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, com plain 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.

(Signed)

"To W. C. F. WILSON, Esq.,

"Commander of Spiteful.

"By command of commander-in-chief.

"ALEX. MILNE.

(Signed)

"S. T. SUCTER,
"Pro Secretary.”

[72]

*PART VI.

THE FLORIDA AND ALABAMA.

PART VI.-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 *pro

vided beforehand. It has been further shown that the law of Great Britain, as it existed at the time when these occurrences took place, was 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 the 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.1 These rules, which in England have been deemed expedient for securing the due administration 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.

of Switzerland, of Brazil, or of the United States to apply respectively in corresponding cases their own rules of procedure and evidence.

While, therefore, the obligation to use due diligence in order to prevent certain acts from being committed within the jurisdiction of the sovereign is an obligation wholly independent of municipal law, it is at the same time incontrovertibly true that, in determining the question whether due diligence has been used in a given case, the municipal law of the particular country, the modes provided for enforcing it, the powers vested in the executive, the established rules of administrative and judicial procedure may be, and commonly are, matters which it is proper and material to take into account.

The failures of duty which the United States impute to Great Britain, in respect of the Florida, Alabama, Georgia, and Shenandoah, consist partly in an alleged want of due diligence in preventing the original equipment of those vessels and their original departure from Great Britain, and partly in the hospitalities afterward afforded to them in British ports, where, it is insisted, they ought to have been seized and detained.

THE FLORIDA.

The Florida,

The history of the Florida divides itself into three parts, the first ending with her departure from Great Britain; the second with her release at Nassau; the third including her subsequent equipment, her arrival at Mobile, and her cruise after leaving Mobile.

The first part of this history, as told in the case of the United States, is as follows: The Florida was built to the order of Bullock, an agent of the confederate government. The contract for building her was made with one manufacturing firm and sub-let to another. It was made in

the autumn of 1861, and was completed by February, 1862. She waited for the arrival of Bullock and four other confederate officers, "who were to take commands in the vessels which were contracted for in Liverpool," and sailed soon afterward, consigned to Heyliger, a confederate agent at Nassau, or to Adderley & Co., merchants, resident there. Her armament was at the same time prepared at Liverpool, sent thence to Hartlepool, and shipped on board a steamer, called the Bahama, for Nassau.

"It was a matter," the tribunal is told, "of public notoriety that this was going on. All the facts about the Florida, and about the hostile expedition which it was proposed to make against the United States, were open and notorious at Liverpool." The inference is, that all the facts which are stated in the case were, or ought to have been, known to Her Majesty's government; that the government knew, or ought to have known, of the contract with Bullock; that it knew, or ought to have known, of the arrangements for arming the ship, since these

things were generally known in the place where the events [74] occurred. *Where is the proof of these assertions? Where is

the proof that even the American consul at Liverpool, whose activity in hunting for secret information appears to have been indefatigable, and to whom every one resorted who had information to disclose, knew of the contract with Bullock, or of the dispatch, cargo, and destination of the Bahama? And if he knew them, why did he not either communicate his knowledge, and the proofs in his possession, to

1 Case of the United States, pp. 332, et seq.

the British government, or himself lay an information on oath against the ship?

It is clear that Mr. Dudley himself was in ignorance of the facts which, in the case of the United States, are asserted to have been open and notorious to all. His attention had been called to the Florida, then in the builder's yard, as early as November, 1861. On the 24th January, 1862, he writes that "she is reported for the Italian government ;" but the fact of the machinery being supplied by Fawcett & Preston, and other circumstances, make him "suspicious," and cause him to believe she is intended for the South.1 On the 4th February the circumstances are still "somewhat suspicious." "There is much secrecy observed about her, and I have been unable to get anything definite, but my impressions are strong that she is intended for the southern confederacy. I have communicated my impressions and all the facts to Mr. Adams, our minister in London." At that moment the ship was taking in her coal; and "appearances indicate," he wrote, "that she will leave here the latter part of this week." He makes, however, no representation to the Government, nor does Mr. Adams make any. On the 12th he writes to Mr. Seward that everything he sees and hears confirms him in the belief that the vessel is intended for the confederacy; but he mentions no fact, except that Miller (the builder) had said that Fawcett, Preston & Co. gave him the contract. Still no representation is made. On the 17th he has "obtained information, from many different sources," which "goes to show" that she is intended for the Confederate States. Nevertheless, the solitary fact mentioned is that Fawcett, Preston & Co. are said to be the owners, with the addition that advances are said to have been made to them and to Miller by Fraser, Trenholm & Co. Afterward he tells Mr. Seward that he has "no doubt," and has "positive evidence," that she is for the South ;" and, on the 5th March, that two persons in the employ of Fawcett, Preston & Co. had said so. But, up to the time when she left Liverpool, his correspondence mentions not a single circumstance proving, or tending to prove, for what purpose she was intended, beyond some rumors as to her probable movements, which turned out to be erroneous. With the "notorious fact" that she had been ordered by Bullock he is evidently quite unacquainted. As to the Bahama, so far is he from being aware of the "notorious fact" that she was about to take out the Florida's armament, that up to the 6th March he is making fruitless inquiries about that vessel, and can obtain no information about her, or any vessel of that name.6 Several days afterward he learns that she is loading with cannon and other munitions of war at Hartlepool, and "will either run the blockade, or land her cargo at Bermuda or Nassau, and have it ferried over in smaller vessels." 7 He believes her, in short, to the last, to be merely a blockade-runner, laden with articles contraband of war, and has no idea of her having any connection with the Florida.

Here, then, we have Mr. Dudley's confidential correspondence with his official superior. We find him quite in the dark as to the main

1 Appendix to case of the United States, vol. vi, p. 214.

2 Ibid., p. 215.

3Ibid., p. 216.

Ibid., pp. 220, 221.

5 Mr. Seward had, however, informed Mr. Adams, in August, 1861, that Bullock was said to be in Europe, and to have contracted for ten war-steamers, (vol. vi, p. 33.) According to the case of the United States, Bullock was in the Confederate States from the autumn of 1861 until immediately before the Florida sailed, (p. 334.)

6 Case of the United States, vol. vi, p. 222. 7Ibid., p. 223.