United States and Brazil as well, for the fulfillment of the international duties of neutrality. The full power was exercised by the administration of President Washington before any such authority was imparted by Congress, and the later explicit communication of such authority by the legislation of the United States rested upon the propriety of corroborating Executive power under a Government without any personal prerogative in its Executive head. This distinction was well understood in the British Parliament, and is insisted upon in the debate upon the Foreign Enlistment Bill of 1819, set forth in Note B of the Appendix to this Argument. It was to this consideration that the preventive vigor which constitutes so importaut a difference between the statutes of the United States and Great Britain owes its origin.

Peculiar advan

ty's Government for

ecutive power.

VI. The limited territory of Great Britain, its complete system of magistracy, its extensive and ramified organization of comtages of Her Majes- mercial and port regulations, for the inspection and control the exercise of Ex- of its immense customs revenue, shipping, and navigation, its network of railroads and telegraphs, which brought every part of its narrow territory under the eye and hand of the central administration, gave to the Government the instant and universal means of executing its purposes of international duty, without chance of miscar riage or need of delay.

Omnipotence of

Parliament.

VII. The omnipotence of Parliament, the great principle of the British constitution, was always at the service of the Government, to supply, extend, or confirm its authority in the mater of international duty, and the means and agencies of its prompt, vigilant, and adequate exercise. Parliament was in session at the time of the Queen's Proclamation, and took notice, at the moment, of the effects it had produced in the law of piracy as applicable to the maritime violence it would induce, as well as of the probable maritime instruments that the Rebel interests would press into their service. Parliament was in session, also, when the Florida and Alabama were in course of construction, when the Government was deliberating upon their detention, and when they actually escaped unimpeded. The alacrity with which Parliament could respond with immediate and effective legislation at the call of the Government, and upon the occasion of opening war calling into exercise the fulfillment by Great Britain of its international duty of neutrality, is clearly shown by the debate and action of Parliament in the passage of the new foreign-enlistment act of 1870. We refer again to Note B of the Appendix to this Argument.

Upon the whole, then, it is not to be gainsaid that the Government of Great Britain had at its command every means in their nature and in their energy and scope that any Power needs or possesses for the fulfillment of the obligations assigned to it within the premises of this Arbitrati on, by the Treaty of Washington or the law of nations.

THE DUTY OF GREAT BRITAIN IN ITS TREATMENT OF THE OFFENDING VESSELS AFTER THEIR FIRST ILLEGAL OUTFIT AND ESCAPE FROM BRITISH PORTS.

I. This subject, discussed at some length in the British Case and Counter Case, may be disposed of by a few elementary propositions : (a) It is undoubtedly consonant with principle and usage, that a public-armed vessel of a sovereign power should be accorded ex-territoriality ac certain privileges in the ports and waters of other national war is political and jurisdictions not accorded to private vessels. The substance of these privileges is a limited concession of the character

The privilege of corded to a vessel of

discretionary.

of continued territoriality of the State to which they belong, and a consequent exemption from the jurisdiction of the courts and process of the nation whose ports or waters they visit. But the same reason which gives support to this immunity throws them under the immediate political treatment of the hospitable State, as represented by its Executive head, in the conduct of this international, if subordinate, relation. How, under the circumstances of each case calling for Executive action, the vessels are to be dealt with is determined, in the first instance, by the Government having occasion to exhibit the treatment. For its decision, and the execution of it, it is responsible, politically and internationally, and not otherwise, to the sovereign whose public ships have been so dealt with. That, ordinarily, the offense calling for remonstrance or intervention would not be made the subject of immediate and forcible correction, applied to the vessel itself, but would be brought to the attention of its sovereign for correction or punishment and apology, or other amends, may be assumed. But all this is at the discretion of the power having occasion to exert, control, seek redress, or exhibit resentment.

The flagrancy or urgency of the case may dictate another course, to be justified to the sovereign affected upon such considerations.

erent not recognized

(b) When, however, the anomalous vessels of a belligerent not recognized as a nation or as a sovereign claim a public character It should not be in the port of hospitality, the only possible concession of acceded to a bellis such character must, in subtracting them from judicial con- as a political power. trol, subject them to immediate political regulation applied to the vessels themselves. There is behind them no sovereign to be dealt with, diplomatically or by force. The vessels themselves present and represent at once whatever theoretical public relation exists or has been accepted. To hold otherwise would make the vessels wholly lawless and predominant over the complaisant sovereign, helplessly submissive to the manifold irresponsibilities the quasi public vessels assume to themselves. (c) The necessary consequence is that when the offending vessels of the non-sovereign belligerent have taken the seas only by The only remedy defrauding or forcing the neutrality of the nation whose hos- against such bellig. pitality they now seek, such nation has the right, and, as they against the toward the injured nation demanding its action upon the vessels themselves. offending vessels, is under the obligation, to execute its coersive, its repressive, its punitive control over the vessels themselves. It cannot excuse itself to the injured nation for omission or neglect so to do by exhibiting its resentment against, or extorting redress from, any responsible sovereign behind the vessels; nor can it resort to such sovereign for indemnity against its own exposure to reprisals or hostilities, by the injured nation, or for the cost of averting them.

