It is not a vis major which excuses a master, that his vessel had caused damages to another in a tempest of wind, when he had warning and sufficient opportunity to protect her from that hazard. (The Lotty, Olcott, Adm., 329.) 1

It is no excuse to urge that from the intensity of the darkness no vigilance, however great, could have enabled the vessel doing the damage to have descried the other vessel in time to avoid the collision. In proportion to the greatness of the necessity, the greater ought to have been the care and vigilance employed. (The Mellona, 11 Jur., 783; 3 W. Rob., 13; 5 Notes of Cases, 450.) 2

It is necessary that the measures taken to avoid a collision should not only be right, but that they should be taken in time. (The Trident, 1 Spink's Eccl. and Adm. Rep., 222.) 3

If circumstances arise evidently and clearly requiring prudential measures, and those measures are not taken, and the natural result of such omission is accident, the court would be inclined to hold the party liable, even if such result were only possible. (The Itinerant, 2 W. Rob., 240; 8 Jur., 131; 3 Notes of Cases, 5.) 4

The want of an adequate look-out at the time on board a vessel at sea is a culpable neglect on her part, which will, prima facie, render her responsible for injuries received from her: (The Emily, Olcott, Adm., 132; 1 Blatch. Ct. Ct., 236; The Indiana, 1 Abb., Adm., 330.) 5

To constitute a good look-out there must be a sufficient number of persons stationed for the purpose, who must know and be able to discharge that duty. The George, 9 Jur., 670; 4 Notes of Cases, 161. 6

construction.

IV. In assigning a just force to the "due diligence," upon the presence of which, in the failure of Great Britain actually to The United States prevent the injuries complained of, its exculpation by the do not desire a severe tribunal is to turn, we have had no occasion to insist upon any severity or weight of obligation too burdensome for the relation of neutrality to endure. On the contrary, both the sentiments and the interests of the United States, their history and their future, have made, and will make, them the principal advocates and defenders of the rights of neutrals before all the world. In pleading before this Tribunal for indemnity at the hands of Great Britain for the vast injuries which its non-fulfillment of neutral duties has caused, the United States desire no rule or measure of such duties to be assumed or applied by this tribunal that its enlightened and deliberate judgment would not assign as suitable to govern the conduct of each one of the equal and independent Powers which are represented in. this Arbitration. The They do not proUnited States do not themselves undertake to become to pose to become guarother nations guarantors of the action of all persons within ple. their jurisdiction, and they assert no such measure of responsibility against Great Britain. They lay no claim to perfection or infallibility of administration, or security against imposition, misadventure, miscarriage, or misfortune, nor would they seek to charge Great Britain, or any other nation, upon any such requirement or accountability. But the United States do maintain that the disposition and action comporting with "due diligence," as reasonably interpreted, are adequate to prevent, and will prevent, but for extraordinary obstacles or accidents, violations, by a powerful State, of its duties to other nations; that when such prevention fails, the proof of this disposition and action toward prevention, and of the obstacles and accidents that thwarted the purpose and the effort, are demandable by the aggrieved nation, and that upon that proof the judgment of exculpation or inculpation is to proceed.

antors of their peo

V. In conclusion, we conceive that the Arbitrators are unquestionably the rightful judges of what constitutes "due diligence," in The Arbitrators the the sense of the Treaty, and that this secures not only to the judges of what concontending parties, but to the rights, duties, and interests gence.

1 Pritchard's Adm. Dig., 2d ed., vol. i, p. 134, note. Ibid., p. 135.

3 Ibid., p. 140.

stitutes due

4 Ibid., p. 141. 5 Ibid., p. 134, note. 6 Ibid., p. 143.

dili

cared for by the law of nations, a reasonable, a practical, and a permanent rule and measure of obligation, just in its judgment of the past, and wise and beneficent in its influence on the future. We concur in the final considerations of the British Counter Case on this subject of due diligence, in leaving "the Arbitrators to judge of the facts presented to them by the light of reason and justice, aided by that knowledge of the general powers and duties of administration which they possess as persons long conversant with public affairs."1

1 Brit. Counter Case, p. 125.

XII.—THE FAILURE OF GREAT BRITAIN TO FULFIL ITS DUTIES, AS ESTABLISHED AND RECOGNIZED BY THE TREATY, CONSIDERED UPON THE FACTS.

