XI.-CONSIDERATION OF THE DUTIES OF GREAT BRITAIN, AS ESTABLISHED AND RECOGNIZED BY THE TREATY, IN REGARD TO THE OFFENDING VESSELS, AND ITS FAILURE TO FULFILL THEM, AS TO EACH OF SAID VESSELS.

We are now prepared for a definite application of the law and the facts, under which the determination of the Tribunal is to be made, to the question of the duties of Great Britain, in the premises of the Arbitration, and its performance thereof or failure therein.

The ample discussions of pertinent questions and principles of public and municipal law, to be found in the Cases and Counter Cases of the two Governments, and subjected to comment in an earlier part of this Argument, it is not our purpose here to repeat or renew. We shall better observe the requirements of the Argument at this stage of it, by a brief statement of the propositions which should assist and control the judgment of the Arbitrators in deciding the main issue of fact on which their award is to turn, that is to say, the inculpation or the exculpation of Great Britain in the matter of the offending vessels.

Rules of the treaty

PROPOSITIONS OF LAW.

MEASURE OF INTERNATIONAL DUTY.

I. The Three Rules of the Treaty furnish the imperative law as to the obligations of Great Britain in respect of each of the vessels mperative. which is brought under review. The moment that it appears that a vessel is, in itself, within the description of the first article of the Treaty, as being one of "the several vessels which have given rise to the claims generically known as the 'Alabama Claims,'" it becomes a subject to which the three rules are applicable.

first rule.

II. This primary inquiry of fact, which simply determines that the Application of the jurisdiction of the Tribunal embraces the vessel, is followed, necessarily, by the further inquiry of fact, whether or no the vessel, in its circumstances, falls within the predicament of either the first clause or the second clause of the first rule. If it does, the Tribunal has further to consider whether Great Britain has used, in regard to said vessel, the "due diligence" which is insisted upon by that rule, and the failure in which inculpates Great Britain, and exposes it to the condemnation of responsibility and reparation therefor to the United States. III. Whatever may be the scope and efficacy of the second Rule, and of the third Rule, in future or in general, for the purposes of second and third the present Arbitration, the subjects to which either of them can be applied, in reference to the issue of the inculpation or exculpation of Great Britain, must be embraced within the limitation of the first article of the Treaty, and so, connected with some or one of "the several vessels which have given rise to the claims generically known as the 'Alabama Claims."" But in regard to any such vessel, the

Application of the

Rules.

general injunctions of these two Rules furnish, in their violation, a ground for the inculpation of Great Britain, and its condemnation to responsibility and reparation therefor to the United States.

IV. It is not at all material or valuable, in its bearing upon the deliberations or award of the Tribunal, to inquire whether the These Rules constiobligations of duty laid down in the Three Rules are com- tute the law of this mensurate with the obligations imposed by the "principles

controversy.

of International Law which were in force at the time when the claims mentioned in Article I[of the Treaty arose." These Rules constitute the LAW of this controversy and of this Tribunal in its jurisdiction of it, by force of the twofold declaration, (1) that, "in deciding the matters submitted to the Arbitrators, they shall be governed" by them, and (2) that "in deciding the questions between the two countries arising out of those claims, the Arbitrators should assume that Her Majesty's Government had undertaken to act upon the principles set forth in these Rules." V. The true force of the subordinate provision that, besides the Rules, such principles of International Law, not inconsistent therewith, as the Arbitrators shall determine to have been applicable to the case," shall govern them in their decision, is, necessarily, to introduce from the general doctrines of International Law whatever may corroborate or increase the vigor of the Rules, and their scope and efficiency, but to admit nothing, from such general doctrines, in reduction or disparagement of the Rules.

Nothing admissible which diminishes their force.

VI. An assent to these indisputable propositions disposes of a very considerable part of the more remote argument of the Case and Counter Case of Her Majesty's Government.

The obligation of Great Britain to ob serve these rules was an international one.

(a) The duties in respect of which the conduct of Great Britain, in fulfilling or failing to fulfill the same, is to be judged by the Tribunal, are, by the terms of the Treaty, authoritatively assigned as duties of Great Britain towards the United States, of international obligation. Not only does the Treaty declare that Great Britain was "bound" to the fulfillment of these duties, but it further declares that "the Arbitrators should assume that Her Majesty's Government had undertaken to act" in obedience to that obligation. All speculations, therefore, of a legal or practical character, presented in the Case or Counter Case, and turning upon the question of the duties here under judgment being duties of Great Britain toits own alws and its own subjects, and its accountability to the United States being only secondary and of comity, seem unprofitable to the present inquiry.