erent, in a case like present, is remedy

Great Britain

have seized the ves

II. Upon these plain principles, it was the clear duty of Great Britain, in obedience to the international obligations insisted upon by the Treaty, and the supporting principles of the law of ought, therefore, to nations invoked by its requirement, to arrest these offending sels. vessels as they fell under its power, to proscribe them from all hospitality or asylum, and thus to cut short aud redress the injury against the United States which it had, for want of "due diligence" in fulfilling its duty of neutrality, been involved in. The power, full and free, to take this course is admitted by the British Government in its Case and Counter Case. Whatever motives governed Great Britain in refusing to exercise this power, such refusal, as toward the United States, is without justification, and for the continued injuries inflicted by the offending vessels Great Britain is responsible, and must make indemnity.

DUE DILIGENCE AS REQUIRED BY THE THREE RULES OF THE TREATY AND THE PRINCIPLES OF INTERNATIONAL LAW NOT INCONSISTENT THEREWITH.

Due diligence.

I. The subject of "due diligence," both in its nature and its measure, as an obligatory duty of Great Britain under the Three Rules of the Treaty, is much considered, upon principle and authorities, in the Case of the United States, and is commented upon, with some fullness, in the British Case and Counter Case. Neither a very technical nor a merely philosophical criticism of this definite and practical phrase, adopted by the High Contracting Parties and readily estimable by the Tribunal, can be of much service in this Argument. Some propositions and illustrations may aid the Arbitrators in applying the obligation thus described to the facts and circumstances under which its fulfillment or failure therein is to be decided by their award.

After proof of hosterritory, the burden

neutral to show due

them.

II. The foundation of the obligation of Great Britain to use “due diligence to prevent " certain acts and occurrences within its jutile acts on nentral risdiction, as mentioned in the Three Rules, is that those acts of proof is on the and occurrences within its jurisdiction are offenses against diligence to prevent international law, and, being injurious to the United States, furnish just occasion for resentment on their part, and for reparation and indemnity by Great Britain, unless these offensive acts and occurrences shall be affirmatively shown to have proceeded from conduct and causes for which the Government of Great Britain is not responsible. But, by the law of nations, the state is responsible for all offenses against international law arising within its jurisdiction, by which a foreign State suffers injury, unless the former can clear itself of responsibility by demonstrating its freedom from fault in the premises.

The High Contracting Parties, mindful as well of this principal proposition of responsibility of a State as of this just limitation upon it, have assigned as the true criterion by which this responsibility is to be judged, in any case arising between nations, the exhibition or omission on its part of "due diligence to prevent" the offenses which, of themselves, import such responsibility. The offenses and the injuries remain, but the responsibility of the one nation and the resentment of the other therefor are averted by exculpation of the State at whose charge the offenses lie, upon adequate proofs to maintain its defense.

The nature of the presumptive relation which the State bears to the offenses and injuries imputed and proved, necessarily throws upon it the burden of the exculpatory proof demanded, that is to say, the proof of due diligence on its part to prevent the offenses which, in fact, and in spite of its efforts, have been committed within its jurisdiction, and have wrought the injuries complained of.

III. It is incumbent, then, upon Great Britain to satisfy the Tribunal that it used "due diligence to prevent" what actually took place, and for which, in the absence of such "due diligence to prevent," the Tribunal will adjudge it responsible. The nature of "diligence," and the measure of it exacted by the qualifying epithet "due," may now be considered.

Diligence not a

(a) The English word diligence in common usage, and in the text of the treaty alike, adheres very closely to the Latin original, technical word. diligentia. It imports, as its derivation from diligo (to love, or to choose earnestly) requires, enlistment of zealous purpose toward the object in view, and activity, energy, and even vehemence, in its attainment. It has been adopted both in the civil law and in the common law of England, from common speech, and for this virtue in its

vulgar meaning, which can give practical force and value to the legal duty it is used to animate and inspire. So far, then, from the word bearing a technical or learned sense, in its legal application either to private or national obligations, the converse is strictly true. A definition from approved authorities of the English language, common to the high contracting parties, is the best resort for ascertaining the sense intended in the text of the treaty. Webster defines "diligence" as follows: "Steady application in business of any kind; constant effort to accomplish what is undertaken; exertion of body or mind, without unnecessary delay or sloth; due attention; industry; assiduity." He gives also this illustrative definition: "Diligence is the philosopher's stone that turns everything to gold;" and cites, as the example of its use, this verse from the English Scriptures: "Brethren, give diligence to make your calling and election sure."

We confidently submit that no appreciation of the sense of this cardinal phrase of the Treaty is at all competent or adequate which does. not give full weight to the ideas of enlisted zeal, steady application, constant effort, exertion of all the appropriate faculties, and without weariness or delay, attention, industry, and assiduity.

