fact be more apparent than to Great Britain, the flag of whose magnificent navy was at that time almost constantly afloat in all the principal seas of the world. 13. Great Britain had the undoubted right, upon the discovery of
these offenses committed by the insurgents against her municipal laws, and of their violations in her territory of
the laws of nations, to exclude by force, if necessary, the vessels, in this manner placed upon the seas, from all the hospitalities usually accorded to naval belligerents, in the ports and waters of the kingdom.
This was the prompt decree of Brazil, when her hospitality was abused by one of these vessels. (Brit. App., vol. I, p. 293.) The Counsel of Great Britain does not deny the power of the British Government to make the same orders. 14. In this way Great Britain might, to a great extent, have prevented
the consequences of the original crime committed within preventura home her own jurisdiction. It was her duty to use due diligence
in her own ports and waters, and, as to all persons within her jurisdiction, to prevent the departure of such a vessel from her territory. If, notwithstanding her diligence, such a vessel was constructed within, and departed from, her jurisdiction, then good faith toward a nation with which she was at peace required that she should, as far as possible, curtail the injurious consequences of the unlawful act which she had been unable to prevent. She owed no comity to a nation that had abused her hospitality. She was under no obligations to open ber ports to a belligerent that had violated her neutrality. No belligerent had the right to demand the use of her ports for the accommodation of his ships of war. It was a privilege she could grant or not as she pleased, and if in this respect she treated both belligerents alike, neither had the right to complain. An order which excluded all guilty of the
They might have been excluded from British port,
rieg which followed.
The United States
same offense would have operated alike on all who were guilty, but would not have included the innocent.
15. The United States had the right, as they did, to demand of Great Britain, that she should use all means within her power to avoid the consequence of her failure to prevent the use of requested Great her territory for these unlawful purposes. As has been this abuse of its terseen, the insurgents commenced in Great Britain their vio. lations of these particular laws of neutrality. They were flagrant acts. They were accomplished in spite of the United States. They were high offenses against the authority and dignity of the government of Great Britain, and, as Earl Russell afterward said, " totally unjustifiable and manifestly offensive to the British Crown." (Am. App., vol. i, p. 631.) To permit them to pass unrebuked was to excuse them, and was to encourage future transgressions.
As was subsequently, on the 27th of March, 1863, said by Mr. Adams, in a conversation with Earl Russell upon this subject:
What was much needed in America was not solely evidence of action to prevent these armaments. It was the moral power that might be extended by the Ministry in signifying its utter disapproval of all the machinations of the conspirators against the public peace. Hitherto the impression was quite general, as well in America as in this country, that the Ministry held no common sentiment, and were quite disposed to be tolerant of all the labors of these people, if not indifferent to them. Here they were absolutely sustaining the rebels in the prosecution of the war by the advance of money, of ships, and of all the necessaries with which to carry on as well by sea as on the land; and upon such notorious offenses Ministers had never yet given out any other than an uncertain sound. The effect of this must be obrious. It encouraged the operations of British instigators of the trouble on this side, who believed that they were connived at, and, so believing, carried on their schemes with new vigor. (Am. App., vol. iii, p. 125.)
Nothing can add to the force of these words. Omission by the British Government to act under such circumstances was nothing less than toleration of the abuses complained of. It was, in short, an implied permission to continue the unlawful practices.
16. Great Britain not only neglected during the whole war to take any measures by which any of the offending vessels of the insurgents would be excluded from the hospitalities of her fused to prevent it. ports, and their agents prevented from using her territory for facilitating their belligerent operations, but she in effect refused so to do. She did not even send remonstrances to the government of the insurgents, or to any of its agents residing and conducting its affairs within her own jurisdiction.
On the 4th of September, 1862, Mr. Adams, in a communication to Earl Russell, called attention to the fact that the Agrippina, the bark which had taken a part of the armament to the Alabama, was preparing to take out another cargo of coal to lier, and asked that something might be done which would prevent the accomplishment of this object. (Brit. App., vol. i, p. 209.) This communication, in due course of business, was referred to the Commissioners of Custorns, who, on the 25th of the same month, reported: “That there would be great difficulty in as. certaining the intention of any parties making such a shipment, and we do not apprehend that our officers would have any power of interfering with it, were the coals cleared outward for some foreign port in compliance with the law. (Brit. App., vol. I, p. 213.) Thus the matter ended.
If there was no power in the officers of the customs to interfere with the shipment of the coals, there certainly was ample power in the Government to prohibit any offending belligerent vessel from coming into the ports of Great Britain to receive them. That, if it would not have
Great Britain re. Great Britain en.
provisions and coal.
stopped the offending vessels entirely, might to some extent hare embarrassed their operations.
Again, on the 7th of December, 1863, Mr. Adams submitted to Earl Russell evidence of the existence of a regular office in the port of Liverpool for the enlistment and payment of British subjects, for the purpose of carrying on war against the Government and people of the United States. (Brit. App., vol. i, p. 428.) This communication was by Earl Russell referred to the Law Officers of the Crown, who, on the 12th of the same month, reported: “We have to observe that the facts disclosed in the depositions furnish additional grounds to those already existing for strong remonstrance to the Confederate Government on account of the systematic violation of our neutrality by their agents in this country." (Brit. App., vol. i, p. 140.) There is no evidence tending to prove that any such remonstrance was then sent. In fact, the first action of that kind which appears in the proof was taken on the 13th day of February, 1865, less than sixty days before the close of the war. 17. The conduct of Great Britain from the commencement was such
as to encourage the insurgents, rather than discourage ou pare the same them, as to the use of her ports and waters for necessary urgents for the purng repairs and for obtaining provisions and coal.