CONSIDERATIONS OF GENERAL APPLICATION.

the contention is.

con

It is assumed in the British Case, and argued in addition in the Counter Case, that the only vessels which fall within the descrip- The vessels tion of the first Article of the Treaty as "the several vessels cerning whose acts which have given rise to the claims generically known as the "Alabama claims,"" are the Florida, Alabama, Georgia, and Shenandoah. As to these vessels there is no contention in this respect, and they and their history and career are included, indisputably, within the jurisdiction conferred upon the Tribunal by the Treaty of Washington. The Case of the United States sets forth a list of certain other vessels, which they understand to be embraced within the jurisdiction of the Tribunal, and the circumstances of whose dispatch and career bring them within the application of the Rules of the Treaty, and of the condemnation of Great Britain by the Tribunal for failure to fulfill the duties in this regard insisted upon by these Rules, and the principles of International Law not inconsistent therewith. Of these, three, viz, the Clarence, the Tacony, and the Archer, are described as tenders of the Florida; and one, the Tuscaloosa, as a tender of the Alabama. The others, the Sumter, the Nashville, the Retribution, the Tallahassee, and the Chickamauga, are independent vessels. In addition to the evidence furnished by the history of each of these vessels in the Case of the United States, the Counter Case presents special considerations to show that all these vessels fall within the description of the Treaty jurisdiction of the Tribunal.1

The specific facts connected with these several vessels have been made the subject of comment in previous pages of this Argument, and they do not need to be further specially noted at present. Undoubtedly the "considerations of fact of general application," which now occupy our attention, have their most important relation to the Florida, the Alabama, the Georgia, and the Shenandoah, the principal agents in the injuries to the United States which enter into the subject of this Arbitration, and any special applicability to the circumstances of the other vessels need not at present attract our attention.

We present now to the notice of the Arbitrators certain Failure of Great GENERAL FACTS which inculpate Great Britain for failure to Britain to fulfill its fulfill its obligations in the premises, as assigned by the Treaty.

obligations.

I. The absolute omission by Great Britain to organize or set on foot any scheme or system of measures, by which Negligence in ob the Government should be put and kept in possession of taining information. information concerning the efforts and proceedings which the interests of the Rebel belligerents, and the co-operating zeal or cupidity of its own subjects would and did plan and carry out, in violation of its neutrality,

1 Counter Case of the United States, pp. 3, 4..

is conspicuous from the outset to the close of the transactions now under review. All the observations in answer to this charge, made iu the contemporary correspondence, or in the British Case or Counter Case, necessarily admit its truth, and oppose the imputation of want of" due diligence" on this score, upon the simple ground that the obligations of the Government did not require it, and that it was an unacceptable office, both to Government and people.

No general means provided.

Closely connected with this omission was the neglect to provide any systematic or general official means of immediate action of immediate action in the various ports or ship-yards of the kingdom, in arrest of the preparation or dispatch of vessels, threatened or probable, until a deliberate inspection should seasonably determine whether the hand of the Government should be laid upon the enterprise, and its project broken up and its projectors punished. The fact of this neglect is indisputable; but it is denied that the use of "due diligence to prevent" involved the obligation of any such means of prevention.

No general instruc

ilance.

We cannot fail to note the entire absence from the proofs presented to the Tribunal of any evidence exhibiting any desire or tions to maintain vig- effort of the British Government to impress upon its staff of officers or its magistracy, of whatever grade, and of general or local jurisdiction, by proclamation, by circular letters, or by special instructions, any duty of vigilance to detect, of promptitude to declare, of activity to discourage, the illegal outfit or dispatch of vessels in vio lation of international duty towards the United States.

maintaining proceed

ings,

It is not less apparent that Great Britain was without any proseNo officers charged cuting officers to invite or to act upon information which with instituting and might support legal proceedings to punish, and, by the terror thus inspired, to prevent the infractions of law which tended to the violation of its international duty to the United States. It was equally without any system of executive officers specially charged with the execution of process or mandates of courts or magistrates to arrest the dispatch or escape of suspected or incriminated vessels, and experienced in the detective sagacity that could discover and appreciate the evidence open to personal observation, if intrusted with this executive duty.