66 'Due" implies

propriateness,

(b) The qualifying epithet "due" is both highly significant and eminently practical. It requires the "diligence," in nature and measure, that is seasonable, appropriate, and adequate seasonableness, ap to the exigencies which call for its exercise. It is to be, in adequateness. method, in duration and in force, the diligence that is suitable to, or demandable by, the end to be accomplished, the antecedent obligations, the interests to be secured, the dangers to be avoided, the disasters to be averted, the rights that call for its exercise.1 "Præstat exactam diligentiam," a phrase of the civil law, is a just description of the undertaking "to use due diligence." Those who incur this obligation to prevent an injury are excused from responsibility, if they fail only by deficiency of power. "Ceux qui, pouvant empêcher un dommage que quelque devoir les engageait de prévenir, y auront manqué, pourront en être tenus suivant les circonstances.”2

Objections to Brit

term.

(c) The British Case and Counter Case attempt to measure "due diligence" in the performance of this international duty to the United States in the premises of this Arbitration by the ish definition of the degree of diligence which a nation is in the habit of employing in the conduct of its own affairs. It is objection enough to this test that it resorts to a standard which is in itself uncertain and fluctuating, and which, after all, must find its measure in the same judgment which is to pass upon the original inquiry, and to which it may better be at once and directly applied. It is quite obvious, too, that this resort can furnish no standard, unless the domestic "affairs" referred to be of the same nature, magnitude, and urgency as the foreign obligations with which they are thus to be compared. Probably, the United States might be well satisfied with the vigilance and activity, and scope and energy of means, that Great Britain would have exhibited to prevent the outfit and escape from port of the Alabama and her consorts, had her own commerce been threatened by the hostilities they were about to perpetrate, and her own ships been destined to destruction by the fires they were to light. But this is not the standard which the Arbitrators are invited to assume by this reasoning of the British Case and Counter Case. They are expected to measure the due diligence

1 See Webster's Dictionary in verbo DUE.

2 Domat, Lois civiles, liv. ii, tit. 8, § 4, No. 8.

which Great Britain was to use, under the requirements of the Treaty, to prevent the destruction of the commerce and maritime property of the United States by the ordinary system of detection of frauds upon the customs. Even this comparison would not exculpate, but would absolutely condemn, the conduct of Great Britain in the premises; but the standard is a fallacious application of the proposed measure of diligence, and the measure itself, as we have seen, is wholly valueless. III. The maxims and authorities of the law of "due diligence" in the determination of private rights and redress of private by British and Ameri- injuries may not very often present sufficiently near analogies, in the circumstances to which they are applied, to the matter here under judgment, to greatly aid the deliberations of the Tribunal. There is, however, one head of the law of private injuries, familiar to the jurisprudence of these two great maritime powers, which may furnish valuable practical illustrations of judicial reason which they both respect, and whose pertinency to certain considerations proper to be entertained by the Arbitrators cannot be disputed. We refer to the law of responsibility and redress for collisions at sea.

Judicial definitions

can courts.

In the first place, this subject of marine collisions is regarded by scientific writers on the law of diligence as falling within the rules which govern liability for ordinary negligence, the position in which the contentions of the British Case and Counter Case seek to place international responsibility of Great Britain to the United States.

In the second place, the controversy between the parties in these cases is admitted to exclude the notion of intent or willful purpose in the injury, an element so strongly insisted upon in defending Great Britain here against the faults laid to her charge by the United States. In the third place, the circumstances of difficulty, danger, obscurity, uncontrollable and undiscoverable influences, and all possible opportunities of innocent error or ignorance, form the staple elements of the litigation of marine collisions, as they are urged, with ingenuity and persistency, in defense before this Tribunal against the responsibility of Great Britain for the disasters caused to the United States by the means and agencies here under review.

And, lastly, the eminent judges who have laid down the law for these great maritime Nations, in almost complete concurrence, in this department of jurisprudence, have not failed to distinguish between fault and accident, in a comprehensive and circumspect survey of the whole scene and scope of the occurrences, from the moment that the duty arose until the catastrophe, and through all the stages of forecast, precaution, provision, and preparation, which should precede, and of zeal, activity, promptitude, and competency, which should attend, the immediate danger. We cite a few cases, not dependent upon a knowledge of their special facts for the value of the practical wisdom they inculcate, and taken, with a single exception, from British decisions:

In law, inevitable accident is that which a party charged with an offense could not possibly prevent by the exercise of ordinary care, caution, and maritime skill. It is not enough to show that the accident could not be prevented by the party at the very moment it occurred, but the question is, could previous measures have been adopted to render the occurrence of it less probable? (The Virgil, 7 Jur., 1174; 2 W. Rob., 205; Notes of Cases, 499; The Juliet Erskine, 6 Notes of Cases, 633; The Mellona, 3 W. Rob., 13; 11 Jur., 783; 5 Notes of Cases, 450; The Dura, 5 (Irish) Jur., (N. S.,) 384.) 1 In order to establish a case of inevitable accident, he who alleges it must prove that what occurred was entirely the result of some vis major, and that he had neither contributed to it by any previous act or omission, nor, when exposed to the influence of the force, had been wanting in any effort to counteract it. (The Despatch, 3 L. J., (N. S.) 220.) 2

1 Pritchard's Adm. Dig., 2d ed., vol. i, p. 133.

2 Ibid., p. 134.