distribution of pow

ment

(b) The efforts of the Case and Counter Case to ascribe to, or apportion among, the various departments of national authority, This obligation not legislative, judicial, and executive, principal or subordinate, afected by internal the true measure of obligation and responsibility, and of ers of British governfault or failure, in the premises, as among themselves, seem wholly valueless. If the sum of the obligations of Great Britain to the United States was not performed, the Nation is in fault, wherever, in the functions of the state or in their exercise, the failure in duty arose. (c) So, too, the particular institutions or habits of the people of Great Britain, or the motives or policy of its Government in respect Nor by the instituof commercial freedom, unrestricted activity, maxims or tions or habits of the methods of judicial procedure, limitations of prerogative, and similar internal arrangements of people and Government, cease to have any efficacy in determining the judgment of this Tribunal upon the fulfillment of, or default in, international duty. Domestic liberty, however valuable to, and in, a state, is not a warrant for international

British people.

license; nor can its advantages be cherished by Government or people at the cost of foreign nations. Indeed, when a special obligation or particular motive induces, and in some sense justifies, failure in international duty, the offending nation assumes the necessary amends and reparation to the foreign state. A notable instance of this is found in the course of the United States toward Great Britain, when the former had failed in what they admitted to be their international duty to prevent the outfit of French privateers, by reason of certam special relations to France. Compensation to Great Britain for injuries by the offending cruisers was conceded.

VII. The preceding observations leave the affirmative statement of the obligations resting upon Great Britain to secure the fulfillment of this international duty to the United States, free from difficulty.

(a) These obligations required that all SEASONABLE, APPROPRIATE, Great Britain and ADEQUATE means to the accomplishment of the end proposed, should be applied and kept in operation by Great Britain, from the first occasion for their exhibition until the necessity was over.

should have used seasonable, appropriate, and adequate means to preserve its neutrality.

Which means should have available as soon as required.

(b) As the situation calling for the discharge of these obligations on the part of Great Britain was not sprung upon it unawares, been but was created by the Queen's Proclamation, (a measure of state adopted after deliberation in its own Government, and upon conference with another great European power,) the means to meet the duties of the proclaimed neutrality should, at once, have been found at the service of the Government, or promptly prepared, if deficient, that no space might intervene between the deliberate assumption of these duties by the Government, and a complete accession of power to fulfill them.

British sympathy

with insurgents an element to be con

means.

(c) The dangers and difficulties that would attend and embarrass the Government in the fulfillment of these duties, from the actual disposition of its own people, and the urgent needs of the sidered in preparing Rebel belligerents, constituted necessary elements in the estimate of the actual duties the Government must be prepared to fulfill, and in the forecast of the means to meet and cope with such dangers and difficulties. The immense temptation to British interests to absorb the share of the commerce of the world, which its great competitor possessed, the immense temptation to the Rebel belligerents to allure these interests of the British people to an actual complicity in the preparation and maintenance of maritime hostilities, and, finally, to drag the British Government into formal war against the United States, were within the immediate field of observation to Her Majesty's Ministers, and made a principal feature of the situation they had produced, and were required to control. The British Case and Counter Case have given prominence to these considerations, in deprecation of the judgment of this Tribunal against Great Britain for the actual incompetency with which it met the duties of the situation. They tend rather to a condemnation, in advance, for negligence of Great Britain, thus advised of the duty imposed upon it, and failing to meet it successfully. (d) The aptitude or sufficiency of the system or staff of public officers at the command of the Government for the required service of this international duty to the United States; the possession of Executive power to conduct the duties of the situation of neutrality which it had been competent to create, or the need of recourse to Parliament to impart it; the force and value of the punitive or repressive legislation designed to deter the subjects from complicity in the Rebel hostilities, in violation of the Government's duties to prevent such

Other elements to be considered.

complicity;-all these were to be dealt with as practical elements in the demands upon the Government in fulfillment of its duties, and were to be met by well-contrived and well-applied resources of competent scope and vigor.

In view, then, of all these considerations, from the issue of the Queen's Proclamation to the close of the rebellion, the Rules of the Treaty of Washington exact from Great Britain the preparation and the application, in prevention of the injuries of which the United States now complain, of seasonable, appropriate, and adequate means to accomplish that result.

THE MEANS OF FULFILLING INTERNATIONAL DUTY POSSESSED BY GREAT

BRITAIN.

Her Majesty's Government possessed full power to carry out its selected course of action.