It is no answer to the imputation of want of "due diligence" in all this, that Great Britain dispensed with prosecuting officers in its maintenance of public justice, and relied upon the private interests of aggrieved parties to prosecute, at their own charge, and by their own lawyers, for crimes or offenses against the laws. It may be that murder, and burglary, and forgery, and frauds, in Great Britain, can be thus safely left to private prosecutions, because of the common interest and protection of the community securing due attention to the public justice, where all are enlisted to punish, and all feel the need of protection. But what analogy is there, in this situation, to the case of international obligation, where a foreign nation is the only sufferer, and interest and feeling in the domestic community are, at the best, indifferent and remote from the crime and its consequences? The actual hostile disposition of the population of the ports and emporiums of Great Britain at the time of these international injuries to the United States we need not, for the purpose of this suggestion, insist upon. The result of all this was that the Government of Great Britain, in the various ways we have suggested, exhibited none of the break up the hostile disposition or action which we have insisted upon as included in the requirement of "due diligence to prevent" the occurrence of the injuries to the United States from the offending ves

No steps taken to

system.

sels of which they now complain. Early advised and persistently reminded by the Minister of the United States of the system and organization introduced within the jurisdiction of Great Britain to prepare, put forth, and maintain from thence maritime war against the United States, the Government of Great Britain took no steps to be informed of, to break up, or to punish this system, or preclude or render difficult, in advance, particular projects in aid of this general purpose. It early adopted and steadily adhered to the method (1) of regarding the whole duty as a domestic one of enforcement of municipal law, and (2) of reducing the function of the Executive Government of England to that of a magistrate receiving the complaints of the United States, and, with such legal acumen as it could command, disposing of them upon the sole consideration of the completeness of the offense against the municipal law, and the competency and sufficiency of the proof in hand to secure a conviction, should a prosecution be thought worth while.

This theory and practice of Great Britain, rejecting the international duty and, necessarily, omitting any spontaneous, strenuous, The idea of an inand organized movements, as a Government, towards or international duty the discharge of such duty, were in themselves wholly in- States rejected. consistent with, and contrary to "due diligence to prevent" the injuries to the United States, for which redress is now asked through the judg ment of the Tribunal.

The obligations of

Great Britain indetaken by the officers

pendent of step

of the United States

The proposition covers the case of vessels which, in the absence of these necessary means for inspection and scrutiny, escaped the special notice of the Government. That they were not complained of, or discovered by the Minister of the United States, does not relieve Great Britain from its duty of "due in Great Britain. diligence" to discover them, and to prevent their escape. The duty would have existed, if misfortune had deprived the United States of such a representative, or if broken diplomatic relations had removed him from the Kingdom. The proposition covers the cases of the Florida and the Alabama, were their more immediate features less obvious, and Great Britain's failure in duty only general. The proposition covers the cases of the Georgia and the Shenandoah, which escaped without attracting the notice of the British government, for the very best reason in the world, that it had taken no means to observe, to detect, or prevent their departure.

The Arbitrators will observe the wide difference from these views and conduct of Great Britain in the estimate which the United States have put upon their duty in these respects, of spontaneous, organized, and permanent vigilance and activity, and in the methods and efficacy of its performance. On all the occasions upon which this duty has been called into exercise, the Government of the United States has enjoined the spontaneous and persistent activity of the corps of District Attorneys, Marshals, Collectors, and the whole array of their subordinates, in the duties of observation, detection, information, detention, prosecution, and prevention.

The Government of

earnest to maintain

tral.

These chapters in the history of the law of nations, as observed by the United States, need not here be reviewed. The materials in the proofs before the Arbitrators are ample for their United States always examination, if occasion in their delibrations should arise. its duties as a neuWhatever actual failures may have occurred in the execution by the United States of this admitted duty, they have been not for the want of, but in spite of, the exhibition and earnest prosecution of these general, spontaneous, and comprehensive means of prevention, the entire absence of which we complain of in the conduct of the Govern