The Alabama first appeared in a British port, at Jamaica, on the 20th of January, 1863, nearly six months after her escape from Liverpool, and after a lapse of much more time than was sufficient to notify the most distant colonies of the offense which had been committed by her, and of any restrictions which the Government at home had seen fit to place upon her use of the hospitalities of ports of the Kingdom. No such notice was ever given, nor was any such restriction ever ordered.
The Alabama went to Jamaica for the reason that in an engagement with the Hatteras, a United States naval vessel, she had received such injuries as to make extensive repairs necessary. This engagement took place only twenty-five miles from a home port, but instead of attempting to enter it, and make her repairs there, she sailed more than fifteen hundred miles to reach this port of Great Britain. In doing this she had sailed far enough, and spent time enough, to have enabled her to reach any of the ports of the insurgents; but the blockade prevented her entering them, and she was compelled to rely upon the hospitalities of neutral waters. At Jamaica, she was permitted without objection to make her repairs, and to take in such coal and other supplies as she required for her cruise. She was treated, Commodore Dunlop said, as any United States man-of-war would have been treated by him.
On the 25th of the same month (January, 1863) the Florida appeared at Nassau sbort of coal. Although she was only ten days from a home port, she was permitted to supply herself with coal and other necessaries. On the 24th of the next month she again appeared at Barbados, “bound for distant waters,” but she was in distress, and unless permitted to repair the captain said he would be compelled to land his men and strip his ship. Notwithstanding her past offenses, permission to repair and take on supplies was granted.
These were the first visits of any of the offending cruisers to British waters. They were substantially their first visits to any ports of a neutral nation. The Florida stopped for a short time at Havana, on her way from Mobile to Nassau, and the Alabama was for a few hours at Martinique; but at neither of these places did they take on any coal or make any repairs.
Thus the nation, whose authority and dignity had been so grossly
offended in the construction and outfit of these vessels, was the first to grant them neutral hospitalities. From that time her ports were never closed to any insurgent vessel of war; and permission to coal, provision, and repair was never refused.
It is said in the British Counter Case, p. 118, that, during the course of the war, ten insurgent cruisers visited British ports. The total number of their visits was twenty-five, eleven of which were made for the purpose of effecting repairs. Coal was taken at sixteen of these visits. The total amount of coal taken was twenty-eight hundred tons.
The number of visits made by these cruisers to all the ports of all other neutral nations during the war did not exceed twenty. So it appears that the hospitalities extended by Great Britain in this form to the insurgents were greater than those of all the world beside; and yet more serious offenses had been committed against her than any other neutral nation.
They required repairs at about one-half their visits and coal at about two-thirds
The average supply of coal to vessels of the insurgents was one hundred and seventy-five tons.
Because, therefore, the insurgents did make use of the ports of Great Britain as a base for their naval operations, and the British Government did not use due diligence to prevent, but on the metoda de soluciones contrary suffered and permitted it, all supplies of coal in tailed responsibilts. those ports to Confederate ships were in violation of the neutrality of Great Britain, and rendered her responsible therefor to the United States,
M. R. WAITE.
All this consti.
VII.-ARGUMENT OF SIR ROUNDELL PALMER ON THE QUESTION OF THE RECRUITMENT OF MEN FOR THE SHENANDOAH AT MELBOURNE.
Her Britannic Majesty's Counsel, being permitted to offer some further observations in explanation of the facts as to the recruitment of men by the Shenandoah at Melbourne, as to which there appeared to the President to be some obscurity in the evidence, takes the liberty to submit the following statement:
Before the Tribunal can hold Great Britain responsible, by reason of this recruitment of men, for the subsequent captures of the Shenan. doah, it must be satisfied (1) that the Government of Great Britain, by its Representatives in the Colony of Victoria, “permittted or suffered the use of its ports or waters by the Shenandoah for this purpose, if not directly, at least by the want of due diligence to prevent such recruit. ment, and (2) that the recruitment so made was an augmentation of force necessary to enable the Shenandoah to effect the captures for which Great Britain is sought to be held responsible, and without which those captures could not have been made, and was in this way a direct and proximate cause of those captures.
It cannot be pretended, on the one hand, that Great Britain ought to be held responsible for a recruitment of men by a belligerent vessel which the local Government in no sense “permitted or suffered;" nor, on the other hand, that every act prohibited by the Second Rule of the Treaty of Washington can render the neutral Government responsible for all captures after such act, however remote, indirect, partial, or insignificant may have been the relation of that act, as a cause, to those captures as an effect.
The Shenandoah arrived at Melbourne on the 25th of January, 1865, and the next day she was visited by Captain King, Naval Agent on board of the Bombay, who found that her crew (it is presumed including officers and petty officers) then consisted of seventy men'. Of these seventy, about twenty-three appear to have soon afterward de. serted, liaving previously served on board of some of the ships which the Shenandoah had taken on her cruise between October, 1864, and January, 1865. IIer force was thus reduced to about forty-seven men, being the same, or nearly the same, number with which her cruise from the Desertas originally commenced; and less by twenty-three men than her force was when she arrived at Melbourne.?
On the day of his entrance into Port Philip, Captain Waddell, when asking permission to make the repairs and obtain the supply of coals necessary to enable him to get to sea as quickly as possible, and also to land his prisoners, gave a spontaneous promise to observe” Her Majesty's “neutrality.
Care was taken to ascertain, by a proper survey, what repairs were necessary; and, while allowing them to be made, the Governor (3d February, 1865) ordered a strict supervision, and daily reports, by the i British App., vol. i, p. 499.
' Ibid., pp. 523, 557, and 571. 3 Lieutenant Waddell to Governor Darling, January 25, 1865. British App., vol. I, p. 500.