I. That Great Britain possessed all the means which belong to sovereignty, in their nature, and, in a measure, of energy and efficacy, suitable to her proud position among the great Powers of the world, to accomplish whatever the will of the Government should decree, has never been doubted by any other Power, friendly or hostile. The pages of the British Case and Counter Case devoted to suggestions to the contrary, will not disturb this opinion of the world, and Great Britain, for the purposes of this Arbitration and the judgment of the Tribunal, must remain the powerful Nation which it is, with the admirable Government which it possesses in all other relations. Whatever infirmity shall have shown itself in the conduct of the Government, in the premises of this inquiry, it is attributable solely to debility of purpose or administration, not to defect of power. II. The whole body of the powers suitable to the regulation and maintenance of the relations of Great Britain, ad extra, to other The Prerogative of nations, is lodged in the Prerogative of the Crown. The in- the Crown. tercourse of peace, the declaration and prosecution of war, the procla mation and observance of neutrality, (which last is but a division of the general subject of international relations in time of war,) are all, under the British Constitution, administered by the Royal Prerogative. Whether, or to what extent, the common or the statute law of England may or should punish, by fines or forfeitures, or personal inflictions, acts of the subjects that thwart or embarrass the conduct by the Crown of these external relations of the nation, are questions which belong to domestic policy. Foreign nations have a right to require that the relations of Great Britain with them shall be suitably administered, and defective domestic laws, or their defective execution, are not accepted, by the law of nations, as an answer for violations of international duty.

We refer to the debates in Parliament upon the Foreign Enlistment Bill in 1819, and on the proposition to repeal the Act in 1823, and to the debate upon the Foreign Enlistment Bill of 1870, (as cited in Note B of the Appendix to this Argument,) as a clear exhibition of this doctrine of the British Constitution, in the distinction between the executive power to prevent violations of international duty by the Nation, through the acts of individuals, and the punitive legislation in aid of such power, which needed to proceed from Parliament.

Its exercise during the rebellion.

We refer, also, to the actual exercise of this Executive power by the Government of Great Britain, without any enabling act of Parliament to that end, in various public acts in the course of the transactions now in judgment before the Tribunal :

1. The Queen's Proclamation of Neutrality, May 13, 1861.1

2. The regulations issued by the Government of Her Britanic Majesty in regard to the reception of cruisers and their prizes in the ports of the Empire, June 1, 1861; June 2, 1865.2

3. The Executive orders to detain the Alabama at Queenstown and Nassau, August 2, 1862.3

4. The Executive orders to detain the Florida at Nassau, August 2, 1862.+

5. The Executive orders to detain the rams at Liverpool, October 7, 1863.5

6. The debate and vote in Parliament justifying the detention of the rams by the Government "on their own responsibility," February 23, 1862.6

7. The final decision of Her Majesty's Government in regard to the Tuscaloosa, as expressed by the Duke of Newcastle to Governor Woodhouse, in the following words:

If the result of these inquiries had been to prove that the vessel was really an uncondemned prize, brought into British waters in violation of Her Majesty's orders made for the purpose of maintaining her neutrality, I consider that the mode of proceeding in such circumstances most consistent with Her Majesty's dignity, and most proper for the vindication of her territorial rights, would have been to prohibit the exercise of any further control over the Tuscaloosa by the captors, and to retain that vessel under Her Majesty's control and jurisdiction, until properly reclaimed by her original owners.-November 4, 1863.7

8. The Executive order that, "for the future, no ship of war belonging to either of the belligerent powers of North America shall be allowed to enter or to remain or to be in any of Her Majesty's ports for the purpose of being dismantled or sold," September 8, 1864.

9. The final Executive orders to retain the Shenandoah in port "by force, if necessary," and to "forcibly seize her upon the high seas,' September and October, 1865.

10. The rejection by Parliament of the section of the new Foreign Enlistment Bill, which provided for the exclusion from British ports of vessels which had been fitted out or dispatched in violation of the act, as recommended by the Report of the Royal Commission. This rejection was moved by the Attorney General and made by Parliament, on the mere ground that this power could be exercised by Order in Council.10 That these acts were understood by the Government of Great Britain to rest upon the Prerogative and its proper exercise, is apparent from the responsible opinions of the Law Officers given upon fitting occasions. 1. In regard to the Alabama, the Law Officers of the Crown wrote to Earl Russell on July 29, 1862 :

We, therefore, recommend that, without loss of time, the vessel [the Alabama] be seized by the proper authorities; after which an opportunity will be afforded to those interested, previous to condemnation, to alter the facts, if it may be, and to show an innocent destination of the ship."

2. In the case of Laird's rams, the Law Officers of the Crown wrote to Earl Russell, on October 19, 1863:

We are of the opinion, with respect to the first question submitted to us, that the answer to parties who have a right to make the inquiry should be that the seizure [of the rams] has been made by the orders of Her Majesty's Government under the authority of the provisions of the Foreign Enlistment Act.

1 Brit. App., vol. iii. p. 17.

2 Ibid., pp. 17-22; ibid., vol. v, pp.125-131.

Ibid., vol. i, p. 203.

4 Ibid., p. 29; ibid., vol. v, p. 55.

6 Am. App., vol. v, pp. 472-500.

7 Brit. App., vol. i, p. 327.

8 Ibid., vol. iii, p. 20.

9 Ibid., vol. i, p. 657.

Ibid., vol. ii, p. 384, et. seq. 10 Debate in Parliament, Note B, App. to this Argument.

Brit. App., vol. i, p. 200.

12 Ibid., p. 405.